New Jersey § 26:2c-9

§ 26:2c-9.

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.