New Jersey P.L.1986, c.102

by New Jersey Legislature

CHAPTER 102, LAWS OF 1986

AN ACT regulating the underground storage of hazardous substances, supplementing Title 58 of the Revised Statutes, and making an appropriation.

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

C.58.10A-21 Findings, declarations.

1. The Legislature finds and declares that millions of gallons of gasoline and other hazardous substances are stored prior to use or disposal, in underground storage tanks; that a significant percentage of these underground storage tanks are leaking due to corrosion or structural defect; that this leakage of hazardous sub stances from underground storage tanks is among the most common causes of groundwater pollution in the State; and that it is thus necessary to provide for the registration and the systematic testing and monitoring of underground storage tanks to detect leaks and discharges as early as possible and thus minimize further degradation of potable water supplies. The Legislature further finds and declares that with the enactment by the United States Congress of the "Hazardous and Solid Waste Amendments of 1984," Pub. L. 98-616 (42 U.S.C. § 6991) it is necessary to authorize the Department of Environmental Protection to adopt a regulatory program that permits the delegation of the authority to carry out the federal act, but also recognizes the need of this State to protect its natural resources in the manner consistent with well-established environmental principles.

C.58:10A-22 Definitions.

2. As used in this act:

a. "Commissioner" means the Commissioner of the Department of Environmental Protection;

1. "Department" means the Department of Environmental Protection;

c. "Discharge" means the intentional or unintentional release by any means of hazardous substances from an underground storage tank into the environment;

d. "Facility" means one or more underground storage tanks;

e. "Hazardous substances" means motor fuels and those elements and compounds, including petroleum products which are liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), which are defined as hazardous substances by the department after public hearing, and which shall be consistent to the maximum extent possible with and which shall include the list of hazardous wastes adopted by the United States Environmental Protection Agency pursuant to section 3001 of the "Resource Conservation and Recovery Act of 1976," Pub. L. 94-580 (42 U.S.C. § 6921), the list of hazardous substances adopted by the United States Environmental Protection Agency pursuant to section 311 of the "Federal Water Pollution Control Act Amendments of 1972," Pub. L. 92-500 (33 U.S.C. § 1321), the list of toxic pollutants designated by Congress or the Environmental Protection Agency pursuant to section 307 of that act (33 U.S.C. § 1317), and any substance defined as a hazardous substance pursuant to section 101 (14) of the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," Pub. L. 96-510 (42 U.S.C. § 9601);

f. "Leak" means the release of a hazardous substance from an underground storage tank into a space created by a method of secondary containment wherein it can be detected by visual inspection or a monitoring system before it enters the environment;

g. "Monitoring system" means a system capable of detecting leaks or discharges, or both, other than an inventory control system, used in conjunction with an underground storage tank, or a facility, conforming to criteria established pursuant to section 5 of this act;

h. "Nonoperational storage tank" means any underground storage tank in which hazardous substances are not contained, or from which hazardous substances are not dispensed;

i. "Operator" means any person in control of, or having responsibility for, the daily operation of a facility;

j. "Owner" means any person who owns a facility, or in the case of a nonoperational storage tank, the person who owned the nonoperational storage tank immediately prior to the discontinuation of its use;

k. "Person" means any individual, partnership, company, corporation, consortium, joint venture, commercial or any other legal entity, the State of New Jersey, or the United States Government;

1. "Residential building" means a single and multi-family dwelling, nursing home, trailer, condominium, boarding house, apartment house, or other structure designed primarily for use as a dwelling;

m. "Secondary containment" means an additional layer of impervious material creating a space wherein a leak of hazardous substances from an underground storage tank may be detected before it enters the environment;

n. "Substantially modify" means construction at, or restoration, refurbishment or renovation of, an existing facility which increases or decreases the in-place storage capacity of the facility or alters the physical configuration or impairs or affects the physical integrity of the facility or its monitoring systems;

o. "Test" or "testing" means the testing of underground storage tanks in accordance with standards adopted by the department;

p. "Underground storage tank" means any one or combination of tanks, including appurtenant pipes, lines, fixtures, and other related equipment, used to contain an accumulation of hazardous substances, the volume of which, including the volume of the appurtenant pipes, lines, fixtures and other related equipment, is 10% or more below the ground. "Underground storage tank" shall not include:

(1) Farm or residential tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;

(2) Tanks used to store heating oil for on-site consumption in a nonresidential building with a capacity of 2,000 gallons or less;

(3) Tanks used to store heating oil for on-site consumption in a residential building, except that for the purposes of sections 3, 7 and 8 of this act, a tank with a capacity of more than 2,000 gallons used to store heating oil for on-site consumption in a residential building shall be considered an "underground storage tank";

(4) Septic tanks installed in compliance with regulations adopted by the department pursuant to "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.);

(5) Pipelines, including gathering lines, regulated under the "Natural Gas Pipeline Safety Act of 1968," Pub. L. 90-481 (49 U.S.C. § 1671 et seq.), the "Hazardous Liquid Pipeline Safety Act of 1979," Pub. L. 96-129 (49 U.S.C. § 2001 et seq.), or intrastate pipelines regulated under State law;

(6) Surface impoundments, pits, ponds, or lagoons, operated in compliance with regulations adopted by the department pursuant to the "Water Pollution Control Act," P. L. 1977, c.74 (C.58:10A-1 et seq.);

(7) Storm water or wastewater collection systems operated in compliance with regulations adopted by the department pursuant to the "Water Pollution Control Act";

(8) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations;

(9) Tanks situated in an underground area, including, but not limited to, basements, cellars, mines, drift shafts, or tunnels, if the storage tank is situated upon or above the surface of the floor, or storage tanks located below the surface of the ground which are equipped with secondary containment and are uncovered so as to allow visual inspection of the exterior of the tank; and

(10) Any pipes, lines, fixtures, or other equipment connected to any tank exempted from the provisions of this act pursuant to paragraphs (1) through (9) of this subsection.

C.58:10A-23 Registration of underground storage facilities.

3. a. The owner or operator of a facility shall, within 180 days of the effective date of this act, on forms and in a manner prescribed by the commissioner, register that facility with the department. The department may extend the registration period for an additional 180 days.

b. The commissioner shall, within 120 days of the effective date of this act and pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to provide for the registration of all facilities in the State, prescribing the forms and procedures therefor. This registration shall require the following:

(1) The name and address of the owner and operator of the facility;

(2) A site plan of the facility indicating the number and location of the underground storage tanks;

(3) The date of installation of each of the underground storage tanks;

(4) Any other relevant information requested by the commissioner. These rules and regulations shall provide for the annual certification by the owner or operator of the facility that the information contained on the registration remains unchanged. The owner or operator of a facility shall, within 30 days of completing the activities for which a permit was acquired pursuant to section 4 of this act, register or reregister, as the case may be, in accordance with the provisions of this section.

C.58:10A-24 Permit for modification.

4. An owner or operator of a facility proposing to replace, install, expand or substantially modify the facility shall obtain a permit therefor from the commissioner. The commissioner shall not issue a permit unless the owner or operator demonstrates that:

a. The facility is constructed of materials that meet or exceed the standards contained in, and is installed in a manner consistent with, the State Uniform Construction Code adopted pursuant to the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.) and with the rules and regulations adopted pursuant to this act;

b. The facility is equipped with either an approved method of secondary containment or a monitoring system;

c. The facility utilizes corrosion control features necessary to protect the structural integrity of underground storage tanks susceptible to corrosion.

C.58:10A-25 Rules, regulations.

5. a. The commissioner shall, within one year of the effective date of this act, adopt, pursuant to the "Administrative Procedure Act," rules and regulations which:

(1) Establish a schedule for the testing of all facilities, taking into account the age of the underground storage tank, the hazardous substance stored therein, the proximity of the underground storage tank to potable water supplies, and the soil resistivity and other corrosive conditions which may precipitate a discharge, and for the periodic testing for structural integrity of facilities utilizing secondary containment which do not incorporate a monitoring system, and the reporting of results thereof to the department.

(2) Identify and require corrosion control features necessary to protect the structural integrity of facilities, including cathodic protection, impressed current or isolative protection or any other measures to counteract or minimize soil resistivity and other corrosive conditions which may precipitate a leak or discharge.

(3) Establish standards for monitoring systems which shall include the requirement of at least a warning method indicating a leak or discharge. Monitoring systems may include electric or mechanical devices, monitoring wells, or any other method of monitoring approved by the department. Any regulations adopted by the department pursuant to this section requiring the installation of monitoring systems at a facility shall reflect the financial ability of an owner or operator of a facility, or classes of facilities, to install the monitoring system required by the department.

(4) Require the maintaining of records of any monitoring or leak detection system, inventory control system or underground storage tank testing system.

(5) Require the reporting of any discharges and the corrective action taken in response to a discharge from an underground storage tank.

(6) Require the taking of corrective action in response to a discharge from an underground storage tank by the owner or operator of the underground storage tank.

(7) Require the owner or operator of an underground storage tank to prepare plans for the closure of an underground storage tank to prevent the future discharge of hazardous substances into the environment.

(8) Require the maintaining of evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by a discharge.

(9) Require the development of performance standards for new and substantially modified existing underground storage tanks.

(10) Require the notification of the department and local agencies of the existence of any operational or nonoperational underground storage tanks.

b. In developing the regulations required pursuant to this section the department shall consider the regulations concerning underground storage tanks adopted by the United States Environmental Protection Agency pursuant to the "Hazardous and Solid Waste Amendments of 1984," Pub. L. 98-616 (42 U.S.C. § 6991 et al.) and shall use the recommendations and standard procedures of the following organizations:

(1) American Petroleum Institute (API), 1220 L Street, N.W., Washington, D.C. 20005;

(2) American Society for Testing and Materials (ASTM), 1916 Race Street, Philadelphia, Pennsylvania 19103;

(3) National Association of Corrosion Engineers (NACE), P.O. Box 218340, Houston, Texas 77218;

(4) National Fire Protection Association (NFPA), Batterymarch Park, Quincy, Massachusetts 02269; and

(5) Underwriters Laboratories (UL), 333 Pfingston Road, Northbrook, Illinois 60062.

c. The Department of Community Affairs shall adopt in the State Uniform Construction Code the rules and regulations adopted by the department pursuant to this section within 60 days.

C.58:10A-26 Monthly Inspections.

6. Monitoring systems shall be installed, maintained, and operated in accordance with the manufacturer's requirements. Each monitoring system shall be inspected at least monthly to determine that it is functionally unimpaired.

C.58-10A-27 Inventory records.

7. The owner or operator of a facility shall maintain inventory records for each underground storage tank which shall, at a minimum, record daily hazardous substance transfers and a periodic average. These records shall be maintained at the site of the facility for at least one year.

C.58:10A-28 Leaks, discharges.

8. a. If the inventory records maintained pursuant to section 7 of this act or a monitoring system indicates an unaccountable loss of the equivalent of 1% of the storage capacity of an underground storage tank or 40 gallons, whichever is smaller, the owner or operator of the facility shall, within 24 hours of discovery, notify the department and the appropriate local health agencies of the loss of volume.

b. Upon notification, the department shall promptly conduct an inspection to determine if the disclosed loss of volume represents a leak or a discharge.

c. Upon a finding that the loss of volume represents a leak or a discharge that is not an imminent threat to the proximate groundwater resources or public health or safety, the commissioner shall order the owner of the underground storage tank to remove, replace, or repair the underground storage tank, establish a date by which the removal, replacement, or repair shall be effected, and take any other action, or require the owner of the tank to take any action, necessary to abate, contain, clean up, or remove, or any combination thereof, the leak or discharge.

d. Upon a finding that the loss of volume represents a discharge which has entered or threatens groundwater resources or public health or safety, the commissioner shall order the immediate removal of the contents of the underground storage tank, and shall take, or require the owner of the underground storage tank to take, all other appropriate actions necessary to abate, contain, clean up, or remove, or any combination thereof, the discharge.

e. If the commissioner provides for the removal, replacement or repair of an underground storage tank by any person other than the owner, or takes other appropriate actions necessary to mitigate the adverse effects of a leak or discharge, the costs of these measures shall be borne by the owner of the underground storage tank.

C.58:10A-29 Secondary containment, monitoring system.

9. Within five years of the effective date of this act, all facilities shall be equipped with an approved method of secondary containment or a monitoring system. This section shall not apply to facilities used principally for agricultural purposes on land qualified for a special tax assessment pursuant to the "Farmland Assessment Act of 1964," P.L.1964, c.48 (C.54:4-23.1 et seq.) and installed prior to the effective date of this act.

C.58:10A-30 Inspection authority.

10. The department shall have the authority to enter, at reasonable hours, any property or place of business where underground storage tanks or nonoperational storage tanks are or may be located to inspect any underground storage tank or nonoperational storage tank, and to photograph any records related to the operation of an underground storage tank or a nonoperational storage tank; to obtain samples or evidence of a discharge from any underground storage tank or nonoperational storage tank, or from the surrounding air, soil, or surface or groundwater; and to conduct monitoring or testing of any underground storage tank or nonoperational storage tank or the surrounding air, soil or surface or groundwater. The owner or operator of a facility or a nonoperational storage tank shall allow and cooperate with any action taken by the department pursuant to the provisions of this section.

C.58:10A-31 Registration fees.

11. The commissioner may adopt, pursuant to the "Administrative Procedure Act," any rules and regulations in addition to those required pursuant to this act, necessary to carry out the provisions of this act, including rules and regulations imposing fees for the processing of initial registrations pursuant to section 3 of this act and for any renewal thereof, and for processing permits required pursuant to section 4 of this act. Registration fees shall be established for subsequent registrations and shall not exceed the estimated yearly cost of implementing the provisions of this act. The commissioner may consider the size, contents and the location of the underground storage tanks in establishing these fees. The commissioner shall provide for the recovery of the amount appropriated in section 19 of this act within four years from the date these fees are first imposed. These fees shall he deposited in the General Fund. The Legislature shall annually appropriate to the department an amount equivalent to the amount anticipated to he collected as fees charged under this section for the purposes of administering the provisions of this act. No fee shall he charged for six months after the effective date of this act.

C.58:10A-32 Penalties.

12. A person violating the provisions of this act is liable to the penalties prescribed in section 10 of P.L.1977, c.74 (C.58:10A-10).

C.58:10A-33 Exemption.

13. The owner or operator of a facility equipped with a monitoring system who has obtained a permit for groundwater discharges pursuant to section 6 of P.L.1977, c.74 (C.58:10A-6) is exempt from the requirements of section 9 of this act.

C.58:10A-34 Other powers unaffected.

14. Nothing in this act shall be construed to limit the department's authority to respond to, or remove or clean up, a discharge pursuant to the provisions of any other State or federal law.

15. Within two years of the effective date of this act the department shall prepare and submit to the Legislature a report summarizing the progress in implementing the provisions of this act and outlining the economic impact on owners or operators of facilities in complying with the provisions of this act.

C.58:10A-35 Local laws superseded.

16. a. It is the intent of the Legislature that the program established by this act for the regulation of underground storage tanks constitute the only program regulating underground storage tanks in this State. To this end no municipality, county, or political subdivision thereof shall enact any law or ordinance regulating underground storage tanks, and, further, the enactment of this act shall supersede any law or ordinance regulating underground storage tanks enacted by a municipality, county or political subdivision thereof prior to the enactment of this act.

b. However, the department shall develop criteria for determining in which case a municipal ordinance more stringent than the provisions of this act is warranted. If the conditions in the municipality are deemed to meet the criteria developed pursuant to this subsection, the ordinance is hereby deemed to be effective and not preempted and the municipality may enforce and administer its provisions. The department shall have 180 days to determine whether an ordinance meets the criteria developed pursuant to this section.

c. Any municipality, county or political subdivision may petition the department for a modification of any rule adopted under this act. The petition shall be forwarded to the department together with a written statement setting forth all provisions of the municipal ordinance which differ from the criteria identified, the reasons for the differences, and all supporting facts and data. The department shall evaluate the petition using the criteria adopted under subsection b. of this section and accept or reject the petition in a written statement which shall include the basis for the department's determination. When the department determines that a rule change is justified it shall evaluate the applicability of that rule change on a regional or areawide basis and modify the rules to provide areawide requirements as appropriate.

C.58:10A-36 Underground Storage Tank Improvement Fund.

17. a. The State Underground Storage Tank Improvement Fund, hereinafter referred to as the "fund," is established in the department as a revolving fund. The fund shall be administered by, the department and shall be credited with such moneys as are appropriated by the Legislature and sums received as repayment of principal and interest on outstanding loans made from the fund, except as otherwise provided herein.

b. Moneys in the fund shall be allocated and used to provide loans which shall bear interest of not more than 6% per year, and shall be for a term of not more than 10 years. These loans shall be made to owners of facilities who have been directed pursuant to law by the Commissioner of the Department of Environmental Protection to replace or repair one or more underground storage tanks. These loans shall also be made to owners of facilities for the purpose of installing monitoring systems. These loans shall be made in accordance with criteria developed and adopted by the commissioner pursuant to section 18 of this act.

c. No loan shall be made after December 31 of the fifth full calendar year subsequent to the effective date of this act. All moneys remaining in the fund or received by the fund after that date as repayment for loans made by the fund shall immediately revert to the General Fund.

C.58:10A-37 Administration of fund.

18. The commissioner shall, within 180 days of the effective date of this act, and pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to administer the fund. These rules and regulations shall include, but need not be limited to, the following:

a. The establishment of criteria for determining degrees of economic hardship which shall take into account, among other relevant factors, the annual gross receipts derived from the operation of the facility, its net profit and the contractual relationship between the owner and the operator of the facility.

b. A schedule establishing percentages up to and including 100% of the total cost of repair or replacement of underground storage tanks or installation of monitoring systems, or both, which percentages shall reflect the degree of economic hardship of loan recipients.

19. There is appropriated to the department from the General Fund the sum of $700,000.00 to implement the provisions of this act.

20. This act shall take effect immediately.

Approved September 3, 1986.