With the issuance of proposed regulations, businesses seeking to comply with New Jersey’s Environmental Justice Law just received more guidance from the New Jersey Department of Environmental Protection (“NJDEP”).

That is, the NJDEP has proposed regulations that, when ultimately adopted, would fully implement New Jersey’s first of its kind Environmental Justice Law.

The underlying law contained guiding principles but left the essential and somewhat controversial details to the implementing regulations.  As a result, the proposed regulations are in themselves groundbreaking and likely to be thoroughly scrutinized and debated.

Background Information

As has been widely reported, New Jersey’s Environmental Justice Law authorizes the New Jersey Department of Environmental Protection to deny or condition permits for certain facilities that would have a disproportionate impact on an overburdened community.

The authority to require an environmental justice review and to deny or condition permits, however, was to go into effect only when regulations were proposed and adopted, but the Department through Administrative Order 2021-25 has been using existing authority to implement these aspects of the Environmental Justice Law since November 2021.

Given that the law provides a broad framework and does not address the many nuanced circumstances that can arise, the Department, businesses, and community members have faced difficulties attempting to comply with the Environmental Justice Law under the Administrative Order.

The newly proposed regulations, which are the result of six sets of extensive stakeholder meetings, should provide additional clarity to these stakeholders.  Stakeholders have the opportunity to provide comments to the NJDEP on the proposed regulations, and the public comment period is currently slated to end on September 4, 2022.

NJDEP representatives have stated that the regulations will be adopted before the end of 2022.  As noted above, the requirements of the EJ Law become effective on adoption of these regulations.

Applicability of New Jersey EJ Requirements

The EJ Law, and its proposed implementing regulations, as well as the NJDEP’s Administrative Order 2021-25, apply to facilities:

• Within eight (8) different categories, including major sources of air pollution (i.e., facilities with Title V air permits, such as power plants); certain solid waste facilities, landfills and incinerators; large-scale sewage treatment facilities; and scrap metal and large-scale recycling facilities;
• Located in overburdened communities, as defined by the State of New Jersey based on certain socio-economic factors; and
• Seeking a wide array of environmental permits associated with a new facility, an expansion of an existing facility, or a renewal of a major source permit.

EJ Requirements under Administrative Order

Under Administrative Order 2021-25 and to the extent consistent with applicable law:

• Public comment periods are to be no less than sixty (60) days, and shall be extended to ninety (90) days upon request by a member of the overburdened community.
• The applicant also is required to hold a public hearing and provide public notice of the comment period and the public hearing.
• If comments are received from the public, the applicant further is required to respond to and address the concerns raised by the public.
• An Environmental Justice Impact Statement (“EJIS”) is not required, but the NJDEP reserves the right to require the applicant to conduct additional analyses of concerns raised during public comment. The NJDEP also reserves the right to impose special conditions on issued permits as necessary to avoid or minimize environmental or public health stressors upon the overburdened community to the maximum extent allowable by existing law.

EJ Requirements under EJ Law and Regulations

Pursuant to the EJ Law and the regulations proposed by NJDEP:

• The applicant for a permit subject to the EJ Law prepares an EJIS using screening data provided by and/or available from the NJDEP. Depending on certain factors, the EJIS may need to include additional analyses and/or proposed permit conditions in accordance with the EJ Law and the proposed regulations.
• Upon NJDEP’s authorization that the EJIS is administratively complete, the applicant proceeds with the public participation process set forth in the EJ Law and the regulations, including providing a comment period, holding a public hearing in the overburdened community and responding to public comment.
• Upon completion of the public participation process, the NJDEP would then consider the EJIS, other provided documentation and any other information deemed relevant by the NJDEP, and issue a decision on the permit application. Under certain circumstances, NJDEP may retain independent experts to evaluate the analyses and information, at the applicant’s cost.
• Where the facility can avoid a disproportionate impact to the overburdened community, the NJDEP would authorize the applicant to proceed and shall impose conditions necessary to ensure a disproportionate impact is avoided.
• Where the facility cannot avoid a disproportionate impact, the NJDEP would deny an application for a new facility, unless it demonstrates it will serve a compelling public interest in the overburdened community. For new facilities that serve a compelling public interest, and for expanded facilities and major source renewals that cannot avoid a disproportionate impact, the NJDEP would issue a permit subject to appropriate conditions to address facility impacts to environmental and public health stressors.
• If the NJDEP determines that permit conditions are appropriate, different regulatory standards and procedures will apply to a new facility, an expanded facility, or a major source permit renewal.
• Applicants for new and expanded major source facilities are required to propose available control technologies in accordance with strict procedures. In general, the facility must propose the most effective control technology (defined as Localized Impact Control Technology based on State of the Art), unless the control technology is infeasible in accordance with certain exceptions.  Cost is not an appropriate consideration for new and expanded major source facilities.  All other potential stressors are subject to conditions according to a hierarchy that has avoidance of onsite stressors as its highest priority, followed by onsite mitigation of stressors, offsite mitigation of stressors impacted by the facility, offsite mitigation of stressors other than those impacted by the facility, and offsite measures that provide a net environmental benefit.
• Applicants for major source permit renewals are required to conduct a risk assessment and evaluate available control technologies in accordance with strict procedures. Cost can be considered in determining whether a control technology is feasible for a major source permit renewal.  All other potential stressors are subject to conditions according to a hierarchy that includes only avoidance of onsite stressors and onsite mitigation of stressors, and not any offsite mitigation.

Please keep in mind, however, that the foregoing requirements only go into effect upon adoption of the regulations.  It is possible that aspects of the rule proposal may change.  In the meantime, the procedures set forth in Administrative Order 2021-25 remain in effect.

Conclusion

Facilities that may be subject to the EJ Law should carefully consider participating in the public comment process on the rule proposal.  Facilities should also consider the impact of the EJ law and proposed regulations on current and future actions in consultation with legal and technical professionals to develop a strategy for compliance.

Our attorneys will be closely monitoring the public process associated with the proposed regulations. For more information, please contact any attorney in our Environmental Practice Group.