On August 27, 2020, after decades of failed attempts, the New Jersey legislature passed landmark environmental justice legislation that requires the New Jersey Department of Environmental Protection (“NJDEP”) to consider potential environmental and public health effects when granting or renewing certain types of permits in overburdened communities. Governor Murphy signed the bill into law (the “Environmental Justice Act” or “the Act”) on September 18, 2020.
What Does the Environmental Justice Act Attempt to Achieve, and What Do Developers or Industrial Facility Owners Need to Know in Order to Comply?
The Act acknowledges and seeks to redress the disproportionate environmental and public health impacts of pollution on minority communities in New Jersey. Low-income communities and communities of color within the state have historically been subject to a disproportionate share of environmental and public health stressors. For example, the state reports that in 2017, approximately 12.9% of Black adults in New Jersey have been diagnosed with asthma. In contrast, only 8.2% of Caucasian adults carry a similar diagnosis.
In an effort to address these historic conditions, the Act requires that any applicant seeking a new or renewed permit for certain types of operations submit an environmental justice impact statement and hold public hearings to address public health concerns at the local community level.
Does the Act Act Apply to Your Operations?
Critically, a “facility” is defined to include: any major source of air pollution (as defined in the federal Clean Air Act, 42 U.S.C. s 7401 et seq.); any resource recovery facility or incinerator; any sludge processing facility, combustor, or incinerator; any sewage treatment plant with a capacity of more than 50 million gallons per day; any transfer station or other solid waste facility, or recycling facilities accepting at least 100 tons of recyclable material per day; scrap metal facilities; certain types of landfill; or medical waste incinerators.
Is Your Facility Located in an Overburdened Community?
An “overburdened” community is any census block group in which: at least 35% of the households qualify as low-income households; at least 40% of the residents identify as minority or are affiliated with a state-recognized tribal community or at least 40% of the households have limited English proficiency.
Communities will be classified as “overburdened” based on the results of the most recent United States Census. NJDEP will be required to publish and maintain a list of overburdened communities in the state by January 16, 2021, and that list must be updated at least every two years. NJDEP will also be required to notify a municipality if any part of the municipality is designated as an overburdened community.
So, It Applies to Your Operations and You Are Located in an Overburdened Community. Now What?
Any time you submit a permit application for a new or expanded facility or an application for the renewal of an existing facility’s major source permit, you must:
- Prepare an environmental justice impact statement
- Provide the impact statement to NJDEP, the local governing body, and the clerk of the municipality in which the overburdened community is located
- Conduct a public hearing in the overburdened community
The environmental justice impact statement must assess the potential environmental and public health stressors associated with the facility, including any environmental conditions that could cause public health impacts like asthma, cancer, elevated blood lead levels, or cardiovascular disease.
The permit applicant must publish the notice at least 60 days in advance of the public hearing. The notice must provide the date, time, and location of the hearing, and a brief summary of the environmental justice impact statement. You must also provide an address where community members can submit written comments to the permit applicant. The public hearing must be transcribed, and the transcript must be submitted to NJDEP for consideration along with the permit application.
Without satisfying the foregoing requirements, NJDEP will not consider your permit application or renewal complete.
When Does the Environmental Justice Act Take Effect?
Governor Murphy signed the Act on September 18, 2020. Now, the ball is in NJDEP’s court: they must adopt rules and regulations in order to implement the Act. Those adoptions must be made pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. Therefore, the heightened requirements of the Act will not take effect until the proposed regulations go through the formal notice and comment process. Developers and industrial facility owners are encouraged to closely monitor the regulatory process in order to keep apprised of when the new requirements will take effect.
This article has been written by Jessica L. Palmer, a Member of law firm Norris McLaughlin, P.A. If you have any questions about this or any related environmental matters, please feel free to contact her at firstname.lastname@example.org.
This article provides information to our clients and friends about current legal developments of general interest in the area of environmental law. The information contained in this article should not be construed as legal advice, and readers should not act upon such without professional counsel. Reprinted with permission from the November 2020 issue of COMMERCE Magazine.