N.J. DEP spells out new permitting standards for ‘overburdened communities’

Two years after the governor signed it, specifics are coming into view on how environmental-justice law will be applied.

Incinerators are one of the uses that would come under enhanced DEP permitting scrutiny. (Massachusetts DEP via Creative Commons CC BY 2.0)

Incinerators are one of the uses that would come under enhanced DEP permitting scrutiny. (Massachusetts DEP via Creative Commons CC BY 2.0)

This story originally appeared on NJ Spotlight.

For the first time, state environmental regulators would be required when making permitting decisions to consider the cumulative impact of new facilities such as power plants on pollution levels in already overburdened communities.

That requirement is spelled out in a new rule proposed by the Department of Environmental Protection to protect communities that already have high levels of pollution from new projects that would increase public exposure to contaminants.

NJ Spotlight News obtained a copy of the draft 153-page rule, which is set to be published Monday in the New Jersey Register. A series of public hearings will follow on the new regulations before they are officially adopted.

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The rule would implement a nearly two-year-old law that aims to end the long-standing practice of siting power plants, incinerators and other unwanted facilities in low-income communities — typically with mostly Black and minority populations. The so-called environmental justice law, touted as the nation’s strongest, was signed by Gov. Phil Murphy in September 2020.

The new rule affords more opportunities for communities to contest permits issued by the DEP for various kind of facilities, including power plants, sewage-treatment plants and those that would expand major air-pollution sources.

‘Spirit of the law’

For the most part, environmentalists, including environmental-justice advocates, appeared happy with the proposal, although most declined to comment saying they had not yet analyzed it fully.

“The rules are really good,’’ said Maria Lopez-Nunez of the Ironbound Community Corporation, a group that’s pushed for such a law since 2008. “They lived up to the spirit of the law.’’

But business lobbyists said they still find the rule very troublesome. If adopted, the proposal would harm New Jersey’s overall economic competitiveness, they contend.

“We are very concerned these rules will make it extremely difficult, if not impossible, for certain businesses to be located in a large portion of the state,’’ said Raymond Cantor, a vice president of the NJ Business & Industry Association.

The law could affect portions of 310 communities with population of more than 4.4 million people — or almost half of the state.

“This law creates a great deal of uncertainty,’’ Cantor said. Businesses looking to expand, particularly manufacturers, will look to options available in other states, rather than New Jersey, he said.

Some affluent areas also included

The law established several criteria of what it defines as an “overburdened community,’’ mostly those areas with significant nonwhite or low-income populations that have major sources of air pollution and other contamination problems, like groundwater or soil contamination.

But the law also applies to individual census blocks within a community, a provision that allows parts of such affluent towns as Alpine, Saddle River, and Chatham to fall under the designation of an overburdened community.

If adopted, the rule would require applicants seeking to build new facilities or expand existing plants in environmental-justice communities to analyze existing environmental and public-health “stressors’’ and what additional impacts would occur if the project were approved.

Those “stressors’’ include various types of air pollution, soil and water contamination, and other public-health hazards, such as lead and mercury pollution.

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The rule proposal would require the DEP to deny a permit for a new project or expanded facility if regulators find it would impose a disproportionate impact on pollution levels in an overburdened community, unless those effects could be mitigated by other actions.

Even with a disproportionate impact identified, however, the department could approve a project if there is a compelling public interest for it to move forward.

One critic suggested that provision could allow approval of the new backup natural-gas power plant at the Passaic Valley Sewerage Commission waste-treatment facility in Newark. The proposed plant is designed to keep raw sewage from being dumped into Newark Bay in a widespread power outage, as occurred during Superstorm Sandy.

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