New Jersey’s Environmental Justice Bill (EJ Bill) applies to Facilities located in Overburdened Communities (OBC). N.J. Stat. § 13:1D-157 – 13:1D-161.  A Facility includes 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 capacity of more than 50 million gallons per day; 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; or 8. Medical waste incinerator.   An OBC is one in which: 1. At least 35 percent of the households qualify as low-income households; 2. At least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or 3. At least 40 percent of the households have limited English proficiency.  The New Jersey Department of Environmental Protection (NJDEP) has compiled a list of overburdened communities.

If a Facility is located in an OBC, the EJ Bill requires that when the Facility submits an application for a permit for a new Facility, an expansion of an existing Facility, or an application for renewal of an existing Facility’s major source permit, the Facility must:

1. Prepare an environmental justice impact statement (EJIS) to assess the potential environmental and public health stressors associated with the application;
2. Transmit the EJIS at least 60 days in advance of the public hearing to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located; and
3. Organize and conduct a public hearing in the OBC. The applicant must publish a notice of the public hearing in at least two newspapers circulating within the OBC (including one non-English language newspaper, if applicable), not less than 60 days prior to the public hearing.  The permit applicant shall provide a copy of the notice to the NJDEP and the NJDEP will publish the notice on its website.  The notice shall include the date, time, and location of the public hearing, a description of the proposed new or expanded Facility or existing major source, as applicable, a map indicating the location of the Facility, a brief summary of the EJIS, information on how an interested person may review a copy of the complete EJIS, an address for the submittal of written comments to the permit applicant, and any other information deemed appropriate by NJDEP.  At least 60 days prior to the public hearing, the notice shall be sent to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located.  At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new or expanded facility, or existing major source, as applicable, and the potential environmental and public health stressors associated with the Facility. The permit applicant shall accept written and oral comments from any interested party, and provided an opportunity for meaningful public participation at the public hearing. The permit applicant shall transcribe the public hearing and, no later than 10 days after the public hearing, submit the transcript along with any written comments received, to NJDEP. Following the public hearing, NJDEP shall consider the testimony presented and any written comments received, and evaluate the issuance of, or conditions to, the permit, as necessary in order to avoid or reduce the adverse environmental or public health stressors affecting the OBC.

NJDEP shall not issue a decision on an application if the Facility is located in an OBC until at least 45 days after the public hearing has been held.

After reviewing the EJIS and any other relevant information, including testimony and written comments received at the public hearing, the EJ Bill states that NJDEP may:

1. Deny a permit for a new Facility upon a finding that approval of the permit, as proposed, would, together with other environmental or public health stressors affecting the OBC, cause or contribute to adverse cumulative environmental or public health stressors that are higher than those borne by other communities, unless NJDEP determines that a new Facility will serve a compelling public interest, then NJDEP may grant a permit that imposes conditions on the construction and operation of the Facility to protect public health.
2. Apply conditions to a permit for the expansion of an existing facility or the renewal of an existing facility’s major source permit, concerning the construction and operation of the Facility to protect public health upon a finding that approval of the permit or permit renewal, as proposed, would, together with other environmental or public health stressors affecting OBC, cause or contribute to adverse cumulative environmental or public health stressors in the OBC that are higher than those borne by other communities.

NJDEP is required under the EJ Bill to promulgate rules and regulations to implement the EJ Bill.

NJDEP has been holding information sessions and rulemaking stakeholder meetings since October 2020.  In its most recent April 7, 2021 rulemaking meeting, NJDEP discussed how the EJ Bill may apply in practice to permit renewal and permit expansion applications.  NJDEP’s presentation makes clear that the EJ Bill neither requires NJDEP to deny environmental permits for new Facilities nor does the EJ Bill allow NJDEP to deny Facility expansions or permit renewals.  Instead, NJDEP states that the EJ Bill requires an analysis of localized public health and environmental impacts and an analysis of additional controls that can be put in place to reduce localized pollution as conditions to any permit.  These limitations are not effective until NJDEP adopts implementing regulations.

NJDEP proposed a four-step process.  Step one is the initial screening, in which the applicant uses NJDEP’s publicly-available data mapping tool to determine whether the OBC is subject to disproportionate environmental and public health stressor levels when compared to the appropriate geographic point of comparison.  Step two is a disproportionate impact analysis, in which through the preparation of an EJIS process (including a public hearing) applicant analyzes whether and how the proposed application will cause or contribute to disproportionate stressor levels and proposes avoidance measures.  If the applicant cannot avoid cause or contribution, a disproportionate impact is present.  Step three is applicable to Facility expansions/Title V renewals and will require NJDEP to impose binding permit conditions concerning the construction and operation of the Facility where necessary to avoid or minimize potential adverse impacts.  Step four is applicable to new Facilities and would require NJDEP to deny the application unless the new Facility will serve a compelling public interest in the community where it is to be located.  If so, NJDEP may impose binding permit conditions on the construction and operation of the Facility to protect public health.

NJDEP has not yet made clear how it will consider the application of conditions on construction or operations of expanded facilities or for Title V renewals to protect public health.  In its most recent rulemaking meeting, NJDEP implied that for Title V renewals, it may impose a Best Available Control Technology/State of the Art standard every five years or longer for Title V renewals where NJDEP determines a Facility must minimize contributions to disproportionate stressors.  NJDEP also indicates that it may consider additional measures to improve baseline conditions in the host communities.

At this point, it is not clear when NJDEP will have a set of finalized regulations detailing how it will implement the EJ Bill, so there are many uncertainties.  Stay tuned for updates as NJDEP promulgates rules to implement the EJ Bill.  Additionally other states, like Massachusetts and Washington, have already proposed environmental justice bills.  We will be watching for other states and agencies to follow suite, especially in light of the Biden Administration’s commitment to make environmental justice a part of the mission of every federal agency.