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State v. Midland Glass Co.

Decided: November 17, 1976.

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT,
v.
MIDLAND GLASS COMPANY, INC., A CORPORATION OF THE STATE OF DELAWARE, DEFENDANT-APPELLANT



Bischoff, Morgan and Collester.

Per Curiam

In this appeal from an order granting partial summary judgment*fn1 in favor of plaintiff, Department of Environmental Protection (Department), we are required to consider and resolve a narrow issue concerning the construction and applicability of N.J.S.A. 26:2C-9.2(a) and (c) containing the permit and certificate requirements of the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq. , which requirements became effective on June 15, 1967. N.J.S.A. 26:2C-9.2(a) and (c), together with its immediate statutory context, provides:

(a) No person shall construct, install or alter any equipment or control apparatus, in other than a one or 2-family dwelling or a dwelling of 6 or less family units one of which is owner-occupied, until an application including plans and specifications has been filed with the department and an installation or alteration permit issued by the department, in accordance with any codes, rules and regulations of the department except that subject to any such codes, rules and regulations the department may dispense with the filing of applications, plans and specifications. Information relating to secret processes or methods of manufacture or production is exempted from the plans and specifications and other pertinent information to which the department is entitled under this section.

(b) No person shall use or cause to be used any such new or altered equipment or control apparatus for which an installation or alteration permit is required or issued until an operating certificate has been issued by the department.

(c) No operating certificate or renewal thereof, required by this act, shall be issued by the department unless the applicant shows to the satisfaction of the department that the equipment is designed to operate without causing a violation of any provision of this act or of any codes, rules and regulations promulgated thereunder and that, except in the case of a renewal certificate, the equipment incorporates

advances in the art of air pollution control developed for the kind and amount of air contaminant emitted by the applicant's equipment.

The term "equipment" is defined in pertinent part in N.J.S.A. 26:2C-2 as follows:

"Equipment" means any device capable of causing the emission of an air contaminant into the open air * * *.

Summarizing the impact of N.J.S.A. 26:2C-9.2(a) as it pertains to the present case, it forbids any "alteration" of "equipment" (that is, equipment associated with a manufacturing process capable of polluting the air) in the absence of a permit to do so, and this without apparent regard as to whether the alteration will increase the amount of contaminants emitted. The same provision, however, empowers the Department to adopt a regulation dispensing with this permit requirement whenever the Department deems it advisable to do so. Id.

The Department took such action in promulgating N.J.A.C. 7:27-8.3(i) which provides:

The provisions of subsections (a) and (b) of this Section [which generally parallel N.J.S.A. 26:2C-9.2(a) and (b)] shall not apply to structural changes, repairs or maintenance, if such changes, or repairs or maintenance will not change the quality, nature or quantity of the air contaminant emitted.

Hence, the combined effect of N.J.S.A. 26:2C-9.2 and N.J.A.C. 7:27-8.3(i) is to require an application for a permit to be filed before an alteration to equipment is made except when the alteration is in the nature of a structural change which will not increase the amount of contaminants emitted. A violation of this, or any other provision of the Air Pollution Control Act or any regulation adopted pursuant thereto, exposes the violator not only to injunctive relief ...


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