In his Executive Order No. 2, New Jersey Gov. Chris Christie directed all state agencies to adopt “common sense” principles to remove unreasonable impediments to economic growth and cut through unnecessary red tape. Heeding the governor’s call, the New Jersey Department of Environmental Protection (NJDEP) last week proposed a new regulation establishing conditions and procedures for the approval of waivers from strict compliance with its rules. The proposed rule was published in the March 7, 2011 New Jersey Register and is available online at http://www.nj.gov/dep/rules/notices.html. According to NJDEP’s statement accompanying the rule proposal, a waiver process is needed to address certain limited circumstances in which strict compliance with its requirements can lead to an “unreasonable, unfair, or unintended result, which can adversely affect a prospective applicant, the public and/or the environment.”

Certain NJDEP permit programs already have some form of waiver, exception or variance procedure. The proposed waiver rule would be broader in scope, applying across the board to all regulations of the NJDEP, and would be in addition to, and not in lieu of, other waiver rights afforded by specific permit programs.

Under the proposed rule, NJDEP may prospectively waive the strict compliance with any of its rules only when one or more of the following four conditions exists:

  • conflicting rules, defined as a situation in which two or more rules of NJDEP, or a NJDEP rule and the rule of another state agency or federal agency, conflict so as to make compliance with both rules “impossible or impracticable.”
  • unduly burdensome, defined as a situation in which strict compliance with a rule would result in either “actual, exceptional hardship for a particular project or property,” or excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits.
  • net environmental benefit, defined as a situation in which the environment would be enhanced, quantitatively or qualitatively, by a project enabled by a waiver and such benefit would “substantially outweigh” any detriment to the environment. Mitigation will be considered, but it must exceed what would have been required under the waived rule.
  • public emergency, defined as a situation in which an authorized federal or state official declares a public emergency.

NJDEP will be prohibited from waiving any rule concerning: (1) a duty imposed by federal or state statute, or federal regulation, unless the statute or regulation provides for a waiver; (2) a federal-delegated or assumed program where the waiver would be inconsistent with New Jersey’s delegation or assumption of such authority (e.g., assumption of U.S. Army Corps of Engineers wetlands permitting authority); (3) a rule that implements a federally enforceable program pursuant to the State Implementation Plan; (4) a multi-state collaborative permitting program; (5) an air emissions trading program; (6) numeric or narrative standards protective of human health; (7) designation of rare, threatened or endangered status of any species of flora or fauna; (8) a remediation funding source, claim, grant or loan; (9) a license or registration for a vehicle, boat, individual or business; (10) a hunting, fishing or trapping license; (11) public participation or notice; or (12) a fee, oversight cost and other NJDEP cost.

In determining if a waiver should be approved, NJDEP must consider the extent to which the criteria listed in the proposed rule are met, including whether NJDEP has been provided sufficient information to support a waiver; whether the waiver is consistent with NJDEP’s core mission; whether the waiver is consistent with the intent of the authorizing statute; whether the site is a remediation or redevelopment of a contaminated site or an expansion of an existing development; and whether the person seeking the waiver has contributed or caused the circumstances resulting in the rule being unduly burdensome.

The waiver process is designed to be transparent. All waiver applications filed with NJDEP will require notice in accordance with the requirements of the rules from which the waiver is sought, and NJDEP must publish notice of its intent to consider a waiver and its determination of each waiver application in the DEP Bulletin.

NJDEP states that its rule proposal is not intended to permit waivers to be routinely granted or to allow applicants to seek waivers from a given rule repeatedly. Rather, NJDEP emphasizes that the application for a waiver under the new rule must be site- and fact-specific. Liberal use of the new waiver process will be discouraged. Nonetheless, the rule, if adopted, can provide an avenue of assistance to those projects, which provide both economic and environmental benefits to the state, but have been stalled because of strict application of NJDEP regulations.

A public hearing concerning the proposed rule is scheduled for April 14, 2011 at 3:00 p.m. at NJDEP, Public Hearing Room, 401 East State Street, Trenton, NJ. Written comments may be submitted by May 6, 2011.