January 25, 2021
Bruce S. Katcher
On January 20, 2021, the New Jersey Department of Environmental Protection (NJDEP) held another in its series of stakeholder meetings to provide information and solicit input on the development of regulations to implement the new Environmental Justice Law (the “EJ Law” – a summary of the law including the terms that are used below may be found here). On that date two meetings were held, one for business and industry and a second for community/environmental groups, both directed at the following issues:
- How to define the geographic units that will be used to determine whether the impacts of a facility for which a permit or permit renewal is required in an overburdened community, together with other environmental and public health stressors in the subject community, will lead to disparate stressor impacts as compared to other communities in the state.
- How to define the facilities and permits that will trigger an environmental justice impact review under the EJ Law (beyond the often generic descriptions in the EJ Law).
At the outset, the NJDEP introduced its new listing of overburdened communities that the EJ Law required to be published on the internet within 120 days of enactment of the law. That listing, together with a mapping tool that enables interested parties to determine whether specific locations are found within an overburdened community, can be found here. That listing includes overburdened communities – defined by census tract – located in 331 municipalities in which over 4.5 million people live.
The Geographic Unit portion of the meeting consisted of a complex presentation of a number of illustrative approaches to defining geographic units of comparison being considered by the NJDEP and using as the example stressor the EPA’s National Air Toxics Assessment (NATA) data for total cancer risk per million of population. Comparisons were presented on a county by county basis and on a State-wide basis for varying percentiles and with and without the inclusion of overburdened communities. Notably, EPA’s NATA website warns that NATA assessments should not be used “to pinpoint specific risk values in small areas such as a census tract” or “to characterize or compare risks at local levels (such as between neighborhoods)” or “to characterize or compare risks between states”. Presumably, the same warnings would apply to county by county comparisons and perhaps even state-wide to census tract comparisons.
Given the complexity of the analysis presented at the meeting and the fact that it had not been previewed to the audience in advance, comments, at least in the business and industry meeting, were limited.
The Facility and Permit portion of the meeting consisted of a review of the different types of facilities that are subject to EJ Law review when seeking new facility permits, permits for expansions and permit renewals and a review of which permits are subject to the new law. To be subject to the EJ review, an applicant must be both a facility covered by the EJ Law and be applying for a permit covered by the law.
In order to define which “facilities” are covered, NJDEP proposes to use a combination of definitions in the EJ Law and definitions found in other New Jersey environmental statutes which define the terms used in the EJ Law or similar terms. For example, a “major source of air pollution” is already defined in the EJ Law by reference to both federal and state air pollution control laws. For “solid waste facility”, the NJDEP proposes to use the definition set forth in the solid waste rules. Some facilities are not defined in the rules, for example, sewage treatment plant, for which NJDEP proposed using the definition of “treatment works” in the regulations – a definition which seems overly broad for this purpose. Notably, some regulatory definitions from other statutory schemes have built-in exclusions and this could present complications in utilizing them for the intended purpose.
For purposes of defining which “permits” are covered, NJDEP referenced the list of statutory permit programs set forth in the EJ Law. Here again, some permit programs have exclusions that could give rise to issues. In addition, the question of whether general permits and permits by rule are covered by the EJ Law was raised by an attendee. The language of the law itself indicates that it covers “individual” permits, which seemingly excludes general permits and permits by rule. The NJDEP seemed to lean in the direction that those permits were excluded, but hedged its bets pending further consideration. The EJ Law exclusion of remediation permits was also discussed as was the potential for an off-ramp from the process for facility modifications having no significant environmental or public health impact or improving public health and the environment. Such an off-ramp may incentivize such actions.
Additional stakeholder meetings on other EJ Law topics will be held in the coming weeks and the NJDEP is projecting a conclusion to the stakeholder process by “late Spring.” We will continue to track and report on those future meetings. If you have any questions, please contact Bruce Katcher, Jill Kaplan or Zach Koslap via email or at 484-430-5700.