On August 27, 2020, the New Jersey Legislature passed landmark environmental justice legislation, which seeks to protect urban, minority, and low-income communities from excessive and disproportionate exposure to pollution via power plants, trash incinerators, and sewage-treatment plants. Senate Bill No. 232 ( S232) now heads to Gov. Phil Murphy, who has already expressed public support for the bill.

New Permitting Requirements

The environmental justice legislation requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate the environmental and public health stressors of certain facilities on overburdened communities when reviewing certain permit applications. SB 232 defines an “overburdened community” as any census block group in which at least one half of the households qualify as low-income households, and either: (1) at least 40 percent of the residents identify as Black, African American, Hispanic or Latino, or as members of a State-recognized tribal community; or (2) at least 40 percent of the households have limited English proficiency.  The bill also requires the New Jersey Department of Environmental Protection (DEP) to publish a list of overburdened communities on its website and notify a municipality if any part of the municipality is designated an overburdened community. 

The new permitting requirements only apply to certain facilities. SB 232 defines the term “facility” to mean any:  (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor, or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons per day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facility; (7) landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; or (8) medical waste incinerator.  The term excludes a facility as defined in section 3 of P.L.1989, c.34 (C.13:1E-48.3), or regulated medical waste processing equipment, including a medical waste incinerator, that is attendant to a hospital or university and intended to process self-generated regulated medical waste.

Upon NJDEP’s adoption of implementing rules under the Act, , any application for a permit for a new facility, or for the expansion of an existing facility, located in whole or in part in an overburdened community must meet certain conditions.  Specifically, a permit applicant would be required to:

  • Prepare an environmental justice impact statement that assesses the environmental impact and associated public health risks of the proposed new or expanded facility, including any adverse environmental impacts that can’t be avoided if the permit is granted, and the cumulative environmental or public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the community;
  • Transmit the environmental justice impact statement to the DEP and to the governing body and the clerk of the municipality in which the overburdened community is located at least 60 days in advance of the public hearing required under the bill.  The permit applicant would also be required to make the environmental justice impact statement available to the public, including on its Internet website, if applicable; and
  • Organize and conduct a public hearing in the overburdened community. At the public hearing, the permit applicant would be required to provide clear, accurate, and complete information about the proposed new or expanded facility, and the potential environmental impacts and health risks of the new or expanded facility.  The permit applicant would be required to accept written comments from any interested party, and provide an opportunity for meaningful public participation at the public hearing. The permit applicant would also be required to transcribe the public hearing and submit the transcript, along with any written comments received, to the NJDEP.

Following the public hearing, the NJDEP would be required to consider the environmental justice impact statement, any testimony presented at the hearing, and any written comments received, and evaluate any revisions or conditions to the permit that may be necessary to avoid or reduce the adverse impact to the environment or to the public health in the overburdened community. Under the bill, the NJDEP would not be authorized to issue a decision on a permit application for a new or expanded facility located in whole or in part in an overburdened community until at least 45 days after the public hearing.

The NJDEP would be required to deny a permit for a new facility upon a finding that approval of the permit, as proposed, would, together with other environmental or public health stressors affecting the overburdened community, 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 the State, county, or other geographic units of analysis as determined by the DEP.  If the DEP determines that a new or expanded facility will serve a compelling public interest in the community where it is to be located, it may grant a permit that imposes conditions on the construction and operation of the facility to protect public health.

Key Takeaways

The passage of the environmental justice bill is historic, as it represents first-in-the-nation legislation relating to the siting of the defined resource recovery, solid waste and recycling facilities, landfills, incinerators, and permits relating to major sources of air pollution. Environmental remediation and redevelopment projects are not covered, and real estate transactions will not be affected. For those businesses in the solid waste area, the siting of new solid waste transfer stations and facilities, incinerators,  landfills, and permitting of major sources of air pollution, the environmental justice bill represents a major change,  and an environmental justice review will be required.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, John Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.