Howard Davis P.C.

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New Jersey Department of Environmental Protection Adopts Waiver Rule

March 7, 2012

New Jersey Department of Environmental Protection Adopts Waiver Rule

DEP’s Waiver Rule was signed March 7, 2012 and will become effective on August 1, 2012. The Waiver Rule allows parties to request a waiver from strict compliance with any of the Department’s rules.

Parties may apply for a waiver on or after August 1, 2012, if at least one of the following four criteria is met:

  1. conflicting rules (for example, between Federal and State agencies or between State agencies);
  2. strict compliance with the rule would be unduly burdensome;
  3. a net environmental benefit; or
  4. a public emergency.

The Waiver Rule may be a useful tool for property owners and other responsible parties that find themselves unable to strictly comply with DEP rules.

For example, a responsible party that seeks to remediate contaminated soils near a stream using a protective cap in accordance with the site remediation rules (including the Technical Requirements for Site Remediation, N.J.S.A. 13:1D et seq.) may have difficulty doing so due to various land use rules, such as stream-encroachment rules. Obtaining a waiver from compliance with the conflicting rule may allow the remediation to proceed in a more cost-efficient manner.

As another example - A responsible party facing financial hardship is obligated to remediate, the cost of which is substantial. The party may be able to obtain a waiver if an undue burden can be shown. The Waiver Rule defines “unduly burdensome” as a situation in which strict compliance with a specific rule would result in either (i) actual, exceptional hardship for a particular project, activity, or property; or (ii) excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

Responsible parties can also seek a Waiver by showing a “net environmental benefit.” Parties may be able to prove that the benefit to the environment is outweighed by any detriment to the environment that may result from the waiver.

The DEP has advised that there is no automatic right to a waiver, that waivers will be granted on a case-by-case basis, and that there is no timeframe within which the DEP must act on waiver requests.