*Chelsey Noble is a law clerk in the Richmond office and is not licensed to practice law in any jurisdiction.

In 2020, New Jersey enacted a first-of-its-kind environmental justice statute, the Environmental Justice Law (EJ Law). The EJ Law requires that permit applicants for certain water, waste, and air facilities located, wholly or partially, in overburdened communities prepare an environmental justice impact statement (EJIS) and engage in meaningful public participation. Significantly, the EJ Law included a provision requiring the New Jersey Department of Environmental Protection (NJ DEP) to deny a permit if a disproportionate impact on overburdened communities cannot be avoided.

The law required the NJ DEP to issue implementing regulations before the law could be applied in practice. On April 17, the agency’s regulations to implement the provisions of the EJ Law became effective. Below is a summary of the key provisions.

The regulations apply: (1) to new or expanded facilities in one of eight facility types identified by the regulations (see below); (2) if the applicant is seeking an individual permit under applicable NJ DEP regulations; and (3) if the facility is located, wholly or partially, in an overburdened community. “New facilities” include changes in the use of existing facilities. In addition, renewals of existing major source permits are covered by the regulations. Expressly excluded are minor modification of a facility’s major source permit for activities or improvements that do not increase actual or potential emissions.

The regulations cover the following eight facility types:

• Major sources of air pollution;
• Resource recovery facilities or incinerators;
• Sludge processing facilities, combustors, or incinerators;
• Sewage treatment plants with a capacity of more than 50 million gallons per day;
• Transfer stations or other solid waste facilities, including recycling facilities intending to receive at least 100 tons of recyclable material per day;
• Scrap metal facilities;
• Landfills, including, but not limited to, landfills that accept ash, construction or demolition debris, or municipal solid waste; and
• Medical waste incinerators, except those that accept regulated medical waste for disposal or is attendant to a hospital or university and intended to process self-generated regulated medical waste.

If subject to the regulations, the permit applicant may request initial screening information from NJ DEP identifying all environmental or public health stressors, including adverse stressors; an appropriate geographic point of comparison; and an assessment of whether the overburdened community is subject to adverse cumulative stressors. Stressors are listed in Appendix A to the regulations; some examples of stressors are fine particulate matter, air toxics, traffic, known contaminated sites, waste facilities, flooding, and unemployment. Alternatively, applicants may obtain the initial screening information directly from the agency’s mapping tool, EJMAP.

The applicant will then prepare an EJIS. The scope of the EJIS will depend on whether the overburdened community will experience adverse cumulative stressors. If it is not subject to adverse cumulative stressors or if applicant can avoid disproportionate impacts, applicants are only required to provide a basic EJIS. The basic EJIS includes descriptions of the facility’s setting, current and proposed operations, list of needed permits, assessment of impacts, demonstration that the facility will avoid a disproportionate impact and any necessary operational conditions and control measures, public participation plan, and other information.

However, when an overburdened community is already subject to adverse cumulative stressors or an applicant cannot avoid disproportionate impact, the applicant would be required to include additional information in the EJIS, such as site maps, information related to potential contaminants, air data, subsurface hydrology information, a description of the localized climate and flooding impacts, traffic study, etc.

After the applicant submits the EJIS and any required supplemental information, the agency has 10 days to review it for completeness. Once the NJ DEP approves the EJIS, the applicant can proceed to the meaningful participation process that includes providing notices, posting signs, holding a public hearing in the host overburdened community, and a minimum 60-day comment period. The regulations include detailed requirements for meaningful participation. At the close of the comment period, the applicant provides NJ DEP with a written transcript and a summary of the public comments and their responses. Additionally, the applicant can submit an amended EJIS to address received comments.

The NJ DEP will then consider whether the facility can avoid a disproportionate impact, including by proposing control measures, adopting applicant-proposed conditions, and/or proposing any other conditions. Significantly, if the impact cannot be avoided, the NJ DEP will deny an application for a new facility unless the facility serves a compelling public interest in the overburdened community. For expanded facilities/major source renewals that cannot avoid a disproportionate impact, the NJ DEP would allow the applicant to proceed subject to conditions to address the impacts to environmental and public health stressors. The agency’s final decision will be in writing and will be incorporated into the permitting decision.