New Jersey P.L.1993, c.351

by New Jersey Legislature

CHAPTER 351, LAWS OF 1993

AN ACT concerning groundwater remedial actions and supplementing P.L.1977, c.74 (C.58:10A-1 et seq.) and P.L.1975, c.291 (C.40:55D-1 et seq.).

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

C.58:10A-7.2 Groundwater remedial action; contents of application for permit, request for consent; definitions.

1. a. An application for a permit issued by the Department of Environmental Protection pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.) for the discharge of groundwater to surface water involving a groundwater remedial action necessitated by a discharge from an underground storage tank containing petroleum products or a groundwater remedial action involving petroleum products, shall contain, in addition to a properly filled application form:

(1) such documentation or other information on the permit application as may be prescribed by the department on a checklist made available to a prospective applicant;

(2) if the discharge from the proposed groundwater remedial action is located within a wastewater service district or area of a local public entity, a certified statement that a request, dated at least 60 days prior to the filing of the permit application, had been made to the local public entity to discharge the groundwater into the wastewater collection or treatment facilities of that entity, and that no reply has been received from that entity, or a written statement by the local public entity, dated not more than 60 days prior to the filing of the permit application with the department, that the entity has approved or rejected a written request by the applicant to discharge the treated groundwater into the wastewater collection or treatment facilities of that entity. Notwithstanding that a local public entity has approved the request to discharge groundwater into its facilities, the department may approve the applicant's permit to discharge the groundwater to surface water upon a finding that it is in the public interest;

(3) a certified statement that a copy of the completed application form along with a consent request, as prescribed in subsection b. of this section, have been filed with the clerk of the municipality in which the site of the proposed groundwater remedial action is located, and setting forth the date of the filing with the host municipality, which filing shall be made prior to, or concurrent with, the filing of the application with the department; and

(4) within the pinelands area, documentation from the Pinelands Commission that the application is consistent with the requirements of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.) or any regulations promulgated pursuant thereto and section 502 of the "National Parks and Recreation Act of 1978" (Pub.L. 95-625).

b. The department shall prescribe the form and content of a request for consent filed with a municipality pursuant to paragraph (3) of subsection a. of this section. The municipal consent request shall be limited to an identification of all municipal approvals with which the applicant is required to comply, the status of any applications filed therefor, and whether or not the municipality consents to the application and the specific reasons therefor. The request for consent form shall also advise that documentation and other information relating to the application have been filed and are available for review at the department. A municipality receiving a request for consent form shall have 30 days from the date of receipt of a copy of the application and request for consent form to file with the department the information requested, and its consent of, or objections to, the application. Municipal consent or objection to a groundwater remedial action shall be by resolution of the governing body of the municipality unless the governing body has, by resolution, delegated such authority to a qualified officer or entity thereof, in which case the endorsement shall be signed by the designated officer or official of the entity. Notwithstanding that a municipality objects to a permit application or fails to file a consent or objection to the permit application, the department may approve the applicant's permit application to discharge groundwater to surface water.

c. An application pursuant to subsection a. of this section shall be deemed complete, for the purposes of departmental review, within 30 days of the filing of the application with the department unless the department notifies the applicant, in writing, prior to expiration of the 30 days that the application has failed to satisfy one or more of the items identified in subsection

a. of this section. If an application is determined to be complete, the department shall review and take final action on the completed application within 60 days from commencement of the review, or, if the parties mutually agree to a 30-day extension, within 90 days therefrom. The review period for a completed application shall commence immediately upon termination of the 30-day period, or upon determination by the department that the application is complete, whichever occurs first. If the department fails to take final action on a permit application for a general permit in the time frames set forth in this subsection, that general permit shall be deemed to have been approved by the department. The department shall review an application for a permit pursuant to subsection a. of this section and shall take action on that application pursuant to the time frames set forth in this subsection, notwithstanding that all of the municipal approvals have not been obtained, unless such approvals would materially affect the terms and conditions of the permit, except that in such instances the department may condition its approval of the application on the necessary municipal approvals being subject to the terms and conditions of the application.

d. The department may issue a general permit for the discharge of groundwater to surface water pursuant to a groundwater remedial action of discharged petroleum products as provided in subsection a. of this section.

e. (1) The department may not require a municipal consent of a treatment works application for a groundwater remedial action for which a permit application is submitted pursuant to subsection a. of this section.

(2) If a completed application for a treatment works approval for a groundwater remedial action is filed with the department at the same time as an application for a general permit therefor, the department shall concurrently review the two applications, except that the review of the application for the treatment works approval for a groundwater remedial action shall not be subject to the time frames set forth in subsection c. of this section.

f. The provisions of this section shall apply to applications filed on or after the effective date of this act, except that the Department of Environmental Protection may implement any of the provisions of this section prior to that date.

g. The department may, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to implement the provisions of this act.

h. For purposes of this section:

"General permit" means a permit issued by the department for similar discharges.

"Groundwater remedial action" means the removal or abatement of one or more pollutants in a groundwater source.

"Local public entity" means a sewerage authority established pursuant to P.L.1946, c.138 (C.40:14A-1 et seq.), a municipal authority established pursuant to P.L.1957, c.183 (C.40:14B-1 et seq.), the Passaic Valley Sewerage Commissioners continued pursuant to R.S.58:14-2, a joint meeting established pursuant to R.S.40:63-68 et seq. or a local unit authorized to operate a sewerage facility pursuant to N.J.S.40A:26A-1 et seq., or any predecessor act.

"Underground storage tank" shall have the same meaning as in section 2 of P.L.1986, c.102 (C.58:10A-22), except that as used herein underground storage tanks shall include:

(1) farm underground storage tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;

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

(3) underground storage tanks used to store heating oil for on-site consumption in a residential building.

C.58:10A-10.11 Affirmative defense against liability for certain violations.

2. a. A permittee shall be entitled to an affirmative defense against liability for any penalty assessable pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10) or section 6 of P.L.1990, c.28 (C.58:10A-10.1) for a violation of an effluent limitation of a permit issued pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), which violation:

(1) occurs in the course of a permitted groundwater remedial action;

(2) is the first violation of that permit limitation; and

(3) involves an exceedance of a permit limitation that could not reasonably have been anticipated by the permittee, unless it is established by a preponderance of the evidence that the violation was the result of a negligent act or omission of the permittee. Demonstration that an act or omission of a person performing groundwater remedial action accorded with generally accepted remedial action practices, and utilized the best technology reasonably available to the permittee for the approved remedial action at the time of the action, shall create a rebuttable presumption that the act or omission was not negligent.

b. An affirmative defense claim filed pursuant to subsection a. of this section shall be denied by the Department of Environmental Protection or a delegated local agency, as defined in section 3 of P.L.1977, c.74 (C.58:10A-3), as appropriate, if:

(1) the equipment used in the remedial action had not been properly maintained or was not being properly operated at the time of the violation, and the failure to properly maintain or operate the equipment was the proximate cause of the exceedance;

(2) the permittee fails, as required by law or rule or regulation, to provide in a prompt manner to the department or a delegated local agency: (a) notification of the violation; and (b) written information on the nature and extent of the permit exceedance and, if known, the reasons therefor;

(3) the permittee fails to take immediate measures, upon first becoming aware of the violation, to terminate the violation and to abate any adverse consequences therefrom; or

(4) the permittee fails to file with the department or delegated local agency a remedial action protocol, setting forth the procedures to be followed to prevent a recurrence of the exceedance.

c. A determination by the department or delegated local agency on an affirmative defense claim made pursuant to subsection a. of this section shall be considered final agency action on the matter for purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and paragraph (5) of subsection d. of section 10 of P.L.1977, c.74 (C.58:10A-10).

d. If the department approves an affirmative defense claim filed pursuant to subsection a. of this section, the permit exceedance shall not be considered a violation for the purposes of designating a person as a significant noncomplier under section 6 of P.L.1990, c.28 (C.58:10A-10.1).

e. Nothing in this section shall be construed to limit the authority of the department to adopt regulations or permit conditions for groundwater remedial actions that exempt a violation for which an affirmative defense claim may be filed pursuant to the provisions of this section, or for exceedances of one or more permit parameters occurring during the start-up phase of a remedial action, as defined in a permit. As used in this section "groundwater remedial action" means the removal or abatement of one or more pollutants in a groundwater source.

C.40:55D-66.8 Siting of structure, equipment for groundwater remedial action.

3. a. The siting of a structure or equipment required for a groundwater remedial action approved by the Department of Environmental Protection pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), shall be deemed to be essential to the continuation of an existing structure or use of a property, including a nonconforming use, or to the development of a property, as authorized in the zoning ordinance of a municipality. A groundwater remedial action subject to this section, including any structure or equipment required in connection therewith, shall, therefore, be deemed to be an accessory use or structure to any structure or use authorized by the development regulations of a municipality; shall be a permitted use in all zoning or use districts of a municipality; and shall not require a use variance pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70).

b. A municipality may, by ordinance, adopt reasonable standards for the siting of a structure or equipment required for a groundwater remedial action subject to subsection a. of this section. The standards may include specification of the duration of time allowed for the removal from a site of all structures or equipment used in the remedial action upon expiration of the term of the discharge permit or completion of the remedial action, whichever shall be sooner. Nothing in this subsection shall be deemed to authorize a municipality to require site plan review by a municipal agency for a groundwater remedial action, but an ordinance establishing siting standards may provide penalties and may authorize the municipality to seek injunctive relief for violations of the ordinance. As used in this section, "groundwater remedial action" means the removal or abatement of pollutants in groundwater, and includes de-watering activities performed in connection with the removal or replacement of underground storage tanks, as defined in section 2 of P.L.1986, c.102 (C.58:10A-22), except that as used herein underground storage tanks shall include:

(1) farm underground storage tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;

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

(3) underground storage tanks used to store heating oil for on-site consumption in a residential building.

C.40:55D-66.9 Variance for remedial action.

4. If, for any of the reasons set forth in subsection c. of section 57 of P.L.1975, c.291 (C.40:55D-70), a variance is required under that subsection c. for the siting of a structure or equipment to be used in a groundwater remedial action subject to section 3 of P.L.1993, c.351 (C.40:55D-66.8), a variance for the remedial action shall be deemed necessary to avoid exceptional and undue hardship on an owner, lessee or developer of a property for which a variance application is made; however, a zoning ordinance may authorize the zoning board of adjustment or planning board, as appropriate, to establish reasonable terms and conditions for issuance of a subsection c. variance. The zoning board of adjustment or planning board, as appropriate, shall review and take final action on an application for a subsection c. variance for a groundwater corrective action at the next meeting of the zoning board of adjustment or planning board, as appropriate, occurring not less than 20 days following the filing of an application therefor, unless the zoning board of adjustment or planning board, as appropriate, determines that the application lacks information indicated on a checklist adopted by ordinance and made available to the applicant, and the applicant has been notified, in writing, of the specific deficiencies prior to expiration of the 20-day period.

5. This act shall take effect 30 days following enactment, and shall apply to applications filed on and after that date.

Approved December 29, 1993.