DEP waiver rule proposed

A new rule proposed by the Department of Environmental Protection this week would allow for a waiver of environmental policy under certain circumstances.

The proposal is the result of an executive order issued by Gov. Chris Christie last year requiring all state departments to come up with procedures for waivers.

According to the proposed DEP change, a waiver would be granted to “address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists.”

The proposal would allow the DEP to consider a waiver when one of the following four conditions exist:  If two or more Department rules, or a Department rule and the rule of another state agency or a federal agency, conflict so as to make compliance with both rules impossible; when an applicant asserts that strict compliance with a rule would impose exceptional hardship or excessive cost in relation to an alternative that achieves comparable or greater benefits; when the waiver could result in a net environmental benefit; and when a public emergency has been declared by a federal or state official.

Jeff Tittel of the N.J. Sierra Club said that he is not aware of DEP ever doing anything like this before.

“You could waive almost any one of two dozen rules,’’ he said. “This is a loophole big enough to drive a bulldozer through. It’s so overarching I can’t even fathom the limits of it.”

He said one option may be to eventually get the U.S. Environmental Protection Agency involved to block the DEP action because it is so wide-ranging.

However, DEP spokesman Larry Ragonese  said the proposal would provide some leeway from the “myriad of red tape,” and that it takes an approach more grounded in common sense. Some existing rules, he said, can get in the way of projects that could ultimately be rewarding in many aspects.

“Bureaucracy can be overwhelming and daunting,” Ragonese said. “The idea is to provide some flexibility and reasonableness to make decisions that would benefit the environment and the economy.”

He said all proposed waivers will be publicly posted and some could be subject to hearings. “It will be completely transparent,” he said. “All waivers are considered on by a case-by-case basis.”

There will be a hearing on the issue on April 14 at the DEP public hearing room, Ragonese said, and no waivers can be applied for just yet.

But environmentalists were steadfast in their opposition.

Dena Mottola Jaborska, executive director of Environment New Jersey,  called the DEP move a bad idea.

“It would create a formal loophole process that is asking for abuse,” Jaborska said.

“Supposedly burdensome regulations for developers are what helps protect our drinking water supplies.  The common sense move would be to let New Jersey’s environmental laws stand on their own, and not distribute ‘get-out-of-jail’ free cards.”

Ed Lloyd, an environmental law professor at Columbia University who works closely on the Garden State’s environmental issues, said there are causes for concern.

“Once you establish that mechanism, it opens the department for many requests for waivers,” he said. “I am concerned the department will not have the resources (to handle the requests) and the public health issues this can create. It creates uncertainly across the board.”

Assembly Environment Committee Chairman John F. McKeon, (D-27), Essex, said in a release that the DEP action opens the door to economic and environmental disaster.

“Clean water isn’t a luxury,” he said. “It’s a must, and our water quality deserves the best protections, not weak ones that open the door to pollution.’’

The New Jersey Business and Industry Association, an employer association group with a membership of 22,000 companies, supports  the measure.

Sara Bluhm, assistant vice president of Energy and Environmental Affairs for NJBIA, said the proposed waiver rule makes sense and is an example of Gov. Christie’s regulatory reform goals.

“It’s a recognition that not every rule is going to make sense in every case and the department (of Environmental Protection) should have a way to make exemptions where it makes sense,” Bluhm said. “We expect this to be used in a very limited way.”

DEP waiver rule proposed