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.

L.1993,c.351,s.2.