Businesses or individuals with current or anticipated disputes with the N.J. Department of Environmental Protection over the strict application of a regulatory requirement should consider whether the waiver rule might apply to their situation.
The New Jersey Department of Environmental Protection (NJDEP) will begin accepting waiver rule applications on August 1, 2012. According to NJDEP Commissioner Bob Martin, "This rule provides us with a modest measure of flexibility to manage special circumstances but through a process that will be used under limited circumstances and with total transparency."
In one of his first official acts, New Jersey Governor Chris Christie issued Executive Order #2 establishing a "waiver rule" that could be applied to certain environmental regulations enforced by NJDEP. The waiver rule allows NJDEP to grant exemptions if:
- the rule conflicts with another NJDEP rule or a rule of another state or federal agency in a way that makes compliance with both rules impossible or impracticable;
- strict compliance with the rule would result in actual and exceptional hardship or excessive cost where there is a cheaper alternative that is as or more protective of the public or the environment;
- there will be, despite the waiver, a net protection of the natural resource or other environmental good being waived; or
- an authorized federal or state official declares a public emergency justifying the waiver.
This rule would likely provide needed relief from technical "catch-22s" that have led to protracted and expensive development delays, even where every effort has been undertaken to comply with NJDEP's often-inconsistent maze of rules.
Businesses or individuals with current or anticipated disputes with NJDEP over the strict application of a regulatory requirement should consider whether the waiver rule might apply to their situation.
For Further Information
If you have any questions about this Alert, please contact Harvey C. Johnson, any of the attorneys in our Real Estate Practice Group, any of the attorneys in our Environmental Practice Group or the attorney in the firm with whom you are regularly in contact.
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