Assembly Committee Bans Guidance Documents

DEP is primary target of prohibition

Lawmakers today took steps to rein in the ability of state agencies to enforce their rules and regulations through guidance documents, a step advocates argued would improve the business climate in New Jersey.

Guidance documents are developed by various state agencies to help clarify technical rules and regulations. For instance, the New Jersey Department of Environmental Protection (DEP) developed a guidance document for newly licensed professionals who are overseeing the cleanup of toxic waste sites.

The Assembly Regulatory Oversight Committee unanimously adopted a bill to prohibit the use of regulatory guidance documents unless specifically authorized by state law. The bill applies to any state agency, but all of the testimony and discussion focused on the DEP, which relies on dozens of guidance documents to help enforce its major rules.

The action by the committee, recently reconstituted by the Democratic leadership in the Legislature, drew strong criticism from environmental advocates who argued it could undermine public health and environmental protections.

“There is need for discretion,” said Bill Wolfe, of New Jersey Public Employees for Environmental Responsibility (PEER), an employee watchdog group and former DEP manager, who feared the bill might handcuff the agency in protecting public health. “It may take away the current enforcement discretion of the department, which would be bad.”

Preventing a ‘Shadowy Regulatory Process’

But Assemblyman John Burzichelli (D-Gloucester), the chairman of the committee, disputed assertions the committee was trying to weaken the agency’s ability to protect the environment. “We’re trying to make certain after rulemaking occurs, there isn’t a shadow regulatory process occurring.”

Business lobbyists called the action long overdue.

“The manufacturing sector is being strangled to death,” said Hal Bozarth, a lobbyist for the Chemistry Council of New Jersey, who said in the last seven years employment in his sector fell from 80,0000 to 63,000 “and fading fast.”

Neil Yoskin, an environmental attorney, said the bill puts in place a system to protect the public “from capricious decision-making,’’ although he conceded the issue cuts both ways in that guidance documents sometimes provide useful and necessary direction to the regulated community.

Overall, however, the use of guidance documents by the DEP has become an increasing source of criticism from the business community. Gov. Chris Christie’s transition report on the DEP also faulted use of them.

After the vote on the bill, the committee also heard testimony on whether New Jersey ought to adopt tougher standards than those the federal government establishes, an issue the Christie administration raised in an executive order issued by the Governor shortly after taking office. Burzichelli said the committee will likely take up legislation on the issue.

“This is the first step of what will be many steps to make order out of the chaos that is New Jersey’s bureaucratic nightmare of rules and regulations,’’ he said. “Our tangled web of regulations may mean well, but they’ve largely done nothing more than stunt economic growth and hurt our business environment.”

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