By Martin Milita, Esq.

On September 18, 2020 Gov. Phil Murphy signed landmark environmental justice legislation premised on the notion that certain communities are “overburdened” because they have historically been impacted, more than other communities within a geographic area, by operations that tend to generate pollution.

These “Overburdened Communities” as defined in the new law, share at least one of the following characteristics:

  • minimally, 35% of all households are low-income households;
  • minimally, 40% of residents identify as minority or part of a recognized tribal community; or
  • minimally, least 40% of households have limited proficiency with English.

The Department of Environmental Protection (DEP) is charged with compiling a list of “Overburdened Communities” in the state. However, the definition may be expected to encompass many, if not all, urban areas in the state where residences co-exist with industrial uses, as homes in such areas are typically the least expensive homes in an urban area to rent or own. In many instances the housing was constructed by the owners of the industrial facilities and built either at the turn of the 20th century or during the post-World War II manufacturing boom.

The current types of operations defined as “Facilities” targeted by the new law include:

  • any major source of air pollution, resource recovery facilities, incinerators, sludge processing facilities;
  • combustors, large sewage treatment plants, large transfer stations and solid waste facilities, recycling facilities receiving at least 100 tons of material per day;
  • Scrap metal facilities, landfills and some medical waste incinerators.

Under the new law, each of the above-described types of operations will be subject to additional layers of scrutiny whenever an application for a new facility permit, or an application for a major modification of an existing permit, or an application to expand operations is submitted to the DEP for approval.

The heightened review’s exact extent is not completely clear as DEP is presently required to promulgate regulations before the new review process commences. Still, there are two specific requirements of that process highlighted in the law. First, no application will be reviewed unless accompanied by an environmental justice impact statement, which does not have a specific definition in the law. That statement must include an assessment of the “potential environmental and public health stressors” that is, all sources of environmental pollution (whether avoidable or unavoidable) which may be expected to arise from the proposed operation, as well as any potential health conditions which the proposed operation may cause in the community. These conditions include asthma, cancer, elevated blood lead levels, cardiovascular disease and developmental problems. It is not known if the DEP’S regulations will provide a methodology for determining, on a scientific basis, reproducible demonstrative evidence of connections between a Facility’s operations and adverse health impacts of nearby residents. The environmental justice impact statement must also contain a description of the environmental and public health stressors already present in the community.

Once the statement is prepared, it will be submitted to the municipality where the facility is or will be located, and to the DEP, who will post it on the DEP’s website. The applicant will then hold a public hearing on the application at which the environmental justice impact statement will be presented, and comments will be solicited from the public. Following the hearing, the DEP will consider the public’s testimony and determine whether there should be conditions placed on the permit being sought by the applicant in order to “avoid or reduce the adverse environmental or public health stressors affecting the overburdened community.” The law does not describe nor limit the type of conditions that the DEP may impose, nor does it appear to limit the DEP’S discretion to impose conditions to address only those adverse environmental/public health stressors caused by the facility under scrutiny. There are several exceptions from the scope of the new law. Permit applications for remediation activities do not trigger the public hearing requirement and the possibility of additional conditions being imposed, even where minor pollution levels will be allowed to remain in the soil or groundwater.

Significantly, provisions of the new law raise material questions for the regulated facilities that need to be addressed during rulemaking. A great body of professional literature suggests that science has yet to provide consistent demonstrable evidence of a direct connection between certain conditions and stressors identified in the new law and thusly potential health impacts on communities. Likewise, will conditions imposed on a facility by the DEP, regardless of scientific foundation, be sufficient to protect a facility from future liability if health impacts are documented post approval? Furthermore, every regulated facility has an obligation to comply with these environmental laws and to satisfy certain documentation or reporting requirements to verify compliance. Will the new law’s public disclosures constitute “voluntary” disclosures of violations under these other local, state or federal laws? Finally is the notion that too strict facility procedural controls could severely constrain the decisions of current and future local leaders subjecting them to a fair amount of criticism.

Thus the Department of Environmental Protection which is directed by the legislature to implement the new law must provide clear and reasonable standards to protect the “overburdened” and regulated facility communities alike.

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