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June 20, 2022

NJDEP Proposes Rules Implementing Landmark Environmental Justice Law Which Will Change the Paradigm of Environmental Permitting in Overburdened Communities

On June 6, 2022, the New Jersey Department of Environmental Protection (“NJDEP”) proposed its long-awaited environmental justice rule (the “Proposed Rule”). The Proposed Rule will impact permitting considerations on certain new and expanded facilities, and renewals of existing major source air permits located in New Jersey’s overburdened communities. The Proposed Rule would implement the requirements of the groundbreaking environmental justice legislation (the “EJ Law”) enacted September 18, 2020 (N.J.S.A. 13:1D-157 et seq.). The Proposed Rule has significant implications for certain facilities located wholly, or partly, in overburdened communities.  If adopted, the Proposed Rule will require extensive analysis of stressors in the overburdened community, the potential of additional control measures to avoid adverse stressors, and significant public participation requirements. For those intending on locating a new covered facility in an overburdened community, the EJ Law and Proposed Rules may result in a denial of a permit.  The comment period for the Proposed Rule is currently scheduled to expire on September 4, 2022.

The EJ Law and Proposed Rule cover 8 categories of facilities:  (1) major sources of air pollution (i.e. those facilities that have or may require a Title V Operating Permit for air emissions); (2) resource recovery facilities or incinerators; (3) sludge processing facilities, combustors, or incinerators; (4) sewage treatment plants with a capacity of more than 50 million gallons per day; (5) transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facilities; (7) landfills, including but not limited to ash, construction and demolition facilities, or solid waste facilities; and (8) medical waste incinerators (with exceptions for certain self-generating hospital and university facilities).

The EJ Law broadly defines an “overburdened community” as “any census block group,” in accordance with the most recent United States Census, in which (1) at least 35 percent of households qualify as low-income households; (2) at least 40 percent of residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of households have limited English proficiency. Census blocks are not individual municipalities, but rather smaller population blocks. It is important to understand that census blocks meeting the definition of overburdened communities are not limited to New Jersey’s major cities with significant commercial and industrial operations. Rather, these overburdened communities are situated throughout New Jersey, even in what may otherwise be considered affluent communities.  The location of overburdened communities can be found on NJDEP’s interactive map to determine if their facilities are sited in overburdened communities.

The permit process for a facility in an overburdened communities must include, at a minimum, a submission of an “Environmental Justice Impact Statement” (“EJIS”) addressing the potential environmental and public health stressors.  The Proposed Rule lists individual subcategories of environmental and public health stressors to be considered by the NJDEP divided into eight subcategories of stressors, including concentrated areas of air pollution, mobile sources of air pollution, contaminated sites, transfer stations or other solid waste facilities, recycling facilities and scrap metal facilities, point-sources of water pollution, stressors that may cause public health impacts, density/proximity stressors, and stressors that are social determinants of health (unemployment and education).

As set forth in the EJ Law, the NJDEP is compelled to deny permits for new facilities which, if approved, would cause or contribute to adverse cumulative environmental or public health stressors in the overburned community higher than those borne by other communities in the State, county, or other geographic unit selected by the NJDEP. An exception, however, involves new facilities which successfully demonstrate that they will serve a compelling public interest for the host overburdened community. A compelling public interest must primarily serve essential environmental, health, or safety needs of the overburdened community; must be necessary to serve the essential environmental, health, or safety needs of the overburdened community; and demonstrate that no feasible alternatives can be located outside the overburdened community. Economic benefits of the proposed new facility are not considered in this analysis.  For expansions of existing facilities, and renewals of major source air permits, the NJDEP may require additional conditions if there will be disproportionate impact in an overburdened community.

The Proposed Rule sets forth the regulatory process for permit applicants to follow. Initially, the NJDEP suggests that facilities request an “initial screening” from the NJDEP to determine the relevant individual stressors in an overburdened community. In conducting this initial screening, the NJDEP proposes to compare the individual adverse environmental and public health stressor with each stressor in a “geographic point of comparison” to determine the “combined stressor total.” The geographical point of comparison will select the lower stressor value of either the State’s or County’s 50th percentile, excluding the value of all other overburdened communities. It appears that the NJDEP will then compare the “combined stressor total” of the overburdened community to the “geographic point of comparison,” and determine whether the overburdened community is subject to “adverse cumulative stressors.” This comparison also seeks to identify “disproportionate impacts” of the facility to the overburdened community by either creating or contributing to adverse cumulative impacts.

Regardless of whether an overburdened community is subject to adverse cumulative impacts, or subject to disproportionate impacts by a facility, all facilities located within an overburdened community must submit an EJIS, the requirements of which are listed in the Proposed Rule.   The EJIS contains basic information and analysis of stressors and screening, among other things.  Notably, the list of items that must be completed as part of an EJIS includes satisfaction of any local environmental justice or cumulative impact analysis requirement.  If the overburdened community is subject to adverse cumulative stressors or cannot avoid disproportionate impact, the Proposed Rule requires “Supplemental Information” that is in addition to the EJIS.  This “Supplemental Information” requirement is burdensome, and includes much more detailed environmental information, energy alternatives available such as renewables, and an analysis of proposed control measures to mitigate stressors.

The Proposed Rule also sets forth additional requirements for new major source air facilities seeking permits for new facilities or expansion of existing facilities. The Proposed Rule creates a new standard, known as “Localized Impact Control Technology” (“LICT”) which applies to permit applications for facilities with potential to emit hazardous air pollutants at a rate equal or greater than state-of-the-art (“SOTA”) thresholds; or with potential to emit various other contaminants (i.e., carbon monoxide, nitrogen oxide, particles, etc.) at 5 or more tons/year. While the SOTA threshold is the basis, the focus for LICT is on technical feasibility rather than economic considerations. The analysis for LICT is proposed as a top-down review of technically feasible control technologies, including: measures applied to existing sources; innovative control technologies; modification of processes or equipment; other pollutant prevention measure; or a combination of the above. Generally, the most effective air pollution control technology is selected unless the applicant demonstrates it is technically infeasible;, has unreasonable environmental impacts when compared to air contaminant reduction benefits; or relies on fuels not readily available; or will have adverse energy impacts compared to the air contaminant emission reduction benefits.

With respect to renewals of existing air permits, the NJDEP will require applicants to propose control measures to avoid contributions to adverse environmental and public health stressors. If adverse impacts cannot be avoided, the NJDEP may impose conditions. Applicants will be required to: conduct a facility-wide risk assessment, based on protocols approved by the NJDEP in advance; conduct a technical feasibility analysis, if equipment at the facility is dated; and demonstrate effective control measures.

Finally, the Proposed Rule sets forth and elaborates on the requirements to engage the community for public participation. Facilities will be required to provide proper notice 60-days prior to the hearing date for the application. Proper notice includes: two newspaper advertisements in the overburned community (including non-English newspapers in the appropriate circumstances); copies to the overburdened community's municipal clerk and governing body; notice to the NJDEP; certified mail notices to property owners, residents, and easement holders, within 200 feet of the facility; conspicuous signage at the applicable facility; and any other methods identified by the applicant, such as direct invitations to active community groups, automated phone, voice, or electronic notices, and flyers.  Following appropriate notice to the overburdened community, the permit applicant is generally required to hold public meetings within the overburdened community. Such meetings should occur after 6:00 pm EST on weekdays and must include a recorded virtual component. During such public meetings, the permit applicant must present its application and accept oral and written comments. Written comments must be accepted for a period of at least 60 days following the required notice. After close of the public comment period, the applicant must prepare a written transcript of the public hearing and respond to comments.

As can be gleamed from the information above, the Proposed Rule will have momentous impacts on permitting assessments for most New Jersey facilities. A thorough understanding of the Proposed Rule will be required for any entity seeking to expand operations in New Jersey, as well as any major source seeking to continue operations within an overburdened community. Accordingly, we encourage that stakeholders participate in the comment process to seek further clarification of the Proposed Rule, including how the NJDEP will carry out its comparison and determination of “adverse cumulative impacts” in an overburdened community.

Comments and questions should be addressed to the NJDEP by September 4, 2022, using this link, or via paper filings at:

Melissa P. Abatemarco, Esq.

Attn.: DEP Docket No. 04-22-04
Office of Legal Affairs
Department of Environmental Protection
401 East State Street, 7th Floor
Mail Code 401-04L
PO Box 402
Trenton, New Jersey 08625-0402 
 
Interested stakeholders are also encouraged to attend the NJDEP’s public hearings, currently scheduled at the times and locations provided below: 
  • Monday 7/11/22 - 3:00-5:00 p.m.; 7:00-9:00 p.m. - NJDEP Public Hearing Room - 401 East State Street, Trenton, NJ 
  • Wednesday 7/13/22 - 6:30 p.m. - Ray and John Kroc Corps Community Multi-Purpose Rooms, 1865 Harrison Avenue, Camden, NJ 08105
  • Wednesday 7/27/22 - 6 pm. - NJIT, Campus Atrium Center –First Floor, 150 Bleecker Street, Newark, NJ 07102
  • Thursday 7/28/22 - 6 p.m. - Virtual hearing - NJDEP Teams Meeting 
For more information, please contact your CSG Law attorney or the author listed below .