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.