Governor Murphy Announces Support for Key Environmental Justice Legislation.

New Jersey Governor Phil Murphy recently announced his support for key environmental justice legislation for overburdened communities. The legislation (S232) requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate environmental and public health impacts of certain facilities on “overburdened communities” when reviewing certain permit applications.

The proposed legislation that passed the Senate the end of June now goes to the Assembly for further consideration and voting and, if it passes the Assembly as well, could be signed into law by Governor Phil Murphy later this summer.  Similar legislation has been pending in New Jersey for more than a decade.

The key components of the proposed legislation are:

  • Preparation of an Environmental Justice Impact Statement.  Applicants for certain permits would be required to prepare an “environmental justice impact statement.”  This statement would need to “assess” the potential environmental and public health stressors associated with the proposed new or expanded facility, . . . including any adverse environmental or public health stressors that cannot be avoided if the permit is granted, and 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.”
  • Public Notice and Hearing.  Applicants would then be required to provide the environmental justice impact statement to the NJDEP and other governmental entities, which in turn would disseminate the statement to the public.  Applicants also would need to organize and hold a public hearing in the overburdened community.  A transcript of the hearing and a record of any comments received from the public would then be provided to the NJDEP.
  • Consideration of Environmental Justice Impacts by NJDEP; Requirement to Deny Permit Based on Environmental Impact.  After reviewing the environmental justice impact statement and the input from the public, the NJDEP would be required to deny a permit, or apply new conditions to the renewal of an existing permit, “upon a finding that approval of the permit . . . would, together with other environmental or public health stressors affecting the overburdened community, cause or 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 department pursuant to rule, regulation, or guidance.”
    1. The exact meaning and implementation of this requirement is not clear. It seems to place a high threshold on the expansion or construction of any facility that would negatively impact the environment in an overburdened community.  It is particularly important to note that the legislation requires the NJDEP to consider the cumulative”impact of the facility on the community.  It further remains to be seen if facilities can offset negative environmental impacts through modifications to the design and operation of subject facilities.

Those facilities, permits and communities subject to the legislation include:

The application of the proposed legislation is governed by the definitions of “facility,” “permit,” and “overburdened community.”

  • Facility.  The legislation defines “facility” as “any:  (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor, or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons per day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facility; (7) landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; or (8) medical waste incinerator.”
  • Permit.  It defines “permit” as “any individual permit, registration, or license” issued under numerous state laws, including  . . . the Solid Waste Management Act, the New Jersey Statewide Mandatory Source Separation and Recycling Act, the Freshwater Wetlands Protection Act, P.L.1987, the Coastal Area Facility Review Act, the Highlands Water Protection and Planning Act, the Air Pollution Control Act, the Water Pollution Control Act, the Flood Hazard Area Control Act, and others.  Notably, the definition includes only individual permits, which as the name suggests contain requirements specifically tailored to the individual facility.  As a result, the definition does not include general permits or other standardized permits, which contain standard requirements and are available to facilities that meet certain pre-determined criteria.  Additionally, the current definition does not reference permits issued under the Industrial Site Recovery Act, the Site Remediation Reform Act, or any other New Jersey statutes directly applicable to site remediation.  This is a change from a prior version of the legislation, which included a specific reference to the Industrial Site Recovery Act, and limits the scope of “permit” significantly in a way that should be welcomed by the regulated community.
  • Overburdened Community.  Lastly, the legislation defines “overburdened community” as “any census block group . . . in which:  (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.”  According to NJ Spotlight, “the bill’s definition of ‘overburdened communities,’ could apply to more than 300 municipalities and over 4 million residents.”

Current status of the proposed legislation is?

As noted above, the New Jersey Senate passed the proposed legislation on June 29, 2020.  The legislation now has been referred to the Assembly, and is scheduled for a hearing on July 20th before the Assembly Environment and Solid Waste Committee.  Interested parties should be able to observe and testify at the hearing through virtual means.  It is possible that the Assembly could pass the proposed legislation later this summer, especially given the high profile support referenced above.

DMGS will be tracking this legislation closely. Should it become law, the operative provisions would go into effect after a period of six months- passage would undoubtedly significantly and dramatically change the permitting process for the regulated community in New Jersey.

 

Expanded A-901 Requirements Coming Soon? Salespeople, Consultants and Soil Recyclers Should Prepare.

On June 20, 2019, the New Jersey Legislature began moving a bill (S1683/A4267), that would expand the scope of A-901 requirements to a broader range of persons involved in the solid waste industry, including salespeople and consultants. The bill also would subject persons or companies engaged in soil and fill recycling services to the same regulation as those engaged in the business of solid waste.
This proposed legislation passed the Senate unanimously on June 20, 2019 and is now pending before the Assembly.
There are extensive regulations in New Jersey governing businesses involved in the solid waste and recycling industries. Many people do not realize that it is a long and complicated process to become a fully licensed solid waste transporter, facility or broker. And some do not realize that they cannot conduct a solid waste business in the State of New Jersey until the process is completed.
One of the most time-consuming aspects of solid waste licensing is obtaining A-901 approval. The “A901” currently does not apply to those involved in recycling. The A-901 program was adopted many years ago in response to the infiltration of organized crime into the solid waste business to ensure those conducting the business of solid waste in New Jersey have the requisite integrity, reliability, expertise and competence. There are some limited exceptions to A-901 licensing requirements for self-generators of solid waste and Licensed Site Remediation Professionals who manage solid and hazardous waste in connection with remediation projects.
While the process to apply for an A-901 license is long (on average 18 months or longer), our experience has provided several practical considerations that can make the process smoother:

  • The applicant is not the only entity responsible for completing the corporate history disclosure forms; each parent company and potentially even equity, private and remote investors must completely fill out these forms. Moreover, every key employee, owner, officer, director, member and partner in the business must submit a personal history disclosure form, that includes information about family members, employment history and these individuals must also submit to fingerprint checks. It is imperative that these persons be complete in their responses.
  • The New Jersey State Police are obligated to do a background check on applicants. So be prepared to respond to questions and/or inquiries about situations that may have occurred years ago. For example, an applicant recently was asked about long unpaid motor vehicle citations; an affidavit from the applicant explaining that were out of the country at the time and did not own the car in question kept channeled and constrained the background check keeping things on track. In another instance a longstanding litigation unrelated to current business operations came up. By settling the matter the background check stayed on course.
  • Make sure the business is in good standing, including with the Division of Taxation.

Finally, if the applicant is qualified”, NJDEP will issue the A-901 license, but may as a condition require the recipient to attend an NJDEP seminar and/or obtain a letter from an attorney stating that the company has been advised of the applicable laws and regulations and is aware of its compliance obligations. Having an attorney that has been involved in the A-901 application and that will be available to complete this step will also help to efficiently navigate the process.
For more information, please contact the author or any Government Affairs Advisor at DMGS.

New Jersey Environmental Infrastructure Trust

On Monday a New Jersey Assembly panel advanced a bill that would require local governments and authorities wanting to use New Jersey Environmental Infrastructure Trust funds for projects costing $1 million or more to first obtain a financing cost estimate from the trust.

The Assembly Environment and Waste Committee unanimously approved an amended version of A1649, which was introduced Jan. 27 and marks the latest effort to expand the trust’s oversight of local spending.

“The estimate will enable the local government unit to evaluate, and other interested parties to consider, the potential savings of financing and interest costs offered by trust financing compared to other available methods of financing the project,” the bill statement reads.

The amended version exempts local governments from the requirement if an infrastructure project was approved by ordinance or resolution prior to the bill getting signed into law and also reduces the time frame in which the trust must provide the estimate from 15 days to five.

Sponsored by Assemblywoman L. Grace Spencer, who is the committee’s chair, Assemblywoman Eliana Pintor Marin, D-Essex, and Assemblyman Gary S. Schaer, D-Bergen and Passaic, the legislation drew support from the Utility and Transportation Contractors Association of New Jersey and the Laborers International Union of North America.

Ciro Scalera, the government affairs director for the union, thanked the committee for modifying the bill after hearing from its detractors, such as the New Jersey League of Municipalities.

Under the bill, the NJEIT must provide an online form for the financing cost estimate. Local governments may be asked to provide additional information concerning the project and borrower, including a detailed description of the project, design, engineering and environmental information; a cost estimate prepared by the project engineer or other qualified person; information regarding the borrower; and the amount to be financed.

The legislation has been in the works for two years,.

An initial version introduced by the Assembly in July 2014 received 69-7 approval from that chamber in March after review by its Environment and Solid Waste Committee. The Senate introduced a version in September 2014, left that house’s Environment and Energy Committee along with some amendments.

Both bills were referred to, but never advanced from, the Senate Budget and Appropriations Committee.

Pa. Gov.-Elect Taps Former Natural Resources secretary to head Environmental Protection

Pennsylvania Gov-Elect Tom Wolf said Wednesday that he has chosen a former Department of Conservation and Natural Resources secretary to head the incoming administration’s Department of Environmental Protection, and that environmental group PennFuture’s CEO will be appointed DCNR’s secretary.

In announcing the selection of John Quigley — who served as DCNR’s head from 2009 to 2011 before leaving to start his own consultancy — to helm Pennsylvania’s DEP, Wolf said Wednesday that the state’s natural resources like the Marcellus Shale need to be better utilized to jump-start the economy and capitalize on the natural gas industry.

Cindy Dunn, Wolf’s pick to head DCNR, also has experience with the agency. She previously served as its deputy secretary of conservation and technical service, before taking over as president and CEO of state environmental advocacy organization PennFuture.

Dunn joined DCNR in 2003 and served in various positions before leaving for the private sector. She also served as the executive director of Audubon Pennsylvania from 1997 to 2003 and holds a master’s degree in biology from Shippensburg University.

Quigley held various positions at the DCNR too and previously served as the mayor of Hazleton, Pennsylvania, for eight years. He received a master’s degree in public administration from Lehigh University and a bachelor’s degree in economics from Bloomsburg University.

The appointments come on the heels of last week’s news that Ahmad Zaffarese & Smyler LLC partner Denise Smyler would serve as head of Pennsylvania’s Office of General Counsel.

On Wednesday, Wolf also named the state’s former Assistant Chief Information Officer Sharon Minnich as his new secretary of the Office of Administration.

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