Last week, in a 54-page decision, a three-judge Superior Court of New Jersey, Appellate Division, upheld the New Jersey Department of Environmental Protection’s (NJDEP’s) Waiver Rule. In its decision, the Appellate Division did invalidate certain guidance documents on the NJDEP’s website indicating that these documents went “beyond merely facilitating administrative implementation of the rules, and actually, to some extent, announced new substantive requirements.” The Superior Court held that these guidance documents could not be imposed without following New Jersey Administrative Procedures Act, specifically the notice and comment procedures. However, the Court reasoned that the Waiver Rule contains sufficient details and adequate standards for NJDEP to implement without the guidance documents. A refresher on the Waiver Rule follows below.
Published in the April 2, 2012 New Jersey Register with requests accepted beginning August 1, 2012, the Waiver Rule allows the NJDEP to waive environmental regulations under the following four specific limited circumstances:
- Public Emergency — There is a public emergency that has been formally declared.
- Conflicting Rules — Conflicting rules (between federal and state agencies, or between state agencies) are adversely impacting a project or activity from proceeding.
- Net Environmental Benefit — A net environmental benefit would be achieved.
- Undue Hardship — Undue hardship is being imposed by the rule requirement(s).
However, the NJDEP shall not waive:
- A requirement of, or duty imposed by, a Federal or State statute or Federal regulation, unless that statute or regulation provides for such a waiver;
- A rule providing for 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 a Federal program;
- 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;
- A rule that is part of a collaborative program where the waiver would not be consistent with New Jersey’s participation in the multi-state or multi-jurisdiction program;
- A rule concerning the air emissions trading program;
- A rule providing for a numeric or narrative standard protective of human health;
- A rule concerning the designation of rare, threatened, or endangered status of any species of flora or fauna, or habitat for such species;
- A rule providing for a remediation funding source, claim or other reimbursement, grant, loan, or other financial assistance;
- A rule providing for a license, certification, or registration for a vehicle, boat, individual, or business;
- A rule providing for a license or approval for hunting, fishing, or trapping;
- A rule providing for public participation or notice;
- A rule providing for a fee, oversight cost, or other NJDEP costs; and
- Any provision of the Waiver Rule.