26:2C-1. Short title
This act shall be known and may be cited as the "Air Pollution Control Act (1954)."

L.1954, c. 212, p. 780, s. 1.

26:2C-2 Definitions.

As used in this act:

"Air contaminant" means any substance, other than water or distillates of air, present in the atmosphere as solid particles, liquid particles, vapors, or gases;

"Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property throughout the State and in those areas of the State as shall be affected thereby, and excludes all aspects of an employer-employee relationship as to health and safety hazards;

"Antimicrobial pesticide" means a product that destroys or repels, or prevents or mitigates the growth of, any bacteria, fungus, virus or other micro-organism that is defined as a pest pursuant to 7 U.S.C. s.136w (c)(1), and includes any product required to be registered as an antimicrobial pesticide pursuant to the "Federal Insecticide, Fungicide and Rodenticide Act," 7 U.S.C. s.136 et seq.;

"Commissioner" means the Commissioner of Environmental Protection;

"Construct" or "construction" means to fabricate or erect equipment or control apparatus at a facility where it is intended to be used, but shall not include the dismantling of existing equipment or control apparatus, site preparation, or the ordering, receiving, temporary storage, or installation of equipment or control apparatus. Unless otherwise prohibited by federal law, "construct" or "construction" shall also not include the pouring of footings or placement of a foundation where equipment or control apparatus is intended to be used;

"Consumer Price Index" or "CPI" means the annual Consumer Price Index for a calendar year as determined year to year using the decimal increase in the September through August, 12-month average for the previous year of the Consumer Price Index for All Urban Consumers (CPI-U), as published by the United States Department of Labor;

"Control apparatus" means any device that prevents or controls the emission of any air contaminant;

"Council" means the Clean Air Council created pursuant to section 3 of P.L.1967, c.106 (C.26:2C-3.2);

"Department" means the Department of Environmental Protection;

"Emission fee" means an annual fee that is based on the emission of any regulated air contaminant;

"Emission statement" means an annual reporting of actual emissions of air contaminants as prescribed by rules and regulations therefor that shall be adopted by the department pursuant to the "Administrative Procedure Act, " P.L.1968, c.410 (C.52:14B-1 et seq.);

"EPA" means the United States Environmental Protection Agency;

"Equipment" means any device capable of causing the emission of an air contaminant either directly or indirectly into the outdoor atmosphere, and any stack, chimney, conduit, flue, duct, vent, or similar device connected or attached to, or serving, the equipment, and shall include, but need not be limited to, any equipment in which the preponderance of the air contaminants emitted is caused by a manufacturing process;

"Facility" means the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons. Research and development facilities that are located with other facilities shall be considered separate and independent entities for the purposes of complying with the operating permit requirements of P.L.1954, c.212 (C.26:2C-1 et seq.) or any codes, rules, or regulations adopted pursuant thereto;

"Federal Clean Air Act" means the federal "Clean Air Act" (42 U.S.C.s.7401 et seq.) and any subsequent amendments or supplements to that act;

"Grandfathered" means construction, reconstruction, or modification of equipment or control apparatus prior to the date of enactment of section 13 of P.L.1967, c.106 (C.26:2C-9.2) on June 15, 1967, or prior to the subsequent applicable revisions to rules and regulations codified at N.J.A.C.7:27-8.1 et seq. that occurred March 5, 1973, June 1, 1976, April 5, 1985, and October 31, 1994;

"HAP" or hazardous air pollutant" means any air pollutant listed in or pursuant to subsection (b) of section 112 of the federal Clean Air Act (42 U.S.C. s.7412);

"Hospital or medical disinfectant" means an antimicrobial product registered with the United States Environmental Protection Agency that qualifies to bear the name or claim to be a "hospital or medical environment disinfectant" pursuant to United States Environmental Protection Agency guidelines published pursuant to 7 U.S.C. s.136a (c)(2)(A), and shall include, but shall not be limited to, antimicrobial pesticides used in hospitals, doctor and dentist offices, and other medical environments;

"Install" or "installation" means to carry out final setup activities necessary to provide equipment or control apparatus with the capacity for use or service, and shall include, but need not be limited to, connection of equipment or control apparatus, associated utilities, piping, duct work, or conveyor systems, but shall not include construction or reconfiguration of equipment or control apparatus to an alternate configuration specified in a permit application and approved by the department;

"Major facility" means a major source, as that term is defined by the EPA in rules and regulations adopted pursuant to the federal Clean Air Act at 40 CFR 70.2 or any subsequent amendments thereto, that has the potential to emit any of the air contaminants listed below in an amount that is equal to or exceeds the applicable major facility threshold levels as follows:
Air ContaminantThreshold level
Carbon monoxide 100 tons per year
Particulate matter (PM-10) 100 tons per year
Total suspended particulates 100 tons per year
Sulfur dioxide 100 tons per year
Oxides of nitrogen 25 tons per year
VOC 25 tons per year
Lead 10 tons per year
Any HAP 10 tons per year
All HAPs collectively 25 tons per year
Any other air contaminant 100 tons per year;

"Modify" or "modification" means any physical change in, or change in the method of operation of, existing equipment or control apparatus that increases the amount of any air contaminant emitted by that equipment or control apparatus or that results in the emission of any air contaminant not previously emitted, but shall not include normal repair and maintenance;

"Operating permit" means the permit described in Title V of the federal Clean Air Act (42 U.S.C. s.7661 et seq.);

"Person" means an individual, public or private corporation, company, partnership, firm, association, society, joint stock company, international entity, institution, county, municipality, state, interstate body, the United States of America, or any agency, board, commission, employee, agent, officer, or political subdivision of a state, an interstate body, or the United States of America;

"Potential to emit" means the same as that term is defined by the EPA in rules and regulations adopted pursuant to the federal Clean Air Act at 40 CFR 70.2 or any subsequent amendments thereto;

"Process unit" means equipment assembled to produce intermediate or final products. A process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. The storage and transfer of product or raw materials to and from the process unit shall be considered separate from the process unit for the purposes of making reconstruction determinations. Product recovery equipment shall be considered to be part of the process unit, not part of the control apparatus;

"Reconstruct" or "reconstruction" means the replacement of parts of equipment included in a process unit, or the replacement of control apparatus, if the fixed capital cost of replacing the parts exceeds both of the following amounts: (1) Fifty percent of the fixed capital cost that would be required to construct a comparable new process unit or control apparatus; and (2) $80,000 (in 1995 dollars) adjusted by the Consumer Price Index;

"Regulated air contaminant" means the same as the term "regulated air pollutant" as defined by the EPA in rules and regulations adopted pursuant to the federal Clean Air Act at 40 CFR 70.2 or any subsequent amendments thereto;

"Research and development facility" means any facility the primary purpose of which is to conduct research and development into new processes and products, including academic and technological research and development, provided that such a facility is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for commercial sale, except in a de minimis manner; and

"VOC" or "volatile organic compound" means the same as that term is defined by the EPA in rules and regulations adopted pursuant to the federal Clean Air Act at 40 CFR 51.100 or any subsequent amendments thereto.

L.1954,c.212,s.2; amended 1967, c.106, s.5; 1995, c.188, s.2; 1999, c.100, s.1.

26:2C-3.1. Air pollution control commission abolished; transfer of functions, powers and duties
The Air Pollution Control Commission is hereby abolished. All of the functions, powers and duties of the Air Pollution Control Commission in the Department of Health are hereby transferred to the Department of Health.

L.1967, c. 106, s. 2, eff. June 15, 1967.

26:2C-3.2. Clean Air Council
(a) There is hereby created in the State Department of Health a Clean Air Council, which shall consist of 17 members, 3 of whom shall be the Commissioner of Commerce and Economic Development or a member of the Department of Commerce and Economic Development designated by him, the Commissioner of Community Affairs or a member of the Department of Community Affairs designated by him, and the Secretary of Agriculture or a member of the Department of Agriculture designated by him, who shall serve ex officio; six citizens of the State, representing the general public at least one of whom shall be a medical doctor licensed to practice in this State; and eight members to be appointed from persons to be nominated by the organizations hereinafter enumerated, by the Governor.

(b) Within 30 days following the effective date hereof and thereafter as required, at least one month prior to the expiration of the term of the member chosen from nominees of each organization hereinafter enumerated, each such organization shall submit to the Governor a list of three recommended nominees for membership on the council, from which list the Governor shall appoint one.

If any organization does not submit a list of recommended nominees at any time required by this act, the Governor may appoint a member of his choice.

The organizations which shall be entitled to submit recommended nominees are: New Jersey Health Officers Association, New Jersey State Chamber of Commerce, New Jersey Society of Professional Engineers, Inc., New Jersey Manufacturers Association, New Jersey Section of the American Industrial Hygiene Association, New Jersey State League of Municipalities, the New Jersey Freeholders' Association and the New Jersey State AFL-CIO.

(c) Of the 14 members first to be appointed, four shall be appointed for terms of one year, four for terms of two years, three for terms of three years and three for terms of four years. Thereafter, all appointments shall be made for terms of four years. All appointed members shall serve after the expiration of their terms until their respective successors are appointed and shall qualify, and any vacancy occurring in the appointed membership of the council, by expiration of term or otherwise, shall be filled in the same manner as the original appointment, for the unexpired term only, notwithstanding that the previous incumbent may have held over and continued in office as aforesaid. The Governor may remove any appointed member of the council for cause after a public hearing.

(d) Members of the council shall serve without compensation but shall be reimbursed for expenses actually incurred in attending meetings of the council and in the performance of their duties as members thereof.

(e) The council shall elect annually a chairman and vice-chairman from its own membership.

L. 1967, c. 106, s. 3, eff. June 15, 1967. Amended by L. 1967, c. 286, s. 5, eff. Jan. 23, 1967; L. 1985, c. 430, s. 2, eff. Jan. 13, 1986.

26:2C-3.2a. Clean air council; membership by state commissioner of health
In addition to the membership of the Clean Air Council prescribed by P.L.1967, c. 106, s. 3 (C. 26:2C-3.2), the State Commissioner of Health or a member of his staff designated by him shall be a member of the council.

L.1973, c. 102, s. 1, eff. May 2, 1973.

26:2C-3.3. Powers and duties of council
The Clean Air Council shall:

(a) Request from the commissioner information concerning the Air Pollution Control Program;

(b) Consider any matter relating to the preservation and improvement of the Air Pollution Control Program and advise the commissioner thereof;

(c) From time to time submit to the commissioner any recommendations which it deems necessary for the proper conduct and improvement of the Air Pollution Control Program;

(d) Study the Air Pollution Control Program and make its recommendations thereon to the commissioner;

(e) Study the codes, rules and regulations promulgated by the department in regard to air pollution control and make its recommendations for their improvement to the commissioner;

(f) Study and investigate the state of the art and the technical capabilities and limitations of air pollution control and report their findings and recommendations thereon to the commissioner;

(g) Study and investigate the need for programs for the long-range technical support of the Air Pollution Control Program and report their findings and recommendations thereon to the commissioner; and

(h) Hold public hearings at least once a year in regard to existing air pollution control, statutes, codes, rules and regulations and upon the state of the art and technical capabilities and limitations in air pollution control and report its recommendations thereon to the commissioner.

L.1967, c. 106, s. 4, eff. June 15, 1967.

26:2C-8 Powers of department relative to air pollution.
8. a. The department shall have power to formulate and promulgate, amend and repeal codes and rules and regulations preventing, controlling and prohibiting air pollution throughout the State or in such territories of the State as shall be affected thereby, except as provided in subsection b. of this section; provided, however, that no such code, rule or regulation and no such amendment or repeal shall be adopted except after public hearing to be held after 30 days' prior notice thereof by public advertisement of the date, time and place of such hearing, at which opportunity to be heard by the department with respect thereto shall be given to the public; and provided, further, that no such code, rule or regulation and no such amendment or repeal shall be or become effective until 60 days after the adoption thereof as aforesaid. Any person heard at such public hearing shall be given written notice of the determination of the department.

All codes, rules and regulations heretofore adopted by the Air Pollution Control Commission shall continue in full force and effect subject to the power of the department to amend and repeal such codes, rules and regulations as provided by this act.

b.Unless otherwise required by federal law, rule or regulation, no code, regulation, rule or standard may be adopted by the department that diminishes the efficacy of a hospital or medical disinfectant in killing or inactivating agents of infectious diseases, including, but not limited to, restrictions on the volatile organic compound content or emissions caused by the use of such products. No federal requirement to reduce volatile organic compound content or emissions in general may be construed to permit the department to regulate the volatile organic compounds found in, or released in the use of, a hospital or medical disinfectant, unless the federal law, rule or regulation establishing the federal requirement specifically requires the reduction of volatile organic compounds found in, or released in the use of, hospital or medical disinfectants.

L.1954,c.212,s.8; amended 1962, c.215, s.2; 1967, c.106, s.6; 1999, c.100, s.2.

26:2C-8.1. Codes, rules, regulations concerning motor vehicles
1. a. The department, after consultation with the Director of the Division of Motor Vehicles, shall have the power to formulate and promulgate, amend and repeal codes, rules and regulations establishing standards and requirements for the control of air contaminants from motor vehicles.

b. The department, after consultation with the Director of the Division of Motor Vehicles, shall adopt rules and regulations, consistent with the federal Clean Air Act, establishing exhaust emission standards and test methods and standards for emission control apparatus and related items. The department shall not require the "I/M 240" test, but shall adopt an alternative test that is acceptable to the United States Environmental Protection Agency. The department may provide that the standards and test methods vary according to the model year, type, or other vehicle characteristic that the department deems necessary to facilitate inspections or to comply with the federal Clean Air Act. The emission standards and test methods adopted pursuant to this subsection shall not set any quota for emission test failures and shall not require the failure of motor vehicles at any predetermined rate. This subsection shall not preclude the use of the "I/M 240" test in sampling for performance evaluation only or the use of the test at the option of a private inspection facility.

L.1966,c.16,s.1; amended 1967,c.106,s.11; 1995,c.112,s.37; 1995,c.157,s.32.

26:2C-8.2. Applicability of code, rule, regulation to classes of vehicles
2. Any code, rule or regulation establishing standards and requirements for the control of air contaminants from motor vehicles shall be applicable to such classification of motor vehicles as the department shall determine to be necessary to carry out the purpose of P.L.1966, c.16 (C.26:2C-8.1 et seq.).

L.1966,c.16,s.2; amended 1967,c.106,s.12; 1995,c.112,s.38.

26:2C-8.3. Standards and requirements for control of air contaminants; motor vehicles having air pollution control devices
Such codes, rules and regulations shall establish standards and requirements for the control of air contaminants from motor vehicles manufactured with air pollution control devices, systems or engine modifications consistent with the requirements of the "Motor Vehicle Air Pollution Control Act" (77 Stat. 392, 42 U.S.C. 1857) and any amendments and supplements thereto.

L.1966, c. 16, s. 3.

26:2C-8.4. Standards and requirements for control of air contaminants; motor vehicles without air pollution control devices
Such codes, rules and regulations shall establish standards and requirements for control of air contaminants which can reasonably be attained by properly functioning motor vehicles without the addition of any air pollution control devices, systems, or engine modifications provided such vehicles were not manufactured with pollution control devices, systems or engine modifications in accordance with the "Motor Vehicle Air Pollution Control Act" (77 Stat. 392, 42 U.S.C. 1857).

L.1966, c. 16, s. 4.

26:2C-8.5. Manner of formulation and promulgation of codes, rules and regulations
All codes, rules and regulations shall be formulated and promulgated in the manner provided for in section 8 of the act to which this act is a supplement.

L.1966, c. 16, s. 5.

26:2C-8.10. Sale, use of reformulated gasoline; program expiration
5.The department shall not adopt rules and regulations requiring, for gasoline-fueled motor vehicles, the sale and use of reformulated gasoline other than that certified therefor by the United States Environmental Protection Agency pursuant to subsection (k) of 42 U.S.C. s.7545 for sale and use in states other than the State of California. If the sale and use of reformulated gasoline other than that so certified is required by federal law, rule, regulation, agency ruling, order, opinion, or other action or court order to be sold for use, and used, in gasoline-fueled motor vehicles in New Jersey because the State has implemented the California Low Emission Vehicle program pursuant to subsection a. of section 3 of P.L.2003, c.266 (C.26:2C-8.17), the California Low Emission Vehicle program implemented in New Jersey pursuant to P.L.2003, c.266 (C.26:2C-8.15 et al.) shall expire 180 days from the date of enactment of the federal law, adoption of the federal rule or regulation, issuance of the agency ruling, order, opinion, or other action, or issuance of the court order, as the case may be.

L.1993,c.69,s.5; amended 2003, c.266, s.8.

26:2C-8.11 Air pollution control rules, regulations.
6. a. The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations implementing the following mandated air pollution control measures identified in the federal Clean Air Act and consistent with any rules, regulations, or guidelines that may be promulgated therefor by the United States Environmental Protection Agency:

(1)Enhanced vehicle inspection and maintenance program;

(2)Correction of reasonably available control technology rules for volatile organic compounds;

(3)Reasonably available control technology rules for volatile organic compounds;

(4)Reasonably available control technology rules for oxides of nitrogen;

(5)New source review regulations for volatile organic compounds, oxides of nitrogen, and carbon monoxide;

(6)Criteria and procedures for determining conformity between the State implementation plan and transportation plans; and

(7)Use in ozone nonattainment areas of federal reformulated gasoline that meets the requirements of subsection (k) of 42 U.S.C. s.7545 for sale and use in states other than the State of California.

b.As used in this section:

"Department" means the Department of Environmental Protection;

"Federal Clean Air Act" means the federal "Clean Air Act," 42 U.S.C. s.7401 et seq., and any subsequent amendments or supplements to that act; and

"State implementation plan" means the State implementation plan for national ambient air quality standards adopted for New Jersey pursuant to the federal Clean Air Act.

L.1993,c.69,s.6; amended 2003, c.266, s.9.

26:2C-8.14 Written report, list, inventory.

10. a. The Department of Environmental Protection, in consultation with the Commissioner of Transportation and the Chief Administrator of the New Jersey Motor Vehicle Commission, shall prepare and submit on a semi-annual basis to the Senate Environment Committee and the Assembly Environment and Solid Waste Committee, or their successors as designated respectively by the President of the Senate and the Speaker of the General Assembly, a written report that shall:

(1)summarize the State implementation plan and any amendments, alterations, or supplements to that plan that have been made or proposed since the last semi-annual report was issued; and

(2)analyze the progress and effectiveness of the State implementation plan with respect to ensuring that the State shall be, and shall remain, in compliance with all applicable requirements, standards, and deadlines set forth in the federal Clean Air Act.

As used in this subsection: "federal Clean Air Act" means the federal "Clean Air Act," 42 U.S.C. s.7401 et seq., and any subsequent amendments or supplements to that act; and "State implementation plan" means the State implementation plan for national ambient air quality standards adopted for New Jersey pursuant to the federal Clean Air Act.

b.(Deleted by amendment, P.L.2003, c.266).

c.(Deleted by amendment, P.L.2003, c.266).

L.1993,c.69,s.10; amended 2003, c.266, s.10.

26:2C-8.15 Findings, declarations relative to California Low Emission Vehicle program.

1.The Legislature finds and declares that the implementation of the National Low Emission Vehicle program is a key component of the State's efforts to achieve on-time emissions reductions and to attain compliance with the national ambient air quality standards, as required pursuant to the federal "Clean Air Act Amendments of 1990," 42 U.S.C. s.7403 et seq.; that the State's attainment of the national ambient air quality standards will require further, more stringent reductions in emissions of pollutants; that the California Low Emission Vehicle program provides for greater reductions in pollutants than the National Low Emission Vehicle program; and that the State has committed to implementing the National Low Emission Vehicle program until 2006 but can implement the California Low Emission Vehicle program after that year.

The Legislature further finds and declares that in the summer of 2002, New Jersey had the highest number of smog violations per monitoring station in the nation; that in December 2003, the United States Environmental Protection Agency announced its intention to designate the entire State as out-of-compliance with the agency's health-based standard for ozone; and that this designation by the United States Environmental Protection Agency would require the State to adopt a stronger, more comprehensive clean air plan for the State.

The Legislature further finds and declares that a significant percentage of particulate emissions, smog-forming emissions, and airborne cancer risk comes from vehicle emissions; that pollution from automobiles is expected to increase with the projected population increase estimate of an additional 1,200,000 people in the State in the next decade; and that mobile sources of emissions have received less regulatory attention than industrial facilities and area sources of pollution.

The Legislature further finds and declares that ground-level ozone, or smog, is formed when automobile, industrial and other pollutants chemically react with bright sunshine and high temperatures; that ground-level ozone irritates the respiratory system and can cause coughing, wheezing, chest pain and headaches; that ozone especially aggravates chronic respiratory diseases such as asthma and bronchitis; that ground-level ozone and other air toxics have a substantial negative impact on the health and quality of life of residents of the State; and that reducing ground-level ozone pollution will help reduce these negative health effects.

The Legislature therefore determines that it is in the public interest to: implement the California Low Emission Vehicle program beginning January 1, 2009; establish a zero emission vehicle credit bank for manufacturers; establish a Low Emission Vehicle Review Commission charged with reviewing the implementation of the program, the availability and success of the incentive, and the technology of zero emission vehicles; and provide an incentive for the purchase or lease of zero emission vehicles.

L.2003,c.266,s.1.

26:2C-8.16 Definitions relative to low emission vehicles.

2.As used in sections 1 through 7 of P.L.2003, c.266 (C.2C:2C-8.15 et seq.):

"Advanced technology partial zero emission vehicle" means a vehicle certified as an advanced technology partial zero emission vehicle pursuant to the California Air Resources Board vehicle standards for the applicable model year;

"California Low Emission Vehicle program" means the second phase of the low emission vehicle program being implemented in the State of California, pursuant to the provisions of the Federal Clean Air Act and the California Code of Regulations;

"Commissioner" means the Commissioner of Environmental Protection;

"Department" means the Department of Environmental Protection;

"Federal Clean Air Act" means the federal "Clean Air Act," 42 U.S.C. s.7401 et seq., and any subsequent amendments or supplements to that act;

"Low Emission Vehicle Review Commission" means the commission established by subsection a. of section 5 of P.L.2003, c.266 (C.26:2C-8.19);

"Partial zero emission vehicle" means a vehicle certified as a partial zero emission vehicle pursuant to the California Air Resources Board vehicle standards for the applicable model year;

"State implementation plan" means the State implementation plan for national ambient air quality standards adopted for New Jersey pursuant to the federal Clean Air Act;

"Zero emission vehicle" means a vehicle certified as a zero emission vehicle pursuant to the California Air Resources Board zero emission vehicle standards for the applicable model year, but shall not include an advanced technology partial zero emission vehicle or a partial zero emission vehicle; and

"Zero emission vehicle requirement" means the percentage or number of those vehicles certified as zero emission vehicles pursuant to the California Air Resources Board vehicle standards and required to be delivered by a manufacturer for sale or lease for the applicable model year, and any additional percentages or numbers of advanced technology partial zero emission vehicles or partial zero emission vehicles that may be delivered by a manufacturer for sale or lease to satisfy the zero emission vehicle requirement established by the California Air Resources Board in lieu of vehicles that meet the pure zero emission vehicle standard.

L.2003,c.266,s.2.

26:2C-8.17 Implementation of California Low Emission Vehicle program; substantive changes.

3. a. Notwithstanding any provision of a State implementation plan submitted by the Department of Environmental Protection to the United States Environmental Protection Agency pursuant to the requirements of the federal "Clean Air Act Amendments of 1990," 42 U.S.C. s.7403 et seq., to the contrary, the department shall implement the California Low Emission Vehicle program in the State beginning on January 1, 2009, except as provided pursuant to sections 6 and 7 of P.L.2003, c.266 (C.26:2C-8.20 and C.26:2C-8.21).

b.The Commissioner of Environmental Protection, within 30 days after a proposed major substantive change to the California Low Emission Vehicle program that, if adopted, would necessitate a corresponding substantive change to the program in New Jersey adopted pursuant to subsection a. of this section, shall provide written notice and a summary of the proposed substantive change to the Senate Environment Committee and the Assembly Environment and Solid Waste Committee, or their successors as designated respectively by the President of the Senate and the Speaker of the General Assembly.

c.The commissioner shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to implement the California Low Emission Vehicle program in the State beginning on January 1, 2009.

L.2003,c.266,s.3.

26:2C-8.18 Zero emission vehicle credit bank.

4. a. The Commissioner of Environmental Protection shall establish a zero emission vehicle credit bank to allow manufacturers to earn and bank vehicle equivalent credits for any advanced technology partial zero emission vehicle or partial zero emission vehicle produced and delivered for sale or lease in the State on or after January 1, 1999 and through December 31, 2008.

(1)In establishing the credit bank required by this section, the commissioner shall use the highest multiplier used by the California Air Resources Board for determining the allowable vehicle equivalent credits for each advanced technology partial zero emission vehicle or partial zero emission vehicle delivered for sale or lease in the State by a manufacturer on or after January 1, 1999 until the effective date of P.L.2003, c.266 (C.26:2C-8.15 et al.).

(2)Beginning on the effective date of P.L.2003, c.266 (C.26:2C-8.15 et al.), the commissioner shall use the multiplier used by the California Air Resources Board for the applicable model year for each advanced technology partial zero emission vehicle or partial zero emission vehicle delivered for sale or lease in the State by a manufacturer on or after the effective date of P.L.2003, c.266 (C.26:2C-8.15 et al.) and through December 31, 2008.

b. (1) Within 180 days after the effective date of P.L.2003, c.266 (C.26:2C-8.15 et al.), the commissioner shall publish a list in the New Jersey Register of the make and model of those motor vehicles that qualify as advanced technology partial zero emission vehicles or partial zero emission vehicles for the 1999 through 2003 model years.

(2)Annually thereafter, the commissioner shall publish a list in the New Jersey Register of the make and model of those motor vehicles that qualify as advanced technology partial zero emission vehicles or partial zero emission vehicles for that respective model year.

(3)The commissioner may revise any list published pursuant to this subsection as necessary to comply with the California Air Resources Board vehicle standards for the applicable model year.

c.Notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the commissioner shall, immediately upon filing the proper notice with the Office of Administrative Law, adopt such temporary rules and regulations as necessary to establish a zero emission vehicle credit bank pursuant to subsection a. of this section. These rules and regulations may include, but need not be limited to, the documentation to be submitted by a manufacturer to determine eligibility and participation in the credit bank established pursuant to subsection a. of this section, and fees for administrative services provided to implement the zero emission vehicle credit bank to be assessed to those manufacturers seeking to earn and bank credits. The temporary rules and regulations shall be in effect for a period not to exceed 270 days after the date of the filing, except that in no case shall the temporary rules and regulations be in effect one year after the effective date of P.L.2003, c.266 (C.26:2C-8.15 et al.). The temporary rules and regulations shall thereafter be amended, adopted or readopted by the commissioner as the commissioner determines is necessary in accordance with the requirements of the "Administrative Procedure Act."

d.The provisions of this section shall expire upon the passage of a concurrent resolution by the Legislature directing the department to implement the National Low Emission Vehicle program pursuant to subsection a. of section 6 of P.L.2003, c.266 (C.26:2C-8.20).

L.2003,c.266,s.4.

26:2C-8.19 Low Emission Vehicle Review Commission.

5. a. There is established the Low Emission Vehicle Review Commission consisting of 15 members as follows: the Director of the Environmental and Occupational Health Sciences Institute at Rutgers, the State University of New Jersey, or the director's designee; a representative of the Department of Environmental Protection appointed by the commissioner; one member of the General Assembly appointed by the Speaker of the General Assembly; one member of the Senate appointed by the President of the Senate; and 11 public members.

The 11 public members, to be appointed by the Governor with the advice and consent of the Senate, shall be as follows: two members representing manufacturers of automobiles sold within the State; two members representing automotive retailers and recommended to the Governor by the New Jersey Coalition of Automotive Retailers; two members of recognized Statewide environmental organizations; one member representing the New Jersey Public Interest Research Group; one member representing the New Jersey Institute of Technology and recommended to the Governor by the President of the New Jersey Institute of Technology; one member representing the American Lung Association of New Jersey; one member representing the Northeast States for Coordinated Air Use Management; and one member representing a zero emission vehicle technology company.

b.Any vacancies in the membership of the commission shall be filled in the same manner as the original appointments were made.

c.The Director of the Environmental and Occupational Health Sciences Institute at Rutgers, the State University of New Jersey, or the director's designee, shall serve as chairperson of the commission. The commission shall meet at the call of the chairperson, and the commission shall organize as soon as practicable after appointment of its members.

d.The members of the commission shall serve without compensation, but may be reimbursed for necessary expenses incurred in the performance of their duties.

e.The commission shall be entitled to call to its assistance and avail itself of the services of the employees of any State department, board, bureau, commission or agency, as it may require and as may be available for its purposes, and to employ stenographic and clerical assistance and incur traveling and other miscellaneous expenses as may be necessary in order to perform its duties, within the limits of funds appropriated or otherwise made available to it for its purposes.

f. (1) The commission shall study advances made in zero emission vehicle and advanced technology partial zero emission vehicle technologies. The commission shall also study the development of hydrogen fuel cell technology, the infrastructure required for its use in motor vehicles, the development of that infrastructure, and the availability of hydrogen fuel cell vehicles to the public. In studying these issues, the commission shall review any advice prepared by the independent expert review panel established to advise the California Air Resources Board concerning advances made in zero emission vehicle and advanced technology partial zero emission vehicle technologies.

(2)The commission shall evaluate any proposed or adopted changes made by the California Air Resources Board to the California Low Emission Vehicle program and the potential effects of these changes on the implementation of the program in this State. If the California Air Resources Board has not acted prior to the start of the 2008 model year to revise the requirements under the alternative compliance path for the amount of fuel cell vehicles required by a manufacturer beginning for the 2012 model year from a state-specific requirement to a nationwide requirement, the commission shall make a recommendation as to whether the State should implement the California Low Emission Vehicle program beginning on January 1, 2009 or if the State should instead continue with implementation of the National Low Emission Vehicle program.

(3)The commission shall determine whether the incentive provided by the State pursuant to section 11 of P.L.2003, c.266 (C.54:32B-8.55) is sufficient to encourage the purchase of zero emission vehicles. The commission shall make recommendations to the Governor and the Legislature setting forth any additional incentives determined to be necessary to encourage the purchase of zero emission vehicles or advanced technology partial zero emission vehicles in order to increase the effectiveness of the implementation of the California Low Emission Vehicle program in the State.

(4)The commission shall evaluate the feasibility of the zero emission vehicle requirement of the California Low Emission Vehicle program and make a determination whether the zero emission vehicle requirement is achievable in this State beginning on January 1, 2009. This evaluation shall include an examination of zero emission vehicle technology, price, performance, consumer acceptability, and implementation issues relating to the use of zero emission vehicles in the State.

g.Within one year after organizing, the commission shall submit a report to the Governor, the Commissioner of Environmental Protection, and the Legislature: (1) summarizing the activities and findings of the commission to date; (2) setting forth any recommendations for additional incentives determined to be necessary to encourage the purchase of zero emission vehicles or advanced technology partial zero emission vehicles; and (3) setting forth any recommendations that would increase the effectiveness of the implementation of the California Low Emission Vehicle program in the State.

h.No later than January 1, 2008, the commission shall submit a final report to the Governor, the Commissioner of Environmental Protection, and the Legislature:

(1)summarizing the studies and evaluations conducted pursuant to subsection f. of this section;

(2)setting forth any recommendations for additional incentives to encourage the purchase of zero emission vehicles or advanced technology partial zero emission vehicles; and

(3)setting forth a recommendation as to whether:

(a)pursuant to paragraph (2) of subsection f. of this section, the California Low Emission Vehicle program should be implemented in the State beginning on January 1, 2009 or if the State should instead continue with implementation of the National Low Emission Vehicle program; and

(b)if the commission recommends that the California Low Emission Vehicle program should be implemented in the State, the commission shall further set forth a recommendation as to whether the zero emission vehicle requirements of the program should be implemented in the State based on the evaluation conducted pursuant to paragraph (4) of subsection f. of this section.

L.2003,c.266,s.5.

26:2C-8.20 Recommendations of commission.

6. a. If the low emission vehicle review commission, in the report required pursuant to subsection h. of section 5 of P.L.2003, c.266 (C.26:2C-8.19), recommends, pursuant to subparagraph (a) of paragraph (3) of subsection h. of section 5 of P.L.2003, c.266 (C.26:2C-8.19), that the State should not implement the California Low Emission Vehicle program and instead continue with implementation of the National Low Emission Vehicle program, the department shall implement the California Low Emission Vehicle program unless the Legislature by passage of a concurrent resolution directs the department to implement the National Low Emission Vehicle program.

b.Upon the passage of a concurrent resolution by the Legislature directing the department to implement the National Low Emission Vehicle program, the commissioner, notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, shall, immediately upon filing the proper notice with the Office of Administrative Law, adopt such temporary rules and regulations as necessary to continue implementation of the National Low Emission Vehicle program.

The temporary rules and regulations shall be in effect for a period not to exceed 270 days after the date of the filing. The temporary rules and regulations shall thereafter be amended, adopted or readopted by the commissioner as the commissioner determines is necessary in accordance with the requirements of the "Administrative Procedure Act."

L.2003,c.266,s.6.

26:2C-8.21 Acceptance, rejection of commission's recommendation.

7. a. If the low emission vehicle review commission recommends in the report required pursuant to subsection h. of section 5 of P.L.2003, c.266 (C.26:2C-8.19) that the State should implement the California Low Emission Vehicle program without the zero emission vehicle requirement, the commissioner may make a determination to accept or reject the recommendation of the commission concerning the implementation of the zero emission vehicle requirement.

b.Notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the Commissioner of Environmental Protection shall, immediately upon filing the proper notice with the Office of Administrative Law, adopt such temporary rules and regulations as necessary to implement the provisions of subsection a. of this section.

The temporary rules and regulations shall be in effect for a period not to exceed 270 days after the date of the filing. The temporary rules and regulations shall thereafter be amended, adopted or readopted by the commissioner as the commissioner determines is necessary in accordance with the requirements of the "Administrative Procedure Act."

c.The commissioner shall, in writing, notify the Governor and the Legislature of: (1) the determination made pursuant to subsection a. of this section; and (2) the filing of the temporary rules and regulations with the Office of Administrative Law pursuant to subsection b. of this section.

L.2003,c.266,s.7.

26:2C-9.Department's duties relative to air pollution control; fees
9. a. The department shall conduct ambient air quality tests, on at least a monthly basis and wherever possible in conjunction with the county college or other county facility, which are representative of every county of the State. The department shall report the results of these tests to the county health officers, the Legislature, and the news media.

b.The department shall control air pollution in accordance with the provisions of any applicable code, rule, or regulation promulgated by the department and for this purpose shall have power to:

(1)Conduct and supervise research programs for the purpose of determining the causes, effects, and hazards of air pollution;

(2)Conduct and supervise Statewide programs of air pollution control education including the preparation and distribution of information relating to air pollution control;

(3)Require the registration of persons engaged in operations that may result in air pollution and the filing of reports, including but not limited to emission statements, by them containing information relating to location, size of outlet, height of outlet, rate and period of emission and composition of effluent, and such other information as the department shall prescribe to be filed relative to air pollution, all in accordance with applicable codes, rules, or regulations established by the department;

(4)Enter and inspect any building or place, except private residences, for the purpose of investigating an actual or suspected source of air pollution and ascertaining compliance or noncompliance with any codes, rules, or regulations of the department. Any information, other than actual or allowable air contaminant emissions, relating to secret processes or methods of manufacture or production obtained in the course of an inspection, investigation, or determination, shall be kept confidential and shall not be admissible in evidence in any court or in any other proceeding except before the department. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person suspected of causing air pollution;

(5)Receive or initiate complaints of air pollution, hold hearings in connection with air pollution, and institute legal proceedings for the prevention of air pollution and for the recovery of penalties, in accordance with P.L.1954, c.212 (C.26:2C-1 et seq.);

(6)With the approval of the Governor, cooperate with, and receive funds or other assistance from, the federal government, the State government, any interstate body, or any county or municipal government, or from private sources, for the study and control of air pollution;

(7)Charge, in accordance with a fee schedule that shall be adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), (a) reasonable annual emission fees for major facilities as provided in section 5 of P.L.1995, c.188 (C.26:2C-9.5), and (b) administrative fees for any of the services the department performs or provides in connection with administering P.L.1954, c.212 (C.26:2C-1 et seq.). The administrative fees charged by the department pursuant to this subsection shall not exceed $25,000 per application based on criteria contained in the fee schedule;

(8)Issue, renew, reopen, and revise operating permits, and require any person who is required to obtain an operating permit under the provisions of the federal Clean Air Act to obtain an operating permit and to certify compliance therewith for all air pollution sources; and

(9)Establish, implement, and operate a small business stationary source technical and environmental compliance assistance program as required pursuant to 42 U.S.C. 7661f of the federal Clean Air Act.

L.1954,c.212,s.9; amended 1962,c.215,s.3; 1967,c.106,s.7; 1971,c.155,s.1; 1993,c.257; 1995,c.112,s.39; 1995,c.188,s.3.

26:2C-9.1. Interference with performance of duties; entrance to premises
No person shall obstruct, hinder or delay, or interfere with by force or otherwise, the performance by the department or its personnel of any duty under the provisions of this act, or of the act of which this act is amendatory and supplementary, or refuse to permit such personnel to perform their duties by refusing them, upon proper identification or presentation of a written order of the department, entrance to any premises at reasonable hours.

L.1962, c. 215, s. 5.

26:2C-9.2.Regulation of equipment, control apparatus
13. a. No person shall construct, reconstruct, install, or modify equipment or control apparatus and then use or cause to be used that equipment or control apparatus except in accordance with P.L.1954, c.212 (C.26:2C-1 et seq.) and the rules and regulations adopted pursuant thereto.

b. No operating permit, operating permit revision, or operating certificate or renewal thereof shall be issued unless the applicant demonstrates that the equipment or control apparatus will operate, or operates, in accordance with the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) and the rules and regulations adopted pursuant thereto.

c. Newly constructed, reconstructed, or modified equipment and control apparatus shall incorporate advances in the art of air pollution control as developed for the kind and amount of air contaminant emitted by the applicant's equipment and control apparatus as provided in this subsection.

(1) For equipment and control apparatus with a potential to emit any hazardous air pollutant equal to or greater than the de minimis levels specified by the EPA pursuant to subsection (g) of section 112 of the federal Clean Air Act (42 U.S.C. 7412) or with a potential to emit five tons per year or more of any other air contaminant, the applicant shall document advances in the art of air pollution control in accordance with the following criteria, as applicable:

(a) For an air contaminant subject to the prevention of significant deterioration technology requirement, advances in the art of air pollution control shall be the best available control technology (BACT) as set forth by the EPA at 40 CFR 52.21 (b)(12) or any subsequent amendments thereto;

(b) For an air contaminant subject to a significant emissions increase of a non-attainment air contaminant in a non-attainment area, advances in the art of air pollution control shall be the lowest achievable emission rate (LAER) as set forth by the EPA at 40 CFR 51.165(a)(1)(xiii) or any subsequent amendments thereto;

(c) For a hazardous air pollutant technology requirement, advances in the art of air pollution control shall be the maximum achievable control technology (MACT) as set forth at 42 U.S.C. 7412 or any subsequent amendments thereto; and

(d) For other air contaminants, advances in the art of air pollution control means up-to-date technology and methods, reflected in equipment, control apparatus, and procedures, that when applied to an emission source shall reasonably minimize air contaminant emissions. The technology shall have been demonstrated for similar air contaminant discharge parameters to be reliable and shall be available at reasonable cost commensurate with the reduction in air contaminant emissions.

(2) For equipment and control apparatus with a potential to emit hazardous air pollutants at less than the de minimis levels specified by the EPA pursuant to subsection (g) of section 112 of the federal Clean Air Act (42 U.S.C. 7412) and with a potential to emit less than five tons per year of any other air contaminant, the applicant need not document advances in the art of air pollution control, but shall document compliance with:

(a) reasonably available control technology as defined in rules and regulations that shall be adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.);

(b) applicable new source performance standards; and

(c) any other applicable State or federal standard, code, rule, or regulation.

(3) (a) In order to promote greater emissions reductions than would otherwise be achieved, the department may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations that offer a person the option of establishing in an operating permit a 15-year plan for reducing facility emissions beyond minimum air pollution control requirements in lieu of adhering to strict permit review schedules and complying with less effective State requirements. Such a plan shall include schedules setting forth milestones for reducing emissions at the facility. Milestones may be met by reducing emissions at the facility and by providing emissions reduction credits from non-facility sources pursuant to an emissions trading and banking program adopted pursuant to section 8 of P.L.1995, c.188 (C.26:2C-9.8).

(b) The department shall review the achievement of the milestones in the plan no less frequently than every five years when the operating permit is renewed. The department may require the person to submit, as part of the application for renewal of the operating permit, a summary and trend of the actual air contaminant emissions data reported in the facility's annual emission statements for the previous five years. If the department determines during the approval process for an operating permit renewal that the milestones in the plan have not been met at a facility and that there is no reasonable likelihood that the milestones can or will be met, the department may withdraw the opportunity for the facility to continue pursuant to the plan and shall require instead that the facility comply with the promulgated schedules for all applicable requirements.

(c) The department shall allow a person entering a 15-year plan the option of establishing in that person's operating permit reduced administrative application requirements for de minimis modifications of equipment and control apparatus at the facility, provided that: any increase in allowable emissions for any individual equipment and control apparatus is below de minimis levels defined by rule or regulation adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.); and, as part of the five-year achievement review set forth in subparagraph (b) of paragraph (3) of this subsection, the person includes a demonstration that confirms no net emissions increases have occurred at the facility over the previous five years.

(d) The department shall involve in the development of the rules and regulations for the 15-year plan program adopted pursuant to this paragraph representatives of the affected industry, environmental, and public interest groups as well as impacted governmental entities.

(4) Consistent with the provisions of P.L.1991, c.422 (C.13:1D-111 et seq.), the department shall periodically publish, with an opportunity provided for public comment, technology, methods, and performance levels with respect to air pollution control for use by applicants for demonstrating advances in the art of air pollution control.

(a)The department shall, within 18 months after the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.), publish the first technical manual containing technology, methods, and performance levels that can be used by applicants for demonstrating advances in the art of air pollution control. Public notice of the availability of each draft technical manual shall be published in the New Jersey Register, and each final technical manual shall consider any public comments thereon that are received by the department.

(b)Once the department has published a technical manual for advances in the art of air pollution pursuant to subparagraph (a) of paragraph (4) of this subsection, any application submitted that demonstrates compliance with that technical manual shall be considered to incorporate advances in the art of air pollution control for the source operations covered by the technical manual. The department shall periodically review and update each technical manual as necessary, after providing public notice and opportunity for public comment. If the department amends a technical manual, the new standard shall apply only to applications submitted after the final publication of the amended technical manual.

(c)Instead of relying on a technical manual for advances in the art of air pollution control, an applicant may propose "case-by-case" advances in the art of air pollution control applicable to a specific source operation. If the department determines that the proposal is consistent with the provisions of this subsection, the proposal shall be deemed to constitute advances in the art of air pollution control for that specific source operation.

(d)Advances in the art of air pollution control shall include new source performance standards adopted by the EPA on or after the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.) and those new source performance standards published as advances in the art of air pollution control pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.).

(5)Before an operating permit, operating permit revision or operating certificate or any renewal thereof is issued, or as a condition of issuance, the department may require the applicant to conduct such tests as are necessary to determine the kind or amount of the air contaminant emitted from the equipment or whether the equipment or fuel or the operation of the equipment is in violation of any of the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) or of any codes, rules, or regulations adopted pursuant thereto . The tests shall be made at the expense of the applicant and shall be conducted in a manner approved by the department, and the test results shall be reviewed and professionally certified.

(6)Grandfathered equipment or control apparatus shall not be subject to a demonstration of advances in the art of air pollution control.

(7) An operating permit and operating certificate or any renewal thereof shall be valid for a period of five years from the date of issuance, unless sooner revoked for cause by order of the department, and may be renewed upon application to the department.

(8)Upon receipt of an application for the issuance of an operating certificate or any renewal thereof, the department, in its discretion, may issue a temporary operating certificate valid for 90 days or until a five-year operating certificate has been issued or denied .

d. The following are exempt from the provisions of subsections a. and b. of this section:

(1) One or two family dwellings;

(2) A dwelling of six or less family units, one of which is owner occupied;

(3) Equipment or control apparatus that is subject to a general permit issued pursuant to subsection h. of this section; and

(4) Equipment and control apparatus that is de minimis in terms of size or emissions as prescribed in rules and regulations that shall be adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

e. Except as otherwise prohibited by the EPA pursuant to the federal Clean Air Act, any person who has received or receives a facility-wide permit issued pursuant to the "Pollution Prevention Act," P.L.1991, c.235 (C.13:1D-35 et seq.) shall be deemed to satisfy the requirement for an operating permit issued pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.).

f. The department may establish policies and procedures for categories of operations that specify the procedures to be followed for obtaining any permit required pursuant to this section.

g. Any requirement solely related to an air contaminant regulated by the department that is not a federally regulated air pollutant or contaminant shall be identified in an operating permit as a State-only requirement that would not be federally enforceable.

h. Notwithstanding the provisions of any other law, rule, or regulation to the contrary, the department may issue a general permit in lieu of any permit issued pursuant to this section. Prior to issuing a general permit, the department shall provide public notice and opportunity for public comment.

i. The department may require the reporting and evaluation of emissions information for any air contaminant. However, prior to requiring that such information be included on a permit or regulating any air contaminant not regulated by the EPA pursuant to the federal Clean Air Act, the department shall first make a determination and advise the public of its conclusion that regulating that air contaminant is in the best interest of human health, welfare and the environment, and publish that determination and justification in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

j. Except as otherwise prohibited by federal law, any person who has submitted to the department an application for a permit to construct, reconstruct, install, or modify equipment or control apparatus may place that equipment or control apparatus on the footings or foundation where it is intended to be used during the pendency of the permit application review process. A person intending to take action authorized pursuant to this subsection shall notify the department, via certified mail, of the intent to undertake the action at least seven days prior to the commencement of the action.

A person who constructs equipment or control apparatus in accordance with this subsection that the department determines is not consistent with applicable State laws, codes, rules, or regulations shall not be subject to civil or criminal penalties for that inconsistent action provided that the person's actions do not result in the emission of any air contaminants. Any costs incurred by the applicant in connection with such construction may not be used by the applicant as grounds for an appeal of the department's decision on the permit application.

k. For the purposes of P.L.1954, c.212 (C.26:2C-1 et seq.), the use of VOCs not otherwise listed by the EPA as hazardous air pollutants, or specified by the department pursuant to subsection i. of this section, shall be considered as a single pollutant. These VOCs may be used interchangeably and such use shall not be considered new installation or modification of equipment or control apparatus.

L.1967,c.106,s.13; amended 1995,c.188,s.4.

26:2C-9.3. Findings, declarations, determinations
1. The Legislature finds and declares that to enhance and improve the quality of the environment and to protect and foster the public health of the citizens of New Jersey it is altogether fitting and proper to allow private entities who, pursuant to law, have applied for a permit for the purpose of constructing, installing, maintaining or operating pollution control equipment or devices or for the purpose of implementing pollution prevention process modifications to commence with that construction, installation, maintenance or operation or to implement those modifications while the Department of Environmental Protection is reviewing the permit application; and that authorizing such pre-approval actions will lead to the environmental benefits that would result from the timely construction, installation, maintenance and operation of pollution control equipment or devices and the prompt implementation of pollution prevention process modifications.

The Legislature therefore determines that it is within the public interest to allow private entities who have applied for permits to construct, install, maintain or operate pollution control equipment or devices or for permits to implement pollution prevention process modifications to undertake such construction, installation, maintenance or operation or to implement such process modifications while the department is reviewing their permit application, but with the clear and full understanding that they assume all risks for their actions.

L.1994,c.101,s.1.

26:2C-9.4. Construction, etc., of air pollution control equipment during pendency of permit application
2. Except where specifically prohibited under the federal "Clean Air Act" (42 U.S.C. s.7401 et seq.) pursuant to (a) 42 U.S.C. s.7502 for new or modified major stationary sources; (b) 42 U.S.C. s.7475 for major emitting facilities; (c) 42 U.S.C. s.7411 for new or modified stationary sources; (d) 42 U.S.C. s.7412 for the construction, reconstruction, or modification of any major source of hazardous air pollutants; or (e) any other such federal requirement, any private entity who has submitted to the Department of Environmental Protection, pursuant to the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.), an application for a permit to construct, install, maintain or operate pollution control equipment or devices or to implement pollution prevention process modifications may construct, install, maintain and operate such equipment or devices or implement such pollution prevention process modifications during the pendency of the permit application review process. A private entity intending to take action authorized pursuant to this section during the pendency of the permit application review process shall notify the department of the intent to undertake the action seven days prior to the commencement of the action. The prior notification may be made by certified mail or in a manner acceptable to the department.

Nothing in this section shall be construed to limit the department's discretion in establishing construction , installation, maintenance, and operating standards for such equipment or devices, or in otherwise reviewing the permit application, nor shall the costs incurred by the applicant for the construction, installation, maintenance or operation of such equipment or devices or the implementation of pollution prevention process modifications during the pendency of the permit application review process be used by an applicant as grounds for an appeal of the department's decision on the permit application. If the department determines that any pollution control equipment or devices or pollution prevention process modifications constructed, installed, maintained or implemented during the pendency of the permit application review process are not consistent with applicable federal and State laws, rules, or regulations, the department and the applicant shall enter into an agreement containing a schedule setting forth a date certain on which the applicant shall modify, replace or cease the operation of the pollution control equipment or devices or implementation of the pollution prevention process modifications. If the department and the applicant shall fail to enter into an agreement, the department may issue a schedule setting forth a date certain on which the applicant shall comply.

Failure of the applicant to comply with the schedule setting forth a date for compliance shall constitute a violation of P.L.1954, c.212 (C.26:2C-1 et seq.), and shall subject the applicant to penalties as prescribed by that act. A person who constructs, installs, maintains, or operates pollution control equipment or devices or who implements pollution prevention process modifications that the department determines are not consistent with applicable federal or State laws, rules, or regulations, shall not be subject to civil or criminal penalties for that inconsistent action as long as the person's actions do not result in (1) the emission of an air contaminant that was not previously being emitted or that was not authorized to be emitted by the person's permit or certificate; or (2) an exceedance of any applicable air contaminant emission level in the permit or certificate.

Nothing in this section shall be construed to authorize the emission of an air contaminant not otherwise authorized to be emitted under a permit or certificate or the emission of an air contaminant at a level in excess of the air contaminant emission limitations contained in the permit or certificate. The provisions of this section shall not be construed to authorize or permit any construction, installation, maintenance, or operation which would result in any new air contaminant emissions but shall only apply to existing sources of air contaminant emissions.

As used in this section:



(1) "private entity" means any private individual, corporation, company, partnership, firm, association, owner or operator but shall not include, and the provisions of this section shall not apply to, any municipal, county, or State agency or authority or to any agency, authority or subdivision created by one or more municipal, county or State governments;

(2) "pollution prevention process modifications" means any physical or operational change to a process which reduces air contaminant emissions to the environment.

L.1994,c.101,s.2.

26:2C-9.5 Emission fees.
5. a. (1) Each major facility shall pay to the department a fee or fees as calculated pursuant to this subsection and subsection d. of this section. The per-ton emission fees shall be based on the actual annual emissions of each regulated air contaminant, reported in the emission statement for that major facility, or, in the absence of such information, on permitted emissions, or where a permit has not been issued, on the potential to emit.

(2)Emission fees for each State fiscal year shall be based on the information reported in the emission statement year two years prior thereto.

(3)The amount of any emission fee payable pursuant to this section shall be adjusted for each State fiscal year by the percentage, if any, by which the CPI exceeds the CPI for calendar year 1989.

b.(Deleted by amendment, P.L.2002, c.34).

c.(Deleted by amendment, P.L.2002, c.34).

d. (1) For the State fiscal year 2003 and each fiscal year thereafter, each major facility shall pay the following fees:

(a)An emission fee of $60 (in 1989 dollars adjusted by the CPI) per ton of each regulated air contaminant;

(b)An initial and renewal operating permit application fee per facility not to exceed $50,000. For the purpose of calculating the initial and renewal operating permit application fee, the significant equipment listed in the operating permit application shall be assessed at $125 per piece of equipment. The operating permit application fee shall be submitted at the time of submission of the operating permit application; and

(c)A fee for any significant modification in an amount calculated using a fee schedule therefor to be set forth in rules and regulations to be adopted by the department, except that no fee for a significant modification review shall exceed $50,000.

(2)Notwithstanding the provisions of paragraph (1) of this subsection to the contrary, no major facility shall pay an emission fee less than $3,000 for each of the State fiscal years 2003 and thereafter.

e.(Deleted by amendment, P.L.2002, c.34).

f.(Deleted by amendment, P.L.2002, c.34).

g.The provisions of P.L.1993, c.361 (C.13:1D-120 et seq.) shall not apply to the assessment or payment of emission fees required pursuant to this section.

h.(Deleted by amendment, P.L.2002, c.34).

L.1995,c.188,s.5; amended 2002, c.34, s.46.

26:2C-9.6.Dedication, appropriation of revenues
6.Pursuant to the mandate of the federal Clean Air Act, all revenues collected pursuant to section 5 of P.L.1995, c.188 (C.26:2C-9.5) shall be dedicated and appropriated annually solely for use by the department in administering the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) with regard to major facilities. Except as provided otherwise for the supplemental surcharge assessed pursuant to section 5 of P.L.1995, c.188 (C.26:2C-9.5), those monies shall be used only to hire personnel and fund positions, procure necessary equipment, and fund the functions of the department prescribed pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.) with regard to major facilities and to fund implementation and operation of the small business stationary source technical and environmental compliance assistance program required pursuant to 42 U.S.C. 7661f of the federal Clean Air Act. Such program costs may also include, but need not be limited to, costs connected to or associated with: program planning; data collection; investigations; rule and regulation development; reviewing, issuing, and administering operating permits; monitoring and administratively enforcing compliance with laws, codes, rules, regulations, and permits; and any other activities with regard to major facilities required for State compliance with the federal Clean Air Act.

L.1995,c.188,s.6.

26:2C-9.7.Annual report on air quality
7.On or before March 1, 1996, and annually thereafter, the department shall prepare and submit to the Governor and the Legislature an annual report on the status of New Jersey's air quality, New Jersey's progress toward attainment with the federal Clean Air Act, and the operating permit program created pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.). Notice of the preparation and submission of this report shall be published in the New Jersey Register. The report shall include:

a. An accounting of all direct and indirect costs incurred by the operating permit program; the revenues received from fees; a list of all fees still due; and the amount of penalties imposed and collected during the previous year; and

b. A staff and workload analysis of all components of the program to regulate, monitor, and control or prevent emissions of air contaminants.

The report shall also identify any need for legislative action to adjust the emission fee prescribed pursuant to section 5 of P.L.1995, c.188 (C.26:2C-9.5) to ensure that the fee is adequate to fund the air pollution control program in accordance with the mandates of the federal Clean Air Act, and discuss the advantages and disadvantages of setting higher emission fees for hazardous air pollutants.

L.1995,c.188,s.7.

26:2C-9.8 Rules, regulations; fees.
8. a. Within 90 days after the effective date of this act, the department shall propose, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations that establish emissions trading and banking programs that use economic incentives to make progress toward the attainment or maintenance of the National Ambient Air Quality Standards (NAAQS), reduce or prevent emissions of air contaminants, ensure healthful air quality, or otherwise contribute to the protection of human health, welfare and the environment from air pollution. The department shall adopt those rules and regulations within 90 days after proposal.

b.The emissions trading rules and regulations shall be designed so that emissions reductions shall be realized earlier or at a more accelerated rate than would otherwise be achieved in accordance with applicable air quality mandates, and so that compliance with air quality mandates can be achieved with greater flexibility or at lower cost. The rules and regulations shall establish criteria for the generation and use of emissions reduction credits, including the use of emissions reduction credits in lieu of granting exemptions or waivers from compliance with emissions reduction requirements, and shall require that 10% of the emissions reduction credits gained shall be permanently retired for the public benefit when a trade occurs. The rules and regulations may include, but need not be limited to, provisions designating the pollutants to be involved in the program, designating the persons who may participate in the program, establishing emissions limitations and methods for projecting and verifying emissions, and establishing enforcement mechanisms, including emissions tracking, periodic program audits, and penalties.

For any emissions trading program adopted for the purpose of making progress toward attaining the National Ambient Air Quality Standard (NAAQS) for ozone, the department may allow reductions of volatile organic compounds (VOCs) to be substituted for required reductions of oxides of nitrogen (NOx) or reductions of oxides of nitrogen (NOx) to be substituted for required reductions of volatile organic compounds (VOCs). Any such substitution shall occur at a ratio established by the department by rule or regulation adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), which shall be developed in recognition of the role of each pollutant in the formation of ground level ozone.

c.The emissions trading rules and regulations adopted by the department shall not conflict with applicable federal law and shall constitute, contribute to, or be consistent with one or more strategies that result in quantifiable emissions reductions and are creditable under the State Implementation Plan (SIP) required pursuant to the federal Clean Air Act. These may be emission limiting or market-response strategies for mobile, stationary, or area sources, and shall include the creation, trading, and use of emissions reduction credits.

d.The department may establish the emissions trading programs as State, multi-state, or regional programs as long as the programs contribute to the goal of improving the air quality in New Jersey.

e.The department shall involve in the development of the rules and regulations for emissions trading programs representatives of the affected industry, environmental, and public interest groups as well as governmental entities with affected or related jurisdictions.

f.The department shall consider the role of a third party in the banking, verification, validation of use, enforcement, and program audits associated with emissions reduction credits, and, to the maximum extent possible, create and preserve opportunities for private sector participation in any emissions trading program established by the department.

g.The Department of Environmental Protection may establish by rule fees for administrative services provided to implement emission trading programs.

L.1995,c.188,s.8; amended 2002, c.34, s.47.

26:2C-14. Order to cease
Whenever the department has cause to believe that any person is violating any code, rule or regulation promulgated by the department, the department shall cause a prompt investigation to be made in connection therewith.

If upon inspection the department discovers a condition which is in violation of the provisions of this act or any code, rule or regulation promulgated pursuant thereto, it shall be authorized to order such violation to cease and to take such steps necessary to enforce such an order. The order to cease the violation issued by the commissioner and sent to the violator by certified mail or personal service shall include a reference to the section of the statute, regulation, order, or permit condition violated; the amount of the fine which shall be imposed; a concise statement of the facts alleged to constitute the violation; and a statement of the right of the violator to a hearing.

The person responsible shall make the corrections necessary to comply with the requirements of this act or code, rule or regulation promulgated pursuant thereto within the time specified in the order.

Nothing herein shall be deemed to prevent the department from prosecuting any violation of this act or any code, rule or regulation promulgated pursuant thereto, notwithstanding that such violation is corrected in accordance with its order.

L. 1954, c. 212, p. 785, s. 14. Amended by L. 1962, c. 215, s. 6; L. 1967, c. 106, s. 8, eff. June 15, 1967; L. .1985, c. 12, s. 2, eff. Jan. 22, 1985.

26:2C-14.1. Hearing on request; final order
Any person aggrieved by an order of the department has 20 days from receipt of the order within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing, if requested, and upon a finding that a violation has occurred, the commissioner may issue a final order to cease the violation and assessing the amount of the fine specified in the order. If no hearing is requested, the order is a final order upon the expiration of the 20 day period. Payment of the penalty is due when a final order is issued or when the order becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in P.L. 1954, c. 212 (C. 26:2C-1 et seq.), and the payment of a civil administrative penalty does not affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied. Pending the determination by the department and upon application therefor the department may stay the operation of such order upon such terms and conditions as it may deem proper.

L. 1962, c. 215, s. 9. Amended by L. 1985, c. 12, s. 3, eff. Jan. 22, 1985.

26:2C-16. Evidence at hearing; transcript
The testimony taken at any hearing shall be under oath and recorded stenographically, but the parties shall not be bound by the strict rules of evidence prevailing in the courts of law and equity. True copies of any transcript and of any other record made of or at such hearing shall be furnished to any party thereto upon request and at his expense.

L.1954, c. 212, p. 785, s. 16. Amended by L.1962, c. 215, s. 8.

26:2C-17. Hearings before department
Any hearing required by this act to be held before the department shall be held before the State Commission of Health, or a member of the department designated by him, who shall have power to subpoena witnesses and compel their attendance, administer oaths and require the production for examination of any books or papers relating to any matter under investigation in any such hearing. The department, at the request of any respondent to a complaint made by it, or to it, pursuant to this act, shall subpoena and compel the attendance of such witnesses as the respondent may designate and require the production for examination of any books or papers relating to any matter under investigation in any such hearing.

L.1954, c. 212, p. 785, s. 17.

26:2C-19.Actions to prohibit and prevent violations; civil administrative penalty; civil penalty; notice of release of air contaminants; penalties; alternative dispute resolution
19. a. If any person violates any of the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation or order adopted or issued pursuant thereto, the department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent such violation or violations and the court may proceed in the action in a summary manner.

b. Any person who violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation or order adopted or issued pursuant thereto shall be liable to a civil administrative penalty of not more than $10,000 for the first offense, not more than $25,000 for the second offense, and not more than $50,000 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense. No civil administrative penalty shall be levied except upon an administrative order issued pursuant to section 14 of P.L.1954, c.212 (C.26:2C-14).

c. The department is hereby authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances.

d. Any person who violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation, or order adopted or issued pursuant thereto, or a court order issued pursuant to subsection a. of this section, or who fails to pay a civil administrative penalty in full pursuant to section 9 of P.L.1962, c.215 (C.26:2C-14.1), is subject, upon order of the court, to a civil penalty of not more than $10,000 for the first offense, not more than $25,000 for the second offense, and not more than $50,000 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which the violation continues, or each day in which the civil administrative penalty is not paid in full, constitutes an additional, separate and distinct offense. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Law Division of the Superior Court has jurisdiction to enforce "the penalty enforcement law."

e. A person who causes a release of air contaminants in a quantity or concentration which poses a potential threat to public health, welfare or the environment or which might reasonably result in citizen complaints shall immediately notify the department. A person who fails to so notify the department is liable to the penalties and procedures prescribed in this section.

f. Any person who:

(1) purposely or knowingly violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.), or any code, rule, regulation, administrative order, or court order adopted or issued pursuant thereto, is guilty of a crime of the third degree;

(2) purposely or knowingly violates any federally mandated air pollution control requirement, any operating permit condition, or any fee or filing requirement imposed in connection with an operating permit is guilty of a crime of the third degree, the sentence for which may include, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, an enhanced fine of $10,000 per day per violation;

(3) purposely or knowingly makes any false material statement, representation, or certification in any form, notice, statement, or report required in connection with an operating permit, or who purposely or knowingly renders inaccurate any monitoring device or method required by an operating permit, is guilty of a crime of the third degree, the sentence for which may include, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, an enhanced fine of $10,000 per day per violation;

(4) recklessly violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.), or any code, rule, regulation, administrative order, or court order adopted or issued pursuant thereto, is guilty of a crime of the fourth degree.

g. In determining whether an odor unreasonably interferes with the enjoyment of life or property in violation of P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation or order adopted or issued pursuant thereto, the department shall consider all of the relevant facts and circumstances, including, but not limited to, the character, severity, frequency, and duration of the odor, and the number of persons affected thereby. In considering these and other relevant facts and circumstances, no one factor shall be dispositive, but each shall be considered relevant in determining whether an odor interferes with the enjoyment of life or property, and, if so, whether such interference is unreasonable considering all of the circumstances.

The department shall publish in the New Jersey Register the guidelines and procedures utilized by the department for the investigation of citizen complaints regarding odors.

h. The department shall establish procedures for alternative dispute resolution as an option for settlement of contested cases. Alternative dispute resolution shall be voluntary and shall not be mandated by the department.

L.1954,c.212,s.19; amended 1962,c.215,s.11; 1967,c.105,s.1; 1985,c.12,s.1; 1989,c.333; 1995,c.188,s.9.

26:2C-19.1. Findings, declaration
1. The Legislature finds that equipment in facilities regulated by the "Air Pollution Control Act (1954)," P.L.1954, c.212, may malfunction or fail to perform optimally, even when carefully maintained and operated; that violations of the act may occur due to an unforeseeable and unavoidable malfunction, during equipment start-up or shut-down, or during necessary equipment maintenance due to the inherently intricate nature of mechanical equipment; and that these violations should not be accorded penalties as long as any resulting air emission causes no potential threat to the public health, welfare or the environment. The Legislature therefore finds and declares that it is the policy of this State to protect the public health, welfare and the environment, to promote the careful operation and maintenance of equipment in facilities regulated by the "Air Pollution Control Act (1954)," and to reduce the unnecessary burden of monetary penalties for violations caused by a non-recurring equipment malfunction, equipment start-up, or equipment shut-down or during necessary equipment maintenance by providing an affirmative defense to liability for penalties when a facility is operated and maintained carefully, when all reasonable steps are taken to minimize emission levels caused by a violation, and when the emissions do not cause a potential threat to the public health, welfare or the environment.

L.1993,c.89,s.1.

26:2C-19.2. Entitlement to affirmative defense
2. a. A person shall be entitled to an affirmative defense to liability for penalties for a violation of a condition, emission rate, limit, or standard, required pursuant to a permit issued pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.) or a violation of any rule or regulation adopted pursuant to P.L.1954, c.212, when the violation occurs as a result of an equipment malfunction, an equipment start-up, or an equipment shut-down, or during the performance of necessary equipment maintenance. A person shall be entitled to this affirmative defense only if the person complies with the provisions of subsection b. of this section.

b. A person asserting an affirmative defense pursuant to subsection a. of this section shall notify the department of the violation by 5:00 p.m. of the second full calendar day following the occurrence, or if due diligence was exercised to discover the violation, by 5:00 p.m. of the second full calendar day after becoming aware of the occurrence, and, within 30 days thereof, shall submit written documentation on the circumstances of the violation and demonstrating as applicable, that:

(1) the violation occurred, and was caused by an equipment malfunction, an equipment start-up, or an equipment shut-down, or during the performance of necessary equipment maintenance, as applicable;

(2) the facility was being operated with due care;



(3) the violation did not result from operator error or failure to maintain the equipment with due care;

(4) the person has taken all reasonable steps to minimize levels of emissions caused by the violation; and

(5) with respect to violations caused by a malfunction, the malfunction is not a part of a recurrent pattern.

L.1993,c.89,s.2.

26:2C-19.3. No entitlement to affirmative defense
3. A person shall not be entitled to an affirmative defense to liability pursuant to section 2 of P.L.1993, c.89 (C.26:2C-19.2) for any violation that causes the presence in the outdoor atmosphere of one or more air contaminants in a quantity or concentration which poses a potential threat to public health, welfare or the environment.

L.1993,c.89,s.3.

26:2C-19.4. Construction of act
4. Nothing in P.L.1993, c.89 (C.26:2C-19.1 et seq.) shall be construed to limit or alter the responsibility of a person who causes a release of air contaminants to notify the department immediately as required pursuant to subsection e. of section 19 of P.L.1954, c.212 (C.26:2C-19).

L.1993,c.89,s.4.

26:2C-19.5. Rules, regulations; unavailability of affirmative defense
5. a. The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations that establish limitations upon the maximum frequency and duration of violations resulting from equipment malfunctions, equipment start-ups, equipment shut-downs, and the performance of necessary equipment maintenance operations for which an affirmative defense may be asserted pursuant to section 2 of P.L.1993, c.89 (C.26:2C-19.2). The limitations shall be based upon the operating history of similar sources on an industry basis.

b. The affirmative defense established pursuant to section 2 of P.L.1993, c.89 (C.26:2C-19.2), shall not be available with respect to violations arising from equipment malfunctions, equipment start-ups, or equipment shut-downs, or during necessary equipment maintenance operations, that occur more frequently or persist for a longer duration than the maximum limitations established pursuant to subsection a. of this section.

L.1993,c.89,s.5.

26:2C-20. Review
Review of any final decision or action by the department shall be by procedure in lieu of prerogative writs. Review of the validity of any code, rule or regulation promulgated by the department shall likewise be by procedure in lieu of prerogative writs.

L.1954, c. 212, p. 787, s. 20. Amended by L.1967, c. 106, s. 9, eff. June 15, 1967.

26:2C-21. Existing remedies not impaired
No existing civil or criminal remedy for any wrongful action which is a violation of any code, rule or regulation of the commission shall be excluded or impaired by this act.

L.1954, c. 212, p. 787, s. 21.

26:2C-22.Relation of local ordinances or regulations to State law
22. a. (1) No ordinances of any governing body of a municipality or county or board of health more stringent than P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rules or regulations adopted pursuant thereto shall be superseded by P.L.1954, c.212 (C.26:2C-1 et seq.). After the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.), no municipality, county, local board of health, local health agency, regional health commission, or any other political subdivision of the State may enact any ordinance, pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.), section 9 of P.L.1977, c.443 (C.26:3A2-27), or any other authority, concerning the subject matter covered by P.L.1954, c.212 (C.26:2C-1 et seq.), except as provided in subsection b. of this section, whether that subject matter is expressed by inclusion in or exclusion from that act.

Penalties for violations of ordinances of a governing body of a municipality or county or board of health shall not exceed $2,500.

Nothing set forth in the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et al.), or any codes, rules or regulations adopted pursuant thereto, shall affect the validity of local ordinances adopted pursuant to this section prior to the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.) or amendments thereto adopted as authorized pursuant to subsection b. of this section.

b. Notwithstanding the provisions of subsection a. of this section to the contrary, no fee imposed upon any facility by the governing body of a municipality or county or board of health relating to the control of air pollution, which fee was imposed pursuant to this section, section 7 of P.L.1991, c.99 (C.26:3A2-34), or any other law, may be increased above the amount imposed upon that facility as of June 15, 1995. In no event may any such fee imposed upon any facility exceed a total of $1,000 per year over a given fee cycle and any such fee that exceeds that amount shall be reduced to $1,000 after the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.). Ordinances adopted prior to the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.) that impose fees exceeding the $1,000 limit shall be amended to conform to the provisions of this subsection at or before the end of the present ordinance fee cycle. In order to prevent the pass through of fees capped by this section onto any facility engaging in activities not related to the control of air pollution, no fee imposed pursuant to section 7 of P.L.1991, c.99 (C.26:3A2-34) for such activities may be increased above the amount imposed upon that facility as of June 15, 1995.

c. Notwithstanding the provisions of subsection a. or b. of this section to the contrary, nothing in this section or in the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et al.) shall be construed to authorize ordinances providing for the local regulation of, or collection of fees from, any facility required to obtain an operating permit pursuant to section 13 of P.L.1967, c.106 (C.26:2C-9.2) or any research and development facility. However, local inspections of such facilities or research and development facilities delegated pursuant to the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et al.) may be conducted as necessary in response to citizen complaints.

L.1954,c.212,s.22; amended 1967,c.106,s.10; 1985,c.12,s.4; 1995,c.188,s.10.

26:2C-23. Functions of Department of Health not impaired
The powers, duties and functions vested in the State Department of Health under the provisions of this act shall not be construed to affect in any manner the powers, duties and functions vested in the State Department of Health under any other provisions of law.

L.1954, c. 212, p. 785, s. 23.

26:2C-24. Clean air scholarship intern program
(a) There is hereby established a Clean Air Scholarship Intern Program.

(b) The Commissioner of the Department of Environmental Protection may provide for the payment of room, board, tuition and fees for eligible persons to attend any accredited college or university authorized by the commissioner as a regular student to receive an engineering degree or a degree with a major in the biological, physical or environmental sciences satisfactory to the commissioner until the eligible person satisfactorily completes 4 scholastic years.

(c) To be eligible for the Clean Air Scholarship Intern Program a person must:

(1) Be a citizen of the United States and the State of New Jersey;

(2) Be a high school graduate or have an equivalent education;

(3) Have been accepted for admission to the accredited college or university authorized by the commissioner as a regular student and accepted in said college or university to pursue a course of instruction satisfactory to the commissioner;

(4) Contract, with the consent of his parent or legal guardian if he is a minor, with the commissioner or his designated representative, to serve with the Department of Environmental Protection for a period of 3 years following graduation and further, to serve with the Department of Environmental Protection during the regular periods of summer vacation except for such vacation periods as the commissioner shall establish by regulation and provided further that the department shall not be liable to pay wages to said student during said vacation periods.

(d) The appointments made by the commissioner hereunder shall be subject to available appropriations and shall be awarded on a competitive basis.

(e) The Scholarship Intern Program shall be administered by the commissioner under such regulations as the commissioner shall prescribe.

L.1967, c. 106, s. 14, eff. June 15, 1967. Amended by L.1970, c. 274, s. 1, eff. Nov. 5, 1970.

26:2C-25. Graduate study program
The commissioner, subject to available appropriations and grants from other sources, may provide within the Department of Health for a program of graduate study for eligible persons to attend any accredited graduate program at a college or university in order to further the training of personnel for the purposes of administering this act. Said graduate program shall be administered by the commissioner under such regulations as the commissioner shall prescribe.

L.1967, c. 106, s. 15, eff. June 15, 1967.

26:2C-25.1.Small Business Compliance Advisory Panel
11.For the purposes of complying with the federal Clean Air Act, there is created in the Department of Environmental Protection a Small Business Compliance Advisory Panel.

a. The Small Business Compliance Advisory Panel shall consist of seven members, as follows:

(1) two members, appointed by the Governor, who shall represent the general public and shall not be owners, or representatives of owners, of small business stationary sources;

(2) four members who shall own a small business stationary source or represent owners of small business stationary sources, of whom one each shall be appointed respectively by the President of the Senate, the Speaker of the General Assembly, the Senate Minority Leader, and the Assembly Minority Leader; and

(3)one member who shall be appointed by the Commissioner of Environmental Protection as the commissioner's representative.

b. (1) Members of the panel shall:

(a) serve for two-year terms;

(b) annually elect, by majority vote of the full membership of the panel, a chairperson and a vice-chairperson; and

(c) serve without compensation but shall be reimbursed for necessary expenses incurred in the performance of their duties.

(2) The panel shall meet at least four times per year.

c. It shall be the responsibility of the panel to:

(1) render advisory opinions to the Commissioner of Environmental Protection concerning the effectiveness of the department's program for assisting small business stationary sources with technical and environmental compliance issues with respect to air pollution control, as required pursuant to 42 U.S.C. 7661f of the federal Clean Air Act, and concerning air pollution control requirements, permitting, and enforcement pertaining to small business;

(2) make periodic reports to the Commissioner of Environmental Protection and the Administrator of the United States Environmental Protection Agency concerning compliance of the State's air pollution control program with the requirements of the federal "Paperwork Reduction Act" (44 U.S.C. 3501 et seq.), the federal "Regulatory Flexibility Act" (5 U.S.C. 601 et seq.), and the federal "Equal Access to Justice Act" (5 U.S.C. 504 et seq. and 28 U.S.C. 2412 et seq.) as they relate to small business;

(3) review information and air pollution control permit applications provided to small business stationary sources to assure that the information and applications are understandable to the layperson; and

(4) determine if the department provides for the development and dissemination of those advisory opinions and reports issued in accordance with the provisions of this section.

L.1995,c.188,s.11.

26:2C-25.2.Industry, environmental work groups
12.The department shall establish industry and environmental work groups as appropriate to consult on matters relating to the regulation of air pollution sources. The work groups shall consist of members of industry, environmental, and other interested and affected parties as may be deemed appropriate by the department.

Within 90 days after the effective date of P.L.1995, c.188 (C.26:2C-9.5 et al.), the department shall also establish an industry and environmental work group to evaluate the effects of emissions reductions on emission fee revenues and the resultant impact on the department's air pollution control program. As part of the 1997 annual report required pursuant to section 7 of P.L.1995, c.188 (C.26:2C-9.7), the fee work group shall present its evaluation and a recommendation on alternatives to funding the department's air pollution control program other than through an increase in emission fees.

The fee work group shall also make such evaluations and recommendations concerning fee revenues and supplemental surcharge revenues as required pursuant to section 5 of P.L.1995, c.188 (C.26:2C-9.5).

L.1995,c.188,s.12.

26:2C-26. Short title
This act shall be known and may be cited as the "Air Pollution Emergency Control Act (1967)."

L.1967, c. 108, s. 1, eff. June 15, 1967.

26:2C-27. Legislative findings
The Legislature finds and declares that air pollution may at certain times and in certain places so seriously affect the health of the public and so directly threaten the lives of large portions of the population as to warrant the provision of emergency powers as in this act provided to prevent or minimize disasters of unforseeable proportions.

L.1967, c. 108, s. 2, eff. June 15, 1967.

26:2C-28. "Area" defined
As used in this act "area" means and refers not only to that portion or portions of the State as shall be described in the air pollution emergency declaration of the Governor but also to any other portion or portions of the State where activities are carried on which contribute or may contribute to the air pollution emergency in the portion or portions of the State described in the Governor's declaration.

L.1967, c. 108, s. 3, eff. June 15, 1967.

26:2C-29. Air pollution emergency; determination
If the State Commissioner of Health determines at any time that air pollution, in any county, locality, place or other area in the State constitutes an unreasonable and emergency risk to the health of those present within said area of the State, such determination shall be communicated in writing, with the factual findings on which such determination is based, to the Governor; the commissioner may delegate in writing to any employee of the department the power to make such determination and deliver the same to the Governor in the absence of the commissioner from the State. Upon being so advised the Governor may by proclamation declare, as to all or any part of said area mentioned in the aforesaid determination, that an air pollution emergency exists, and upon making such declaration the Governor shall have the following powers which he may exercise in whole or in part by the issuance of an order or orders:

(a) To prohibit, restrict or condition motor vehicle travel of every kind, including trucks and buses, in the area;

(b) To prohibit, restrict or condition the operation of retail, commercial, manufacturing, industrial, or similar activity in the area;

(c) To prohibit, restrict or condition operation of incinerators in the area;

(d) To prohibit, restrict or condition the burning or other consumption of any type of fuel in the area;

(e) To prohibit, restrict or condition the burning of any materials whatsoever in the area;

(f) To prohibit, restrict or condition any and all other activity in the area which contributes or may contribute to the air pollution emergency.

L.1967, c. 108, s. 4, eff. June 15, 1967.

26:2C-30. Proclamation by Governor
The declaration by proclamation of the Governor of an air pollution emergency and any order issued by the Governor pursuant to such declaration shall be given maximum publicity throughout the State.

L.1967, c. 108, s. 5, eff. June 15, 1967.

26:2C-31. Gubernatorial order; duration
Any gubernatorial order may be amended or modified by further gubernatorial orders. Said order or orders shall not require any judicial or other order or confirmation of any type in order to become immediately effective as the legal obligation of all persons, firms, corporations and other entities within the State. Said order shall remain in effect for the duration of time set forth in same, and if no time limit is specified in said order, same shall remain in effect until the Governor declares by further proclamation that the emergency has terminated.

L.1967, c. 108, s. 6, eff. June 15, 1967.

26:2C-32. Enforcement of orders
The aforesaid orders of the Governor shall be enforced by the Departments of Health, Defense, and the State and local police and air pollution enforcement personnel forces. Those enforcing any Governor's order shall require no further authority or warrant in executing same than the issuance of the order itself. Those authorized to enforce said orders may use such reasonable force as is required in the enforcement thereof, and may take such reasonable steps as are required to assure compliance therewith including, but without limiting the generality of the foregoing, the following:

(a) Entering any property or establishment whatsoever, commercial, industrial, or residential, believed to be violating said order (excepting single or double family homes or any dwelling unit within a multiple dwelling unit larger than a double family home) and, if a request does not produce compliance, causing compliance with said order;

(b) Stopping, detouring, rerouting, and prohibiting motor vehicle travel and traffic;

(c) Disconnecting incinerator or other types of combustion facilities;

(d) Terminating all burning activities;

(e) Closing down or restricting the use of any business, commercial, retail, manufacturing, industrial or other establishment.

Where any person authorized to enforce such an order believes or suspects that same is being violated in a single or double family residence or within the dwelling portion of a large multiple dwelling unit, said residence or dwelling portion thereof may be entered only upon obtaining a search warrant from any judge having power to issue same.

L.1967, c. 108, s. 7, eff. June 15, 1967.

26:2C-33. Violation of order; penalty
Any person, firm, corporation or other entity within this State which violates any Governor's order with knowledge of same, or knowingly fails to comply with the directions of those authorized by the Governor to enforce said order, or knowingly interferes with the enforcement of such an order or such directions, shall be guilty of a high misdemeanor and shall be punished by a fine of not more than $100,000.00 or by imprisonment for not more than 10 years, or both.

L.1967, c. 108, s. 8, eff. June 15, 1967.

26:2C-34. Liability for torts in enforcement of order
No cause of action against the State or any person authorized by the Governor to enforce any order issued pursuant to this act for false arrests, false imprisonment, or other tort shall arise out of the good faith attempt of such person to enforce such order.

L.1967, c. 108, s. 9, eff. June 15, 1967.

26:2C-35. Aggrieved persons; hearing; notice
Any aggrieved person, firm or corporation or other entity upon application to the commissioner shall be granted a public hearing on the question of whether or not the continuance of any such order in whole or in part is unreasonable in the light of the then prevailing conditions of air pollution, the contribution to the same of any particular activity, and the purposes of this act. Said public hearing shall be conducted as quickly as possible by said commissioner who shall give public notice of same. The commissioner shall have the power to compel attendance, testimony, and the production of documents by the use of subpoena powers. The number of witnesses and the extent of testimony shall be within his control. If the commissioner, upon conclusion of such hearing, determines that any such order should be terminated, or modified in any way whatsoever, he shall report such findings and recommendations to the Governor for such action as he deems appropriate.

L.1967, c. 108, s. 10, eff. June 15, 1967.

26:2C-36. Stand-by orders
The commissioner shall promulgate a set of proposed stand-by orders which might be appropriate for use by the Governor upon declaration of the emergency contemplated by this act. Such stand-by control proposals, when approved by the Governor, shall be distributed to the appropriate agencies and to all commercial and industrial concerns throughout this State concerned with enforcement or impact of this act, and notice of their contents shall be given to the public. The commissioner shall promulgate arrangements for the enforcement of said stand-by orders and, upon approval by the Governor, notice of said arrangements shall also be distributed to said authorities, commercial and industrial concerns, and to the general public. Said proposed stand-by orders and arrangements shall not, however, become operative except when directed by the Governor in any order issued by him pursuant to a declaration of emergency under this act.

L.1967, c. 108, s. 11, eff. June 15, 1967.