Air pollution control law in New Jersey

Air Pollution Control Act (1954)

Background

In the 1940s and 1950s, the industrialization associated with World War II caused an increase in air pollution emissions throughout the United States, and various governmental officials and engineers began to recognize that emissions were becoming a public health problem. In addition, the public's interest was spurred by the 1948 Donora smog, which killed 20 people in Pennsylvania. This led to the first National Air Pollution Symposium in 1949 at the Stanford Research Institute, and, in 1950, to the first United States Technical Conference on Air Pollution, which was convened by President Harry Truman.

New Jersey followed the national trend, and, in 1950, the state established its own study commission to examine the issue of air pollution and to make legislative recommendations. The commission issued its report in 1952. In it, the authors urge for a state-wide approach to the issue of air pollution, which had hitherto been regulated only by local ordinances. Discussing a survey that faculty members of Rutgers University had distributed to local boards of health at the request of the commission, the report states:

Seventy-two replies, an overwhelming majority of the 95 reporting complaints, expressed the opinion that any contemplated legislation should be enacted on the State level, since local officials seem to be powerless or unwilling to take proper action. In some instances, this is probably due to the fact that sufficient evidence about the pollutant or against the perpetrator could not be obtained, while in other cases, probably the local officials did not care to jeopardize their positions in the community by taking action.

The state Legislature was further roused to action by a so-called "smog week" during November 17–22, 1953. During the incident, meteorological conditions trapped air pollutants all across the eastern seaboard, and many New Jerseyans particularly in Elizabeth and Linden, suffered eye and throat irritation due to increased levels of sulfur dioxide and aldehydes. The incident was serious enough to be investigated by the state Department of Health. In addition, a later study conducted by the New York City Department of Air Pollution Control demonstrated a significant increase in mortality in New York City during the incident.

Enactment

In 1954, the state Legislature passed the Air Pollution Control Act, which became the third statewide air pollution control law in the United States, following measures passed in Oregon and Massachusetts. The original version of the law was fairly modest in scope, however. It established a commission, known as the Air Pollution Control Commission, composed of a combination of government officials and members of the public. The commission was given the authority to adopt rules and regulations controlling air pollution in the state. The law also authorized the creation of county air pollution control boards, which were to be given the authority to adopt stricter air pollution regulations on a countywide basis, provided that the state commission approved. Finally, the law gave the state Department of Health the authority to seek injunctions against polluters that violated the law's provisions and to seek monetary penalties of $100 per week (roughly equal to $1,000 in 2020 dollars). Nevertheless, even contemporary commentators recognized that the law was significant because it shifted air pollution regulation away from nuisance common law, in which persons had to be directly harmed by pollution in order to seek compensation, into administrative law, in which the government would use executive agencies to directly regulate the sources of pollution.

The Air Pollution Control Commission promulgated its first set of rules and regulations, known as the New Jersey Air Pollution Control Code in 1956. The substance of the code was fairly minimal, dealing mostly with the open burning of trash at landfills. Subsequent regulations, adopted in 1958, were more ambitious. One prohibited the operation of any fuel-burning equipment that emitted smoke "the shade or appearance of which is darker than No.2 of the Ringelmann Smoke Chart," and another limited the emissions of ash from the combustion of coal or wood burning equipment, using various limits (measured in pounds emitted per hour) depending on the size of the equipment. These latter regulations thus begin to resemble modern air pollution control regulations.

Supplements and amendments

The following table summarizes the various amendments and supplements to the Air Pollution Control Act (1954) by the New Jersey Legislature (as of September 2020).

Current law

The Air Pollution Control Act (1954) occupies sections 26:2C-1 through 26:2C-68 of New Jersey's statutes. The law has three main effects. First, it requires New Jerseyans to register their motor vehicles and to get their vehicles periodically inspected to make sure the vehicles have pollution mitigating devices such as catalytic converters and that their emissions meet certain standards. The law also imposes additional requirements on owners of large diesel-powered vehicles like busses and off-road diesel-powered equipment like excavators. The provisions concerning motor vehicles occupy sections 26:2C-8.1 through 26:2C-8.57 of New Jersey's statutes.

Second, the law requires that operators of equipment that produces a significant amount of air pollution obtain an operating permit from the NJDEP. Such a permit may, for example, require that specific pollution-reducing technology be used or that the equipment can only be operated during certain times of day. The law delegates to the NJDEP the authority to determine what qualifies as a "significant" source of air pollution. The definition can be found in the New Jersey Administrative Code (N.J.A.C.) at N.J.A.C. 7:27-8.2. The permitting requirements apply to major sources of air pollution, such as power plants and oil refineries, but also to small facilities like universities and sewage substations. The NJDEP maintains a map of covered facilities. The provisions covering stationary sources of air pollution occupy sections 26:2C-9 through 26:2C-25.2 of New Jersey's statutes.

Third, the Global Warming Response Act was enacted as a supplement to the Air Pollution Control Act (1954) in 2007. It establishes various targets for state greenhouse gas emissions. Later supplements to the Global Warming Response Act have involved incentivizing the use of electric vehicles and the prohibiting the sale of products that use hydrofluorocarbons.