03.22.2013Author: William F. Harrison, Esq. and Erin K. Phalon, Esq. View Article (pdf) The Appellate Division of the Superior Court of New Jersey on March 21, 2013 upheld the New Jersey Department of Environmental Protection (DEP)’s Waiver Rule, which took effect on August 1, 2012. A group of 28 environmental and labor organizations challenged the Waiver Rule, arguing that the Waiver Rule exceeded DEP's legislated authority and is invalid due to lack of adequate standards to guide the agency's discretion and implementation. They also challenged DEP's guidance documents and other postings on DEP's Waiver Rule web site as de facto rulemaking in violation of the Administrative Procedure Act (APA). The Appellate Division upheld DEP's authority to promulgate the Waiver Rule, finding that DEP has legislative authority to adopt department-wide regulations of general applicability to deal comprehensively with the sheer scope of overlapping statutory programs DEP administers and the volume of interconnected activities DEP must coordinate. The Court also stated that it views DEP’s authority to waive its own rules as implicit in the Legislature's delegation of broad rulemaking power to the DEP. In addition, the Court found that the rule contains adequate standards to guide DEP’s implementation and discretion. However, the Court found that the documents posted on DEP’s website, which explain the Waiver Rule and describe what DEP will require applicants to submit to receive a waiver, go beyond facilitating administrative implementation of the rules and announce new substantive requirements, which necessitates formal rulemaking. Unless the documents on DEP’s web site are adopted by rule, DEP cannot use these documents in reviewing applications. For full article text, please click above.