58:10A-6.3. Installation, etc. of water pollution control facilities during pendency of permit application

4. Except where specifically prohibited under the "Federal Water Pollution Control Act Amendments of 1972" (33 U.S.C. s.1251 et seq.) or any other such federal requirement, any private entity who has submitted to the Department of Environmental Protection, pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), an application for a permit to build, install, maintain or operate any facility for the collection, treatment or discharge of any pollutant or to implement pollution prevention process modifications may build, install, maintain and operate such facilities 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 building, installation, maintenance and operating standards for such facilities, or in otherwise reviewing the permit application, nor shall the costs incurred by the applicant for the building, installation, maintenance or operation of such facilities 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 facilities or pollution prevention process modifications built, 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 facilities 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.1977, c.74 (C.58:10A-1 et seq.), and shall subject the applicant to penalties as prescribed in that act. A person who builds, installs, maintains, or operates any facility for the collection, treatment, or discharge of pollutants or who implements pollution prevention process modifications in a manner which the department determines is 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 did not result in (1) the discharge of a pollutant which was not authorized to be discharged by the person's permit or (2) an exceedance of any applicable discharge parameter in the permit.

Nothing in this section shall be construed to authorize a person to discharge a pollutant not otherwise authorized to be discharged by a permit held by that person or to discharge a pollutant at a level in excess of the discharge parameters contained in the permit.

The provisions of this section shall not be construed to authorize or permit any building, installation, maintenance, or operation which would result in any new source of discharge but shall only apply to facilities for existing permitted sources of discharges.

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 water pollution discharges to the environment.

L.1994,c.101,s.4.