New Jersey Department of Environmental Protection Proposes Waiver Rule for Economic Growth

Today, the New Jersey Department of Environmental Protection (NJDEP) published a proposed rule outlining circumstances in which the department would consider a waiver of environmental regulations that stand in the way of economic development. NJDEP will be holding a hearing on the proposed rule on April 14, 2011, at 3:00 pm.

The rule follows the Governor’s “Common Sense Principles” outlined in Executive Order No. 2 which focused on the need to reduce the high costs and regulatory burdens that are thought to impede growth and opportunity in the State of New Jersey.

The proposed rule would allow a waiver application in the following circumstances:

• Two or more department rules conflict, or a department rule conflicts with the rule of another State agency or a Federal agency in a way that makes compliance with both impossible or impracticable.
• Strict compliance with the rule will be unduly burdensome because it imposes actual, exceptional hardship or excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits.
• A waiver could result in a net environmental benefit, for example, using innovative technology or nontraditional methods or materials.
• When there is a public emergency declared by a Federal or State official, and waiver would best ensure protection of the public health, safety and welfare, and the environment.

The waiver is not intended to be routine or usual. Moreover, it cannot be inconsistent with NJDEP’s core mission of protecting the State’s natural resources, human health, safety and the environment. Certain rules are not eligible for a waiver under the proposed rule including those implementing certain Federal programs, the air emissions trading program, human health protection standards, endangered species designations, remediation funding sources, licensing or registration requirements, public notice requirements, and department fees or costs.

NJDEP Commissioner Bob Martin praised the proposed rule, stating:

This is an important tool that will benefit the environment and the State’s economy….One size doesn’t always fit all in government. This offers a practical flexibility in allowing us to deal with issues.

NJDEP is accepting comments to the proposed rule through May 6, 2011.