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Politico NJ: Polluting facilities may get permits before rules for environmental justice law finalized

“In the context of kids growing up and people living and working near these facilities, this window is really critical,” said Chris Miller, executive director of the Eastern Environmental Law Center.

https://www.politico.com/states/new-jersey/story/2021/03/02/polluting-facilities-may-get-permits-before-rules-for-environmental-justice-law-finalized-1366338
https://www.politico.com/states/new-jersey/story/2021/03/02/polluting-facilities-may-get-permits-before-rules-for-environmental-justice-law-finalized-1366338

New Jersey’s landmark environmental justice law gives overburdened communities the power to reject new sources of pollution in their neighborhoods — just not yet.

Even though Gov. Phil Murphy signed the law almost six months ago, the state does not have the authority to deny permits for polluting facilities until it finalizes the regulations that specify how to implement the law’s requirements.https://dd66e01cb2f5e79ecc52d37c6dacb2e4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

Environmental advocates, particularly those in areas with a disproportionate level of air pollution, are worried about what could happen during that window. They point to permit applications for a number of projects slated for environmental justice communities that likely would be subject to the law and might be blocked, but could possibly get approvals in the meantime.

“We shouldn’t promise something in the spirit of environmental justice and then say, ‘just one more bad thing,’” said Maria Lopez-Nuñez, director of environmental justice and community development at the Ironbound Community Corporation in Newark. “It’s a slap in the face. Are we supposed to swallow this last injustice?”

If companies can secure permits for polluting facilities during this window, that “puts people in a more vulnerable position and doesn’t give the [Department of Environmental Protection] the strength to protect communities as well they should,” said Kate Cruz, environmental justice coordinator at the Center for Environmental Transformation in Camden.

Environmental advocates want the government to intervene with a moratorium on permits or establish some other way of protecting residents in environmental justice communities until the rules are done.

The DEP is working with interested parties on crafting the rules that will govern how the law functions and expects to propose those rules this summer, with adoption as early as 2022.

The law requires the DEP to deny permits for power plants, incinerators, landfills, large recycling facilities and sewage treatment plants in certain minority and impoverished neighborhoods if the projects pose health and environmental risks in conjunction with the threats those communities already face.

But the department can’t do that until the rules are finalized.

Shawn LaTourette, the DEP’s acting commissioner, said in an interview that the agency will be “guided by the spirit of the law” until it is formally in place, and will “ask applicants how they can be a good neighbor.”

“If a facility is coming in right now to be permitted and the law is not applicable at this time because of the need for the regulations, that same facility is well served by considering the constraints of how the environmental justice law works upon it because it will be faced with that constraint upon [its permit] renewal,” LaTourette said.

The spirit of the law was supposed to prevent more polluting facilities from worsening the air quality in environmental justice communities “because the cumulative impact is killing us,” said Kim Gaddy, an environmental justice organizer for Clean Water Action.

To site or expand a facility in an already polluted area would add to a community’s pollution burden — for generations.

“In the context of kids growing up and people living and working near these facilities, this window is really critical,” said Chris Miller, executive director of the Eastern Environmental Law Center.

One project that has applied for air permits is a standby generation facility proposed by Passaic Valley Sewerage Commission for Newark. The facility, planned as part of a post-Hurricane Sandy resiliency program, would have a capacity of 34 megawatts and would be powered by natural gas.

“The facility is being constructed using state-of-the-art technology for both air quality protection and operating efficiency,” PVSC spokesperson Doug Scancarella said, adding that the commission has held public meetings with interested parties since 2012 and will continue to do so “as a good neighbor.”

Another project slated for Newark is a facility proposed by Aries Clean Energy that would process biochar — a black carbon that is the byproduct of wastewater treatment plants — to eliminate the need to landfill or incinerate the material.

Aries has applied for a number of permits at the state and city level, where the fight against the so-called sludge plant has roots. Newark has its own ordinance that requires developers seeking environmental permits to inform the city of possible cumulative pollution impacts.

“We’re trying to stay on top of it locally in hopes that through this process it won’t get through before these [environmental justice law] regulations are set,” Gaddy said.

Aries spokesperson Chris Kidd pushed back against the characterization of the facility as a sludge plant.

“We don’t process sludge so we’re not a sludge-processing facility, and we’re not an incinerator, so we believe we don’t even fit under the auspices of the bill,” Kidd said. “It wouldn’t apply to us. We’re also a minor source air permit.”

That the facility won’t process sludge and won’t be a major source of air pollution will likely be challenged.

“The Aries sludge facility is exactly the type of facility that New Jersey’s environmental justice law was meant to cover, and the Ironbound community of Newark is exactly the kind of community the law is intended to protect,” said Rachel Stevens, an environmental lawyer representing the Ironbound Community Corporation. “This is an important test of the state’s environmental justice law.”

In South Jersey, Georgia-Pacific petitioned the DEP to modify its permit for its Camden-based gypsum plaster plant by removing two wallboard production line sources and implementing a new bagging system.

“Our overall net allowable emissions will decrease due to the modifications and the removal of retired machinery from the other minor projects,” said Eric Abercrombie, a Georgia-Pacific spokesperson. “The modifications being implemented will also decrease the amount of solid waste generated at our site and by our customers that receive our products.”

Cruz, from the Center for Environmental Transformation, said she’s concerned the proposed changes will significantly increase particulate matter in an area that already sees a high amount.

“We know if the environmental justice bill rules were done, that would not happen. There’d be no way,” she said.

A moratorium issued by the governor or emergency regulations by DEP could help pause the process until the state can exercise the full force of the law — whose text says it takes immediate effect. A spokesperson for Murphy did not respond to requests for comment.

“What’s incumbent on the state now,” Miller said, “is to legally and responsibly ensure that polluting projects in overburdened communities do not slip through the cracks.”

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