As reported in our September 21, 2020 Alert, on September 18, 2020 New Jersey became one of the first states in the country to enact legislation (The Environmental Justice Law) that establishes a rigorous environmental justice review process for applicants seeking environmental permits from the New Jersey Department of Environmental Protection (NJDEP) for certain facilities in overburdened communities. The legislature’s stated intent in passing the law, was to limit the placement or expansion of covered facilities requiring environmental permits in communities that have borne a disproportionate share of adverse environmental and public health consequences in the state.

The Environmental Justice Law was signed by Governor Murphy around the same time that NJDEP issued guidance to implement the Governor’s Executive Order 23, which directs the agency to advance environmental justice initiatives across state agencies. This combination of measures promises to resonate throughout 2021 and beyond as NJDEP moves to put into place a new set of regulations and the other agencies move to adopt policies and procedures to implement the new law and guidance.

The Environmental Justice Law applies to applicants seeking to obtain “individual permits” for named categories of new or expanded facilities in communities that the law considers to be overburdened based on minority, low-income or limited English proficiency demographic criteria spelled out in the law. Among the categories of facilities included are:

(1) major sources of air pollution; (2) resource recovery facilities or incinerators; (3) sludge processing facilities; (4) large sewage treatment plants (5) transfer stations or other solid waste facilities and certain large recycling facilities (6) scrap metal facilities; (7) landfills, and (8) medical waste incinerators (except those at hospitals and universities).

The process set forth in the law requires these applicants to develop an environmental justice impact statement that assesses the potential environmental and public health stressors associated with the proposed new or expanded facility, including any stressors that cannot be avoided if the permit is granted, as well as existing stressors in the community. The applicant must then conduct a public hearing in the overburdened community and transmit a transcript of the hearing and any written comments received to NJDEP.

After NJDEP reviews the application, the environmental justice impact statement, and the comments received at the public hearing, NJDEP must deny an application for a new permit if NJDEP finds that the approval of the permit would, together with existing environmental or public health stressors, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities (as determined by NJDEP) within New Jersey. An exception is available for facilities that serve a compelling public interest in the overburdened community. For permit renewals and the expansion of an existing facility, NJDEP may attach conditions to (but cannot deny) the permit if it makes similar findings that the permit would cause or contribute to adverse cumulative environmental public health stressors.

The new process cannot be implemented until NJDEP issues final regulations governing the process. NJDEP has yet to propose the regulations but it has started to conduct stakeholder meetings and solicit comments. NJDEP has announced that it will continue to hold stakeholder meetings in 2021, beginning in January. Although the deadline for the initial round of comments has passed, NJDEP has indicated that it will continue accepting comments prior to its issuance of proposed regulations, which is not expected until the second quarter of 2021, followed by an extended public comment period on the proposal In light of this schedule, final regulations would not be expected until late 2021 or early 2022, however, it is not too early for affected facilities to begin to consider the potential impact of the new law on future development and permitting decisions.