The New Jersey Department of Environmental Protection (the “Department”) has adopted a Waiver Rule which will allow departure from the common stance of strict compliance with all rules and regulations in favor of exercising discretion on a case by case basis in a responsible and transparent manner; the goal being to strike the delicate balance between protecting public health and the environment on the one hand, and creating a fertile atmosphere for business on the other. As of August 1, 2012, the Department will accept and consider waiver applications from interested parties. However, before requesting a waiver, interested parties must understand the scope of any potential waiver to be granted under this rule as well as the procedure which must be followed when applying for a waiver.

Scope of a Potential Waiver

Codified at N.J.A.C. 7:1B-1, et seq., the Waiver Rule cautions that it will be applied in only “limited circumstances” at the Department’s discretion. So as to not allow for “routine circumvention” of any environmental rule, any waiver granted by the Department must be crafted in such a manner that is “consistent with the core missions” of the Department. There are four (4) limited circumstances under which a waiver may be granted, as follows:

1)Where there are “conflicting rules;”

2)Where strict compliance with a rule would be “unduly burdensome;”

3)Where a “net environmental benefit” would be achieved as a result of a waiver; and

4)Where there is a “public emergency.”

With respect to the first circumstance, the term “conflicting rules” is defined as a situation where compliance with two different rules would be “impossible or impractical.” With respect to the second circumstance, the term “unduly burdensome” is defined as a situation where strict compliance with a rule would result in either “actual, exceptional hardship” or “excessive cost” in relation to an alternate measure of compliance. With respect to the third circumstance, “net environmental benefit” is defined as a situation where “the quantitative and qualitative benefit to a natural resource or other related environmental good for which the Department has responsibility would substantially outweigh any detriment to that natural resource or environmental good” which could result from the waiver. With respect to the fourth circumstance, “public emergency” is defined as a situation where a public emergency is officially declared.

At this time, it is somewhat challenging to foresee any situation where the application of a waiver could potentially be deemed appropriate. Although the Waiver Rule appears to have been drafted in such a way that gives the Department seemingly broad latitude and discretion within which to consider a waiver application, there are very few circumstances under which an application may be granted. Additionally, the Waiver Rule expressly prohibits a waiver from certain rules, including those rules which require a party responsible for contamination to post a remediation funding source. Needless to say, the rules will be interpreted and applied on a case-by-case basis but due to procedures which must be followed by both waiver applicants and the Department, the process is meant to be a transparent one, fostering an expectation of consistency.

The Process

Application: A party applying for a waiver must do so in accordance with any public notice requirements of the rule(s) from which the applicant seeks relief. Additionally, the Department is required to publish the notice in the DEP Bulletin, which can be accessed at http://www.state.nj.us/dep/bulletin/.

Evaluation: In the consideration of the waiver application, the Department is required to evaluate particular criteria as set forth in the Waiver Rule, including whether data sufficiently supports the waiver and whether the applicant “may have” directly caused or contributed to the circumstances that resulted in a rule being unduly burdensome.

Decision: Finally, although there is no timeframe within which the Department must respond to a waiver application, the Department is required to issue its response in writing. Applications will not be evaluated on a first come, first served basis but rather, the Department will determine the priority of each application and evaluate them accordingly. The decision must include certain information such as the basis for the decision and the conditions of any waiver that is granted. Notably, any condition(s) may be imposed on a waiver in order to protect public health and natural resources. Such conditions may include, but are not limited to, monitoring the environmental impacts of the waiver and implementing environmental offsets that are above and beyond any other requisite mitigation or offset. It should also be noted that a waiver may be revoked at the discretion of the Department for any noncompliance with a condition.

If you are interested in additional information regarding waivers, or if you need assistance navigating your way through any environmental laws, rules or regulations, contact Maraziti, Falcon & Healey, LLP at (973) 912-9008.

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