Bill Text: NJ A4679 | 2024-2025 | Regular Session | Introduced


Bill Title: Requires certain high-traffic facilities to obtain permit from DEP and annually implement measures to reduce air pollution caused by facility.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced) 2024-09-12 - Introduced, Referred to Assembly Environment, Natural Resources, and Solid Waste Committee [A4679 Detail]

Download: New_Jersey-2024-A4679-Introduced.html

ASSEMBLY, No. 4679

STATE OF NEW JERSEY

221st LEGISLATURE

 

INTRODUCED SEPTEMBER 12, 2024

 


 

Sponsored by:

Assemblywoman  ANDREA KATZ

District 8 (Atlantic and Burlington)

Assemblywoman  ALIXON COLLAZOS-GILL

District 27 (Essex and Passaic)

Assemblywoman  GARNET R. HALL

District 28 (Essex and Union)

 

 

 

 

SYNOPSIS

     Requires certain high-traffic facilities to obtain permit from DEP and annually implement measures to reduce air pollution caused by facility.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning indirect air pollution from certain facilities and supplementing Title 26 of the Revised Statutes.

 

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

 

     1.  a.  The Legislature finds and declares that:

     (1) Air pollution disproportionately impacts overburdened communities, and that without concerted action, air pollution could worsen in overburdened communities, even as Statewide emissions decline or stay the same;

     (2) Air pollution levels vary greatly within towns and even neighborhoods, and the variation is missed by standard monitoring techniques;

     (3) Truck traffic contributes disproportionately to air pollution, so targeting high-traffic locations for emissions reductions would allow for a greater air pollution mitigation and the concomitant health benefits at a lower cost than Statewide air pollution reduction measures;

     (4)  Facilities that generate high truck traffic, such as warehouses, are already having significant impacts in overburdened communities and those impacts are growing rapidly; and

     (5)  The federal "Clean Air Act" expressly reserves existing State authority to regulate mobile sources that congregate at facilities.

     b.  The Legislature therefore determines that it is in the public interest for the State to implement an indirect source review program, in order to target and mitigate air pollution from high-traffic locations in the State, particularly those in overburdened communities.

 

     2.  As used in this act:

     "Defeat device" means any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with State or federal air pollution laws.

     "Department" means the Department of Environmental Protection.

     "Federal Reference Method" means an air pollution monitoring technique that has been tested and approved as a Federal Reference Method by the United States Environmental Protection Agency.

     "Hoteling" means the practice, by drivers of long-haul trucks, of resting while leaving the truck's engine running.

     "Minimum Efficiency Reporting Value," or "MERV" means a measurement scale used to rate the effectiveness of air filters.

     "Operator" means the person who conducts day-to-day operations at a regulated facility, either with its employees or through the contracting out of services for all or part of the regulated facility operations.

     "Owner" means a legal, beneficial, or equitable owner of a regulated facility.

     "Overburdened community" means the same as the term is defined in section 2 of P.L.2020, c.92 (C.13:1D-158).

     "Regulated facility" means (1) a facility used for the purpose of goods distribution, whether leased or used as a proprietary facility, which has 100,000 square feet or more of business area; (2) a facility located in an overburdened community and used for the purpose of goods distribution, whether leased or used as a proprietary facility, which has 50,000 square feet or more of business area; or (3) a facility that generates 50 or more truck trips per day, including a port or any part of a port.

     "Truck count" means an accounting of the number of trucks traveling through a designated intersection.

     "Truck trip" means a one-way trip a truck or tractor makes to or from a facility.

 

     3.  a.  No later than 12 months after the effective date of this act, the Department of Environmental Protection shall establish an indirect source review program for regulated facilities.  The goal of the program shall be to reduce air pollution emissions from regulated facilities to zero by 2050.

     b.  The owner or operator of each regulated facility shall obtain, and abide by the terms of, an indirect source air pollution permit issued by the department pursuant to this act.  A regulated facility shall not operate without possession of an indirect source air pollution permit issued by the department.  A newly constructed regulated facility shall not commence operations without first obtaining an indirect source air pollution permit.  Any time a regulated facility carries out a major modification of the facility or its operations, as defined in rules and regulations adopted by the department pursuant to section 9 of this act, the owner or operator of the regulated facility shall obtain a new indirect source air pollution permit.

     c.  A permit for a regulated facility located in an overburdened community shall have a duration of three years.  A permit for a regulated facility not located in an overburdened community shall have a duration of five years.

     d.  No permit or permit renewal shall be issued to a regulated facility unless the owner or operator thereof pays the permit fee required by section 6 of this act, and demonstrates to the department, in a manner and form determined by the department, the facility's ability to meet its air pollution mitigation compliance obligations, as determined by the department pursuant to section 4 of this act.

     e.  The department shall consider the following factors or information when issuing and renewing permits, revoking permits, and imposing permit conditions:

     (1) the cumulative impact of air pollution on residents and workers within a half mile of the regulated facility;

     (2) whether the facility is located with one half-mile of an overburdened community;

     (3) air pollution monitoring data, including Federal Reference Method, fence-line, and satellite data;

     (4) the results of any inspections of the facility;

     (5) whether the regulated facility is in compliance with its air pollution reduction plan compliance obligation, if applicable; and

     (6) the modeled emissions rates for the facility's activities, integrating inputs such as truck counts and onsite activities such as idling, as calculated by the department.

     f.  The department shall establish a community-prompted permit review protocol for regulated facilities.  A municipal government, or other community representative organization, of an overburdened community may petition the department to review the permit for a regulated facility.  The department shall initiate a permit review process if the petitioner presents compelling quantitative or qualitative evidence that the regulated facility is contributing to the cumulative air pollution burden of the overburdened community.  After the review, the department may revoke, or impose additional conditions on the facility's permit, as it deems appropriate.

     g.  The provisions of each permit issued by the department pursuant to this act shall require the regulated facility to reduce its air pollution emissions to zero by 2050 through truck electrification, the use of on-site solar power generation, battery storage, and managed charging systems, or other means.

     h.  The department may revoke or revise a regulated facility's permit if it finds that the facility is not in compliance with the provisions of this act.

     i.  The department may, in its discretion, require that the provisions of a permit issued to a regulated facility located in, or within a half-mile of, an overburdened community include more stringent air pollution mitigation requirements that that of an equivalent facility not in or near an overburdened community.

 

     4.  a.  A permit issued pursuant to this act shall require the regulated facility to implement an annual points compliance obligation of air pollution mitigation measures, determined by the department using a points-based accounting system.  Points shall be awarded for measures including, but not limited to:

     (1) purchasing battery-electric trucks;

     (2) purchasing and using battery-electric forklifts, yard trucks, or other on-site equipment;

     (3) using battery-electric trucks at the regulated facility or in truck trips to or from the regulated facility;

     (4) purchasing and using electric vehicle charging infrastructure;

     (5) using alternatives to truck trips to or from the regulated facility, such as the use of light duty electric vehicles or electric ferries;

     (6) installing on-site solar power generation, electricity storage, or managed charging systems;

     (7) installing and maintaining MERV 16 or greater filters systems in schools, daycares, hospitals, community centers, or residences located within one-half mile of the regulated facility;

     (8) eliminate cooking, heating, hot water, or generator combustion emissions by replacing appliances and equipment at the regulated facility or at buildings located within one-half mile of a regulated facility; and

     (9) reduce transport emissions for regulated facilities and their surrounding areas by implementing and maintaining bicycle- or electric vehicle-share programs.

     b.  The owner or operator of a regulated facility shall not sell, or otherwise transfer, an annual mitigation point to a another regulated facility.

     c.  If the owner or operator of regulated facility operator earns more points than is required for the annual points compliance obligation in a given reporting period, the remaining points may be used at the same regulated facility to satisfy a points compliance obligation in any of the following three years, provided that the owner or operator demonstrates that any improvements or equipment installations that were used to earn the points being transferred are still operational at that regulated facility in the year during which the points are used.

     d.  Points earned during the three years prior to a regulated facility's first compliance period may be banked and transferred up to three years after the regulated facility operator's first compliance period, provided that the measures taken to earn the points are documented in an annual report for the year in which the measure was completed.

     e.  A regulated facility that regularly causes truck trips to or from a port or an overburdened community, or that is located at a port, shall have an annual points compliance obligation that is 25 percent higher than that of an equivalent facility that does not meet these conditions.

     f.  An owner or operator of a regulated facility that seeks to earn compliance points by using alternatives to truck trips pursuant to paragraph (5) of subsection a. of this section shall first consult impacted and displaced workers in selecting an alternative to truck trips and shall only use an alternative upon agreement with a majority of the impacted and displaced workers.  If employees in a regulated facility have an exclusive bargaining unit representative and the bargaining unit or the terms of the collective bargaining agreement would be impacted by the use of an alternative, then the operator shall consult with and obtain agreement from the employees who are impacted, displaced, or both, and the representative, in writing, before using the alternative.

 

     5.  a.  The department shall annually conduct truck counting on a representative sample of roads adjacent to regulated facilities.  Truck counting shall include the class and age of truck and be conducted in consultation with appropriate community and environmental justice organizations, if possible.

     b.  The department shall annually conduct monitoring of idling and hoteling activities at a representative sample of regulated facilities.  

     c.  The department shall annually conduct an inspection of at least 10 percent of the regulated facilities located in overburdened communities, and at least five percent of all other regulated facilities, using a randomized selection process.

     d.  In addition to the inspections required by subsection c. of this section, the department shall annually inspect each regulated facility in a location within one-half mile of which 500 more children under the age of six reside.

     e.  The municipal government of, or a community organization representing, an overburdened community may petition the department to inspect a regulated facility.  The department shall grant the petition if the petitioner presents compelling evidence that the regulated facility is violating the provisions of its permit.

     f.  An inspection carried out pursuant to this section shall include:

     (1) fence-line monitoring for at least one month of each season for one year;

     (2) an analysis of satellite data;

     (3) monitoring of land use, on-site combustion, truck counts and ages, idling and hoteling duration, and other emissions sources;

     (4) the identification of defeat devices;

     (5) a determination of the annual emissions rate for criteria air pollutants from the regulated facility and the expected concentration increases of criteria air pollutants caused by the regulated facility at distances of one-half mile and one mile; and

     (6) in the case of an inspection carried out pursuant to subsection e. of this section, any other metrics identified by the petitioner.

 

     6.  a.  The department shall establish and charge the owners or operators of regulated facilities an annual permit fee.  The department may make the amount of the fee proportional to the regulated facility's total emissions of all regulated air contaminants excluding greenhouse gases.  The overall amount of the annual fee shall be sufficient to cover the department's costs in implementing the provisions of this act, including air monitoring activities and truck counting activities.  For the first annual permit fee only, the department shall require an owner or operator of the regulated facility to pay an additional amount that is sufficient, in the department's estimation, to fund the cleanup and restoration of the regulated facility and its land once the regulated facility is no longer in commercial operation for longer than one year.

     b.  The department may establish a grant program to distribute any excess funds collected under this section to mitigate health impacts on residents caused by regulated facilities, reimburse residents for health care expenses caused by regulated facilities, or to fund community health facilities or initiatives to respond to air pollution caused by regulated facilities.

 

     7.  a.  In addition to any requirements under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), or the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.) the department shall provide the following for permits issued pursuant to this act:

     (1) public notice of the submission of permit applications, renewals, or revisions;

     (2) a post, in machine-readable format on a public website accessible to search engines, that contains the full permit application, the draft and final findings by the consulted agencies, and the agencies' response to comments, for each permit;

     (3) a public hearing and an opportunity for the submission of public comments prior to the issuance or renewal of a permit; and

     (4) a summary and response of the comments prepared by the consulted agencies.

     b.  The department shall post, and regularly update, the State's progress on the reduction of air pollution emissions from regulated facilities on its Internet website.

     c.  The department shall post on its Internet website a list of regulated facilities, which includes the following information:

     (1) the facility's latitude and longitude; 

     (2) the facility's square footage; 

     (3) the operator's name; 

     (4) the owner's name; 

     (5) any secured lender of the facility's name, if applicable;

     (6) the number of truck bays at the facility; 

     (7) the facility's compliance status under this act; 

     (8) any documented labor violations at the facility, if applicable; 

     (9) the number of electric vehicle charging stations installed at the facility, and their actual usage;

     (10) the number of on-site renewable energy generation systems installed at the facility; 

     (11) the number of vehicles used to deliver materials or goods from the facility that are owned by the operator but leased to a third-party, the proportion of those vehicles that are leased, and the proportion that are owned by the operator; 

     (12) the average daily number of inbound and outbound truck trips by vehicle weight and class, by time of day, and by day of the week; the average daily number of inbound and outbound truck trips to and from ports by vehicle weight and class, by time of day, and by day of the week, the average daily vehicle miles traveled for all vehicles making inbound and outbound trips; and the average daily number of inbound and outbound truck trips associated with trucks with refrigeration units;

     (13) the total number of residents under five or over 65 years of age who reside within one-half mile of the facility and the race and ethnicity of residents who reside within one-half mile of the facility;  

     (14) the annual profit of the facility; 

     (15) the State and federal tax incentives received by the facility, if applicable;

     (16) the number of jobs at the facility, including drivers and others employed by third-party contractors, with a breakdown of the percentage of part-time and full-time employees, independent contractors, unionized, and non-union employees; 

     (17) the percentage of vehicles used, specifying on-road vehicles and off-road vehicles as well as weight and vehicle class, that are zero emissions; 

     (18)  the identity of subcontractors who conduct more than 10 percent of total delivery vehicle trips from the facility, including the entity name, principal officers, business address, contact information, and total number of employees;

     (19) the expected costs of clean up and restoration of the land and buildings of the regulated facility in the event that it ceases commercial operations; and 

     (20)  any other information necessary to effectively implement and enforce the provisions of this act.

     d.  The owner or operator of each regulated facility shall submit an annual report to the department that contains the information enumerated in subsection c. of this section.

     e.  The department shall issue an annual report to the Governor and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), which contains quantitative and qualitative data regarding regulated facility impact in the state, including data on impacts on health, educational attainment, labor force participation and productivity, tax base, and contribution to flood risk.

 

     8.  a. Whenever the Commissioner of Environmental Protection finds that a person has violated any provision of this act, or any rule or regulation adopted pursuant thereto, or knowingly makes a false statement, representation, or certification in any application, record, plan, or other document filed or required to be maintained pursuant to this act, the commissioner may:

     (1)   issue an order requiring the person found to be in violation to comply in accordance with subsection b. of this section;

     (2)   bring a civil action in accordance with subsection c. of this section;

     (3)   levy a civil administrative penalty in accordance with subsection d. of this section; or

     (4)   bring an action for a civil penalty in accordance with subsection e. of this section.

     b.    Whenever the commissioner finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, the commissioner may issue an administrative enforcement order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, requiring compliance with the provision violated, and giving notice to the person of the person's right to a hearing on the matters contained in the administrative enforcement order.  The ordered person shall have 20 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing.  After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order.  If no hearing is requested, the order shall become final after the expiration of the 20-day period.  A request for hearing shall not automatically stay the effect of the order.

     c.     The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of this act, or any rule or regulation adopted thereof.  Such relief may include, singly or in combination:

     (1)   a temporary or permanent injunction;

     (2)   recovery of reasonable costs of any investigation or inspection which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;

     (3)   recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of the provisions of this act, or any rule or regulation adopted pursuant thereto, for which a civil action has been commenced and brought under this subsection;

     (4)   recovery of compensatory damages caused by a violation of the provisions of this act, or any rule or regulation adopted, for which a civil action has been commenced and brought under this subsection.  Assessments under this subsection shall be paid to the State Treasurer, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.

     d.  The commissioner is authorized to assess a civil administrative penalty of not less than $10,000 nor more than $20,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate and distinct offense.

In assessing a civil administrative penalty, the commissioner shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will maintain an appropriate deterrent.  Prior to assessment of a civil administrative penalty, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed.  The notice shall identify the section of the statute, rule, regulation, or order violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing.  The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing.  After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice.  If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period.  Payment of the assessment is due when a final order is issued or the notice becomes a final order.  The authority to levy an administrative order is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied.  The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate.

     e.  A person who violates any provision of this act, or any rule or regulation adopted pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $20,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense.  Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or may be collected in a civil action commenced by the commissioner.  In addition to any penalties, costs or interest charges, the Superior Court, or the municipal court as the case may be, may assess against the violator the amount of economic benefit accruing to the violator from the violation.

     f.  Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.

 

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

 

     10.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would establish a program in the Department of Environmental Protection (DEP) to require certain high-traffic facilities to obtain a permit from the DEP and annually implement measures to reduce air pollution caused by the facility.

     Specifically, the bill would apply to "regulated facilities," defined by the bill as (1) a facility used for the purpose of goods distribution, whether leased or used as a proprietary facility, which has 100,000 square feet or more of business area; (2) a facility located in an overburdened community and used for the purpose of goods distribution, whether leased or used as a proprietary facility, which has 50,000 square feet or more of business area; or (3) a facility that generates 50 or more truck trips per day, including a port or any part of a port.

     The bill would require each owner or operator of a regulated facility to obtain, and abide by the terms of, an indirect source air pollution permit issued by the DEP.  A newly constructed regulated facility would not be allowed to commence operations without first obtaining an indirect source air pollution permit issued by the DEP.  The goal of the indirect source air pollution permit program would be to reduce air pollution from regulated facilities to zero by the year 2050.

     Each permit would require the regulated facility to implement an annual quota of air pollution mitigation measures, determined by the DEP using a points-based accounting system.  Points would be awarded for measures, as enumerated in subsection a. of section 4 of the bill, including purchasing battery-electric trucks, purchasing and using battery-electric forklifts, yard trucks, or other on-site equipment and using battery-electric trucks at the regulated facility or in truck trips to or from the regulated facility.  Persons who violate the bill's provisions could be liable for civil administrative penalties of between $10,000 and $20,000 per violation, and civil penalties of up to $20,000 per violation.

     In order to monitor compliance with the bill's provisions, the bill would require the DEP to annually conduct truck counting on a representative sample of roads adjacent to regulated facilities, and to annually conduct monitoring of idling and hoteling activities at a representative sample of regulated facilities.  In addition, the DEP would be required to annually conduct an inspection of at least 10 percent of the regulated facilities located in overburdened communities, and at least five percent of all other regulated facilities, using a randomized selection process.

     The bill would require owners or operators of regulated facilities to pay an annual permit fee, which would be set at a level sufficient to cover the DEP's administrative costs in implementing the bill's provisions.  The first annual permit fee paid by a regulated facility would also include an amount sufficient to fund the cleanup and restoration of the facility and its land once the facility is no longer in commercial operation for longer than one year.

     The DEP would be required to provide certain public notifications under the permit program, including public notice of the submission of permit applications, renewals, or revisions, and the full permit application, the draft and final findings by the consulted agencies, and the agencies' response to comments, for each permit.  Finally, the bill would require the DEP to post a list of regulated facilities, along with certain items of information enumerated in subsection c. of section 7 of the bill, on its website, and to submit an annual report on the program established by the bill to the Governor and the Legislature.

feedback