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NJDEP Rolls Out New "Waiver Rule," Forgoes Strict Compliance with Certain Environmental Regulations

After taking office in January 2010, Governor Christie signed an Executive Order “establishing ‘Common Sense Principles’ for State rules and regulations that will give this State the opportunity to energize and encourage a competitive economy to benefit businesses and ordinary citizens.”   The Governor ordered all State agencies to implement common sense procedures, including “waivers from the strict compliance with agency regulations.”  Such waivers were considered necessary because some agency rules may be conflicting or unduly burdensome.

To fulfill this Executive Order, the New Jersey Department of Environmental Protection (“NJDEP”) proposed a “Waiver Rule” that identifies certain circumstances in which the NJDEP would have discretion to waive strict compliance with Department rules.  The Waiver Rule, which will be codified at N.J.A.C. 7:1B-1.1 in April 2012, is not supposed to “allow for the routine circumvention of any Department Rule.”  Rather, it provides for prospective waiver of strict compliance when (1) conflicting rules are at issue; (2) strict compliance would be unduly burdensome; (3) waiver of strict compliance would result in a net environmental benefit; or (4) a public emergency requires waiver of strict compliance.  Thus, on its face, it does not appear that the Waiver Rule will have retroactive impact.

Importantly, the Waiver Rule does not permit waiver of duties imposed by federal statutes or regulations, or those imposed by State statutes unless those laws specifically provide for a waiver.  Thus, the Waiver Rule appears to target only the Department’s own rules and regulations – not those imposed by other State statutes or federal laws.  Rules pertaining to federally delegated programs (such as the Clean Water Act or the Clean Air Act), and rules that are part of collaborative (i.e., interstate) programs, are also unlikely to lend themselves to exercise of NJDEP discretion under the new Waiver Rule.  Likewise, the Waiver Rule does not permit the Department to waive compliance with numerical standards intended to protect human health, such as water quality standards or the soil and groundwater cleanup standards that govern contaminated site remediation.

It appears that the Waiver Rule will have the most impact on the NJDEP programs related to land use development.  Specifically, developers whose projects have been slowed by Department bureaucracy and requirements of competing intrastate programs may realize a benefit.  Indeed, fearing the impact that the Waiver Rule could have on environmentally sensitive areas in New Jersey, environmental advocates have called the rule a “giveaway” to developers.

The Waiver Rule will be published in the New Jersey Register on April 2, 2012 and the NJDEP will begin accepting waiver requests on August 1, 2012.  In the meantime, the Department is creating an online system that will permit electronic waiver requests and enable the public to review the requests and the Department’s decisions.  Despite this effort at transparency, the Department has complete discretion over the waiver review process.  There are no mandatory timeline by which NJDEP must act on requests and
they will not be processed on a first-come, first-served basis.

The attorneys at Lieberman Blecher & Sinkevich P.C. will be watching closely as the NJDEP rolls out the waiver program.  Our developer, individual landowner, and non-profit organization clients are likely to be interested in the development of the Waiver Rule, from both an applicant and third-party intervenor perspective.

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