Senator TROY SINGLETON
District 7 (Burlington)
Senator LORETTA WEINBERG
District 37 (Bergen)
Concerns environmental permits in burdened communities.
CURRENT VERSION OF TEXT
As reported by the Senate Environment and Energy Committee on January 24, 2019, with amendments.
An Act concerning environmental permits in certain areas, and supplementing Title 13 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act: “Burdened community” means 1[an area within a municipality that is designated as such pursuant to the provisions of subsection b. of section 2 of this act.
“Household income” means income as defined for the purposes of determining eligibility for a free or reduced price lunch pursuant to the federal school lunch program.
“Low-income household” means a residence with a household income that does not exceed 2.50 times the official federal poverty level based on family size, established and adjusted under the federal “Community Services Block Grant Act,” 42 U.S.C. s.9902(2), for the year preceding the year in which a designation of a burdened community is sought.
“Minority group” means any group enjoying special protection under the civil rights provisions of the Constitution of the United States and the federal “Voting Rights Act of 1965,” 52 U.S.C. s.10301 et seq., as amended and supplemented.] any census tract, as delineated in the most recent federal decennial census, that is ranked in the bottom 33 percent of census tracts in the State for median annual household income.
“Cumulative impacts” means an exposure, public health or environmental risk, or other effect occurring in a specific geographical area, including from any environmental pollution emitted or released routinely, accidentally, or otherwise, from any source, and assessed based on the combined past, present, and reasonably foreseeable emissions and discharges affecting the geographical area. “Cumulative impacts” shall be evaluated based on any applicable guidance issued by department.
“Facility” means any: (1) electric generating facility with a capacity of more than ten megawatts; (2) resource recovery facility or incinerator; (3) sludge combustor or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons per day; (5) transfer station, recycling center, or other solid waste facility with a combined monthly volume in excess of 25 tons; (6) landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; (7) medical waste incinerator; or (8) major source of air pollution, as defined by the federal “Clean Air Act,” 42 U.S.C.s.7401 et seq.1
“Permit” means any permit, registration 1,1 or license issued by the Department of Environmental Protection establishing the regulatory and management requirements for an ongoing regulated activity as authorized by federal law or the following State laws: R.S.12:5-1 et seq.; P.L.1975, c.232 (C.13:1D-29 et al.); the “Solid Waste Management Act,” P.L.1970, c.39 (C.13:1E-1 et seq.); section 17 of P.L.1975, c.326 (C.13:1E-26); the “Comprehensive Regulated Medical Waste Management Act,” P.L.1989, c.34 (C.13:1E-48.1 et al.); P.L.1989, c.151 (C.13:1E-99.21a et al.); the “New Jersey Statewide Mandatory Source Separation and Recycling Act,” P.L.1987, c.102 (C.13:1E-99.11 et al.); the “Pesticide Control Act of 1971,” P.L.1971, c.176 (C.13:1F-1 et seq.); the “Industrial Site Recovery Act,” P.L.1983, c.330 (C.13:1K-6 et al.); the “Toxic Catastrophe Prevention Act,” P.L.1985, c.403 (C.13:1K-19 et seq.); “The Wetlands Act of 1970,” P.L.1970, c.272 (C.13:9A-1 et seq.); the “Freshwater Wetlands Protection Act,” P.L.1987, c.156 (C.13:9B-1 et al.); the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.); the “Highlands Water Protection and Planning Act,” P.L.2004, c.120 (C.13:20-1 et seq.), the “Air Pollution Control Act (1954),” P.L.1954, c.212 (C.26:2C-1 et seq.); the “Water Supply Management Act,” P.L.1981, c.262 (C.58:1A-1 et al.); P.L.1947, c.377 (C.58:4A-5 et seq.); the “Water Pollution Control Act,” P.L.1977, c.74 (C.58:10A-1 et seq.); P.L.1986, c.102 (C.58:10A-21 et seq.); the “Safe Drinking Water Act,” P.L.1977, c.224 (C.58:12A-1 et al.); the “Flood Hazard Area Control Act,” P.L.1962, c.19 (C.58:16A-50 et seq.) 1; except that “permit” shall not include: (1) any general permit issued by the department pursuant to subsection h. of section 13 of P.L.1967, c.106 (C.26:2C-9.2), or (2) any general permit issued by the department for remedial activity pursuant to subsection d. of section 1 of P.L.1993, c.351 (C.58:10A-7.2)1.
1[“Person” means any individual, corporation, company, partnership, firm, association, political subdivision of this State, or State or interstate agency.]1
1[2. a. The Department of Environmental Protection shall designate an area within any municipality in the State a burdened community pursuant to the provisions of this section. The department may designate an area a burdened community pursuant to a petition filed by any person or upon its own initiative. The department shall grant or deny a petition within 60 days of its receipt. A person who petitions the department to designate an area within the municipality a burdened community shall include in the application:
(1) A map of the area that is the subject of the application;
(2) A list of the facilities in the area for which the department has issued a permit the affect the public health, the environment, and the quality of life in the community;
(3) Any demographic or household information that will assist the department in assessing the income levels in the area;
(4) The name and contact information of a designated representative of the burdened community; and
(5) Any other information the applicant deems relevant concerning the conditions in the area that is the subject of the application.
b. The department shall designate an area a burdened community upon a finding that the area meets the following criteria:
(1) At least one-half of the households in the area qualify as low-income households;
(2) At least one-half of the area's residents are members of a minority group;
(3) There is in the area at least one “major facility” as defined pursuant to section 2 of P.L.1954, c.212 (C.26:2C-2);
(4) There is in the area at least one property that is included on the list of known hazardous discharge sites maintained pursuant to the provisions of P.L.1982, c.202 (C.58:10-23.15 et seq.); and
(5) There is in the area at least one facility:
(a) that has been issued a permit pursuant to the provisions of P.L.1977, c.74 (C.58:10A-1 et seq.);
(b) regulated pursuant to the provisions of P.L.1985, c.403 (C.13:1K-19 et seq.); or
(c) regulated pursuant to the provisions of P.L.1970, c.39 (C.13:1E-1 et seq.).
c. Upon designating an area a burdened community, the department shall notify the governing body of the municipality in which the area is located, the applicant, as applicable, and any community leaders as appropriate. Upon consultation with the governing body of the municipality in which the burdened community is located, and the petitioner if applicable, the department shall designate a representative of the burdened community.]1
12. a. No later than 120 days after the effective date of this act, the Department of Environmental Protection, in consultation with the Secretary of State, shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), a list of burdened communities in the State. The department shall update the list of burdened communities periodically as new data on median annual household income becomes available and upon promulgation by the federal government of a new federal decennial census.
b. No later than 60 days after a burdened community is designated pursuant to subsection a. of this section, the governing body of the municipality in which the burdened community is located, in consultation with appropriate community groups, shall designate a representative of the burdened community.1
3. a. 1[The] Beginning 180 days after the effective date of this act, the1 Department of Environmental Protection shall not grant a permit for 1[a project] a new facility, or for the expansion of an existing facility,1 located 1in whole or in part1 in a burdened community unless the 1[department] permit applicant1 first:
(1) Prepares a report assessing the environmental impact of the proposed 1[project] new facility, or expansion of an existing facility,1 including any cumulative impacts on the 1burdened1 community, any adverse environmental effects that cannot be avoided should the permit be granted, and the public health impact on the burdened community of the proposed 1[project] new facility or expansion of an existing facility1;
(2) Transmits the report required to be prepared pursuant to paragraph (1) of this subsection at least 30 days in advance of the public hearing required pursuant to paragraph (3) of this subsection to 1the department,1 the governing body and the clerk of the municipality in which the burdened community is located, 1[the permit applicant,]1 and the designated representative of the burdened community. The report shall be made available to the public at least 30 days prior to the public hearing required pursuant to paragraph (3) of this subsection; and
(3) 1[Conducts] Organizes and conducts1 a public hearing in a location convenient as much as possible to all interested parties 1[at least 30 days prior to issuing a decision on a permit application. Public] . The permit applicant shall publish public1 notices of the hearing 1[shall be published]1 in at least two newspapers circulating within the burdened community not less than 21 days prior to the 1[hearings] hearing1. At least 14 days prior to the date set for such hearing, a copy of the public notice shall be sent to the 1department, the1 governing body and the clerk of the municipality in which the burdened community is located, 1[the permit applicant,]1 and the designated representative of the burdened community. 1At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new facility or expansion of an existing facility and the potential environmental and health impacts of the new or expanded facility. The hearing shall provide an opportunity for meaningful public participation by residents of the burdened community.1 Following the public hearing, the commissioner shall consider the testimony presented and evaluate any revisions or conditions to the permit that may be necessary to reduce the adverse impact to the public health or to the environment in the burdened community.
b. 1The department shall not issue a decision on the permit application until at least 60 days after the public hearing held pursuant to this section.1 Notwithstanding the provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary, the department may deny a permit application in a burdened community upon a finding that the approval of the permit would, together with the cumulative 1[adverse health and environmental]1 impacts posed by the existing conditions, including conditions resulting from permitted activities, in the burdened community, constitute an unreasonable risk to the health of the residents of the burdened community and to the environment in the 1burdened1 community.
c. The department 1[shall not approve a permit application for a project in a burdened community unless the governing body of the municipality in which the burdened community is located adopts an ordinance approving the project] , when evaluating an application for a permit pursuant to this section, shall assess the community support for the proposed new facility or expansion of an existing facility, as demonstrated through the public hearing conducted pursuant to subsection a. of this section, letters of support for, or opposition to, the proposed new or expanded facility, and any ordinance or resolution adopted by the governing body of the municipality in which the burdened community is located. The department shall consider community support, or the lack thereof, in its decision to grant or deny a permit.
d. If a permit applicant is applying for more than one permit for a proposed new facility or expansion of an existing facility, the permit applicant shall only be required to comply with the provisions of this section once, unless the department, in its discretion, determines that more than one public hearing is necessary due to the complexity of the proposed new or expanded facility. 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 regulation1.
4. 1a.1 The Department of Environmental Protection may adopt, pursuant to the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) rules and regulations to implement the provisions of this act.
1b. The department may issue guidance on how to evaluate cumulative impacts pursuant paragraph (1) of subsection a. of section 3 of this act. The department shall publish the guidance document on its Internet website.1
5. This act shall take effect 1[on the 180th day after enactment] immediately1.