An Act concerning alternative emissions reduction methods for reducing volatile organic compound emissions from certain stationary sources 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. (New section) The Legislature finds and declares that the Department of Environmental Protection should ensure compliance with the federal requirements pursuant to the federal "Clean Air Act," 42 U.S.C. s.7401 et seq., and promote the health and welfare of the citizens of the State, while preserving the flexibility of the regulated community to achieve emissions reductions in a cost-effective manner; that the Department of Environmental Protection in 2009 adopted rules and regulations requiring that certain external floating roof storage tanks be equipped with domed roofs to reduce volatile organic compound emissions from these tanks; that the Department of Environmental Protection calculated that the cost of the domed roof requirement would be $12,036 per ton of volatile organic compound emissions reduced, but the regulated community has reported that the Department of Environmental Protection's cost-effectiveness analysis is flawed because of installation costs that were not considered; that the regulated community estimates the cost to be $47,000 per ton of volatile organic compound emissions reduced; that the regulated community also reports that, at this significant cost, 130 tons of reductions in volatile organic compound emissions are estimated to be realized by the imposition of the requirement and that this reduction represents only 0.04% of the Statewide inventory of volatile organic compound emissions; that, nevertheless, reduction of volatile organic compound emissions is a necessary and laudatory goal; and that, to the extent that equivalent and enforceable volatile organic compound emissions reductions can be achieved at the same facilities by alternative means in a more cost-effective manner with equivalent environmental protection and due consideration to the preservation of a vibrant and dynamic economy, alternatives should be duly considered and accepted.

The Legislature therefore determines that it is consistent with the federal "Clean Air Act" and the State "Air Pollution Control Act of 1954," P.L.1954, c.212 (C.26:2C-1 et seq.). to direct the Department of Environmental Protection to consider every other option for the control and reduction of volatile organic compound emissions from a facility and to not require external floating roof storage tanks to be equipped with domed roofs if an alternative emissions reduction method for emissions of volatile organic compounds can be established.

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

2. As used in this act:

"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[;].

"Alternative emissions reduction method" means the installation or use of any equipment, control apparatus, or reasonably available control technology or a combination of such installation or use with operating procedures or changes in source operations at a facility that result in the reduction of emissions of an air contaminant or hazardous air pollutant at the facility comparable to the emissions reduction method otherwise required by the department.

"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[;].

"Domed roof" means a self-supporting fixed roof attached to the top of a floating roof storage tank to reduce evaporative losses of the liquids or gases stored in the storage tank.

"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.)[;].

"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] 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[;].

"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].

"Source operation" means any process or identifiable part thereof that results in the emission or can reasonably be anticipated to result in the emission of any air contaminant directly or indirectly into the outdoor atmosphere.

"Storage tank" means any tank, reservoir, or vessel that is a container for liquids or gases wherein no manufacturing process, or part thereof, other than filling or emptying, takes place, and to which the only treatment applied is that which is necessary to prevent change in the physical condition or the chemical properties of the liquid or gas deposited and stored in the tank, reservoir, or vessel. Such treatments may include recirculating, agitating, or maintaining the temperature of the stored liquids or gases, or replacing with an inert gas the air in the vapor space above the stored liquids or gases in order to inhibit the occurrence of a chemical reaction.

"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.

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

3. (New section) a. Notwithstanding any provision of the rules and regulations adopted pursuant to section 8 of P.L.1954, c.212 (C.26:2C-8) concerning the installation of domed roofs on external floating roof storage tanks, no external floating roof storage tank shall be required to be equipped with a domed roof unless an alternative emissions reduction method for emissions of volatile organic compounds cannot be implemented pursuant to this section. Alternative emissions reduction methods need not involve the external floating roof storage tanks, but may include methods for reducing VOC emissions from one or more emissions sources at the facility that result in comparable reductions in the overall VOC emissions from the facility.

b. The owner or operator of any facility seeking to employ an alternative emissions reduction method instead of the installation of domed roofs on external floating roof storage tanks to achieve comparable VOC emissions reductions at specific facilities may apply for approval of alternative emissions reduction methods pursuant to this section.

c. The owner or operator of the facility shall:

(1) request and obtain from the Department of Environmental Protection a calculation of the quantity of VOC emissions that the department reasonably projects would be achieved by the installation of domed roofs on the external floating roof storage tanks at the relevant facility, using generally accepted methods for quantifying and projecting such emissions;

(2) identify alternative emissions reduction methods to achieve comparable emissions reductions at the relevant facility;

(3) quantify the reduction in VOC emissions to be achieved by implementation of the alternative emissions reduction methods identified pursuant to paragraph (2) of this subsection, and demonstrate that the emissions reductions resulting from alternative methods are equal or greater than the emissions reductions quantified by the department pursuant to paragraph (1) of this subsection; and

(4) submit to the department an application for an operating permit, operating permit revision, or operating certificate or renewal thereof, as appropriate, that incorporates:

(a) the alternative emissions reduction methods selected by the owner or operator of the facility as legally enforceable requirements for the relevant source; and

(b) both a written description of the alternative emissions reduction methods selected by the owner or operator of the facility, and the information obtained and developed pursuant to paragraphs (1) through (3) of this subsection.

d. The department shall respond to the applicant's request submitted pursuant to paragraph (1) of subsection c. of this section as expeditiously as practicable. Upon receipt of the application submitted pursuant to paragraph (4) of subsection c. of this section, the department shall review the proposed alternative emissions reduction methods and determine that the selected alternative emissions reduction methods are not otherwise required pursuant to any existing federal or State laws, or rules or regulations adopted pursuant thereto, concerning control of air pollution emissions from a stationary source. Within 90 days after receipt of the complete application, the department shall approve the application if it determines that the proposed alternative emissions reduction methods achieve comparable emissions reductions, or recommend revisions thereto that achieve the required emissions reductions.

e. The provisions of subsection a. of this section shall not be construed to restrict in any way the use of domed roofs on external floating roof storage tanks for achieving VOC emissions reductions if the owner or operator employs this emissions reduction method.

4. The Department of Environmental Protection shall permit the owner or operator of any facility to identify alternative emissions reduction methods for, and achieve equivalent reduction of, volatile organic compound emissions from the facility, regardless of the applicability date of the requirement to install a domed roof at any facility imposed by the department.

5. This act shall take effect immediately.

STATEMENT

This bill prohibits the Department of Environmental Protection (DEP) from requiring external floating roof storage tanks to be equipped with domed roofs unless no alternative emissions reduction methods for emissions of volatile organic compounds can be established. The alternative emissions reduction methods need not involve the external floating roof storage tanks, but may include methods for reducing VOC emissions from one or more emissions sources at the facility that result in comparable reductions in the overall VOC emissions from the facility.

The bill requires that the DEP approve alternative emissions reduction methods as part of an application for an operating permit, operating permit revision, or operating certificate or renewal thereof, as appropriate. The bill directs the DEP to approve the application or recommend revisions thereto within 90 days after the receipt.

In April 2009, the DEP adopted rules and regulations requiring that certain external floating roof storage tanks be equipped with domed roofs to reduce volatile organic compound emissions from these tanks. The DEP calculated that the cost of the domed roof requirement would be $12,036 per ton of volatile organic compound emissions reduced, but the regulated community has reported that the cost is $47,000 per ton of volatile organic compound emissions reduced because certain installation costs were not considered.