
John M. Scagnelli
Partner
201-896-4100 jscagnelli@sh-law.comFirm Insights
Author: John M. Scagnelli
Date: September 11, 2020
Partner
201-896-4100 jscagnelli@sh-law.comOn 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.
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:
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.
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 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.
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