This article was published in Environmental Law360 and New Jersey Law360 on May 8, 2012. © Copyright 2012, Portfolio Media, Inc., publisher of Law360.
Amidst strident objections from many in the environmental community, the New Jersey Department of Environmental Protection (DEP) adopted on March 8, 2012 a new rule that allows the DEP to waive strict compliance with any of its rule requirements. The waiver rule was published in the April 2, 2012 New Jersey Register and becomes operational on August 1, 2012. The new rule is in response to Gov. Chris Christie’s Executive Order No. 2, issued on January 20, 2010, which called on all state agencies to implement common sense principles in order to address the chronic high costs and regulatory burdens faced by businesses in New Jersey.1 In explaining the purpose behind the rule, DEP on its Web site states that: "Strict compliance with rules can sometimes produce unreasonable, unfair or unintended results that may actually undermine, rather than advance, the legislative intent of its enabling statutes or rules."2
Under the adopted rule, the DEP may prospectively waive the strict application of any of its rules where it can be demonstrated one of the following exists: (1) conflicting rules; (2) strict compliance with a DEP rule would be unduly burdensome; (3) the waiver would result in a net environmental benefit; or (4) there is a case of a public emergency.3 "Unduly burdensome" is defined as a situation where strict compliance with a specific DEP rule would result in actual, exceptional hardship for a particular project or activity or property or there is an "excessive cost in relation to an alternative measure compliance that achieves comparable or greater benefits to public health and safety or the environment." "Net environmental benefit" means a situation where the quantitative or qualitative benefit to a natural resource for which DEP has responsibility would substantially outweigh any detriment to that resource from the grant of a waiver.4
The waiver rule applies to all DEP regulations, except for a requirement imposed by federal statute or regulation; a rule that implements an interstate program; a rule concerning an air emissions trading program; numeric or narrative standards protective of human health; or a rule related to designation of rare, threatened or endangered species. Also, a waiver will not apply to any rule that provides for a remediation funding source, claim or other financial assistance.5
DEP is required to consider the following seven criteria in deciding whether to approve a rule waiver application: (1) the public has had sufficient notice of the waiver; (2) DEP has been provided with information to support the waiver; (3) there are circumstances that support the need for a waiver; (4) whether the applicant has directly caused or contributed to the circumstances resulting in the rule being unduly burdensome; (5) there is net environmental benefit; (6) the waiver would be consistent with DEP’s core missions; and (7) the waiver would result in a reasonable and effective response to a public emergency.6 An applicant will be required to provide public notice of any waiver request and DEP must publish notice of its determination to consider a waiver and its decision on the waiver application.7
DEP goes to great lengths on its Web site to explain that there is no automatic right to a waiver. Waivers will be granted only on a case-by-case basis after careful review by DEP’s technical staff and approval of the Commissioner.8
As expected, environmental groups are furious over the waiver rule adoption. A group of 27 environmental organizations in late March filed suit in New Jersey Superior Court challenging the rule in an effort to thwart DEP’s scheduled implementation of the rule on August 1, 2012. The groups are arguing that the Christie administration has unconstitutionally overstepped its authority in enacting the rule and that it is overly broad, vague and perverts the mission of the DEP. No decision has been rendered in the litigation as of this writing.
On the other hand, members of the business and development community strongly support the waiver rule. They see it as a way to give DEP policymakers flexibility in applying regulations while still ensuring that the state’s environmental protection laws are preserved. However, given the controversy surrounding the rule, there is doubt on how effective the waiver rule will be in assisting to jump-start projects that have stalled due to conflicting or overburdensome DEP regulations.
Pending the outcome of any litigation, DEP is planning to begin accepting waiver applications on August 1, 2012. Meanwhile, it is developing a standardized application form, an electronic system for the receipt and tracking of all waiver requests, and an online reporting system that will allow the public to know when applications are received and give the public access to DEP’s decisions.
3 N.J.A.C. 7:1B-2.1(a).
4 N.J.A.C. 7:1B-1.2.
5 N.J.A.C. 7:1B-2.1(b).
6 N.J.A.C. 7:1B-2.2.
7 N.J.A.C. 7:1B-2.3.
8 NJDEP, DEP Waiver Rule, supra.
Thomas M. Letizia and Cynthia De Lisi Smith
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