NJDEP Proposes Environmental Justice Rule

New Jersey Department of Environmental Projection (NJDEP) has published a rule proposal for its Environmental Justice (EJ) program that would require facilities to address environmental and public health impacts they may have on overburdened communities (OBC) while obtaining a permit from the agency. In publishing these proposed rules, NJDEP has started a 90-day comment period set to expire on September 4, 2022.

Background Information

The United States Environmental Protection Agency (U.S. EPA) defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental law, regulations, and policies.” In New Jersey, low-income communities have often been subject to a high number of environmental and public health stressors.

This proposed rule is the culmination of steps taken in New Jersey in September 2020 when the EJ Law was passed, which resulted in Administrative Order 2021-25 (AO) that granted the NJDEP the authority to deny or condition permits based on their effects on stressors to OBC. This action made New Jersey the first state to set standards, although other states are expected to follow suit. These proposed rules expand on the AO and would be published in the New Jersey Administrative Codes (NJAC) when finalized.

Who would this rule apply to?

NJDEP proposes to apply the rule to facilities that meet the following criteria:

1. A designated facility, which is any:
   1. Major source of air pollution,
   2. Resource recovery facility or incinerator,
   3. Sludge processing facility, combustor, or incinerator,
   4. Sewage treatment plant with a “permitted flow” as defined in NJAC 7:24A-1.2,
   5. Transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day,
   6. Scrap metal facility,
   7. Landfill, such as those that accepts ash, construction or demolition debris, or solid waste, or,
   8. Medical waste incinerator, except certain medical waste incinerators.
2. Located in an OBC, partially or fully, which is determined by census block groups where:
   1. At least 35% of households qualify as low-income,
   2. At least 40% of residents identify as a minority or members of a State-recognized tribal community, or
   3. At least 40% of households have limited English proficiency.
3. Seeking a permit either for a new facility, to expand a facility, or for renewals of a Title V permit.

The EJ Law would give NJDEP the ability and requirement to deny permits for new facilities that would subject a community to adverse cumulative stressors (these are included in the Appendix to the proposed rules) and have a disproportionate impact on the OBC, or impose permit conditions for expansions or Title V renewals to limit their impacts on an OBC. The big picture approach is that the NJDEP is looking to compare a set of stressors for an OBC with those in non-OBC to determine if adverse cumulative effects are occurring in the OBC.

What would the process look like for affected facilities?

NJAC 7:1C-2.2 lays out a procedural roadmap for the process affected facilities would follow when applying for a permit.

1. Initial Screen – When the applicant submits a subject permit application, the NJDEP would initially screen for OBC and stressor information. An applicant can also submit an Environmental Justice Impact Statement (EJIS) with the permit application, using information from the NJDEP Mapping, Assessment and Protection Tool (EJMAP).
2. Preparation of EJIS –When the OBC is subject to adverse cumulative effects or would be as a result of a proposed project, the EJIS must be developed and show how the applicant would either avoid a disproportionate impact or how the project may serve a compelling public interest. This would be an extensive process, ideally involving the community long before any required public participation. Not specified in the rules but important to include is the positive impact the project and facility has had/will have. The submittal may include alternatives analyses, an assessment of control measures, and a facility-wide health risk assessment.
3. Authorization to Proceed – After an initial review, the NJDEP will provide authorization to proceed to a meaningful public participation process pursuant to NJAC 7:1C-4.
4. Meaningful Public Participation – This is a lengthy process a minimum of 60 days in duration, including a public hearing, a 30-day public comment period, and a potential for additional time if requested by the community or if material changes come from the public participation period, potentially resulting in a new comment period or hearing. It is important to have the support of the community at this step.
5. Department Review – The NJDEP considers all information submitted by the applicant and the public.
6. Department Decision – The NJDEP will either authorize the applicant to proceed and impose any additional permit conditions necessary to avoid disproportionate impacts, or deny the application.

Where can I find the proposed rule and comment?

A copy of the proposed rules can be found on the NJDEP website as part of a 153-page informational package. A summary of the steps is included on page 63, while the full text of the proposed rule starts on page 99.

The NJDEP will also be hosting public hearings in July. Information on how and where to attend these hearings is listed in the first page of the package.

Comments can be submitted electronically at www.nj.gov/dep/rules/comments. You should include the applicable NJAC citation and your name and affiliation. Paper comments can also be sent to the NJDEP, and oral testimony can be submitted prior to the virtual public hearing using the procedures listed in the package.

What should I do?

New Jersey facilities should review the EJMAP tool for their location to determine if there may be local EJ concerns. If the facility is in an OBC, check the other applicability requirements listed in the “Who would this apply to?” section – if the facility will be seeking a permit, is a designated facility in an OBC, and meets the criteria, this proposed rule would affect the facility. Going through this process will add a significant amount of time to the permit review process, so plan accordingly, begin looking at the EJIS requirements, and engage with your community, permit writers, consultants, and NJDEP EJ staff early and often to facilitate obtaining the permit. Reach out to ALL4 if you need assistance navigating these new requirements and planning how to address them.

How can I get additional information?

ALL4 is following this rulemaking and will continue to provide updates. If you have any questions or need additional information, please contact Corey Prigent at cprigent@all4inc.com or contact your ALL4 project manager.