New Jersey Environmental Justice Rule Public Participation and Implications

The New Jersey Department of Environmental Protection (NJDEP) published the final Environmental Justice Rule (EJ Rule) on April 17, 2023. The EJ Rule (N.J.A.C. 7:1C) was promulgated in response to New Jersey’s Environmental Justice Law (EJ Law) that was signed into effect in September 2020. Facilities subject to the EJ Rule must hold “meaningful public participation” as part of the EJ Rule process. Read on to learn more about what is involved in the public participation requirements and what impacts it may have on your facility’s permitting process.

General Overview of the EJ Rule

Compliance with the EJ Rule can be broken down into the following steps. You can read more about the overall structure and applicability of the EJ Rule here.

1. Determine Applicability
2. Initial Screen
3. Determine Application Requirements
4. Develop Environmental Justice Impact Statement (EJIS)
5. Meaningful Public Participation
6. NJDEP Review
7. NJDEP Decision

Each applicant subject to the EJ Rule must prepare an EJIS along with supplemental information, as applicable. N.J.A.C. 7:1C-3.2 describes the information required in the EJIS, including initial screening information, an assessment of facility impacts to environmental and public health stressors, a public participation plan, and other details pertaining to the facility. Supplemental information, as described at N.J.A.C. 7:1C-3.3, may be required if the overburdened community (OBC) is already subject to adverse cumulative stressors or if the facility cannot demonstrate that it will avoid a disproportionate impact.

Once the EJIS is reviewed and approved, NJDEP will post the EJIS online and the facility may then move forward with the public participation steps. There are three elements to the public participation process:

1. Public Notices
2. Public Hearing
3. Public Comment Period

Public Notices

Public notices must be first submitted to NJDEP’s Office of Permit and Project Navigation (OPPN) for review. The notice must include:

1. The name of the applicant;
2. The date, time, and location of the public hearing, including virtual attendance instructions;
3. A summary of the project;
4. A facility location map;
5. A brief summary of the EJIS and information on how to access the EJIS;
6. A copy of the application(s) and authorization(s) (current and pending) associated with the project;
7. The start and end dates of the 60-day public comment period;
8. An email or mailing address for submitting comments;
9. OPPN’s mailing address for submitting comments; and
10. A statement inviting participation in the public hearing.

The public notice must be provided to NJDEP, the governing body and clerk of the municipality in which the OBC is located, property owners within 200 feet of the facility, and local environmental and EJ bodies. The notice also must be published in at least two newspapers circulating within the OBC and posted on a sign at the facility’s location. Additionally, the applicant is required to develop a community-specific engagement plan to employ additional notice methods, as necessary, to ensure that all individuals in the OBC receive direct and adequate notice. Public notices may need to be provided in non-English languages commonly spoken in the OBC.

Public Hearing

The applicant must conduct a public hearing in the OBC that is affected by the facility’s operations. In the public hearing, the applicant should present the EJIS to the members of the OBC to explain operational information, the environmental and public health stressors affecting the OBC, and how the facility proposes to avoid or minimize impacts to the affected stressors. There are many important factors to consider when planning and conducting a public hearing, as addressed in the following subsections.

Location and Timing

The public hearing must be conducted during a weekday, beginning no later than 6:00 PM. The community must be notified of the hearing at least 60 days before the scheduled date. The hearing must be held in-person at a suitable location in the OBC, while also providing a virtual attendance option. The hearing must be recorded and officially transcribed, and this information must be made available online following the hearing. NJDEP also recommends having a moderator for hearings anticipated to have a high attendance rate.

Accessibility

NJDEP recommends using interpreters in communities that speak multiple languages. The content presented must be visually and auditorily accessible to all attendees; therefore, NJDEP recommends the use of microphones. The applicant is also required to provide copies of the EJIS, public notices, and other supporting materials in languages commonly spoken in the OBC. Closed-captioned and translation tools in virtual meeting programs (e.g., Zoom, Microsoft Teams) are also recommended to promote accessibility for attendees.

Presentation Content

The purpose of the public hearing is to present the content of the EJIS to the OBC in a clear, concise, and accessible manner, and to allow for members of the OBC to comment and ask questions. The hearing should be extended for as long as reasonable to allow all community members to comment.

Public Comment Period

Applicants must hold a 60-day public comment period that remains open at least 30 days after the public hearing is held. The applicant must then provide NJDEP with responses to all comments received.

The public participation requirements can add a significant amount of time to your facility’s permit review process. It is important to start planning early for the public hearing and communicate with NJDEP throughout the process to ensure that you are meeting all of the requirements.

If you have questions or need assistance planning for compliance with the NJ EJ Rule, please contact Sarah Raver at sraver@all4inc.com or (610) 422-1161.