CCSNJ Comments on EJ Law Regulations
The Chamber of Commerce Southern New Jersey (CCSNJ) welcomes this opportunity to submit comments in connection with the development of regulations to implement P.L. 2020, Chapter 92 (the Environmental Justice or EJ Law) which requires applicants for certain permits and permit renewals issued by the New Jersey Department of Environmental Protection (NJDEP) to evaluate environmental and public health stressors on overburdened communities and provides NJDEP authority to deny permits for new facilities on the basis of that evaluation. The CCSNJ is the region’s largest and most influential business organization representing businesses in the seven most southern counties of New Jersey, as well as greater Philadelphia and northern Delaware with more than 1,100-member companies.
The CCSNJ strongly supports the concept of environmental justice legislation, as well as its intended goal of tackling the complex issue of assuring a healthy environment in the targeted urban communities. The CCSNJ agrees that New Jersey should be assessing the health and environmental impacts on low-income communities and communities of color, and commends the incredible strides being made by NJDEP’s Office of Environmental Justice, which specifically focuses on the residents of overburdened communities, as well as guiding state agencies and the NJDEP’s program areas in incorporating environmental justice across the board.
At the same time, we feel that it is critical that the regulations ensure that the new EJ Law is not applied in a manner that results in seriously undermining existing and future economic opportunities for the residents of these communities and the legitimate interests of businesses that are located there. Many of these local businesses have contributed in significant ways to the well being of their communities for many years and have made significant long term investments in justified reliance upon pre-existing laws, rules and regulations.
We also are concerned that the Environmental Justice regulations be crafted in such a way as to not disproportionally impact New Jersey-based manufacturers and certain public institutions and thereby serve as a disincentive to expand facilities or attract out-of-state manufacturers to urban communities where the job growth is needed most.
Finally, we feel it is critical to provide scientifically-based and objective regulatory criteria and standards for the exercise of the Department’s authority to deny permits for new facilities or impose conditions on expansions, permit renewals or new facilities meeting the compelling public interest standard.
Sean Moriarty, the Department’s Chief Advisory for Regulatory Affairs spoke on the EJ Law and addressed a number of these issues at our December 1, 2020 Environment Committee meeting and we thank him very much for his insights. At that time we indicated that we would be submitting comments on the to-be-developed regulations. To that end, we have addressed below the issues mentioned above as well as other issues.
Use of Scientifically-Based Objective Data in the Environmental Justice Impact Statement
The definition of “overburdened community” does not include any objective environmental/health impacts as a defining factor. Rather it provides that a community that satisfies any of the law’s three demographic criteria is overburdened as to adverse environmental and health impacts. In turn, the law requires covered permit applicants to assess in an Environmental Justice Impact Statement (EJIS) both the “potential environmental and public health stressors associated with” their own operations, as well as “the environmental or public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the overburdened community.”
Once this assessment is performed, it is then used to determine whether the stressors from the facility together with other community stressors would “cause or contribute to adverse cumulative stressors that are higher than those borne by other communities in the State, county” or other unit of analysis and decide whether to issue, deny or renew the subject permit (as applicable), with or without conditions.
In order to ensure that the EJIS is scientifically based and objective, the Department must develop an objective, science-based peer reviewed database of the public health stressors (i.e., adverse environmental and public health conditions) already borne in each overburdened municipality and make that information publicly available, through its regulations, for use by permit applicants and community members. The Department should update that database on a regular basis so that it remains consistent with actual conditions.
In addition, the Department should also develop a similar database for the communities which will be used for comparison purposes when making the evaluation as to whether the community that is the subject of a permit application is subject to higher cumulative stressor impacts than other communities in the State, county or other geographic unit of analysis determined to be appropriate.
Requiring the applicant to develop the information necessary to assess the cumulative effect of all existing businesses and pollutants in the community, even though unrelated to its operations or the permit at issue, is an unfair burden and could be cost prohibitive for certain businesses. In addition, data to be included will likely vary tremendously from one application to the next even within the same community. In addition, there is the possibility that an applicant might identify effects from other businesses in the area and those businesses might not agree with those conclusions and seek to challenge those conclusions via litigation or otherwise against the applicant. Placing this burden on the applicant unfairly exposes it to potential liability and significant costs.
In addition to serving as the basic data for each applicant to use in the preparation of their EJIS and ensuring consistency among applications in the same overburdened community, the database will also serve as critical information for any prospective applicant to utilize in evaluating whether to even submit an application for a project in the targeted community. As with the availability of environmental standards under the media targeted regulatory programs, this will afford businesses some basis on which to make investment decisions. And it may also have the beneficial side effect of informing decision-making for existing businesses in the community who want to proactively make modifications in their operations to reduce stressors and improve overall conditions without regard to whether they will be seeking one of the permits addressed by the legislation.
Finally, it will afford important information to community members in evaluating the adequacy of any applications and accompanying EJIS documents. Wholly aside from individual applications, a public database will assist community members in understanding the sources and effects of stressors on their community and create opportunities for working proactively with community businesses to reduce those effects without regard to permit applications. In this manner, government would provide a tremendous resource for the community. We were very pleased to hear Sean Moriarty indicate at our December 1 Environment Committee meeting that the Department agrees that the stressor data should be publicly available, and we hope the above comments will be reflected in what the Department includes in the database.
Once the initial database had been established, the environmental justice regulations would set forth requirements for permit applicants to include the publicly available data pertinent to their application in the EJIS for the subject facility. The regulations could also allow an applicant to supplement the data in the NJDEP database with other scientifically supported information. This option would enable applicants to include current information that may not yet be in the database or otherwise has a direct bearing upon the stressor analysis.
Use of Scientifically-Based Objective Standards in Decision-making
Sections 4.c and 4.d of the EJ Law authorize NJDEP to deny permits (for new facilities) or impose a range of permit conditions (for expansions, renewals or new facilities which meet the statutory “compelling public interest” standard) if “together with other environmental or public health stressors affecting the overburdened community, [the proposed permit action would] cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities … as determined by the department . . ..”
CCSNJ believes that the basis for NJDEP’s exercise of the authority to deny or condition permits under the EJ Law must be spelled out in the regulations in order to afford regulated entities and environmental justice communities advance notice as to what criteria will be applied so that both businesses and communities can plan and make decisions. This type of certainty and predictability is also necessary to meet legal standards for agency decision-making.
First, it bears mentioning that unless care is taken in making decisions, the EJ Law could have the effect of penalizing facilities that are compliant with all applicable regulatory standards but find themselves in a permitting process covered by the new Law, , as opposed to other businesses that may not be in compliance and may avoid direct scrutiny because they are not involved in a permitting process, either because they do not need a permit or are not facilities covered by the law. Thus, objective standards are necessary to avoid unequal, unfair and unreasonable decision-making.
The Legislature implicitly supported the use of scientifically-based objective standards by making the environmental justice review triggered by the issuance of permits under specific state statutes. Each of those statutes have their own set of scientific, objective statutory and regulatory standards – for example emission limits and discharge limits, construction and operational criteria, etc. Indeed, many of those standards are set based upon thorough scientific analyses by the EPA or the Department of the cumulative environmental and health impacts in various geographic areas affected by the particular media at issue. This is especially true when it comes to the issuance of individual permits under the air and water programs. Therefore, it is those standards that should be relied on in determining whether to issue/deny a permit for a new facility or impose conditions for expansions, permit renewals or new facilities meeting the “compelling state interest” standard, and the applicable standards under each regulatory program should be referenced in the regulations. This approach also ensures that New Jersey maintains its delegated program approvals under existing federal laws.
Clarification of Stressor Analysis
The analysis of environmental and public health stressors, including their cumulative effects, is a central aspect of the EJ Law, and specificity as to how that analysis is to be performed is necessary to inform permit applicants regarding how to proceed.
It is important to recognize that the process established by the EJ Law is triggered by the issuance of environmental permits designed to regulate particular kinds of environmental impacts. Air permits regulate impacts associated with air emissions generated by particular manufacturing processes. NJPDES discharge permits regulate wastewater discharges generated by particular industrial activities. Wetlands permits regulate the impacts of development activities on these sensitive habitats. Given that the focus of the analysis is on the effects of the permitted activity, the regulations should specify that the stressor analysis should consider the effects on the environmental media in question and not additional effects that go beyond the scope of the environmental impacts that the permit is intended to regulate.
Another stressor-related issue that requires clarification is the EJ Law’s confounding terminology regarding environmental and public health stressors. In that regard, the Law intermixes in one definition various categories of “environmental pollution” (e.g. concentrated areas of air pollution, point sources of water pollution, contaminated sites), particular kinds of facilities defined as being “sources of environmental pollution” (e.g., recycling facilities, scrap yards, transfer stations), categories of diseases (asthma, cancer, cardiovascular disease) and particular kinds of public health conditions (e.g., elevated blood levels, cardiovascular disease). Further, the categories of environmental and public health stressors are prefaced by “including, but not limited to” language. At a minimum, the regulations must provide some mechanism for determining what impacts to look at when it comes to particular sources of pollution and, consistent with the analysis of decision-making standards set forth above, should be related to the particular type of adverse environmental conditions governed by the permit at issue or the particular adverse public health impacts associated with that category of permit. We would also recommend that the regulations define “environmental stressors” and “public health stressors” separately.
Finally, the EJ Law requires an assessment of cumulative impacts, however there is no process set forth for determining cumulative adverse impacts. To this end, there needs to be some objective way of quantifying stressor conditions for purposes of determining cumulative impacts. Otherwise, the cumulative stressor impact analysis (particularly where multiple permits and multiple stressors are involved) will be rife with subjective comparisons between facilities and stressors that will not lead to rational decision-making, thereby undercutting regulated entities’ need for certainty and the EJ communities’ need for fair treatment. As noted above, adverse stressor impacts should be reflected in exceedances of existing regulatory standards. As reflected in the section below, to determine cumulative impacts, adverse stressor impacts should be weighed against benefits that are associated with any particular permitted activity or external benefits that result from the permit applicant’s operations to the extent that the impacts of those benefits can be quantified for analytical purposes.
Consideration of Benefits When Assessing Cumulative Impacts
Given the EJ Law’s intended goal of requiring an evaluation of the cumulative impacts of stressors, including not only those associated with the subject facility, in connection with permit applications, it is implicit that actions that can generate benefits that will reduce the cumulative impact of stressors, whether associated with a particular facility or external to that facility, should be considered in the cumulative evaluation process. This concept of considering benefits was echoed by Assistant Commissioner Glenn speaking at the November 20, 2020 NJDEP/AWM&A Annual Update where she indicated that the objective of the EJ Law is both “to reduce negative stressors and increase positive benefits” to overburdened communities.
As discussed above, the environmental justice review is triggered by the issuance of permits under specific state statutes, each of which have their own set of scientific, objective statutory and regulatory standards that may be imposed on facilities through permit conditions. Such conditions implicitly result in benefits, e.g., such as limitations on emissions or discharges, authorized under those laws. While these laws do not typically authorize NJDEP to impose permit conditions requiring facilities to implement projects designed to generate benefits that are unrelated to the specific emissions or discharges at issue or external to the subject facility, there is nothing that prohibits such projects from being volunteered and committed to by the facility. This is exactly what is done by NJDEP’s Compliance and Enforcement program when it accepts a Supplemental Environmental Project (SEP) to resolve an enforcement matter. We propose that the new Environmental Justice regulations recognize that permit applicants may voluntarily propose either actions at their facility or actions external to their facility that would then be considered as a contribution of the permit applicant to reduce adverse cumulative impacts in the overall analysis of cumulative community impacts in connection with a particular permit application.
Clarification of “New Facility” and “Existing Facility”; Modifications that Reduce Impacts
The triggering events for an environmental justice evaluation are permit applications involving a “new facility,” the “expansion of an existing facility,” or “renewal of an existing facility’s major source permit.” The regulations should clarify what is meant by these terms. For example, for new facilities, the law should be triggered only for facilities that did not previously exist. For expansions, the law should be triggered only for events that constitute an activity with at least the potential for creating additional or increased environmental or public health stressors. As for expansions, modifications that are required for upgrading equipment or changing operational practices, but do not involve any true expansion or increased impacts should not be considered an expansion. As reflected in Sean Moriarty’s comments at our December 1 Environment Committee meeting, it appears that the Department may already be considering a similar approach. For renewals, since that only applies to major sources of air pollution, the definition of renewal contained in the air quality regulations can be referenced.
As a related matter, and as mentioned at our December 1, 2020 Environment Committee meeting, we would support use of a simplified EJIS process for permit applications at existing facilities that propose modifications designed to reduce emissions, discharges or other environmental impacts. While there is a provision in the EJ Law that exempts minor modifications that reduce emissions, there is nothing to directly encourage facilities that do not qualify for this exemption to propose other changes to their facilities that would reduce these impacts. We believe a simplified process to minimize the burden of going through the EJIS process could be developed under the regulations that would encourage facilities to make such changes and would definitely advance the objectives of the statute.
CCSNJ recognizes that informing the community as to the characteristics of the facility under review, providing the information in the EJIS, and affording the opportunity for community members to provide relevant input via public hearing or through written comments are key aspects of the EJ Law.
At the same time, it is important to consider ways to structure the public hearing process so that it treats both applicants and the community fairly, is not unduly costly, does not unnecessarily impede the permitting process for permit applicants and is an orderly and efficient process for all concerned.
Many NJDEP permitting timelines already include provisions for public notification and hearings. Therefore, where permitting programs afford duplicative opportunities for public input, those opportunities should be combined with the EJ Law process whenever practicable and consistent with applicable law, and especially in those circumstances where requested by the applicant. Similarly, combined hearings in the event of multiple permits should be encouraged. To that end, we urge the Department to evaluate now the extent to which combined hearings could take place and include appropriate regulations detailing when that may happen. These consolidation concepts are already recognized in the EJ Law, however, regulations would clarify the above points.
Another efficiency and fairness measure would include providing for a timeframe within which NJDEP must complete its review of the EJIS and any public comments. An added element of fairness would be to require that NJDEP issue a draft determination to the applicant with an opportunity to respond before a final decision document is issued.
Finally, in furtherance of a full and fair consideration of public input, we propose that the NJDEP include in the regulations an opportunity for the applicant to respond to comments made at the public hearing or submitted in writing. This should be provided together with the required ten-day submittal by the applicant of the hearing transcript and written comments received by the applicant (the latter should be due by the hearing date).
Compelling Public Interest
The EJ Law provides that the Department may grant a permit for a new facility where the Law would otherwise require a denial if the Department determines that the facility “will serve a compelling public interest in the community where it is to be located,” subject to the imposition of conditions to protect the public health. This important provision should be applied so that the EJ Law does not impede other critical community interests and objectives. And, it needs to be recognized that community interests are frequently state-wide interests.
For example, the provision of various public utility services is both a critical community interest and also a state-wide interest. This includes traditional electric and gas utilities, sewer service (including sewer treatment service), waste collection, treatment and disposal services, recycling, and others.
The same would be true for institutions that serve important state-wide public health needs (while at the same time serving local community public health needs), such as hospitals and other businesses providing public health services, whether publicly or privately owned and operated. Similar reasoning would apply to educational facilities (whether privately or publicly owned and operated) which serve both community and state-wide public needs for education and should also be viewed as serving a compelling public interest in the community. While some of these facilities and circumstances are covered by other exemptions in the law, others may not be and where appropriate, their key public role should be acknowledged.
In addition to the above, activities associated with the achievement of key public policy goals, such as those related to controlling climate change, reducing waste, and fighting the pandemic and other diseases, serve both state-wide and community needs. By way of example, manufacturers of (1) components of renewable energy systems such as solar and wind energy systems, (2) electric vehicles and their infrastructure, and (3) pharmaceuticals designed to address critical public health needs as well as the many types of recycling businesses that redirect what would otherwise be waste to productive reuse, all serve crucial public interests in the community and beyond.
Finally, a key element of defining an overburdened community is the poverty level and that element is directly related to the availability of economic opportunity in the community. It cannot be denied that new facilities that afford important employment and job training opportunities to the community meet a compelling public interest which should be recognized in any regulation defining compelling public interest.
We thank you for the opportunity to present these comments on what should be addressed in the Environmental Justice Regulations and would welcome the opportunity to answer any questions you may have regarding the comments.