New Jersey-2024-A1302-Introduced

An Act concerning greenhouse gas emissions from certain warehouses, and amending and supplementing P.L.1954, c.212.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1954, c.212 (C.26:2C-2) is amended to read as follows:

2. As used in [this act] P.L.1954, c.212 (C.26:2C-1 et seq.):

"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.);

"Emitting vehicle" means any passenger vehicle or truck that is not a zero-emission vehicle;

"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 Contaminant Threshold 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;

"Regulated warehouse" means a warehouse that is 100,000 square feet or larger, and that generates an average of 500 or more vehicles trips by emitting vehicles per working day, including trips caused by employees travelling to and from work, fleet vehicles engaged in the operations of the warehouse, and trucks transporting cargo, goods, or products to and from the warehouse;

"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;

"Warehouse" means a building that stores cargo, goods, or products of any type on a short-term or long-term basis for later distribution to wholesale or retail customers, and includes, but is not limited to, a distribution center, flex-warehouse, or any other type of warehouse; and

"Zero-emission vehicle" means the same as the term is defined in section 2 of P.L.2003, c.266 (26:2C-8.16).

(cf: P.L.1999, c.100, s.1)

2. Section 8 of P.L.1954, c.212 (C.26:2C-8) is amended to read as follows:

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] P.L.1954, c.212 (C.26:2C-1 et seq.).

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.

c. The department shall have the power to regulate air pollution and greenhouse gas emissions resulting from activities at regulated warehouses, in accordance with the provisions of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.1999, c.100, s.2)

3. (New section) a. No regulated warehouse in the State shall operate unless the owner or operator of the warehouse possesses a valid permit issued by the department pursuant to the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.).

b. The department shall develop and implement a permit program to effectuate the provisions of this section. A permit issued to a regulated warehouse pursuant to this section shall require the owner or operator of a regulated warehouse to demonstrate to the department's satisfaction that the activities at the regulated warehouse result in emissions of no more than 100 tons of greenhouse gases annually, measured as carbon dioxide equivalent. The measurement shall:

(1) include emissions from emitting vehicle traffic generated by the warehouse; and

(2) factor in, as an offset, any carbon credits purchased by the owner or operator of the warehouse during the measurement year, provided that the department determines that the carbon credits represent genuine carbon sequestration.

c. The department shall possess the same powers to administer and enforce the provisions of this section as it possesses with respect to the other provisions of the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.), including, but not limited to, the power to collect administrative fees pursuant to section 9 of P.L.1954, c.212 (C.26:2C-9) and the power to enter premises pursuant to section 5 of P.L.1962, c.212 (C.26:2C-9.1).

d. An owner or operator of a regulated warehouse that violates the provisions of this section shall be deemed to have violated the provisions of the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.), and shall be subject to the same penalties as provided in section 19 of P.L.1954, c.212 (C.26:2C-19).

e. The Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations as necessary to implement the provisions of this section.

4. This act shall take effect 18 months after the date of enactment, except that the Department of Environmental Protection may take any anticipatory administrative action, in advance of the effective date, as may be necessary for the implementation of this act.

STATEMENT

This bill would require certain warehouses to obtain a permit under the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.) before being allowed to operate in the State.

Specifically, the bill would apply to warehouses that are 100,000 square feet or larger and generate 500 or more vehicle trips per working day. The vehicle trips would include employees commuting to and from work, in addition to truck traffic. However, the vehicle trips would exclude trips made by zero-emission vehicles.

Under the permit program, the owner or operator of a regulated warehouse would be required to demonstrate to the Department of Environmental Protection (DEP) that the warehouse generates no more than 100 tons of greenhouse gases per year. The owner or operator could purchase carbon credits to offset the warehouse's emissions, provided that DEP deems the credits to be legitimate. The requirement to obtain a permit would begin 18 months after the date the bill is enacted into law. The permit requirement would apply to any existing or newly constructed warehouse that is covered under the bill.

The bill would provide that the DEP has the same powers to administer and enforce the permit program as it has under the "Air Pollution Control Act (1954)," and a violation of the bill's provisions would constitute a violation of the "Air Pollution Control Act (1954)." Persons who violate the "Air Pollution Control Act (1954)" may 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.