The New Jersey Department of Environmental Protection (NJDEP) announced on March 8 that it had finalized a new waiver rule that will permit the department to relax environmental rules in certain limited circumstances. The new rule, which grew out of an executive order from Governor Christie that called upon state agencies to apply “common sense principles” in implementing and enforcing legal requirements, will be formally published on April 2, 2012 and will become effective on August 1, 2012.
NJDEP’s March 2011 proposal for the waiver rule generated many hundreds of comments from over 500 members of the public. The agency also held a public hearing on the proposed rule, where most speakers opposed it. The final rule reflects some modifications to the original proposal, but retains its basic thrust: to allow NJDEP to waive strict compliance with its rules in limited circumstances, in a manner that is consistent with the agency’s environmental mission.
A waiver may be granted only when at least one of the following criteria are satisfied: (1) the applicant is subject to conflicting rules, (2) strict compliance would be unduly burdensome, (3) the waiver would result in a net environmental benefit, or (4) the waiver is justified by a public emergency. The waiver rule does not apply to a number of categories of requirements, including requirements imposed by statute or by federal regulations; numeric or narrative standards that protect human health; and requirements concerning remediation funding sources and other financial matters.
NJDEP has yet to work out the details of the process for the submission and review of waiver applications. It will not accept applications until August 1. Training sessions for those interested in learning about the process will begin in April.
A courtesy copy of the final rule is available on NJDEP’s website.
Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Law Department.