Despite Dire Predictions, DEP Holds Line on Environmental Waivers

Tom Johnson | October 21, 2013 | Energy & Environment
Department grants no new waivers, even though new rule gives it broader powers to do just that

In the 14 months since a much-contested rule took effect, not a single request to waive environmental regulations under certain, limited circumstances has been granted by the state Department of Environmental Protection.

The regulation, adopted over bitter protests from environmental organizations and Democratic lawmakers, went into effect August 2012. But apparently it has had no discernible impact on how New Jersey’s tough environmental regulations are enforced, as critics had warned.

Despite scores of applications from developers and others to waive rules governing land use, site remediation, and water supply and quality, none have been approved by the agency. The DEP has denied seven requests and rejected another 16 as incomplete; four have been withdrawn; another 15 are still under review, according to information on the department’s website.

Most of the applications involved land-use waivers and came from more than a dozen counties, ranging from Salem County at the tip of New Jersey to Sussex.

One of the first applicants sought to be relieved of the technical requirements involving cleanup of contaminated sites. The waiver was denied by the agency, saying it failed to meet any of the four conditions for an exemption.

The rule allows the agency to waive up to 86 environmental regulations if the project meets one of four conditions: if the regulations that apply conflict with other state and federal rules; if adhering to the regulations is unduly burdensome; if the project delivers a net environmental benefit; or if there is a public emergency.

The rule became representative of the battle between the Christie administration’s push to loosen regulations that hamper economic development and environmentalists’ efforts to block attempts they say may weaken New Jersey’s strong pollution and land-use laws.

Proponents of the rule argued the agency’s recent history in dealing with waiver requests demonstrates the regulation would be applied rarely, and not weaken environmental regulations.

“As we’ve said time and again, the process was designed to provide opportunities under very specific conditions to help people when conflicting red tape creates bona fide problems, while maintaining our high protective standards,’’ said Larry Hajna, a DEP spokesman.

“Certain environmental advocates claimed the sky would fall when we adopted this rule. The sky did not fall. The rule was designed to be used in very limited circumstance and under specific criteria and that is how things are turning out,’’ he said.

Critics of the rule note that while no waivers have been granted, the DEP has exempted scores of projects along the Jersey Shore from environmental regulations without any review, in order to spur rebuilding.

“They’ve waived all the permits for rebuilding along the coast,’’ argued Jeff Tittel, director of the New Jersey Sierra Club, saying it may have contributed to fewer waiver requests being submitted to the DEP.

In any event, the waiver rule might still face legal scrutiny. A state appeals court upheld the regulation, which was challenged by more than two dozen environmental organizations in a rare display of unity in an area often fractured by deep divisions.

In challenging the rule in state appeals court, the environmental groups did not contest the use of waivers in emergency cases.

Besides the legal challenge, the waiver rule was opposed by Democratic lawmakers. A bill to overturn the regulation was passed by the Assembly but failed to be posted in the state Senate.

The regulation was one of the first initiatives of the Christie Administration to cut red tape, emerging in the early days of its tenure, spurred by an executive order issued by the governor at the time.

The case reflects a rare instance when business interests are supporting the environmental agency while environmental organizations, traditional allies of the DEP, are protesting its actions.