Democratic Lawmakers Block Controversial DEP Waiver Rule

Environmental agency seeks to suspend rules its deems 'unduly burdensome' to specific projects

In a straight party line vote, Democrats lawmakers yesterday narrowly approved a resolution declaring that a controversial proposal that would allow the Department of Environmental Protection to waive its rules in limited cases in which the regulations prove “unduly burdensome” as inconsistent with legislative intent.

The resolution (ACR-206) is in reaction to a rule awaiting adoption by the DEP that is viewed by business lobbyists and the Christie administration as making New Jersey more business friendly. It has been opposed, however, by environmental groups who argue that it undermines regulations aimed at protecting drinking water and air quality.

“While the regulation does not guarantee mischief, it certainly provides an opportunity for mischief,” said David Pringle, campaign director of the New Jersey Environmental Federation, echoing an argument made by other opponents of the waiver rule. They fear that politically connected developers and others seeking permits before the agency could push their projects to the detriment of the environment.

The vote to declare the yet-to-be-adopted rule as inconsistent with legislative intent was approved by the three Democrats on the Assembly Regulatory Oversight and Gaming Committee, with the pair of Republicans voting no. With the current legislative session scheduled to end early next January, the resolution’s prospects of winning final legislative approval are uncertain.

Assemblyman John Burchichelli (D-Gloucester), the chairman of the committee, was less concerned with the proposed rule’s environmental issues than with a question of who should have the authority to issue a so-called umbrella waiver of regulations: the DEP or the legislature? “The question is whether it’s within their purview to do it,” he said.

But Kate Millsaps, speaking for the New Jersey Sierra Club, argued that neither the legislature nor the DEP should have the authority to issue a blanket waiver of rules aimed at protecting the environment. “It’s a lose/lose situation for everyone,” she told lawmakers.

But business lobbyists argued that the legislature should allow the proposed rule to go forward, saying it is designed to be used only in cases in which the regulations prove unduly burdensome or conflict with other rules.

Diane Walsh, a vice president of the Commerce and Industry Association, argued that the proposed waiver rule does not allow the DEP to stray from its core mission of protecting the environment.

The agency would be allowed to consider a possible waiver of a regulation only if it met one of four special conditions: if it conflicted with other state or federal rules; if it were unduly burdensome; if there would be a “net environmental benefit,” or if there were a public emergency

According to the state, however, a waiver would not be granted in any case inconsistent with any New Jersey or federal laws, regional air agreements, emissions-trading programs, or health and safety standards. Permit fees also cannot be waived. The review process would be transparent: All applications to and approvals by the DEP would be disclosed to the public.

That provision failed to sway sponsors of the legislation. “This is an attempt by the department to completely circumvent a great deal of the environmental protections we have put in place to protect the people of this state,” said Assemblyman John McKeon (D-Essex), a co-sponsor. “This is a classic example of this administration acting without regard for the laws of this state, a pattern we’ve seen repeatedly over the last two years.”

The measure approved yesterday would give the DEP Commissioner 30 days from the date of transmittal of the resolution to amend or withdraw the proposed rules and regulations. Alternatively, the legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.