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New Jersey Department of Environmental Protection Adopts Waiver Rule

March 14, 2012

The New Jersey Department of Environmental Protection (“DEP”) has adopted a new waiver rule that places common sense principles above strict compliance with rigid regulatory rules that do not advance the policy goals of the DEP. The new rule was adopted in response to Governor Christie’s Executive Order No. 2, which directs state agencies to implement common sense principles of government reform.

The waiver will only apply to certain limited circumstances where relief from strict compliance with a rule or regulation will not compromise protections for the environment or public health. The purpose of the waiver rule is to provide DEP with a mechanism to utilize when strict compliance with a rule or requirement would produce an unreasonable, unfair or unintended result that undermines its intended purpose.

DEP is currently developing a transparent and consistent process for handling waiver requests. DEP will start accepting applications for waiver on August 2, 2012. The applications will be not be processed on a first come, first serve basis, and no timeframe will be imposed on DEP to respond to any application.

The waiver rule does not provide an automatic right to a waiver. Waivers will only be granted on a case-by-case basis after a thorough review by the technical staff and approval of the DEP Commissioner. Furthermore, DEP will not compromise its core mission of protecting public health, safety and the environment. In order to apply for a waiver, a requester must demonstrate one of the following: 1) there is a public emergency that has been formally declared; 2) conflicting rules (between federal and state agencies, or between state agencies) are adversely affecting a project or activity from proceeding; 3) a net environmental benefit would be achieved; or 4) undue hardship is being imposed by the rule requirement(s).

If you have a project or activity that may be a victim of unreasonable or strict adherence to rules, we would be happy to discuss the applicability of the waiver rule to your situation.

For more information, please contact:

Dennis M. Toft
Member of the Firm
Phone (973) 530-2014
dtoft@wolffsamson.com

Robert H. Crespi
Member of the Firm
Phone (973) 530-2060
rcrespi@wolffsamson.com

Todd W. Terhune
Counsel
Phone (973) 530-2091
tterhune@wolffsamson.com

Keith E. Morris
Associate
Phone (973) 530-2107
kmorris@wolffsamson.com