DEP’s waiver rule: 6 applications in early going

TRENTON – It’s been two weeks since the waiver rule went into effect at the state Department of Environmental Protection, and thus far, it has received only six applications.

Of those, five were deemed “serious” enough that they would continue to move through the review process. Of those five, two of the waiver applications were deemed completed and would be considered for further review. Two others were still being processed. And one was rejected for insufficient information.

The one that was considered not serious was an application by David Pringle of the Environmental Federation, which has been critical of the waiver rule.

Officials said the department wasn’t expecting a specific number of applications within a certain time period. Because it’s a new program, there really wasn’t anything to base it on.

“We haven’t gotten a lot of applications,” said DEP spokesman Larry Ragonese. “It’s been relatively slow. It’s a process we’re working through.”

The waiver concept has gladdened business interests who see it as a way to address regulations that sometimes are contradictory and overly time-consuming and expensive.

Environmentalists, on the other hand, decry it as an assault on clean air and water.

These past couple of weeks have shown the program’s application process is a work in progress. The department wants applicants to make sure the narratives they fill out are coherent.

“We want to make sure they put it in understandable English,” said Ragonese. “In a couple of days people will be able to attach electronic documents.”

Once a committee from the division involved – land use, water, natural resources – decides on the merits of the application, it then goes to Commissioner Bob Martin for a final decision.

The waiver rule is a mechanism that allows applicants to get some relief from certain rules that are preventing projects from moving forward, similar to how zoning boards grant variances. The DEP will take into consideration whether there’s a net benefit and whether granting the waiver creates an undue hardship.

“We believe it is a common sense proposal to make government work better for the people,” Ragonese said.

However, environmental groups have cried foul, saying that granting waivers could lead to overdevelopment, damaged water quality and cronyism.

“We are concerned that these waivers will be granted behind closed doors to special interests and the public will not only not know what is happening but will feel the impacts of more pollution, sprawl, and flooding.  We are turning the DEP into the Department of Excessive Pollution,” said Jeff Tittel, executive director of the New Jersey Sierra Club, in a recent statement.

On Monday, Rutgers University scientist Michael Kennish, who produced a report about the deteriorating condition of Barnegat Bay that he said stemmed from overdevelopment and fertilizer runoff, said the waiver rule could exacerbate the problem since it could open up development in sensitive areas.

Ragonese said the committee hearings in which the applications will be reviewed before going to Martin’s desk are not open to the public, which is what environmentalists complained about, that the process is not transparent.

However, Ragonese disagreed that the waiver rule opens up development on such a broad scale as environmentalists claim.

“We can’t violate state or federal laws that would impact public health,” he said. “There are plenty of protections in place.  This is not a master planning tool.”

As an example of the type of application DEP has received so far, one applicant, the ARC Machine Company, is requesting a waiver from the DEP’s Residential Direct Contact Soil Cleanup rules for a tract of floodplain property it owns near the Passaic River.

The applicant suggested that instead of having to remove 2 feet of contaminated soil as part of a remediation, and then backfilling it with certified soil, the applicant suggested putting a two-inch layer of top over the exposed area that would create a barrier of sorts. Taking that step would cost between $35,000 and $50,000, where as the first, more involved process called for by the DEP’s Technical Regulations would cost some $300,000.

The applicant described the suggested alternative as “the most practical and cost-effective.

“This proposed remedial measure will keep the property viable and productive in an area that is in need of economic revitalization,” the application reads.

DEP’s waiver rule: 6 applications in early going