After more than two years since the initial legislation was signed at Raymond Brown Park in Newark, New Jersey, the Environmental Justice (EJ) Law was officially adopted by the New Jersey Department of Environmental Protection (NJDEP) on April 17, 2023. This landmark law is the first of its kind and the nation’s most empowering environmental legislation.
Depending upon potential permitting requirements, different EJ considerations may be required for any given project. EJ issues include a broad array of environmental hazards, such as unsafe drinking water, proximity to chemical facilities, and risks from climate change and natural disasters. The U.S. Environmental Protection Agency 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 laws, regulations, and policies.” In practice, this would mean that all communities enjoy the same degree of protection from environmental and health hazards and equal access to decision-making processes. In recent years, state and federal governments have been taking steps to identify impacted communities, measure long-term health impacts, evaluate the siting of future industrial projects, and ensure all communities have equal access to a healthy environment.
Federal EJ efforts seek to use existing federal laws, programs, and funding to address environmental and health problems that disproportionately burden minority and low-income communities, such as exposure to environmental pollutants (GAO-19-543). To this end, federal tools help users identify communities with people of color and/or low-income populations; potential environmental quality issues; a combination of environmental and demographic indicators that may raise EJ concerns. This information can support public engagement, educational programs, grant writing, community awareness efforts, and Environment, Social, and Governance programs.
The New Jersey EJ Law imposes new substantive technical and administrative requirements for the following facility types located in or seeking to be located in historically overburdened communities¹:
- Major sources of air pollution (Title V facilities)
- Resource recovery plants
- Sludge processing facilities, combustors, or incinerators
- Sewage treatment plants (with a capacity of less than 50 million gallons per day)
- Transfer stations, recycling facilities intending to receive at least 100 tons of recyclable material per day, and other solid waste facilities
- Scrap metal facilities
- Medical waste incinerators, except those that accept regulated medical waste for disposal, or are attendant to a hospital or university and intended to process self-generated regulated medical waste
Except for minor modifications that do not result in an increase of actual or potential emissions and certain remediation activities, permit applications for new or expanded facilities located in an overburdened community and major source permit renewals are required to comply with the EJ rule under New Jersey Administrative Code 7:1C. Facilities that previously submitted a complete permit application before April 17 are still subject to the public participation requirements under Administrative Order 2021-25 rather than the final EJ rules. The EJ rule has the potential to significantly impact the timeline and cost of projects located in overburdened communities. If applicable, projects must follow a multi-step process:
Consideration during the project planning phase will be imperative to identify and address potential EJ-related obstacles in the permitting process. According to the rules, an environmental justice impact statement must include the following elements:
- An executive summary including a brief description of the proposed project, its purpose, and an overview of the information contained in the impact statement
- Detailed mapping and a description of the environmental setting, including identification of all regulated areas, endangered or threatened species, water classifications, and recreational attributes
- Site contamination assessment
- Localized air quality data
- Groundwater data
- Assessment of climate and flooding impacts
- Traffic studies
- Description of sewage and stormwater treatment and collection systems
- Water supply information
- Energy demands, including renewable options
- An alternative analysis
- Odor, dust, and noise mitigation or management plans
- Proposed control measures
- A detailed compliance history for the facility
- Assessment of facility impacts on environmental and public health stressors
- A public participation plan that, at minimum, satisfies the proposed requirements under New Jersey Administrative Code 7:1C-3.4(d) and 7:1C-4
- A demonstration, including any necessary operational conditions and control measures, that the facility would avoid a disproportionate impact
The EJ rule presents a shift in the way New Jersey facilities do business. New Jersey’s EJ rule is the first in the country to mandate that the agency deny permit requests if a new facility cannot avoid a disproportionate impact in an overburdened community. Understanding and appreciating the potential economic, regulatory, and operational challenges projects confront is critical to a project’s success. CEC has been following the EJ rulemaking process in the state of New Jersey and throughout the country. Our staff is continuing to assist clients in navigating the ever-changing regulatory landscape. For example, our team members have developed an innovative approach for developing an EJ Attainment plan that helps assure buy-in from regulatory agencies. If you have any questions regarding EJ and how the new rule may affect your operations, please contact our experts:
¹An “overburdened community” includes any census block group in which: (1) at least 35 percent of households qualify as low-income households; (2) at least 40 percent of residents identify as minority or as members of a tribal community; or (3) at least 40 percent of households have limited English proficiency. NJDEP published a list of overburdened communities and has created the EJ mapping tool (EJMAP) to provide a publicly available, searchable, and user-friendly geographic information system-based visual depiction of overburdened communities throughout New Jersey.