For Immediate Release
March 9, 2011 Contact Jeff Tittel, 609-558-9100
Waiver Goodbye to Environmental Protection
Christie's attack on the environment continues with the waiver rule released by the DEP this month. The proposed waiver rule is so vague and open-ended that the DEP Commissioner can virtually waive any section of any rule or approve permits even if they violate the law.
"This rule is so vague and so loose that the DEP Commissioner can pretty much do whatever he wants and weaken any environmental protection to take care of special interests," said Jeff Tittel, Director of the NJ Sierra Club. "Basically this is just waiver goodbye to environmental protection".
When looking at the waiver rule in light of the Governor's Executive Orders-no state rule stricter than federal standards, economic balance in rulemaking- the DEP Commissioner can waive compliance with any rule, regulation or permit. 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.
The definition of unduly burdensome includes hardship, alternative compensation, and excessive cost. The definition of excessive cost is not determined. 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.
Exemptions from the proposed waiver rule are outlined. Federally delegated programs are exempt but under Christie's Executive Order 2 standards 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. Air emissions, fishing licenses, and criteria to protect human health are also exempt, but again can be waived to the weaker federal 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.
"This will allow for undue influence by politically-connected developers and polluters that will push through projects to the detriment of the environment," said Jeff Tittel. "The DEP Commissioner basically becomes the host of 'Deal or No Deal'"
The DEP has compared this waiver rule to a municipal zoning variance, saying provisions will be waived for a public benefit. Public benefit is not defined in variance statute. Instead variances are based on public good, defined very differently than public benefit under the proposed waiver rule. Public benefit as defined in the new rule includes the property owner making a profit and the creation of jobs, with no detriment standard. The standard for a zoning variance is public good with no public detriment i.e. no increase in pollution. To achieve a public good the project must overall further the goals of the community's master plan and municipal zoning and promote public health and safety.
The general provisions of the rule impacts states the rule would allow for an additional number of houses to be built, promoting sprawl and inappropriate land use development, allowing destruction of more critical natural resources and more evasion of important environmental standards.
The rule provisions allow for a waiver if there are conflicting rules, defined in the rule as 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 the Department of State's State Planning Commission can approve filling in wetlands for housing in Planning Area 2 since housing is consistent in that area, which allows for suburban growth. The Department of Community Affairs could approve the construction of housing next to streams when the DEP would deny the project under stream buffer requirements. DCA objected to Catergory 1 stream protections as a hindrance to redevelopment and new growth. 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. DOT rules also call for the expansion of airports, which could be proposed in the Highlands, only to be waived. The Delaware River Basin Commission could approve the use of hydrofracking in New Jersey and, under this rule provision, the state could waive wastewater discharge requirements for suspended solids which would allow fracking waste in our waterways.
Christie's Executive Orders call for cost-benefit analyses of new regulations and under this proposed rule the DEP Commissioner can waive anything he thinks costs a regulated entity too much. The Governor's Executive Orders also ban unfunded mandates to municipalities which will allow environmental regulations to be waived under this rule. For example municipalities could dump snow laced with chemicals into rivers and waterways instead of letting it melt on the grounds that dumping restrictions are unfunded mandate.
"When you take the waiver provision with the Executive Order, the Red Tape Review Group and other environmental weakenings it should send a chill down the public's spine on how this can be used to undermine every public protection," said Jeff Tittel. "This rule is so vague, confusing, and messed up we should call it the Charlie Sheen rule."
Kate Millsaps, Program Assistant NJ Sierra Club 145 W. Hanover Street Trenton, NJ 08618 609.656.7612 (f) 609.656.7618 <http://www.newjersey.sierraclub.org/> www.newjersey.sierraclub.org
- Download full text: 0309_Waiver_Rule.doc