New Jersey is no longer waiting to implement environmental justice requirements following surprise action by the New Jersey Department of Environmental Protection.

Since September 2020, the Garden State has been waiting for the Department to complete the gargantuan task of implementing the first of its kind Environmental Justice Law. The New Jersey law authorizes the Department to deny or condition certain permits for facilities that would have a disproportionate impact on an overburdened community. However, the substantive provisions of the law do not go into effect until the Department adopts regulations to implement the Environmental Justice Law. While the Department has gone to great lengths, including through a substantial stakeholder process, to develop implementing regulations, the regulations have not yet been proposed or adopted. (The regulations are expected to be proposed in late 2021 and adopted in late 2022.)

With the issuance of Administrative Order 2021-25 on September 22, 2021, certain aspects of the Environmental Justice Law are now in effect. The terms of the Administrative Order apply to:

• All facilities subject to the Environmental Justice Law, including:

- major sources of air pollution (i.e., facilities with Title V air permits, such as power plants);
- solid waste facilities;
- landfills;
- incinerators;
- sewage treatment facilities that process more than 50 million gallons per day;
- scrap metal recycling facilities; and
- other recycling facilities that process more than 100 tons per day.

• That seek covered permits in overburdened communities, which are mapped by the Department (these areas encompass 4.5 million people in 3,168 census block groups and 331 municipalities).

For these facilities, the Administrative Order:

• Extends the public comment period for relevant permits applications to at least 60 days, with a potential extension for an additional 30-day period upon the written request of a member(s) of the overburdened community;
• Requires a mandatory public hearing in a manner intended to maximize participation of individuals within the overburdened community;
• Encourages individuals to provide the facilities and the Department with information regarding existing conditions within the overburdened community and potential facility-wide environmental and public health stressors that could result in adverse impacts in the event of an approval;
• Requires the facility to respond to and address the concerns raised by individuals in the overburdened community and to conduct any additional analysis that the Department deems necessary for its review;
• Strongly encourages each facility to engage directly with individuals in the overburdened community in advance of, and in addition to, formal public comment, including providing relevant information related to facility-wide impacts; and
• Authorizes the Department to apply special permit conditions as may be necessary to avoid or minimize environmental or public health stressors.

The Order takes effect immediately and applies to all existing permit applications with open and unexpired public comment periods. The Order also reserves the Department’s authority to apply the terms of the Order to permit applications with closed or expired public comment periods.

In essence, the Administrative Order creates a process to implement the key components of New Jersey’s Environmental Justice Law—without rulemaking—but leaves many questions unanswered, especially given the significant complexity of the Environmental Justice Law and its implementation.

• The terms of the Administrative Order are only effective to the extent allowable by existing law; how will this limitation impact the terms of the Order and how aggressive will the Department be its implementation of the Order?
• Does the Order apply to the renewal of a Title V air permit?
• How will the Department apply the requirements of the Order to permit applications already submitted, including Title V air permit renewal applications, which can remain pending for a very long time?
• How will the Department use its claimed authority to require additional analyses and to impose permit conditions under the Order?
• When will the formal regulations be proposed and adopted to provide structure and certainty to this process?

If you own or operate a facility in an overburdened community or are considering development or acquisition of a facility in an overburdened community, you would be well advised to carefully consider the impact of this Administrative Order.

For more information, please contact any attorney in our Environmental Practice Group.