Key Contacts
New Jersey Environmental Justice Update
On April 17, 2023, the New Jersey Department of Environmental Protection (NJDEP) published the long-awaited environmental justice regulations, codified at N.J.A.C. 7:1C (EJ Rules). The final rule was published two years after Governor Murphy signed New Jersey’s Environmental Justice Law (EJ Law), which requires NJDEP to evaluate the impact of certain types of facilities located or proposed to be located, in whole or in part, in an overburdened community as part of the environmental permitting process.
The EJ Rules apply when three criteria are present: (1) the proposed new or existing facility is one of eight specific facility types (i.e., major sources of air pollution, resource recovery facilities or incinerators, sludge processing facility, combustor or incinerator, sewage treatment plant with a capacity greater than 50 million gallons per day, transfer stations or other solid waste facilities, recycling facilities that intend to receive at least 100 tons of recyclable materials per day, scrap metal facilities, landfills, or medical waste incinerators); (2) the applicant seeks an individual permit for a new or expanded facility under NJDEP’s regulations or the renewal of a major source permit; and (3) the facility is located or proposed to be located, in whole or in part, in an overburdened community, or an adjacent zero-population block group.
Applicants subject to the EJ Rules will be required to prepare an environmental justice impact statement (EJIS) as part of their permit application that identifies and analyzes (1) existing environmental and public health stressors as identified in NJDEP’s EJ Mapping, Assessment and Protection Tool (EJMAP), (2) the presence or absence of adverse cumulative stressors, (3) potential environmental and public health stressors associated with the facility being permitted, (4) whether the facility can avoid causing a disproportionate impact, (5) the control measures that the facility proposes to implement to avoid or address any disproportionate impact, and (6) if applicable, how a new facility will serve a compelling public interest. Applicants will also be required to hold a public hearing and provide an opportunity for the public to submit written comments on the EJIS in addition to any public participation required by NJDEP’s regulations on the substantive permit application.
For new facilities, if NJDEP finds that the facility would “together with other stressors cause or contribute to adverse cumulative environmental or public health impacts” in the community “that are higher than those borne by other” the State or County 50th percentile (excluding other overburdened communities), then NJDEP must deny the permit unless there is a compelling public interest, in which case, NJDEP can impose permit conditions on the construction or operation of the facility. Compelling public interest is narrowly defined in the EJ Rules to only allow new facilities that demonstrate that the facility primarily serves an essential environmental, health or safety need of the individuals in the overburdened community, and there are no other means reasonably available to meet those needs. In contrast, if NJDEP makes the same finding in the context of an existing facility seeking a permit for an expansion or a permit renewal, then NJDEP may only apply permit conditions on the construction and operation of the facility to protect public health. A new facility is (1) any facility that has not commenced operation as of April 17, 2023, or (2) a change in use of an existing facility. NJDEP considers an existing facility that has operated without a valid approved registration or permit prior to April 17, 2023 to be a new facility. An existing facility is similarly defined as a facility, or any portion thereof, that, as of April 17, 2023, possesses a valid approved registration or permit from the Department for its operation or construction and is in operation.
Implementation of the EJ Rules is still in its early stages. Applicants should evaluate, as soon as possible, whether their project will be subject to the EJ Rules in order to plan the additional time associated with undertaking the required evaluations, public participation, and NJDEP’s review. If you would like to learn more about the impact of EJ Rules or how they apply, please reach out to MGKF’s Jill Kaplan or Jessica Hunt or call 484-430-5700.
