NJDEP Proposes Rules and Amendments for Monitoring and Reporting Statewide Greenhouse Gas Emissions Under Global Warming Response Act of 2007

As part of the New Jersey Legislature's mandate of reducing statewide greenhouse gas emissions to 1990 levels by the year 2020, and to 80 percent less than the 2006 levels by 2050, the Global Warming Response Act of 2007 (GWRA) called for the creation of a program to monitor and report greenhouse gas emissions in New Jersey. On January 20, 2009, the New Jersey Department of Environmental Protection (NJDEP) published proposed rules to establish this program. A copy of the proposed rules and enacting amendments can be found on NJDEP's website (http://www.nj.gov/dep/rules/notices/012009a.html). The proposed rules are subject to a 60-day public comment period. NJDEP has scheduled a public hearing on the rule proposal for March 3, 2009.

The GWRA defines "greenhouse gases" to include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexachloride and "any other gas or substance determined … to be a significant contributor to the problem of global warming." Under this definition, and the further mandates of the GWRA, the proposed rules will require the monitoring and reporting of those greenhouse gas emissions:

• Associated with the use of fossil fuels (e.g., coal, oil and natural gas) in New Jersey.
• From entities that either generate electricity in New Jersey or generate electricity outside of the state for use in New Jersey.
• From any gas public utility (as defined by N.J.S.A. 48:3-51).
• From any other entity that is a significant emitter of greenhouse gases.

NJDEP proposes to implement this program by making greenhouse gas emissions subject to the existing reporting procedures of the Air Pollution Control rules, N.J.A.C. 7:27-21, and the Worker and Community Right-to-Know Act, N.J.A.C. 7:1G.

Reporting Requirements

The proposed amendments to the Air Pollution Control rules would require facilities that either emit or have the potential to emit, directly or indirectly, designated threshold levels of greenhouse gases to report them on Emission Statements beginning with the 2009 reporting year.

The proposed amendments to the Worker and Community Right-to-Know Act would require subject employers to complete Community Right to Know Surveys for each facility covered by the Right to Know rules. This would include:

• Fossil fuel use by prime suppliers of fossil fuel, gas public utilities and natural gas pipeline operators and other businesses with a North American Industry Classification System (NAICS) code referenced in N.J.A.C. 7:1G -1.2 (collectively referred to as "greenhouse gas survey reporters").
• The storage of greenhouse gases (other than carbon monoxide and methane) by any entity over a certain threshold amount (defined as "significant emitters of greenhouse gases").

NJDEP intends to use all of the reported information to monitor the level of greenhouse gas emissions in New Jersey and track the progress made toward compliance with the GWRA's mandated emission limits. As proposed, the failure to comply with the reporting requirements can result in the institution of both civil administrative and criminal penalties.

Industries Affected by the Proposed Rules

NJDEP may revise the rules during the approval process. If adopted as currently proposed, however, the rules will affect several industries that are prevalent in New Jersey. These include:

• Landfills and wastewater treatment facilities, due to the proposed reporting requirements for methane.
• Supermarkets, convenience stores, restaurants and other facilities that use refrigeration equipment, due to the proposed reporting requirements for refrigerants such as hydrofluorocarbons and perfluorocarbons.
• Large buildings, offices, hotels, shopping centers and other facilities that use industrial chillers, also due to the proposed reporting requirements for refrigerants.
• Food distribution centers and other cold storage warehouses, due to the proposed reporting requirements for refrigerants.
• Chemical, petrochemical, food processing, pharmaceutical and other industrial processing facilities, due to the proposed reporting requirements for refrigerants.
• Petroleum refineries, petroleum terminals, petroleum wholesalers, heating oil dealers, liquefied petroleum gas dealers and other fossil fuel manufacturers and dealers, due to the proposed reporting requirements for fossil fuel use.

We will monitor the proposed rules throughout the approval process. If you have any questions or would like additional details about the proposed rules, their requirements, or their potential impact, you may contact members of Buchanan Ingersoll & Rooney's Environmental and Toxic Tort Group.