May 2, 2011
Mr. Gary J. Bower, Esq.
Attn: DEP Docket No. 02-11-01
Office of Legal Affairs
Department of Environmental Protection
401 East State Street
P.O. Box 401, Floor 4
Trenton, NJ 08625-0402
Re: Proposed N.J.A.C. 7:1B, Waiver of Department Rules
Dear Mr. Bower:
I am writing to express the Chamber of Commerce Southern New Jersey’s support of and comment upon the proposed new N.J.A.C. 7:1B, Waiver of Department Rules.
The Chamber fully agrees with the core premise of these proposed rules, namely that there exist certain limited circumstances under which strict compliance with a Department rule or provision of a rule can lead to unreasonable, unfair or unintended results with attendant adverse impacts. What has been lacking is a comprehensive mechanism within the rules to provide the Department with the flexibility to prevent or minimize these adverse impacts in a reasoned and rigorous fashion, without sacrificing the environmental and public health protections to which all citizens of New Jersey are entitled.
Obviously, it is impossible for the Department to anticipate in advance all of the potential consequences of any particular rulemaking. A well crafted waiver mechanism can alleviate sometimes extreme adverse economic consequences associated with strict compliance with Department rules. Further, a uniform waiver rule, applicable across all Department programs (as opposed to adopting a separate waiver rule for each program), adds consistency and imparts a greater degree of certainty to Department decision-making on waivers.
The Department has struck an appropriate balance in this proposal by: (1) carefully defining the limited circumstances in which waivers will be permitted and describing a specific categories of rules that may not be waived; (2) affording transparency through a public notice process before any Department action will be taken on a waiver request; and (3) requiring that any waiver decision be fully documented, supported in writing and conditioned as necessary to maintain, protect and enhance New Jersey’s natural resources and protect the public health, welfare and the environment.
We also believe that the provisions of the proposed waiver rule offer the benefit of encouraging the development of innovative compliance measures leading to equivalent or greater environmental protection at lesser cost. Where these measures are shown to be more generally applicable, the Department may choose in the future to amend the rulemaking to which the waiver applies so that others can more readily take advantage of the innovations.
We do not see the potential for abuse cited by the proposal’s critics. As noted above, the proposal expressly states that waivers will be granted in limited circumstances and the criteria for granting a waiver set a high burden on the party seeking the waiver to demonstrate that it is appropriate and that environmental protection will not suffer. Other criteria further limit the Department’s discretion, e.g., waivers cannot be granted for a specific statutory requirement unless the statute specifically authorizes a waiver; waivers cannot be granted under federally delegated or authorized programs if the waiver is inconsistent with the delegation; waiver of numeric or narrative standards is strictly prohibited; and waivers cannot be used to excuse prior violations. Nine other categories of rules cannot be waived. These limitations, together with the procedural safeguards noted above, carefully circumscribe the Department’s authority in acting on any waiver and assure that waivers will only be granted in limited and appropriate circumstances.
In conclusion, we appreciate the opportunity to offer these comments in support of the proposed rule and urge its adoption.
Sincerely,
Kathleen A. Davis
Executive Vice President & COO
Tuesday, May 21, 2013
- Welcome to The Region's Largest and Most Active Business Organization
