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Dangerous DEP Waiver Rule In Effect

Date : Thu, 8 Mar 2012 14:16:42 -0500

*For Immediate Release*
March 08, 2012** Contact Jeff Tittel, 609-558-9100

*Dangerous DEP Waiver Rule In Effect *

*Waive Goodbye to 124 Regulations** *

* * Yesterday Governor Christie signed the dangerous waiver rule, allowing polluters and developers to evade 124 environmental regulations. The fact that they have signed the rule and are trying to hide it from the public shows how bad this rule really since it is in violation of the law, Due Process, and Separation of Powers. This one rule, which does not go into effect until April, will undermine 30 years of environmental progress and critical legislation passed by the New Jersey Legislature to protect our water, air, and open spaces. This rule is too vague and will result in more pollution, flooding, and sprawl. By adopting this rule, Governor Christie has taken the side of special interests over the environment and public health for the people of New Jersey. The Sierra Club will be going to court to challenge this rule and to seek an injunction to prevent this rule from moving forward.

“This rule is an attack on environmental protections and will open up New Jersey’s regulatory system to pay-to-play. This is one of the worst rules ever adopted in the state. This rule will not only undo 30 years of environmental protections but will create more pollution, traffic and flooding and threaten public health and safety,” *said Jeff Tittel, Director, NJ Sierra Club*.

*Tittel continued*, “This rule is so bad we will challenge it through every means possible: the Legislature, politically and in the courts. This rule attacks citizens’ right to have input in governmental decisions and is subject to abuse. This is one of the worst giveaways ever to polluters and developers.”

The waiver rule will create loopholes and open environmental protections to political abuse and pay-to-play negotiations for polluters and developers. The Commissioner of the DEP could waive virtually any section of any rule. Undue influence by politically connected developers and polluters will push through projects to the detriment of the environment. Mitigation and offsets will be used to push through projects that should not be built.

Under this rule, 124 DEP programs are at risk, impacting hundreds of permits. There are no standards outlined to evaluate the criteria that will be used to issue these waivers. Waivers will be case-by-case so anyone can come in and apply, adding more work for an already overburdened DEP staff and less transparency and predictability in permitting. The development community has emphasized the need for transparency and predictability in the permit application process, and these rules do neither. This rule is not a response to problems faced by regulators; it’s to allow DEP and developers to side-step environmental protections. This rule is doing to create a bigger slowdown in environmental permitting as all applicants will want a waiver and will sue the DEP when they do not receive one. This rule is subject to cronyism and corruption.

“Everyone will want a waiver and this will slow down the permitting process at DEP. This rule will lead to corruption and inside deals,” *said Jeff Tittel*.

Many of the Department rules that could be waived already have waiver provisions written into the regulations, based on the intent of the Legislature in adopting those laws to protect our environment. The Legislature specifically determined where and when waivers would be appropriate. Emergency provisions also already exist in rules, regulations, and statutes.

Waivers will be considered when a regulation is unduly burdensome, conflicts with other DEP, state, or federal rules or a “net environmental benefit” can be achieved. The definition of unduly burdensome can include hardship, alternative compensation, and excessive cost. “Net environmental benefit” is undefined and if allowed to be considered in the issuance of waivers will lead to developers cleaning up a polluted site in exchange for the ability to avoid other DEP regulations.

The proposed waiver rule does not require public notice for all waiver requests, only that waiver requests be included in any other public notice an applicant is required to provide. No public comment periods are required. The DEP will announce it is reviewing a waiver request and the decision it makes on its website, but neighbors of proposed projects won’t be checking online and may not realize environmental regulations no longer apply to a development near their home.

Federally delegated programs, criteria to protect human health, and other regulations are exempt from the waiver rule. However, under Christie’s Executive Order 2, which restricts state agencies from adopting rules stricter than federal standards, regulations will be waived down to less strict federal standards instead of New Jersey’s. The lax Army Corps of Engineer standards will be used in permitting wetlands instead of stricter New Jersey standards. On toxics in drinking water, the federal standard is cancer rates at one in 10,000 people and the New Jersey standard is one in 1 million people.

Waivers will be granted for conflicting rules, a situation where two or more DEP, other state agency, or federal rules are in conflict, making compliance impractical or impossible. This provision will allow inappropriate development that will destroy our resources to move forward. For example, when expanding a highway, the Department of Transportation rules allows for filling in a wetland rather than building a bridge over it, the more expensive protocol. If the State Planning Commission targets an environmentally sensitive area as a growth area, environmental regulations will be waived to allow development.

Senator Barbara Buono has been leading the charge against this bill in Legislature. She has introduced resolution SCR59 declaring the Waiver Rule inconsistent with Legislative intent. Under New Jersey law, if an oversight resolution passes both houses then the DEP would have to potentially withdraw or revise the rule. If they do not, the Legislature can prevent the regulations from moving forward by passing the resolution through both houses again. By advancing this resolution, the members of the Legislature are taking the first step to protect our environment from this dangerous rule.

“We need this resolution now more than ever as the Waiver Rule is signed. Moving this resolution forward is one of our highest priorities because the Waiver Rule is one of the worst regulations ever proposed in New Jersey. We need the Legislature to block this rule from going forward. It is the only way to protect New Jersey’s environment from this rule,” *said Jeff Tittel.* People from the environmental community were invited to participate in a shame stakeholder meeting on this rule. But the environmental community’s opposition and changes to the rule where ignored in the final rule proposal.

“This rule is a special interest giveaway that is aligned with the Koch brothers and the Tea Party that violates separation of powers, due process and the Constitution,” *said Tittel*

Nicole Dallara, Outreach Coordinator
New Jersey Sierra Club
145 W. Hanover Street
Trenton, NJ 08618
Nicole Dallara, Outreach Coordinator
New Jersey Sierra Club
145 W. Hanover Street
Trenton, NJ 08618
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Received on 2012-03-08 11:16:42

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