N.J. Proposes Easing Some Strict Compliance in Favor of Economic Growth

Used under limited circumstances, the rule would allow the Department of Environmental Protection to waive strict compliance when such action would not compromise the environment or public health.

New Jersey's Department of Environmental Protection has proposed a rule to enable it to remove unreasonable impediments to economic growth while ensuring net environmental benefit for the state. The action is in response to Gov. Chris Christie's Executive Order requiring "Common Sense Principles."

Developed through extensive consultation and meetings with environmental advocates, local government officials, and the business community, the rule would permit the department to waive strict compliance with regulations in certain limited circumstances that do not compromise protections for the environment or public health.

"This is an important tool that will benefit the environment and the state's economy,'' said DEP Commissioner Bob Martin. "One size doesn't always fit all in government. This offers a practical flexibility in allowing us to deal with issues.''

"We must understand that policies adopted in Trenton affect employers, job creators, local governments, and families throughout the state," added Commissioner Martin. "We have an opportunity to change how government operates in a positive way. We can cut through unnecessary red tape and provide real solutions to real-world problems, while maintaining our high protective standards."

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 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 on the waiver proposal is scheduled for 3 p.m. EST on April 14 in DEP's public hearing room at 401 East State St. in Trenton. Written comments may be submitted through May 6 to Gary J. Brower, Esq., ATTN: DEP Docket No. 03-11-02, NJDEP, Office of Legal Affairs, 4th Floor, PO Box 402, Trenton, NJ 08625-0402.

Source: New Jersey DEP

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