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NJDEP Adopts Correction to Air Minor Source Grace Period Determination

On November 18, 2013, the New Jersey Department of Environmental Protection (“NJDEP”) amended the Air Administrative Procedures and Penalties Code, N.J.A.C. 7:27A-3.10(m)16, to change a violation of N.J.A.C. 7:27-16, Control and Prohibition of Air Pollution by Volatile Organic Compounds (VOC) for Vapor Control Systems from a minor violation to a non-minor violation. A gas distributing facility violates this provision of the Code when emissions are detected from the facility’s vapor control system, which demonstrates that the system is not working properly.

Previously, failure of a vapor control system to prevent emissions was considered a minor violation.  For minor violations, the NJDEP would issue a notice of violation and allow a 30-day grace period for the facility to correct the issue. N.J.A.C. 7:27A-3.10(q), (t). Furthermore, the facility could request an extension of the grace period. The NJDEP had the discretion to grant an extension for up to 90-days. The NJDEP could issue a penalty only if the facility did not make the correction, did not notify the agency of the correction, or ask for an extension.

Now that a failure of the vapor control system is a non-minor violation, facilities are not granted a grace period to correct any problems. Penalties for violations against facilities rise for each offense. The first offense has a penalty of $1,000, the second offense is $2,000, the third offense is $5,000, and every offense thereafter is $15,000 each.

This amendment to the regulations will have a significant effect on gas distribution facilities that must now ensure that their vapor control systems are continuously working properly, or risk a heavy penalty. The NJDEP has made several suggestions for these facilities to protect against violations, including adhering to required tests and testing schedules, using automatic vapor recovery testing schedules, and keeping test results ready for facility inspections.

At Lieberman & Blecher our attorneys are extremely well-versed in matters of regulatory compliance, permitting, and enforcement. There are myriad environmental statutes, regulations, and even informal rules which businesses owners must be aware of to avoid making any environmental transgressions. Our legal team is knowledgeable and experienced in these matters, and has helped many clients navigate their way safely through these regulations over the years.

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