Another question, and I don’t think we have the full answer, is, is there a change in your process that requires a change in a permit and also, at the same time, increases emissions? Let’s say you switch out an engine on a piece of equipment, and that equipment now has more emissions. I think that’s an expansion under the definition. Facilities should almost assume that if they have a permit modification, the burden is going to be on them to prove that there is no increase in emissions.

One of the things that people were really concerned about was the conditions that can be imposed where there are air emissions subject to a control device. As I read the regulations, there’s a rigorous process to go through to figure out what control devices have to be used for certain conditions.

For [permit] expansions and renewals, the department previously had discretion about whether to impose conditions if the facility was going to have a disproportionate impact [on a community]. We were expecting this to remain flexible [in the final rule] — for the department to be able to decide, “OK, for this expansion, we are going to impose a condition, but in this other one, we’re not going to impose a condition.” But now the department is obligating itself to impose conditions in those instances where it could have had discretion under the statute.

Where do the fenceline communities come into this process, and what more is needed beyond just one change in the law? 

I think that this [law] is a very powerful tool for environmental justice communities to have a strong voice and say in what’s sited and permitted in their communities.

I think New Jersey is doing that in broader climate discussions, too — saying, “we’re going to put more restrictive regulations on industry, but also, let’s generally rethink regulations, how can we do things differently?” Because it’s important to remember that there’s carrots and sticks, and we shouldn’t just be using sticks. We should be using carrots. And when I say that, I don’t really mean incentives, even though that’s an option, such as the Justice 40 initiative from the federal government. Grants and incentives are great things, but so is simply supporting important projects.

I do a lot of work on the New Jersey Composting Council and food rescue. One of my personal passions is trying to get regulations changed in New Jersey to allow community gardens in environmental justice communities to conduct additional composting without cost-prohibitive permits. Currently, they would need a commercial permit. I’ve been working with nonprofits for the last couple of years to get those regulations changed.

I’m sure there are a dozen, a hundred other ways for states to do something similar, to just ask, what does an EJ community need? What are they already doing? How can we give them the things that they don’t otherwise have?

What lessons do you think the industry needs to learn as they get more comfortable thinking about, talking about, and acting with an environmental justice lens? Both from the facility side and from a development perspective? 

There are lots of other ways where environmental justice comes up [beyond permits]. I’ve been involved in M&A transactions where environmental justice has been an issue — something to look for when you’re doing due diligence and trying to understand how an EJ law is going to apply, and how the facility is going to be regulated going forward. In M&A transactions, EJ risk is going to start being evaluated as one of the elements.

Let’s say a company wanted to buy a small waste hauler in New Jersey, or a small recycling facility. When they go to draft up the M&A agreements and are doing their due diligence, they see there are a series of water violations where there’s been pollutants discharged to a water body used by an environmental justice community. You’ve got a general environmental risk, and you’ve also got an overlay of EJ risk.

Some facilities can be really proactive, both about complying with EJ diligence when they’re not subject to a law, and then also when there’s uncertainty in applicability, to try and go above and beyond. We’ve seen companies that know they’re going to be entering into an M&A phase where they might be acquired and they want to put themselves in a position of having a clean bill of health. So they’re going to take certain proactive steps so they can reduce whatever uncertainty there is regarding EJ.

Are there any resources that you would recommend for folks that are trying to take that proactive approach and assess what EJ impacts their facilities might have?

This is all kind of a bespoke process right now. What that could look like is maybe conducting a risk assessment. There’s a whole bunch of different factors that you can look at. How close are you to an EJ community? What’s the life cycle of this project? How much capital investment are you going to have to do to expand it? Is this facility going to change use? You can think about these things if you’re in an M&A transaction, or if you’re just in an operation scenario.

Proximity of the facility to an EJ community is important. You can look it up with the EPA’s EJScreen tool, or use your state’s specific tool. You can also work with a consultant to determine how close you are to EJ communities based on what the law is in your state. Is there a history of enforcement against facilities in EJ areas? Look at the demographics of the community, as well as the history of engagement between your community and the regulator, and your community and your facility.

It’s still a flexible concept, but it just gets you thinking along the right lines. This will also help companies think about these things so they can talk about them in public hearings. I don’t think that many companies know how to hold public hearings yet. Regardless of whether they’re in a state that has EJ laws or doesn’t, EJ risk is going to be a part of their future business.