NJDEP Proposes Common-Sense Waiver Rule

by:  Thomas Spiesman

   In furtherance of Governor Chris Christie's Executive Order No. 2 that seeks to establish "Common Sense Principles" to govern New Jersey, the New Jersey Department of Environmental Protection (NJDEP) has proposed a rule to enable it to remove unreasonable impediments to economic growth while ensuring net environmental benefit for the State.  The rule, which is available online here,  would permit the NJDEP to waive strict compliance with regulations in certain limited circumstances that do not compromise protections for the environment or public health. 

The NJDEP would consider a waiver application only if one or more of the following conditions exists:

•             Conflicting rules – the requirement sought to be waived conflicts with another Department or other State or Federal agency rule

•             Unduly burdensome – strict application of a rule creates an exceptional and undue hardship, or where another method of compliance would have the same or better results but at a significantly lower cost

•             Net environmental benefit – the environment would be enhanced by a project enabled by the waiver; mitigation would be allowed to be considered

•             Public emergency – NJDEP must waive a rule to respond to an emergency

According the NJDEP Commissioner Bob Martin, waiver must be site and fact specific, will not be routinely or commonly granted, and cannot compromise protections for the environment or public health.   Under the rule, the NJDEP would consider consistency with NJDEP’s core mission; consistency with the intent of any underlying statute; whether the subject site is a redevelopment or brownfield; and/or whether a net environmental benefit would be achieved by granting the waiver.  No waiver will be granted in any case inconsistent with any State or Federal laws, regional air agreements, emissions trading programs, or health and safety standards. Permit fees would not be subject to waiver. 

According to the NJDEP’s press release, the review process would be transparent by publicly noticing all waiver applications and NJDEP approvals.