Screening and Mapping Are Not Regulation And Will Not Reduce Risks Or Pollution
DEP Playing A Sophisticated Game Of Bait and Switch
I have long been a harsh critic of the NJ EJ law, but have not yet digested the Murphy DEP’s proposed environmental justice regulatory proposal.
And today I just broadened the analysis by opening the DEP’s proposed EJ Technical Guidance Document.
It could be the most misleading document DEP ever issued. A repeat performance for DEP Commissioner LaTourette.
First of all, it is a “Guidance Document”. A Guidance Document is not a regulation and is not enforceable.
Here is how DEP describes the Guidance Document and its relationship to the EJ rules:
Upon adoption, the Environmental Justice Rules will establish a process for assessing relevant environmental and public health stressors affecting overburdened communities (OBCs) and to deny or condition permits where facilities cannot avoid the occurrence of disproportionate environment or public health stressors in the OBC
In furtherance of this effort, NJDEP has developed the Environmental Justice Mapping, Assessment and Protection (EJMAP) tool. EJMAP establishes an objective, publicly available representation of the existing environmental and public health stressors in the State’s OBCs and supports the analysis required under the Environmental Justice Rules.
DEP fails to note that a Guidance Document is not legally enforceable. This means that everything in it is simply window dressing aspiration.
The DEP dishonestly skirts this issue by referring readers to the DEP proposed EJ regulation:
For more information on the definitions of “facility” and “permit,” see Proposed Environmental Justice Rules.
Therefore, implementation of the Environmental Justice Rules requires consideration of whether and how any “facility” seeking a NJDEP “permit” in an OBC will contribute to these environmental or public health stressors in a manner that results in a disproportionate impact when compared to the OBC’s geographic point of comparison.
DEP’s failure to inform the public of this basic legal fact – i.e. that the Guidance Document is not legally enforceable and that there is a huge difference between the pollution contribution from a facility seeking a permit and the actual cumulative pollution – is a form of gaslighting and manipulation.
However, a close reading of the Guidance Document gives this game away when DEP admits the following:
As defined under the proposed Environmental Justice Rules, facilities seeking permits or permit renewals in OBCs must analyze their potential contributions to environmental and public health stressors in the OBC.
But the general public is very unlikely to grasp the real world significance of the regulatory distinctions in this sentence, i.e. that the law and DEP regulations, and thus the protections for the public, are limited to “facilities seeking permits or permit renewals” and to “their potential contributions”.
And, of course, DEP misleading omits mention of a HUGE loophole: the fact that the EJ law would allow DEP to waive the permit denial or permit condition requirements of the bill – regardless of public health or environmental impacts – if DEP finds that the project/permit in question would satisfy a “compelling public interest”, i.e. based on a DEP finding that the “facility will serve a compelling public interest in the community where it is to be located”
Second, the substance of the Guidance Document is FAR broader than the actual environmental justice law and DEP’s proposed EJ regulations.
DEP can not regulate any facility or activity – or the pollution from those activities – that is not included in the EJ law.
There are pollution sources and activities listed in the Guidance document as stressors that are not regulated by the EJ law and DEP regulations.
DEP can only regulate pollution emitted by facilities regulated under the EJ law and DEP regulation (i.e. facilities seeking permits or permit renewals).
DEP can only regulate the “stressor” or pollution “contribution” made by a regulated facility (i.e.their potential contributions” ). DEP may not regulate the far larger burden from all the stressors and pollution sources identified in the Guidance Document.
DEP does not explain this fundamental flaw to the public.
The effect of these two DEP misleading descriptions is to greatly exaggerate the scope and effectiveness of the EJ regulations.
Let me offer just one illustration:
The Guidance Document defines “Environmental or public health stressors” on page 4. The list of “stressors” includes “contaminated sites”.
However, the Environmental Justice law explicitly exempts contaminated sites from the DEP EJ permit program! (here’s the exemption, in the definition of “permit” (see page 4):
except that “permit” shall not include any authorization or approval necessary to perform a remediation, as defined pursuant to section 23 of P.L.1993, c.139 (C.58:10B-1)
So, there are significant“Environmental or public health stressors” that are not regulated and that DEP may not mandate pollution reductions from these sites or facilities.
The same reality applies to “concentrated areas of pollution” and “mobile sources of air pollution” which DEP defines as “Environmental or public health stressors” – including urban heat island effects – or the risks from hazardous air pollutants.
Let me offer a simple hypothetical: suppose a new garbage transfer station were proposed in Newark. If the permit applicant conducted the stressors analysis in the DEP Guidance Document and found that his truck emissions would contribute to unacceptable ground level ozone pollution, DEP could NOT then ratchet down on air permits to reduce pollution from other sources that contribute to the unacceptable condition, like the Newark garbage incinerator.
Another example of this is the recent controversy of Amazon at Newark Airport.
Local EJ activists just declared victory there, see:
“The PANYNJ should meet with the Goods Jobs Clean Air NJ Coalition which Clean Water Action co-leads before they start bidding again and negotiating,” said Amy Goldsmith, Clean Water Action state director. “They should better understand our concerns, what we want and discuss how best to achieve them. In some cases, it is the PANYNJ’s responsibility and in other cases the entity that leases the property.”
But the media failed to report – and the EJ activists again have failed to mention – that the pollution and noise from the Newark Airport and the proposed Amazon facility are not regulated by the EJ law or DEP’s regulations!
Similar basic regulatory misunderstanding have emerged in activism and the media coverage of the proposed PVSC gas plant.
More to follow on both the EJ rule proposal and the Guidance Document.
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