By Carlos M. Bollar, Co-Chair of the Environmental Justice Practice at Archer & Greiner, P.C. in its Vorhees, NJ office, and William Puleo, a 2022 summer associate with the firm.
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In 2020, New Jersey passed one of the most progressive environmental justice laws in the country, the New Jersey Environmental Justice Law, N.J.S.A. 13:1d-157 et. seq. (the “EJL”). On June 6, the New Jersey Department of Environmental Protection (“NJDEP”) published draft regulations to implement the EJL. N.J.A.C. 7:1C (“the EJ Regulations”). The EJL focuses on lessening the “disproportionate impact” of environmental and health impacts caused by industry on “overburdened communities” (“OBC”) throughout the state. The proposed EJ Regulations are currently in a public comment period, where they will face significant scrutiny from the regulated community. Comments on the proposed regulations are due September 4.
NJDEP aims to implement the EJ Regulations by December 31, 2022, for the first quarter of 2023. The NJDEP initially issued Administrative Order 2021-25 (“AO2021-52”) to implement some elements of the EJL as an interim measure before the promulgation of regulations. Until the regulations come into effect, AO2021-25 is the governing law, and incorporates the public participation aspect of the regulations. Once the regulations go into effect, 51% of the state population (approximately 4.6 million people across the state) will be considered part of an OBC. These OBCs can be found throughout New Jersey, even in what may otherwise be considered affluent communities. The location of OBCs can be found on NJDEP’s interactive map or identified by the NJDEP on a comprehensive list. Both tools can be found at the NJDEP’s website. (https://www.nj.gov/dep/ej/communities.html)
The draft EJ Regulations implement the EJL by issuing permitting requirements for specific facilities1 that are already in or will be in an OBC. The NJDEP has regulatory authority under the EJL in three circumstances: (1) where the proposed or existing facility is one of eight identified types; (2) where the applicant seeks a permit or approval for a new or “expanding”2 facility; and (3) where a facility is located or proposed to be located, in whole or in part, in an OBC. The draft EJ regulations do not apply to remediation authorizations. The rule also requires applicants to engage with the OBC through public participation, described in more detail below.
Under the EJ law, an “overburdened community” is a census block group in which: (1) more than 40% of residents identify as minority or as part of a recognized tribe; (2) more than 40% of households have limited English ability; or (3) more than 35% of the households are low-income. N.J.S.A. 13:1D-158. NJDEP maintains a list of OBCs and will update it every two years. NJDEP created the Environmental Justice Mapping, Assessment and Protection Tool (“EJMAP”) to provide the locations of OBCs, their stressors, and other data about their block group. EJMAP is still in beta form. The geographic unit of analysis used by EJMAP is the Census “block group.” A Census block group is a cluster of blocks which have the same first digit of their four-digit census block number.
The new permit application process centers on drafting Environmental Justice Impact Statements (“EJIS”). The EJ Regulations will require that applicants for permits for facilities located or proposed to be located in an OBC prepare an EJIS. The EJIS shall include information such as the existence of environmental and public health stressors,3 whether those stressors are “adverse” as defined by the EJ Regulations, the potential stressors associated with a facility, and the possible measures to avoid a disproportionate impact. The EJIS is the central element of the proposed EJ regulation’s six-step process: (1) the applicant submits a permit application and collects the required screening information for the OBC near the facility; (2) the applicant follows the EJIS process in 7:1C-3 and prepares the EJIS; (3) the applicant then submits the EJIS to NJDEP for a non-substantive review and receives authorization from the Department to proceed; (4) the applicant proceeds with the public participation process required by 7:1C-4; (5) the NJDEP performs a substantive review of the EJIS and all public participation materials; (6) the NJDEP determines whether the facility can avoid disproportionate impact and approves or denies the permit.
At the completion of the 6-step process, The NJDEP will either request revisions or authorize the applicant to proceed with the public engagement process. The applicant must hold a public hearing in the OBC, with notice given to the public and an opportunity for public comment for at least 60 days prior to the hearing. Applicants must provide several forms of notice to community stakeholders at least 60 days before the public hearing. The hearing must (i) be scheduled in or near the overburdened community on a weekday after 6 pm, (ii) have a virtual option, and (iii) be recorded. After the public hearing and comment period, the NJDEP will issue a written decision. Where the NJDEP determines that the Facility cannot avoid a disproportionate impact on the OBC, the NJDEP will deny the application unless the applicant can show that the Facility will serve a compelling public interest. Any “person” (not just an applicant) may request an administrative hearing to contest any NJDEP decision under the proposed regulations within 30 days of issuance. Decisions are appealable to the Appellate Division within 30 days of the decision.
Written comments on the proposed EJ Regulations can be provided to NJDEP by September 4, 2022, electronically (https://www.nj.gov/dep/rules/comments/) or in hard copy to Melissa Abatemarco, Esq., Attn: DEP Docket No. 04-22-04, New Jersey Department of Environmental Protection, Office of Legal Affairs, Mail Code 401-04L; P.O. Box 402, 401 East State Street, 7th Floor, Trenton, NJ 08625-0402. Regulated entities and other parties who are interested in submitting feedback to the NJDEP should review additional information about public comment opportunities here: https://www.nj.gov/dep/rules/notices/20220606a.html.
- Facilities under the EJ Regulations include: (a) major sources of air pollution; (b) resource recovery facilities or incinerators; (c) sludge processing facilities, combustors or incinerators; (d) sewage treatment plants with a permitted flow of more than 50 million gallons per day; (e) transfer stations, solid waste facilities or recycling facilities intending to receive at least 100 tons of recyclable material per day, (f) scrap metal facilities; (g) landfills; and (h) medical waste incinerators. See N.J.S.A. 13:1D-158 and Proposed N.J.A.C. 7:1C-1.5.
- “Expanding” or “expansion” is defined as a modification or expansion of existing operations or footprint of a facility that has the potential to result in an increase in a facility’s contribution to environmental and public health stressors. See Proposed N.J.A.C. 7:1C-1.5.
- “Stressors” under the EJ Regulations include: (a) concentrated areas of air pollution; (b) mobile sources of air pollution, contaminated sites, including soil contamination deed restrictions, groundwater classification exception areas, and currently known extent restrictions; (c) transfer stations or other solid waste facilities, recycling facilities, and scrapyards; (d) point-sources of water pollution, including water pollution from facilities or combined sewer overflows; (e) density/proximity stressors such as proximity/density of permitted air sites, National Pollutant Discharge Elimination System sites, and emergency planning sites; (f) social determinants of health, including unemployment and education levels; and (g) conditions that may cause potential public health impacts, such as asthma, cancer, elevated blood lead levels, lack of recreational open space, lack of tree canopy, impervious surfaces, flooding, and cardiovascular disease. N.J.S.A. 13:1D-158.