Legal Updates

On June 6, 2022, the New Jersey Department of Environmental Protection (NJDEP) published a rule proposal requiring the consideration of environmental justice issues and impacts on overburdened communities in the evaluation and issuance of certain environmental permits. The proposed new rules, the first of their kind throughout the country, are intended to implement the Environmental Justice Law, enacted in September 2020. The proposed regulations apply to overburdened communities, defined as any census block group in which:

• at least 35 percent of the households qualify as low-income households (at or below twice the poverty threshold as determined by the United States Census Bureau);
• at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or
• at least 40 percent of the households have limited English proficiency (without an adult that speaks English “very well” according to the United States Census Bureau).

The proposed rules apply to applicants seeking (a) individual permits for new or expanded facilities, or (b) the renewal of an existing major source permit, for facilities located in such overburdened communities. Specifically, the proposed rules apply to the following eight kinds of facilities:

1. Major sources of air pollution (i.e., gas fired power plants and cogeneration facilities);
2. Resource recovery facilities or incinerators; sludge processing facilities;
3. Sewage treatment plants with a capacity of more than 50 million gallons per day;
4. Transfer stations or solid waste facilities;
5. Recycling facilities that receive at least 100 tons of recyclable material per day;
6. Scrap metal facilities;
7. Landfills; or
8. Medical waste incinerators, except those attendant to hospitals and universities.

Applicants must complete an environmental justice impact statement process to assess environmental and public health stressors in the community, including conducting a public hearing and responding to public comments on the application.

• Proposed New Facilities - Where a proposed new facility cannot avoid a disproportionate impact on the overburdened community, the NJDEP will deny the permit unless the proposed new facility would serve a compelling public interest in the overburdened community.
• Expanded Facilities or Existing Major Sources - If such facilities or sources cannot avoid a disproportionate impact, applicants must analyze measures that could avoid or minimize environmental and public health stressors and provide a net environmental benefit in the overburdened community.

Granted permits are to include conditions intended to ensure that disproportionate impacts are avoided or that avoidance, minimization, or net benefit measures are implemented.

These proposed rules may significantly impact, and potentially limit or even prohibit, the future development of certain industries in overburdened communities, which currently exist in 348 municipalities, with populations totaling approximately 4,687,381.  

Public hearings for these proposed rules will be held on July 11, 13, 27 and 28; public comments must be submitted within 90 days, or by September 4. Connell Foley is directly involved and will continue to monitor the developments regarding these proposed rules and their impact on future project applications.