The New Jersey Department of Environmental Protection (NJDEP) has proposed regulations implementing the affirmative defense provisions adopted in 1993 of the Air Pollution Control Act (the "Act"). Under the Act, and the proposed implementing regulations, a source of air pollution may establish an affirmative defense against penalties assessed against it by NJDEP arising out of violations of any standards set forth in the Act, regulations or in a permit. This affirmative defense is available for violations that occur as a result of equipment malfunction, start-up, shut-down or necessary maintenance.
In addition to proving that the violation was the result of equipment malfunction, start-up, shut-down or necessary maintenance, the entity asserting the defense also must notify NJDEP and demonstrate that the facility was being operated with due care, the violation was not the result of operator error, all reasonable efforts were taken to minimize emissions, and the resulting emissions did not pose a potential threat to public health, welfare or the environment. If the violation was the result of a malfunction, the entity asserting the defense also must prove that the malfunction is not part of a recurrent pattern. In addition to providing definitions for many of the critical terms left undefined in the Act, the proposed regulations also provide a "safe haven" whereby certain malfunctions are presumed not to be part of a recurrent pattern.
Overall, the proposed regulations provided sources of air emissions with greater certainty in asserting affirmative defenses against penalty assessments under these indicated circumstances. As such, sources will be able to determine more accurately what violations of the Act will subject them to penalties.
