Transcript DEP Waiver of Department Rules (N.J.A.C. 7:1B)

“Waiver
Rule” and DEP Goals
Update
As of August 1, 2012 the Waiver Rule is operative
Last Updated: October 12, 2012
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What is the issue?
• 40 years of State statutes and amendments
• 40 years of State rules and rule revisions
developed under multiple administrations
• New statutes and rules every year
• Limited ability and time to evaluate all
these laws/rules and Federal laws/rules to
reconcile conflicts
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DEP is committed to….
• Maintaining the Department’s Mission
• A transparent and public process
• Training for DEP staff to ensure consistency
• Outreach to the public
• Assistant Commissioner review of all waiver decisions
• Commissioner review of all waiver decisions during initial
implementation
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Important Reminders
• Waivers will be approved in limited circumstances
• Applicants should exhaust all other options first
• Waivers apply to rule requirements
• Waivers do not apply to permit conditions or
enforcement actions
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Important Information
• There is no time frame for the Department to act on a
waiver request
• Waiver requests will not be processed on a first-come,
first-served basis – waivers will be prioritized
• Prioritization and timeframe may be linked with the
number of requests received by the program
• No “Do-Loops” between applicants and DEP
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Waiver Application Steps
1. Basis for a Waiver
2. Restrictions
3. Evaluation Criteria
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Step 1 - Basis for a Waiver:
(Must Meet at Least 1 of 4)
1. Conflict with another DEP, State or Federal agency rule
2. Be unduly burdensome
3. Net environmental benefit
4. Declared public emergency
See Guidance Manual
Available online: www.nj.gov/dep/waiverrule
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Step 1 - Basis for a Waiver:
(Must Meet at Least 1 of 4)
1. Conflict with another DEP, State or Federal agency rule
•
It is impossible or impracticable to simultaneously comply with
two or more rules
•
Applicant should provide information detailing the conflict
2. Be unduly burdensome
•
Actual, exceptional hardship, OR
•
Excessive cost in relation to alternative measure of compliance
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Step 1 - Basis for a Waiver:
(Must Meet at Least 1 of 4)
3. Net environmental benefit
•
Adequate resource and geographic nexus
•
Mitigation must go beyond what is required in the rule
4. Declared public emergency
•
•
Federal or state official
Waiver request should be limited to within the scope of the
emergency
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Step 2 – Restrictions on Waiver
Requests
The Department cannot grant a waiver for…
1. Requirements or duties imposed by State or Federal
statute or Federal rule
2. Rule provisions that are directly tied to specific Federal
requirements for Federally delegated, authorized or
assumed programs
3. A rule that implements a Federally enforceable program
pursuant to a State Implementation Plan (SIP)
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Step 2 – Restrictions on Waiver
Requests
The Department cannot grant a waiver for…
4. The waiver would not be consistent with New Jersey's
participation in a multi-state or multi-jurisdiction program
5. The air emissions trading program
6. A numeric or narrative standard protective of human
health
7. The designation of rare, threatened, or endangered
status of any species or habitat
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Step 2 – Restrictions on Waiver
Requests
The Department cannot grant a waiver for…
8. A rule for a remediation funding source, claim, grant,
loan or financial assistance
9. A rule for license, certification, or registration for a
vehicle, boat, individual, or business
10. A rule providing for a license or approval for hunting,
fishing, or trapping
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Step 2 – Restrictions on Waiver
Applications
The Department cannot grant a waiver for…
11. A rule providing for public participation, or for notice
to interested parties or the public
12. A rule providing for a fee, oversight cost, and/or other
Department cost
13. Any provision of this waiver rule
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Step 3 - Evaluation Criteria
The DEP considers:
1. The public has sufficient notice in accordance with
applicable rules
2. The DEP has been provided with sufficient
information and data to support a waiver
3. There are circumstances that support the need for a
waiver
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Step 3 - Evaluation Criteria
The DEP considers:
4. There is a net environmental benefit on the remediation
and redevelopment of a contaminated site
5. The person seeking the waiver may have directly
caused or contributed to the circumstances resulting in
the rule being unduly burdensome
6. The waiver would be consistent with DEP’s core
missions
7. The waiver would result in a reasonable and effective
response to a public emergency
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Since August 1st
• 13 requests received (4 are resubmittals)
• 8 forwarded to appropriate WCT
• 5 rejected as incomplete
• lack of public notice (2)
• lack of justification (3)
• Sites or circumstances historically known to the Department
• Mostly Land Use and Site Remediation Program matters, one
Water Issue
• Unduly Burdensome – most common basis
Last updated: October 11, 2012
Requests General Remarks
• Public Notice
• Need proof of pubic notice consistent with rules which
applicant is requesting a waiver
• Narrative Description
• Accurate and concise narrative description
• No “see attached”
DEP’s Waiver Process
Application reviewed
and accepted as
complete by PCER
Post
waiver
request
Decision to approve/deny
waiver is reviewed by:
Forward to AC Waiver
Consistency Team(s)
1) AC Waiver Consist. Team
2) Assistant Commissioner
Is waiver
prohibited (13)?
No
Program
reviews request
Commissioner reviews
waiver approval/denial
Yes
= Public Notice
= Review/approval process
Issue/Post waiver
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approval/denial
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Litigation
• Rule challenged by 28 environmental
and labor organizations (In re
Adoption of N.J.A.C. 7:1B, Docket No.
A-3514-11T2)
• Appellants argue:
1) No Legislative authority
2) No standards, criteria or
safeguards to confine discretion
3) DEP guidance on website
amounts to rule-making that
must be adopted through APA
process
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Litigation
• The Attorney General’s response:
1) DEP is entitled to substantial
deference because the rule derives
from the Legislature’s broad grant of
power to DEP
2) Rule falls within DEP’s expressed
and implied authority
3) Rule has adequate standards and
properly guides DEP discretion
4) Additional Internal procedures
ensure consistency and encourages
complete waiver submissions
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DEP Goals - The Next Generation of
Environmental Management
• The five goals will ensure the Department looks across all
programs and media in a comprehensive regional approach
to achieve results valued by the residents and shaped by the
characteristics of each region of the state.
• Goal 1 – Comprehensive Regional Environmental
Management
• Goal 2 – Barnegat Bay Restoration
• Goal 3 – Overburdened Communities
• Goal 4 – Sustainable Parks
• Goal 5 – A Clean and Renewable Energy Strategy
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Goal 1 – Comprehensive Regional
Environmental Management
• Alignment of planning, regulatory, enforcement, and
property acquisition programs to ensure the Department
successfully implements a more comprehensive
environmental approach that supports our environmental
mission, the State Strategic Plan, community concerns
and recognizes a commitment to vibrant regions.
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Goal 2 – Barnegat Bay Restoration
• Utilize Barnegat Bay Restoration Project as a model to
establish watershed based protection and enhancement of
all New Jersey’s surface water bodies
• Implement Governor’s Ten Point Comprehensive Plan of
Action for Barnegat Bay; expand this plan as we discover
new issues and solutions so as to address water quality
concerns specific to impacted surface water bodies
throughout the State.
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Goal 3 – Restoration and Enhanced Protection
in Environmentally Overburdened Communities
• Develop a new paradigm for the protection of communities
overburdened by environmental stresses through a
multimedia approach focusing on human health and the
environmental impacts
• Ensure that we work in concert to address issues related to
air, water, preservation, acquisition, and affordable access to
parks.
• Continued development and utilization of the Cumulative
Impact Method.
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Goal 4 – Sustainable Parks
• Establish a financially viable and stable system with
dedicated funding sources that sustain our Parks with
minimal General Fund reliance.
• Expand mission appropriate amenities to enhance visitor
experience and generate additional revenue.
• Partner with organizations and entities to improve
programming and enhance public services.
• Establish new directions in strategy, funding and revenue to
ensure all parks remain open.
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Goal 5 –Clean and Renewable Energy Strategy
• Accelerate the transition to a clean energy economy.
• Promote a diverse portfolio of new, clean, in-State generation.
• Capitalize on emerging technologies for transportation and
power production; encourage the creation and expansion of
clean energy solutions.
• Adopt siting policies that minimize impacts to land, water,
wildlife and sensitive habitats. Align state incentives to those
siting policies.
• Coordinate with other state agencies to ensure consistent
renewable energy policies throughout state government,
including alignment with the Energy Master Plan and the State
Strategic Plan.
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Questions?
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