In recent years, environmental justice has become a growing concern in many states across the US, including New Jersey. The concept of environmental justice is rooted in the belief that everyone should have equal access to a healthy environment, regardless of their race, ethnicity, or socioeconomic status. To address this issue, New Jersey has recently adopted a final version of the State Environmental Justice Law, which has been met with both praise and criticism. In this article, we will explore the key differences between the historical legislation under the
Administrative Order 2021-25 (AO 2021-25) and the newly adopted Environmental Justice Law in New Jersey. Trinity’s Princeton office has been following the development of this monumental legislation since its inception. Additional information regarding the initial bill proposal is
included here along with further insight on the
Administrative Order.
While both AO 2021-25 and the final adoption of the Environmental Justice Law aims to address environmental justice concerns in New Jersey, great apprehension was expressed from the regulated community regarding the effectiveness and the verbiage used for specific portions of the Environmental Justice process and definitions provided in the law.
The NJDEP’s final rule did not change drastically from AO 2021-25, but rather clarified, to some extent, the concerns that arose during the public comment period. The rules still apply in the following circumstances:
- The proposed or existing facility is one of the eight types of covered facilities
- Major sources of air pollution
- Incinerators and resource recovery facilities
- Large sewage treatment plants that process more than 50 million gallons per day
- Transfer stations and solid waste facilities
- Not including intermodal container facilities
- Recycling facilities that received at least 100 tons of recyclable material per day
- Based on actual daily tonnage, not averages over a prescribed period
- Scrap metal facilities
- Landfills (both operating and closed)
- Medical weights incinerators, except those attendant to hospitals and universities
- The applicant is seeking a Department permit or approval subject to the rules; and
- The facility is located or proposed to be located, in whole or in part, in an overburdened community (OBC).
- Now including facilities that are located in a zero-population block group which are immediately adjacent to overburdened communities.
For those facilities that began and completed the Environmental Justice review between September of 2020 and April of 2023, only those applications that are considered “complete for review” are not subject to the Final Environmental Justice rules. “Complete for review” is defined as the applicant having completed the EJIS and meaningful public participation process.
The Final Environmental Justice rule also allows for case-by-case interpretation for subject facilities that have begun or are currently undergoing the EJ process that have been deemed administratively complete. Administratively complete applications are not explicitly defined in the rules but are defined in 7:27-22.1. Through discussions with the
Office of Permitting and Project Navigation (OPPN), it has been determined that administratively complete applications are grandfathered under the Administrative Order 2021-25 (AO 2021-25).
If your facility has yet to complete the EJ review and/or has not submitted an administratively complete application prior to the publication of the final Environmental Justice rules, steps for the new EJ process and an approximate timeline is outlined below. The
mapping tool data is also available.
The Environmental Justice Impact Statement (EJIS) requirements are detailed in N.J.A.C. 7:1C-3.2(a) as:
- An executive summary of the information contained in the EJIS, including any supplemental information as required
- Detailed written description of the municipal and neighborhood setting of the facility, including locations of various specified community and residential buildings
- This includes submission of a site plan of the facility or equivalent map if no site plan exists
- Description of the facility’s current and proposed operations, including
- Purpose of the permit application and how the project serves the needs of the individuals in the OBC
- Identification of all processes utilized in the application, including items such as control measures, hours of operation, traffic routes, etc.
- For new and expanded facilities, a construction and operation schedule
- Proof of satisfaction of any local EJ or cumulative impact analysis requirements
- Initial screening information obtained
- Assessment of the impacts, both positive and negative, of the facility on each environmental and public health stressor
- Supplemental information for applicants where the facility lies in whole or in part in an OBC that is subject to adverse cumulative stressors, or if the facility cannot demonstrate avoiding a disproportionate impact on the adverse cumulative stressors.
- Public participation plan
- Demonstration that the facility will avoid a disproportionate impact as a result of the facility’s contribution to adverse cumulative stressors.
The Department shall complete an administrative review of the draft EJIS and proposed public notice. Comments will be provided for any necessary revisions within 10 days of receipt. The EJIS must be provided to the municipal clerk, and at least 60 days prior to the public hearing provide newspaper notice, notice to the governing body, and notice to property owners within 200 feet of the facility. Additional requirements for placement of a sign at the facility and “notice through other methods tailored to reach the individuals of a host community” are included in the adopted rule.
Potential delays may arise should your facility have a change in scope to the project during the Environmental Justice review which is classified as a material change. It is at the discretion of the Department to review that change and determine whether or not the change requires further analysis or public comment. Applicants can also expect to incur all fees related to the EJ review process, including fees for the Department to bring in an expert reviewer, where the NJDEP staff believe it to be necessary (i.e. they do not have expertise in the proposed scope to provide meaningful review).
Trinity’s Princeton New Jersey office has previously assisted facilities under AO 2021-25 and will continue to assist facilities with navigating the changing environmental landscape within the state surrounding EJ. To that end, Trinity’s Princeton office will host an Environmental Justice workshop in Quarter 3, as a follow-up training opportunity to this publication.
