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Waive Goodbye to Environmental Regulation: DEP Implements Waiver Rule

Date : Wed, 1 Aug 2012 16:02:02 -0400

Implements Waiver Rule

For Immediate Release
August 1, 2012 Contact Jeff Tittel, 609-558-9100

Waive Goodbye to Environmental Regulation: DEP Implements Waiver Rule Today the DEP will begin considering waiver requests from polluters and developers under the DEP waiver rule.The DEP Commissioner can now exempt applicants from over 100 DEP programs and regulations, putting special interests before the environment and public health. This rule gives too much power to the DEP Commissioner and will undermine 40 years of environmental progress.This rule goes against critical legislation passed by the New Jersey Legislature to protect our water, air, and open spaces and is currently being challenged in court by twenty-seven environmental organizations.Environmental groups will be filing an injunction. Not only will we seek an injunction on the implementation of the rule but we will continue fighting to have the rule overturned and sue to block any waiver going forward. This rule is not only a threat to the environment, but due process and the right for the people of New Jersey to have their air, water, and communities protected from pollution.

"The DEP Waiver Rule is the broadest attack on environmental protections in 40 years.This rule violates Separation of Powers and legislative intent.It is too vague and will be subject to abuse and 'pay-to-play'.This rule is a giveaway to special interest at the expense of New Jersey's environment, public health, and safety," *said Jeff Tittel, director of the NJ Sierra Club*."Basically this is just waiver goodbye to environmental protection". There is no fee in requesting a waiver.There is extra cost and extra staff work for the DEP to review these applications.Having no fee makes it easier to get a waiver and costs the state more money to process the waiver.Not only are we selling out the environment, we are doing it for free.

"We are not only creating a polluters holiday, but we are doing it for free.DEP is not going to charge to process these waivers even though DEP is understaffed and overburdened with work already," *stated Tittel. *"We are giving a free pass to pollute for free, which encourages every polluter and developer to come in for a waiver."

124 existing rules can be waived under the Waiver Rule allowing polluters and developers to be exempt from critical environmental and public health and safety protections including the Pollution Prevention Act, hazardous discharge regulations, and air pollution controls.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 protections.Adding more waivers is going to create loopholes big enough for bulldozers. This rule is going 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. 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 simply allows DEP and developers to side-step environmental protections.

"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. When looking at the Waiver Rule in light of the Governor's Executive Orders calling for no state rule stricter than federal standards and economic balance in rulemaking, the DEP Commissioner can waive compliance with any rule, regulation or permit for economic interests or relax standards to the less strict federal guidelines.If a rule is considered burdensome, conflicts with other rules, or the Department believes some net environmental benefit that is not defined can be achieved, rule provisions and standards can be waived.

"This is so liable for abuse not only could it mean almost anything, but is also means that if you have political connections or made campaign contributions you will get your waivers," Tittel said. The definition of unduly burdensome includes hardship, alternative compensation, and excessive cost.The definition of excessive cost is not determined it could mean anything.Allowing net environmental benefit 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 There are exemptions in the Waiver Rule, including air emissions, fishing licenses, criteria to protect human health, and federally delegated programs.However, under Christie's Executive Order 2 environmental standards will be waived down from New Jersey's strict regulations to weaker federal standards.The lax Army Corps of Engineer standards will be used in permitting wetlands instead of stricter state regulations. On toxics in drinking water, the federal standard is cancer rates at one in 10,000 people compared to New Jersey's one in 1 million people standard. The Waiver Rule will allow for an additional number of houses to be built.This will promote sprawl and inappropriate land use development, allow destruction of more critical natural resources and more evasion of important environmental standards. It will allow houses to go into stream buffers impacting the water quality and increasing flooding. Waivers can be granted in a situation where two or more DEP, other state agency, or federal rules are in conflict. This will allow for inappropriate development that will destroy our resources to move forward.The Delaware River Basin Commission could approve the use of hydrofracking and, under this rule, the state could waive wastewater discharge requirements for suspended solids allowing toxic fracking wastewater to enter our waterways. The Assembly moved to block the rule in May by passing an oversight resolution but the Senate refused to act.The Legislature could have blocked the rule by passing resolutionSCR59(Buono) which would have declared the Waiver Rule inconsistent with Legislative intent and would have given DEP 30 days to make changes or rescind the rule.The measure stalled in the Senate which approved anti-environmental bills and bills that subsidize development such as Permit Extension over protecting our environmental standards.The Legislature can still pass the resolution even after the DEP begins accepting waivers.

"We are not only going to seek an injunction we are going to fight any waiver that is issued and continue to push for a Legislative stop to the rule .This is not only the first day the DEP will consider waivers, it is the first day in the fight to protect New Jersey's public health and safety.We are going to continue this fight because our environment is too important to be sold out by Commissioner Martin and the Christie administration," said Jeff Tittel."New Jersey's environment is not for sale.We will keep fighting this rule."

Kate Millsaps
Program Assistant
NJ Chapter of the Sierra Club
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