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    DEP Begins Implementation of "Waiver Rule"

    September 28, 2012

    On August 1, 2012, DEP began implementing the long-anticipated "waiver rule," which allows DEP to relax or waive strict compliance with its regulations in four narrowly circumscribed situations:

    • Conflicting rules: Situations where DEP's rules conflict internally, or conflict with other state or federal agency rules, making compliance impossible or impracticable.

    • Undue burden: Situations where strict rule compliance would result in either (a) "[a]ctual, exceptional hardship for a particular project or activity, or a property", or (b) "[e]xcessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety for the environment."

    • Net environmental benefit: Cases in which waiver of a rule would result in a quantitative or qualitative benefit to a natural resource, or have some other related environmental good, that would substantially outweigh any detriment to the resource or environmental good.

    • Public emergency: Situations where waiver would ensure protection of public health, safety, and welfare and the environment in the event of a declared public emergency.

    Even in these situations, waivers are flatly prohibited in situations where the waiver would be inconsistent with the requirements of a federally delegated program, where the rule contains numeric or narrative standards protective of human health, and in several other situations.

    Despite the narrow scope of the waiver rule, the rule has been vilified by environmental groups, which claim the rule will eviscerate environmental regulatory programs. There have been efforts in the Legislature to derail the rule and the rule is the subject of a pending court challenge. Yet preliminary indications from the first several weeks in which the rule has been in effect suggest that, just as the rule provides, DEP will only grant waivers in limited circumstances, and will not allow for the routine circumvention of any of its rules.

    Fulfilling its promise of transparency and public notice, waiver applications are prominently posted on DEP's website. It does not appear that DEP will be overburdened with an excessive number of waiver requests. In the initial weeks the rule has been effect, the website reports on thirteen waiver requests. DEP reports that five of the initial applications were rejected while eight have been accepted for review. Of the five rejected applications, two were resubmitted and accepted for review, while two others involve the same project. Also, of the eight applications DEP reports as accepted for review, two seek the same relief for the same project. The net effect is nine discreet waiver requests, of which seven have been accepted for review and two remain rejected as incomplete. The website states that as of September 27, 2012, none of these waiver requests have been granted on their merits.

    Three of the five rejections were for failure to document that the requisite public notice was provided. This suggests DEP will live up to its commitment to provide transparency and assure public notice. The other two rejections were for failure to provide sufficient supporting information.

    What does the initial experience tell us about the types of situations in which waivers are likely to be sought? Of the seven waiver requests accepted for review, six involve DEP's Land Use program, and one involves the Site Remediation program. Five of the six Land Use waiver requests accepted for review involve the Coastal Zone Management rules, N.J.A.C. 7:7E. The sixth involves the Flood Hazard Area rules. One of the two applications that remain rejected as incomplete also involves the Land Use program, seeking waiver of the Flood Hazard Area rules.

    The one waiver request accepted for review that arises from the Site Remediation program also has a Land Use tie-in. The application involves an industrial site in the flood plain of the Passaic River, and seeks relief from the remedial action selection requirements of N.J.A.C. 7:26E-5 citing a conflict with the Flood Hazard Area rules, and asserting it would be unduly burdensome to require strict compliance with the Site Remediation rules.

    Five of the six Land Use waiver requests accepted for review seek a waiver based on the undue burden waiver criteria. Four of these claim exceptional hardship, one of which claims it qualifies under the net environmental benefit criteria as well. The fifth seeks a waiver under the excessive cost prong of the undue burden criteria. The sixth Land Use waiver request accepted for review relies solely on the net environmental benefit provision. Similarly, the two waiver requests that remain rejected as incomplete both asserted an undue burden, although one also claims public emergency.

    If these early trends are any indication, DEP is unlikely to be overwhelmed with waiver requests. Most waiver requests may involve DEP's Land Use program, with the Coastal Zone Management rules and the Flood Hazard Area rules leading the charge. Waivers are likely to be sought on various bases, notably undue burden, as well as conflict in rules, net environment benefit, and public emergency.

    For more insight into this and other issues pertaining to environmental law, please visit our Environmental Law Blog.

    Tags: Paul Schneider, Environmental Law

    Posted in: Environmental - Land Use