A5941

An Act concerning air pollution caused by certain warehouse operations and supplementing Title 26 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Compliance period" means a 12-month period of time during which a warehouse operator covered under the provisions of this act is required to implement an air pollution reduction and mitigation plan.

"Department" means the Department of Environmental Protection.

"Partial zero-emission vehicle" means a vehicle certified as a partial zero-emission vehicle pursuant to the California Air Resources Board vehicle standards for the applicable model year.

"Warehouse" means a building that stores cargo, goods, or products on a short- or long-term basis for later distribution to businesses or retail customers.

"Warehouse operator" means an entity that conducts day-to-day operations at a warehouse, including operations conducted through the use of third-party contractors, which entity may or may not be the owner of the warehouse.

"Zero-emission vehicle" means a vehicle certified as a zero-emission vehicle pursuant to the California Air Resources Board zero-emission vehicle standards for the applicable model year but shall not include a partial zero-emission vehicle.

2. a. No later than 24 months after the effective date of this act, the department shall develop, pursuant to the provisions of this act, a program to reduce and mitigate air pollution created by warehouse operations in the State.

b. Beginning 36 months after the effective date of this act, a warehouse operator that utilizes more than 50,000 square feet for its operations in a warehouse greater than 100,000 square feet in size shall not operate in the State unless it implements the standard air pollution reduction and mitigation plan developed by the department pursuant to section 3 of this act or a custom air pollution reduction and mitigation plan developed pursuant to section 4 of this act.

3. A warehouse operator may comply with the provisions of this act by implementing a standard air pollution reduction and mitigation plan, provided that the plan has been approved by the department pursuant to section 5 of this act. The department shall develop, as part of the rules and regulations adopted to implement this act, a template for the standard air pollution reduction and mitigation plan.

a. The standard air pollution reduction and mitigation plan shall require warehouse operators to accrue a number of air pollution reduction and mitigation points during a compliance period, using a formula established in the rules and regulations adopted to implement this act. The number of required points shall be proportional to the amount of semi-tractor-trailer truck traffic that originates from the warehouse operations during the previous compliance period, which shall be calculated using a formula developed by the department pursuant to paragraph (2) of subsection a. of section 6 of this act. The department shall, during the first four years of the program established pursuant to subsection a. of section 2 of this act, multiply the number of required points by a factor between zero and one, which factor may vary according to warehouse operator size. Beginning on the fifth year of the program and thereafter, this factor shall equal one.

b. Under the standard air pollution reduction and mitigation plan, a warehouse operator may be awarded air pollution reduction and mitigation points only for the following activities completed during the compliance period:

(1) purchase of a zero-emission vehicle or partial zero-emission vehicle for use in the warehouse operator's semi-tractor-trailer truck fleet or as a vehicle used solely to perform warehouse operations;

(2) delivery of a load of cargo to, or the pick up of a load of cargo from, a warehouse using a semi-tractor-trailer truck that is a zero-emission vehicle or partial zero-emission vehicle;

(3) use of a vehicle that is a zero-emission vehicle or partial zero-emission vehicle to perform warehouse operations for one hour;

(4) installation of a charging or fueling station for zero-emission vehicles to support a warehouse's operations;

(5) use of a charging or fueling station to charge or fuel a zero-emission vehicle that is used solely to perform warehouse operations, or that is in the warehouse operator's semi-tractor-trailer truck fleet;

(6) installation of a solar electric power generation system on the premises of a warehouse used by the warehouse operator;

(7) generation of one kilowatt-hour of electric power using a solar electric power generation system installed on the premises of a warehouse used by the warehouse operator;

(8) installation of an air filtration system capable of removing automobile exhaust from the air at a school, daycare, hospital, community center, or other appropriate building, as determined by the department, which building is located in the same municipality as a warehouse used by the warehouse operator;

(9) replacement of a filter in an air filtration system capable of removing automobile exhaust from the air at a school, daycare, hospital, community center, or other appropriate building, as determined by the department, which building is located in the same municipality as a warehouse used by the warehouse operator; or

(10) provision of an alternative compliance payment of $1,000 for deposit into the Plug-in Electric Vehicle Incentive Fund established pursuant to section 7 of P.L.2019, c.362 (C.48:25-7).

The department shall develop a weighting system for the points given for activities listed in paragraphs (1) through (10) of this subsection. Notwithstanding the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the department may vary the weighting system for a compliance period, provided that warehouse operators are notified at least two calendar years in advance of any variation.

c. Air pollution reduction and mitigation points shall not be transferable, except that a warehouse operator that accrues more than the required number of points during a compliance period may carry forward the surplus points to the subsequent compliance period.

4. a. A warehouse operator may comply with the provisions of this act by implementing a custom air pollution reduction and mitigation plan, provided that the plan has been approved by the department pursuant to section 5 of this act.

b. A custom air pollution reduction and mitigation plan shall, at a minimum:

(1) describe the actions to be taken by the warehouse operator during the compliance period to reduce or mitigate air pollution caused by the warehouse operator;

(2) quantify the reduction of dust, ozone, nitrous oxides, and particulate emissions that the warehouse operator estimates would result from the actions described pursuant to paragraph (1) of this subsection;

(3) describe the method to be used to ascertain whether the actions have achieved the estimated emission reductions;

(4) establish a schedule of key milestones toward completing the proposed actions;

(5) include a description and map of the locations where the proposed actions will occur; and

(6) list any expected permits or approvals required by other private parties, the department, or other federal, State, or local government agencies to implement the plan.

5. a. A warehouse operator to which the provisions of this act apply shall submit, each year, to the department, in a form and manner to be determined by the department:

(1) the air pollution reduction and mitigation plan to be implemented by the warehouse operator for the next compliance period;

(2) an annual report, together with written evidence, detailing how the warehouse operator implemented the air pollution reduction and mitigation plan of the prior compliance period;

(3) the total warehouse area utilized by the warehouse operator; and

(4) the total amount of semi-tractor-trailer truck traffic that originated from the warehouse operations during the prior compliance period, which shall be calculated using a formula developed by the department pursuant to paragraph (2) of subsection a. of section 6 of this act.

b. No later than 90 days after receipt of an air pollution reduction and mitigation plan, the department shall make a determination to approve the plan as submitted, approve the plan with conditions, or disapprove the plan. If the air pollution reduction and mitigation plan is disapproved, the department shall inform the warehouse operator of the reasons for the disapproval. The warehouse operator shall have 30 days thereafter to submit a revised air pollution reduction and mitigation plan to the department. If the department does not provide notice of its determination within 90 days after its receipt of a plan or a revised plan, the plan shall be deemed to have been approved, and the warehouse operator shall proceed to implement the plan.

c. If the department determines, as a result of an audit conducted pursuant to section 6 of this act, or for any other reason, that a warehouse operator is not implementing an approved air pollution reduction and mitigation plan, the department may rescind its approval of the plan. The warehouse operator shall have 30 days thereafter to submit a revised air pollution reduction and mitigation plan to the department, in accordance with the provisions of subsection b. of this section.

d. The department may charge an application fee to warehouse operators for each compliance period, the timely receipt of which may be a necessary condition for the approval of the warehouse operator's air pollution reduction and mitigation plan, provided that the total amount received from such application fees does not exceed the department's administrative costs connected with the implementation and enforcement of this act.

e. Notwithstanding the provisions of section 7 of this act to the contrary, a warehouse operator covered under this act that fails to submit an air pollution reduction and mitigation plan pursuant to this section shall first receive a written warning. A warehouse operator that receives a written warning shall submit an air pollution reduction and mitigation plan to the department no later than 90 days after receipt of the warning. A warehouse operator that receives a written warning and that fails to submit an air pollution reduction and mitigation plan within 90 days of receipt of the warning shall be subject to the penalties set forth in section 7 of this act.

6. a. (1) Each warehouse operator shall maintain records, in a form prescribed by the department, that demonstrate whether and how the warehouse operator has complied with the provisions of this act. In particular, the records shall include the amount of semi-tractor-trailer truck traffic that originates from the warehouse operations.

(2) The department shall develop a formula, as part of the rules and regulations adopted to implement this act, for calculating the amount of semi-tractor-trailer truck traffic that originates from the operations of a warehouse operator during a compliance period, which calculations may include the number of trucks in the warehouse operator's fleet, the number of deliveries or pick-ups carried out by the warehouse operator, and the weight of each truck in the fleet or performing a delivery or pick-up. The department shall develop and publish guidelines to assist warehouse operators in recording the raw data necessary to utilize the formula, and in utilizing the formula.

b. The department may request the records required by subsection a. of this section from a warehouse operator at any time. A warehouse operator shall submit records to the department no later than 30 days after receipt of a request, unless the department extends that timeframe.

c. The department may audit or investigate a warehouse operator at any time, to assess the warehouse operator’s compliance with the requirements of this act. The department may annually audit, or cause to be audited, a random sample of warehouse operators in order to determine compliance with the provisions of this act. A warehouse operator shall cooperate fully with any audit conducted pursuant to this section. The department may require a warehouse operator to pay the costs of an audit conducted pursuant to this section.

d. The department shall annually publish a list of registered warehouse operators, their compliance status, and other information the department deems appropriate on the department’s Internet website.

7. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of this act, the commissioner may take one or more of the following actions:

(1) issue an order in accordance with subsection b. of this section requiring the person to comply;

(2) bring a civil action in accordance with subsection c. of this section;

(3) levy a civil administrative penalty in accordance with subsection d. of this section;

(4) bring an action for a civil penalty in accordance with subsection e. of this section; or

(5) require a warehouse operator to submit a corrective action plan pursuant to subsection f. of this section.

The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.

b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of this act, the commissioner may issue an order: (1) specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation; (2) citing the action that caused the violation; (3) requiring compliance with the provision of this act or the rule or regulation adopted pursuant thereto of which the person is in violation; and (4) giving notice to the person of his right to a hearing on the matters contained in the order.

c. The commissioner is authorized to commence a civil action in Superior Court for appropriate relief from a violation of this act. This relief may include an assessment against the violator for the costs of any investigation, inspection, or audit that led to the discovery and establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.

d. (1) The commissioner is authorized to impose a civil administrative penalty of not more than $25,000 for each violation of this act or any rule or regulation adopted pursuant thereto, and each day of the violation shall constitute an additional, separate, and distinct offense. Any amount imposed under this subsection shall be assessed pursuant to rules and regulations adopted by the commissioner for violations of similar type, seriousness, and duration. The commissioner shall have the authority to assess penalties prior to the establishment of rules and regulations governing penalties to the extent that such penalties are reasonable and based on other violations of a similar type, seriousness, and duration. No civil administrative penalty shall be imposed until after the person has been notified by certified mail or personal service. The notice shall include: a reference to the section of the act, rule, regulation, order, or permit violated; a concise statement of the facts alleged to constitute a violation; a statement of the amount of the civil administrative penalties to be imposed; and a statement of the person's right to a hearing. The person shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing and upon finding that a violation has occurred, the commissioner may issue a final order or civil administrative penalty after imposing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order or a final civil administrative penalty upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order or a final civil administrative penalty. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this act, and the payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied. A civil administrative penalty imposed under this subsection may be compromised by the commissioner upon the posting of a performance bond by the violator, or upon terms and conditions the commissioner may establish by rule or regulation.

(2) In addition to the assessment of a civil administrative penalty, the commissioner may, by administrative order and upon an appropriate finding, assess a violator for the reasonable costs of any investigation, inspection, or audit which led to the establishment of the violation.

e. Any person who violates this act, an order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay in full a civil administrative penalty levied pursuant to subsection d. of this section, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000, and each day of the violation shall constitute an additional, separate, and distinct offense. Any penalty imposed pursuant to this subsection may be collected, and any costs incurred in connection therewith may be recovered, in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the “Penalty Enforcement Law of 1999.”

f. The department is authorized to require a warehouse operator that violates the provisions of this act, or any rule or regulation adopted pursuant thereto, to submit a corrective action plan describing how the warehouse operator intends to come into compliance with the provisions of this act. The department shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations setting forth the substantive requirements for corrective action plans.

g. In addition to the penalties and remedies provided above, a person who knowingly, purposely, or recklessly makes a false or misleading statement on any certification or plan submitted to the department pursuant to this act shall, upon conviction, be guilty of a crime of the third degree and, notwithstanding the provisions of N.J.S.2C:43-3, shall be subject to a fine of not more than $50,000 and restitution. The department shall refer the provider of any false or misleading statement to the Attorney General for prosecution.

8. The Commissioner of Environmental Protection shall adopt rules and regulations, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), as may be necessary to implement the provisions of this act.

9. This act shall take effect immediately.

STATEMENT

This bill would require certain warehouse operators to implement an air pollution reduction and mitigation plan (APRM plan), beginning 36 months after the bill's effective date.

Specifically, the bill would apply to warehouse operators that utilize at least 50,000 square feet of warehouse space in at least one warehouse that is at least 100,000 square feet in size. The bill defines a "warehouse operator" as an entity that conducts day-to-day operations at a warehouse, including operations conducted through the use of third-party contractors, which entity may or may not be the owner of the warehouse. The bill would prohibit applicable warehouse operators from conducting warehousing operations in New Jersey, unless they implement an APRM plan approved by the Department of Environmental Protection (DEP).

The bill would direct the DEP to develop, no later than 24 months after the bill's effective date, a template for the standard APRM plan. In order to implement the standard plan, warehouse operators would first need to determine the amount of truck traffic that originates from their operations using a formula to be developed by the DEP, as well as the square footage of warehouse space they utilize. Then, warehouse operators would use those figures in another formula, also to be developed by the DEP, to determine the number of air pollution reduction and mitigation points (APRM points) they need to accrue during the following year. Warehouse operators would be able to accrue APRM points through various activities – including purchasing low- or zero-emissions vehicles, installing solar panels, or installing air filters at certain buildings in the municipalities in which they operate – as enumerated in subsection b. of section 3 of the bill. APRM points could also be accrued by depositing moneys in the Plug-in Electric Vehicle Incentive Fund established pursuant to section 7 of P.L.2019, c.362 (C.48:25-7).

Warehouse operators may also comply with the bill's provisions by submitting a custom APRM plan to the DEP. The custom APRM would be required to state the actions to be taken by the warehouse operator to reduce or mitigate air pollution caused by the warehouse operator, as well as conform to other minimum standards established in subsection b. of section 4 of the bill.

The bill would require warehouse operators to submit to the DEP each year the APRM plan to be implemented for the next year and an annual report detailing the actions taken during the previous year. The DEP would have 90 days to approve, conditionally approve, or disapprove the plan.

The bill would also require warehouse operators to retain records that demonstrate whether and how they have complied with the bill's provisions. In particular, warehouse operators would be required to retain records that evidence the amount of truck traffic generated by the warehouse operator. The bill would require the DEP to develop guidelines to assist warehouse operators with this task. The bill would authorize the DEP to request the records retained by warehouse operators, as well as to audit warehouse operators, for cause or randomly. The bill would direct the DEP to publish the warehouse operators covered under the bill and their compliance status on its website.

A person who violates the provisions of the bill would be subject to a civil administrative penalty of up to $25,000 for each violation. The amount of any civil administrative penalty would be assessed pursuant to rules and regulations adopted by the DEP for violations of similar type, seriousness, and duration. A person who violates the provisions of the bill, and any order issues pursuant thereto, or who fails to pay in full a civil administrative penalty, would be subject, upon order of a court, to a civil penalty not to exceed $25,000. Civil penalties would be imposed and recovered in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999.” In addition to these penalties, a person who knowingly, purposely, or recklessly makes a false or misleading statement to the DEP on any certification or registration would be guilty of a crime of the third degree and subject to a fine of up to $50,000 and restitution. The bill also establishes other remedies and enforcement mechanisms.