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.