In 2020, Governor Murphy signed New Jersey’s landmark Environmental Justice Law, N.J.S.A. 13:1D-157, et seq., which requires the Department of Environmental Protection ("DEP") to consider whether certain facilities seeking specific types of permits will contribute to existing environmental and public health stressors in overburdened communities. While the law was enacted last year, the DEP expects to publish its draft environmental justice regulations sometime in early 2022. The regulations will set forth the exact parameters of DEP’s environmental justice review process and requirements.
While public perception of the law often assumes that all future developments will be subject to the Environmental Justice Law, this is incorrect. There is a three-step analysis to determine whether a facility will be subject to the Environmental Justice Law and its regulations.
In short, the facility must be one of the eight specified types of “facilities," it must be seeking certain permits from DEP, and finally, it must be located in an overburdened community.
Is this facility one of the eight types in the Environmental Justice Law?
- Major sources of air pollution;
- Resource recovery facilities or incinerators;
- Sludge processing facilities, combustors, or incinerators;
- Sewage treatment plants with a capacity of more than 50 million gallons per day;
- Transfer stations or other solid waste facilities or recycling facilities that receive over 100 tons of recyclable material per day;
- Scrap metal facilities;
- Landfills; or
- Medical waste incinerators (except those attendant to a hospital or university which processes self-generated regulated medical waste).
Is the facility seeking permits pursuant to the:
- “Solid Waste Management Act,”
- “Comprehensive Regulated Medical Waste Management Act,”
- “New Jersey Statewide Mandatory Source Separation and Recycling Act,”
- “Pesticide Control Act of 1971,”
- “Wetlands Act of 1970,”
- “Freshwater Wetlands Protection Act,”
- “Coastal Area Facility Review Act,”
- “Highlands Water Protection and Planning Act,”
- “Air Pollution Control Act (1954),”
- “Water Supply Management Act,”
- “Water Pollution Control Act,” or
- “Flood Hazard Area Control Act”
However, any authorization or approval necessary to perform a remediation, or any authorization or approval required for a minor modification of a facility’s major source permit for activities or improvements that do not increase emissions is not considered a “permit,” and is not included in this definition.
Is the facility located or proposed to be located in “overburdened community?"
The Environmental Justice Law defines an “overburdened community” as any census block group, as determined in accordance with the most recent United States Census, 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).
As we await the DEP’s publication of the full set of environmental justice regulations, facility owners, operators, and those potential future owners and operators need to be aware of the new requirements of the Environmental Justice Law and plan accordingly. The Environmental Justice Law and its regulations are poised to have a profound impact on industry in New Jersey. 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.