NJDEP New Rule

The New Jersey Department of Environmental Protection (DEP) proposed a new rule to waive or eliminate strict compliance with DEP requirements in limited circumstances. The rule, referred to the “Waiver Rule” was published by the DEP in the New Jersey Register on March 7, 2011 and a copy is available on the DEP’s website:

According to the proposed rule, the DEP would only waive compliance when one of the following circumstances is present:

• Conflicting rules – The requirement sought to be waived conflicts with another Department or other State or Federal agency rule
• Unduly burdensome – ct application of a rule creates an exceptional and undue hardship (similar to criteria for local zoning variances), or where another meStrithod 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

The Waiver Rule also lists circumstances in which the DEP may not waive compliance with its rules. For example, under the proposed rule, the DEP cannot waive compliance with a rule concerning:

• 1. a specific requirement of, or a specific duty imposed by, a Federal or State statute or Federal regulation, unless that statute or regulation provides for such a waiver;
• 2. A Federally delegated, authorized, or assumed program where the waiver would not be consistent with New Jersey’s delegation, authorization, or assumption of authority pursuant to that Federal program;
• 3. A rule that implements a Federally enforceable program pursuant to a State Implementation Plan (SIP), as defined at N.J.A.C. 7:27-18.1;
• 4. Part of a collaborative program involving multiple states or jurisdictions where the waiver would not be consistent with New Jersey’s participation in the multi-state or multi-jurisdiction program;
• 5. The air emissions trading program;
• 6. Numeric or narrative standards protective of human health;
• 7. The designation of rare, threatened, or endangered status of any species of flora or fauna, or habitat for such species;
• 8. A remediation funding source, claim or other reimbursement, grant, loan, or other financial assistance;
• 9. A license, certification, or registration for a vehicle, boat, individual, or business;
• 10. A license or approval for hunting, fishing, or trapping;
• 11. Public participation or notice; or
• 12. A fee, oversight cost, and other Department cost.

To read more about the Waiver Rule, please visit the New Jersey government website.