On Wednesday, March 9, 2011, the New Jersey Department of Environmental Protection (“DEP”) announced a rule proposal “to enable it to remove unreasonable impediments to economic growth while ensuring net environmental benefit for the state.”  The rule would permit the DEP to “waive strict compliance with regulations in certain limited circumstances that do not compromise protections for the environment or public health.”  The rule proposal is intended to respond to Governor Chris Christie’s Executive Order No. 2 that seeks to establish “Common Sense Principles” to govern New Jersey.

According to the DEP’s news release:

The DEP would consider a waiver application only if one or more of the following conditions exists:

• Conflicting rules – The requirement sought to be waived conflicts with another Department or other State or Federal agency rule
• Unduly burdensome – Strict application of a rule creates an exceptional and undue hardship (similar to criteria for local zoning variances), or where another method of compliance would have the same or better results but at a significantly lower cost
• Net environmental benefit – The environment would be enhanced by a project enabled by the waiver; mitigation would be allowed to be considered
• Public emergency – DEP must waive a rule to respond to an emergency

“This proposal would not allow waivers to be routinely or commonly granted,” said Commissioner Martin. “The application of any waiver must be site- and fact-specific. It cannot compromise protections for the environment or public health. In fact, most waivers will result in greater net environmental benefit for New Jersey.”

Under the rule, the DEP would consider whether a proposed waiver is consistent with the Department’s core mission; whether the waiver is consistent with the intent of any underlying statute; whether the site is a redevelopment or brownfield; and/or whether a net environmental benefit would be achieved by granting the waiver.

A waiver would not be granted in any case inconsistent with any State or Federal laws, regional air agreements, emissions trading programs, or health and safety standards. Permit fees also cannot be waived. The review process would be transparent: all applications to and approvals by DEP would be publicly noticed.

When promulgating its rules, the Department cannot anticipate every circumstance or personal hardship that may exist. The standards of each chapter are designed to capture nearly all situations that could come before the DEP. Strict compliance with a regulatory provision can, in some limited circumstances, lead to unreasonable, unfair and unintended results, which can adversely affect not only prospective applicants, but also the public and the environment.

A public hearing is scheduled for April 14, 2011 at 3 p.m. at the DEP’s public hearing room at 401 East State Street in Trenton.  Comments may be submitted up to and including May 6, 2011.

For a link to the proposed rule, click here.

For a link to the Star Ledger article regarding the proposed rule, click here.