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On Thursday, August 27, 2020, both houses of the New Jersey state Legislature passed a bill (S232/A2212) that requires the New Jersey Department of Environmental Protection (NJDEP) to “evaluate environmental and public stressors of certain facilities on overburdened communities when reviewing certain permit applications”. Governor Phil Murphy has previously announced his support for the legislation and is expected to sign the bill into law.

The NJDEP is required to adopt rules and regulations to implement the various associated provisions of the legislation. The following types of operations (or sites) are explicitly defined as an applicable “facility” within the bill:

  • Major sources of air pollution (as defined within the Clean Air Act)
  • Resource recovery facility or incinerator
  • Sludge processing facility, combustor or incinerator
  • Sewage treatment plan (with capacity over 50 million gallons per day [gpd])
  • Transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons per day (tpd) of recyclable material
  • Scrap metal facility
  • Landfill (including landfills that accept ash, construction and demolition debris (C&D) or solid waste)
  • Medical waste incinerator

The overburdened communities to which the future rules will apply are based on the most recent United States Census and include those in which:

  1. At least 35% of the households qualify as “low-income households” (i.e., at or below twice the poverty threshold determined by the United States Census Bureau)
  2. At least 40% of the residents identify as minority or as members of a State recognized tribal community
  3. At least 40% of the households have limited English proficiency

It has been estimated that approximately 310 municipalities in the State of New Jersey (out of a total of 565 municipalities) have at least one community that qualifies as “overburdened”. Therefore, the impact of the legislation and future related regulation will be felt across the waste, waste water, and recycling industries, as well as all Title V (Air Operating Permit) facilities, throughout a majority of the state of New Jersey. A formal list of overburdened communities must be posted on the NJDEP's web site within 120 days of the effective date of the act and must be updated at least once every two years.

Upon adoption of the associated rules and regulations, an applicant for a new facility, expansion of an existing facility or a renewal of an existing major source (Title V) permit for a facility located in whole or in part of an overburdened community must first:

  • Prepare an environmental justice (EJ) impact statement that assesses the potential environmental and public health stressors of the facility
  • Transmit the EJ impact statement to the NJDEP and the municipality at least 60 days in advance of the required public hearing
  • Organize and conduct a public hearing in the overburdened community. A notice of the public hearing must be published (60 days prior to the hearing) in at least two newspapers in circulation in the associated community. The hearing is intended to provide “an opportunity for meaningful public participation”.

The NJDEP will not be permitted to issue a decision on an application for a new facility or for the expansion of an existing facility or on an application for the renewal of an existing major source (Title V) permit in an overburdened community until at least 45 days after the public hearing. The NJDEP may deny a permit for a new facility if approval would “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 unit of analysis as determined by the NJDEP”. The NJDEP may also impose conditions on a facility permit for expansion or renewal upon reviewing the EJ impact statement and establishing a finding that approval would similarly contribute to adverse cumulative environmental or public health stressors.

This approved legislation also allows the NJDEP to assess a “reasonable fee” for each applicant in order to cover the Department's costs associated with impact statement review and technical assistance (to both the facility and the overburdened community).

In summary, the construction of new facilities, the expansion of existing facilities and the renewal of Title V Operating Permits will become more costly, more challenging and more time-consuming in the State of New Jersey. Besides Title V (major) facilities, the bulk of the burden to be felt from this legislation and future regulation will be felt by the waste, waste water and recycling industries across the State. Additional time, cost and technical review must be factored into any related projects (planned in overburdened communities) once this new EJ regulation is promulgated.

Trinity will closely monitor the progress of the proposed and final regulation (assuming the bill is signed by Governor Murphy). We will issue periodic notices to update you on the status of the regulation and to provide insight into the future EJ process in New Jersey. Please contact Trinity's New Jersey office at 609.318.5500 with any questions you may have on this critical legislation and future regulation.