NJDEP Issues Rule Proposal Implementing Environmental Justice Legislation

On June 6, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its proposed rule (“Rule Proposal”) implementing regulations under the groundbreaking Environmental Justice Law (“EJ Law”) signed by Governor Phil Murphy in September of 2020, which we reported on at that time. The EJ Law requires the NJDEP to evaluate the environmental and public health impacts of certain facilities on vulnerable communities (referred to as Overburdened Communities (“OBCs”)) when reviewing certain permit applications. We also reported that on October 22, 2020, the NJDEP began the public process of developing regulations to implement the requirements under the EJ Law. The Rule Proposal was the culmination of an extensive and lengthy public process that included numerous meetings with various stakeholders. The next step is a 90-day public comment period expiring on September 4, 2022, during which time the NJDEP will hold four public hearings in the month of July.

In the EJ Law, the Legislature had determined that all residents of the state of New Jersey, regardless of income, race, ethnicity, color, or national origin, have a right to live, work, learn, and recreate in a clean and healthy environment. The Legislature further found that the OBCs have been, and continue to be, subject to a disproportionately high number of environmental and public health stressors, including pollution from certain facilities located in those communities, resulting in significant adverse health effects. The types of facilities covered by the EJ law include power plants, incinerators, sewage treatment plants, solid waste facilities, and landfills, as well as other facilities deemed to be “major sources of air pollution” (as determined by the federal Clean Air Act). The focal point of the EJ Law is the relationship between those facilities and the OBCs, which is defined as any census block group in which, under the most recent United States Census: (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a state-recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.

Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope must: (1) prepare an environmental justice impact statement (“EJIS”) and (2) implement “meaningful public participation.” Under the Rule Proposal, the NJDEP determined that the EJIS, among other requirements, must include: a plan to implement “meaningful public participation,” which involves holding a public hearing and responding to written public comments; certain background information and initial screening information; analysis of the facility’s expected impacts on stressors in the OBC; and proof that the facility will avoid a “disproportionate impact” on OBCs.

To assist users in identifying the location of OBCs and narrowing the EJIS, the NJDEP developed the Environmental Justice Mapping, Assessment and Protection online tool (“EJMAP”). The EJMAP enables users to search by address to determine whether a specific facility is located or proposed to be located in an OBC; examine the presence of existing environmental and public health stressors in an OBC; compare the existing environmental and public health stressors in an OBC to their appropriate geographic point of comparison and determine which, if any, stressors are considered adverse; and determine whether an OBC is subject to adverse cumulative stressors.

Under the Rule Proposal, the central question to the NJDEP’s decision-making process is whether the facility will avoid a disproportionate impact. If the NJDEP determines that the facility will avoid a disproportionate impact, the NJDEP will authorize the applicant to proceed and impose permit conditions necessary to avoid a disproportionate impact. If the NJDEP determines that a new facility will not avoid a disproportionate impact, the NJDEP will deny the permit application absent a finding of a compelling public interest. And, if the NJDEP determines that an expanding facility or the renewal of a major source facility permit will not avoid a disproportionate impact, the NJDEP will approve the application but impose “appropriate” conditions to avoid or minimize contributions to adverse stressors or provide a “net environmental benefit” in the OBC.

Companies subject to the EJ Law are well advised to complete the EJIS by explaining how their facility has historically benefitted the community in which it is, or will be, located. The explanation could include, for instance, how the facility has expanded the tax base of the local community, if the facility has created local jobs, and whether the facility has purchased products or services from a local business. Companies should also engage and collaborate with the community early and often, even before starting the application process. Such early engagement and collaboration will help the community understand the technical points of the companies’ proposals and assist the companies in becoming familiar with the concerns of the community before those concerns are aired publicly. Companies should also commit to addressing the concerns of the community in a joint effort.