A Statement Can Enhance DEP’s Legal Hand In Likely Event Of Industry Challenge
Law’s Vague And Conflicting Standards Cry Out For Clarity
Clarity Will Help EJ Communities Hold DEP Accountable And Review Permits
The new environmental justice law is legally in effect (as of September 18, 2020), but can not be implemented until DEP adopts regulations.
The DEP proposed EJ regulations on June 6, 2022 and is likely to adopt some modified version of the proposal sometime in 2023 (DEP must adopt within one year of proposal, or else the proposal expires and dies).
I reviewed and found the DEP rule proposal fatally flawed, and therefore likely to be challenged by corporate polluters, see:
The EJ law itself is extremely vague and especially so with respect to key controversial provisions, which establish dramatically new policies that have no precedents in DEP regulation and for which the science is not settled.
Due to this lack of statutory clarity – as well as troubling conflicts with existing laws – there is a regulatory train wreck coming.
The Legislature should have enacted real policy and legislative standards, or at least have issued some kind of Statement of Intent upon passage of the law, and surely before DEP proposed regulations so as to guide that effort.
Given that DEP’s rules or any adverse permit decision based on those rules is very likely to be challenged legally (administratively before OAL and NJ Courts of law), the Statement of Legislative Intent can bolster DEP’s legal hand. Similarly, it can inform and empower communities and EJ activists to hold DEP accountable to the law.
I realize that this is a little late, but to accomplish that, here’s a letter I wrote to Senate Environment Committee Chair and sponsor Bob Smith and Senator Greenstein. I urge people to do the same:
Dear Senator Smith:
I am writing to request that you ask OLS for a legal opinion or for the issuance of a formal Statement of Legislative Intent regarding certain provisions of the recently enacted Environmental Justice law (citations omitted – hereafter Act), see:
https://dep.nj.gov/wp-content/uploads/ej/docs/ej-law.pdf.
The Act appears to conflict with pre-existing federal and State laws and DEP implementing regulations and to lack clarity, as suggested below.
Such a statement of legislative intent would serve to streamline and bolster DEP regulatory implementation; DEP permit review and enforcement; inform judicial review; and inform and empower citizens’ review and comment on permits that implement the Act.
Specifically, the Act conflicts with existing federal and State laws regarding the following important issues, including but not limited to:
I) Renewal Of Existing Permits
Under various current federal and environmental laws, DEP has broad authority to deny renewal of permits upon finding of unacceptable risks or impacts to human health or the environment.
I will offer just one illustration, limited to clean air laws.
DEP may require that risk screening and/or risk assessment be conducted for certain major pollution sources or those that emit certain hazardous air pollutants. Should that risk assessment demonstrate unacceptable risks to or impacts upon human health or environment, the DEP has the authority to:
1. Deny the permit outright; or
2. mandate risk reduction measures, including implementation of pollution prevention, state of the art pollution controls, or engineering measures, like combusting conditions, increased stack height or setback requirements; or
3. Conduct on site or off-site mitigation.
The risk basis for these decisions (e.g. risk range or numeric risk standard); the scope of the risk assessment (e.g. consideration of multiple pollutants, multiple exposure pathways, and cumulative impacts) and the technical scope of risk reduction and mitigation measures (e.g. on site or off-site mitigation; pollution trading and offsets, mitigation/offset ratio’s, etc) are ambiguous in law, DEP regulation, science and current DEP practice.
In contrast, the Act may be interpreted to limit several DEP’s authority regarding renewable of existing permits.
The Act does not limit DEP’s authority to hold public hearings: (C.13:1D-160 Requirements for permit applicants):
“Nothing in this section shall be construed to limit the authority of the department to hold or require additional public hearings, as may be required by any other law, rule, or regulation.
But that Act does not preserve and in fact limits DEP’s authority to deny renewals.
The Act provides only the authority to impose conditions, not to deny the permit, see: 13:1D-160, where DEP “may”, but is not required to:
“apply conditions to a permit for the expansion of an existing facility, or the renewal of an existing facility’s major source permit, concerning the construction and operation of the facility to protect public health, upon a finding that approval of a permit or permit renewal, as proposed, 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 adopted or issued pursuant to section 5 of this act.
The Act clearly protects the permit applicants rights to operate pending DEP’ EJ permits decision, see:
“f. Nothing in this section shall be construed to limit the right of an applicant to continue facility operations during the process of permit renewal to the extent such right is conveyed by applicable law, rule, or regulation, including the application shield provisions of the rules and regulations adopted pursuant to the “Air Pollution Control Act (1954),” P.L.1954, c.212 (C.26:2C-1 et seq.).”
Was it the Legislature’s intent to eliminate DEP’s existing authority to deny renewable of existing permits
Was it the Legislature’s intent to narrow the scope of DEP’s existing authority regarding risk reduction and mitigation measures?
As I read the Act, it does that.
Was it the legislature’s intent to authorize a DEP pollutant trading or offset program?
II) Permit standards for new facilities subject to the Act
The Act appears to limit or undermine DEP authority to deny new permits under pre-existing laws by providing a new exception for EJ permits:
“except that where the department determines that a new facility will serve a compelling public interest in the community where it is to be located, the department may grant a permit that imposes conditions on the construction and operation of the facility to protect public health.”
What happens when a compelling public interest is demonstrated but DEP’s permit standard are violated
Was it the Legislative intent to do that?
III) Unacceptable Risks or impacts
The Act provides the following broad and vague narrative standard of unacceptable risk or impact. DEp is required to deny a permit upon:
“a finding that approval of a permit or permit renewal, as proposed, 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”
In contrast, for air pollutants and drinking water, DEP regulations and NJ laws, include numeric individual excess lifetime cancer risk of one in a million, respectively. (citations omitted).
The Act is silent on these issues and instead adopts a vague narrative standard.
The Act and DEP regulations currently have no definitions of critical terms, including but not limited to “stressor”; “cause or contribute” and “higher than those borne”.
What is legislative intent in regard to the standard unacceptable risk to human health and the environment?
This would apply to new and existing sources.
IV) Definition of Risk Reduction and Mitigation
DEP is authorized to impose “conditions” on permits. Because the Act does not define and is silent on these important risk reduction and mitigation issues, it could be construed to eliminate DEP authority for the permits covered by the Act.
What is legislative intent with respect to risk reduction and mitigation measures?
Does DEP have the authority to mandate risk reduction and mitigation both on and off site?
What are DEP’s limits in doing so? (e.g. can DEP mandated 10 – 1 pollutant mitigation ratio’s?)
V) On-SIte versus Off Site application
See above points.
This issue (i.e the scope of application – on site or beyond the fence line) under the federal Clean Air Act recently was before the US Supreme Court in a challenge to the Obama EPA’s Clean Power Plan, so it is not hypothetical.
As these are legal issues subject to legislative intent, I did not address how DEP navigated these issues in their June 2022 proposed implementation regulations (citation omitted). Perhaps legislative oversight hearings on DEP’s rule proposal would inform those issues, see:
https://dep.nj.gov/ej/policy/.
I appreciate your consideration of and timely and favorable response to this request.
Respectfully,
Bill Wolfe