By Heidi S. Minuskin, Jonathan F. Donath and Ashley M. Fay

After a wait of more than two (2) years, New Jersey businesses finally have concrete requirements as to the hurdles they will have to jump through to satisfy the demands of New Jersey’s Environmental Justice Law (“EJL”). Until now, businesses were left to speculate on what they will have to do to comply with this sweeping new policy initiative. From a nuts-and-bolts perspective, we anticipated that the practical impacts of New Jersey’s environmental justice measures would include increased costs and delays associated with new development projects, expanded operations, and even just the status quo of existing businesses. However, until the implementing regulations were enacted, we simply didn’t know the full extent of those impacts. That has now happened and, as a result, we have more clarity as to what the road ahead looks like.

The EJL and implementing regulations are applicable to designated businesses under all operating scenarios through the power of NJDEP’s permitting process. For instance, when a developer seeks to build a new industrial facility, or an owner or operator expands operations at a subject facility, new permits for solid waste and recycling, development (wetlands, CAFRA, Flood Hazard, etc.), water supply and pollution, air pollution or pesticides, etc. are required, and the EJL requirements satisfied. The EJL imposes enormous compliance burdens on such expansions, and the new regulations define the extent of those burdens. What is even more all-encompassing is that these requirements apply to existing subject facilities who are simply renewing permits for the same operations they have conducted for decades.

EJL requirements include compiling and assessing stressor contributions, assessing, and addressing possible measures to minimize such contributions, completing a detailed Environmental Justice Impact Statement (EJIS), and providing supporting information relating to the EJIS. Subject parties must conduct a public hearing where the facility must host a presentation for the public which details the project or permit at issue including details for the facility and its operations pursuant to specific notice, hearing, and comment period restrictions. Failure to comply with these requirements precludes agency review of critical operating permits resulting stalled projects or cessation of operations under the risk of penalties or enforcement actions.

 General overview of the process under the EJ Rules is:

1. Initial Determination: Identification of environmental and health stressors, and whether the community is subject to adverse stressors. This information can either be obtained independently by the facility through the Environmental Justice Map or the DEP may provide this information upon request.
2. Environmental Justice Impact Statement: prepared in conjunction with the application by the facility, generally, this describes proposed control measures to avoid or minimize contributions to stressors and the net environmental benefit, and how the project serves a compelling public interest in the community.
3. Review of the EJIS: The EJIS is submitted simultaneously with the necessary public notice documents. Once approved, the facility must undertake meaningful public participation process.
4. Meaningful Public Participation: The facility will hold a public hearing in the community where the facility is or will be located and shall respond to public comment. The EJIS, supplemental information, testimony, comments, and all responses to comments is then submitted to the agency for review and approval.
5. Agency Review: All submissions will be reviewed to determine whether the facility can avoid a disproportionate impact.
6. Agency Decision: If determined that there is no disproportionate impact, the facility will be authorized to proceed with the specific permit process. If a disproportionate impact cannot be avoided, a new facility will be denied further permit review unless it will serve a compelling public interest. EJ review will result in a determination that no permit will be issued, a permit could be issued with conditions or could be issued with no conditions.

The details for EJ compliance are numerous and compliance will be costly, Thus, it is critical to immediately become familiar with the landscape these regulations present (or work with someone who is) if you own such a subject facility, are seeking to open or expand one, or required to obtain new or renew existing permits. The mission of the EJ Policy is an admirable and necessary one, but certainly present potentially dangerous waters for such businesses.

For more information, contact Heidi S. Minuskin, Esq. at hsm@spsk.com or 973-798-4949, Jonathan F. Donath, Esq. at jfd@spsk.com or 973-798-4952, or Ashely Fay, Esq., amf@spsk.com or 973-798-4962.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.