On March 8, 2012, the New Jersey Department of Environmental Protection (DEP) adopted the long awaited "Waiver Rule", allowing the agency to grant waivers of DEP rules in certain circumstances. The Waiver Rule was first proposed on March 7, 2011 in response to an executive order from Governor Chris Christie which directed all State agencies to follow "Common Sense Principles" and adopt rules to allow for waivers from strict compliance with agency regulations. In the rule proposal, the DEP recognized that, in certain circumstances, "strict compliance with a rule or provision of a rule can lead to an unreasonable, unfair or unintended result, which can adversely affect a prospective applicant, the public and/or the environment." On the other hand, the DEP emphasized that it does not intend the Waiver Rule to be used "repeatedly or for multiple persons such that use of a waiver would become a way to routinely avoid compliance with" a rule.

Any one of the following four conditions must be present in order to qualify for a waiver from a DEP rule:

  • Two or more DEP rules, or a DEP rule and the rule of another State or federal agency, conflict so as to make compliance with both impossible or impracticable;
  • Strict compliance with a rule would be unduly burdensome;
  • A net environmental benefit would result from the waiver; or
  • A public emergency exists.

"Unduly burdensome" means that strict compliance with a specific DEP rule would result in either:

  • Actual, exceptional hardship for a particular project or activity or property; or
  • Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

There are certain rules that cannot be waived, such as any requirement of a State or federal statute, rules providing for a federally delegated or assumed program where the waiver would not be consistent with the State's delegation, authorization or assumption of authority for that program, numeric or narrative standards protective of human health and rules providing for public notice.

The DEP is never under any obligation to grant a waiver. In determining whether to grant a waiver, the DEP will consider, among other things:

  • Whether the public has had sufficient notice of the request for the waiver;
  • The circumstances that lead to the need for the waiver;
  • Whether the applicant seeking the waiver contributed to the circumstances that caused a rule to be unduly burdensome; and
  • Whether the waiver will spur the development of a contaminated site.

The DEP must publish all determinations to consider a waiver and its decision on each waiver in the DEP Bulletin or on its website. It is important to note that the DEP is delaying the effective date of the Waiver Rule until August 1, 2012, "to allow time to put in place the electronic system the Department is developing for waiver requests and posting waiver information, which will facilitate the timely processing of waivers."

In the meantime, the regulated community, including developers who have run into a DEP roadblock, should begin to consider whether their projects or operations will meet the criteria to qualify for a waiver.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.