NJDEP Adopts Waiver Rule – Waiver of Strict Compliance with NJDEP Rules Now a Possibility

On March 8, 2012, the New Jersey Department of Environmental Protection announced the adoption of its “Waiver Rule.”  As set forth in the NJDEP’s press release “strict compliance with rules can sometimes produce unreasonable, unfair or unintended results that may actually undermine, rather than advance, the” goal of the underlying environmental law. The Waiver Rule was first proposed in March 2011, and was subject to significant public comment.  The adoption document released by the NJDEP is 355 pages, and over 500 comments were received for the proposed rule.

In its formal rule adoption, the NJDEP further stated that “The Department of Environmental Protection is adopting new rules at N.J.A.C. 7:1B to establish the conditions and procedures for the Department to approve waivers from strict compliance with its rules where appropriate to address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists.”

The NJDEP will thus consider granting waivers where an applicant can demonstrate that one of these four conditions apply:

1. A public emergency has been formally declared;
2. There is a conflict between regulations that is adversely impacting a project or preventing an activity from proceeding;
3. A net environmental benefit would be achieved by granting a waiver; or
4. strict compliance would be unduly burdensome.

The NJDEP states that “there is no automatic right to a waiver. Waivers will be granted only on a case-by-case basis after careful review by technical staff and approval of the Commissioner. DEP will not compromise its core mission of protecting public health, safety and the environment, and will continue to make decisions based on science, facts, data and common sense.”

Please note that the NJDEP will not accept any requests for waivers under the Waiver Rule until August 1, 2012.

It seems likely to expect that one of the most sought-after waivers will be based upon a regulatory requirement being “unduly burdensome.”  The proposed rules defines “unduly burdensome” as a situation where strict regulatory compliance “would result in either:

1. Actual, exceptional hardship for a particular project or activity, or property; or
2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.”

How the Waiver Rule will be interpreted and applied in any specific case will remain uncertain until after August 1, 2012, when the NJDEP begins accepting applications for waivers.  Additionally, the Waiver Rule provides a list of regulatory requirements for which waivers will not be allowed.

At this time, anyone with a current or expected dispute with the NJDEP over the strict application of a regulatory requirement should begin to consider whether the Waiver Rule might apply to their specific situation.  If the Waiver Rule might provide some needed relief, you should review the Waiver Rule and its comments carefully and start laying the foundation for a waiver application.