DEP Common Sense Waiver Rule Adopted

April 3, 2012

Author: William F. Harrison On April 2, 2012 the New Jersey Department of Environmental Protection (“DEP”) published the “Waiver of Department Rules” (“waiver rule”). The DEP adopted the waiver rule in response to Governor Christie’s Executive Order No. 2 that directed State agencies to implement “Common Sense Principles to energize and encourage a competitive economy to benefit businesses and ordinary citizens.”  DEP will not accept applications for waivers until August 1, 2012. On a case-by-case basis, the waiver rule allows the DEP to grant exemptions from strict compliance with its regulations when the applicant demonstrates that one or more of the following are present: (1) the waiver is necessary to respond to a declared public emergency; (2) conflicting rules (between Federal and State agencies) or between State agencies adversely impacting a project or preventing the project from proceeding; (3) a net environmental benefit would be achieved; or (4) undue hardship is being imposed by the rule requirement(s). The criteria contained in the rule for evaluating waiver requests are very general. Waivers will be acted on only following a case-by-case review and will require review by the Commissioner. There is no timeframe within which DEP must act on waiver requests and they will not be processed on a first come, first serve basis. DEP has committed to transparency in the process and will post all waiver rule applications and decisions on the DEP website.  Additionally, the DEP will review all waivers during the first six months the regulations are in effect for consistency and prioritize review of waiver rule requests after gauging the number and type of requests received after the August 1, 2012 implementation date. A coalition of environmental groups has filed a court action challenging DEP’s authority to adopt these rules. For more information contact William F. Harrison.