After determining that a facility is subject to the Environmental Justice Law, N.J.S.A. 13:1D-157, et seq., a facility must comply with the provisions of the Environmental Justice Law before the Department of Environmental Protection ("DEP") will complete the review process for an application for a new permit for a facility; an application for the expansion of a facility; or a renewal application for a major source permit. The draft regulations containing the exact details of the review process are currently under development at the DEP and are expected to be published for comment in early 2022.
The major change to the permitting process under the Environmental Justice Law is the addition of an extra layer of review for certain facilities. Under the Environmental Justice Law, for subject facilities, the DEP must now review and consider the permit application along with an environmental justice impact statement and any other relevant information, including written and oral comments received from interested parties during a public hearing.
To briefly summarize the new requirements, if the subject facility is located in an “overburdened community,” then the facility must do the following in order to complete their application for a new permit or:
- Prepare an environmental justice impact statement assessing the potential environmental and public health stressors associated with the proposed new or expanded facility;
- Provide the environmental justice impact statement to the local municipal clerk of the municipality, who will publish the environmental justice impact statement on the municipal website;
- The applicant must organize and conduct a public hearing in the overburdened community, and provide adequate advance notice to both the community and the DEP;
- The applicant must invite the municipality to participate in the public hearing;
- Any interested party must be afforded the opportunity to provide written and oral comments at the hearing;
- The applicant shall provide accurate and complete information about the proposed new or expanded facility and the potential environmental and public health stressors associated with the facility;
- The applicant must transcribe the hearing and submit the transcript and any written comments to the DEP.
- The DEP will not issue a permit until at least 45 days after the public hearing.
For new facilities, if the DEP determines that approval of a new permit, as proposed, would cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within a to-be-specified geographic point of comparison, such as countywide, or statewide points of comparison, then it will deny the permit unless the DEP determines that the new facility will serve a compelling public interest in the community where it is to be located. In that case, the DEP may grant a permit that imposes conditions on the construction and operation of the new facility to protect public health.
For existing facilities applying for expansion of a facility or renewal of a major source permit, the DEP may apply construction or operational conditions to the permit if the DEP finds that the expansion or renewal would cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within a to-be-specified geographic point of comparison.
Notably, both the geographic point of comparison for all facilities and the “compelling public interest” for new facilities will be fully defined by the regulations. How the DEP decides to regulate these two components of the DEP review process will have major implications across the state. As the regulated community eagerly awaits publication of the draft regulations, it is important to begin to examine your facility to determine how the Environmental Justice Law may impact you. To discuss New Jersey’s Environmental Justice Law and how it may affect you, please contact Parker McCay’s environmental department.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.