Archive for the ‘Regulation’ Category

Regulations Are Not a Taking Under the Constitution!

Written by Mike Pisauro on April 3rd, 2013 in Clean Water, Highlands, land use, Regulation | No Comments »

Recently a member of the Highlands Council was quoted as saying that the Highlands Water Protection and Planning Act took people’s property without compensation in violation of the Fifth Amendment of the U.S. Constitution and Article 1 Paragraph 20 of the New Jersey Constitution.  According to a post in the EnviroPolitics Blog, Richard Vohden referred “to the devaluing of property values for those unable to subdivide or sell due to the law, Vohden said, “If that’s not a ‘taking,’ I don’t know what a taking is.””  The Council’s newest legal counsel has also repeated this sentiment.  These are very unfortunate statements and just wrong on the law.

f the Highlands Act has devalued the property why is it not a taking?  The Highlands Act, especially in the Preservation Area, required much more acreage to build on.  In essence it created minimum lots sizes, which are large.  It is this large lot sizes that some believe have taken their land.  This is what Vohden is referring.

To understand why Vohden and others making the same claim are wrong you must understand takings law.  The basis for takings laws can be found in the U.S and NJ constitutions.  The Fifth Amendment of U.S. Constitution provides, in part: “nor shall private property be taken for public use, without compensation.”  Article 1, Paragraph 20 of the New Jersey Constitution provides: “Private Property shall not be taken for public use without just compensation.”  New Jersey Courts have determined that the New Jersey Constitution and the U.S. Constitution protect this right equally.

The New Jersey Supreme Court and the Federal Courts have ruled that the 2004 Highlands Water Protection Act is not a takings.  But Vohden’s statement is repeated often enough by people affected by the Act.  I suspect that as we rebuild from Sandy, if we are to do it right, people along the coast of New Jersey may be saying the same thing.

When does a law or regulation take private property?  I would start out by noting that for many years legal scholars and courts did not believe that the Constitution protected against “taking” of property through regulation.  It was originally thought that the only taking the constitution protected against was a physical taking by the government.  That thinking has evolved and probably will continue to evolve.

Currently, the U.S. Supreme Court has held that regulations that impact property are not a taking just because the regulation may have an impact on the value of the property.  The Court has said in numerous cases, “Government hardly could go on if to some extent values incident to proper could not be diminished without paying for every such change in the general law.”  Everyone’s ownership of land is subject to the reasonable exercise of state’s authority.  At one point the Court would look to see if the regulation addressed a noxious and harmful uses of the property.  A property owner has never been able to use their property in a way to could harm another’s property.  If the regulation addressed a noxious or harmful use of the property than the courts would not find a taking even if the property had no use after the regulation.

When a regulation takes all value from a person, the Court has indicated that is a regulation that has the same effect as a physical taking and will require compensation under the Fifth Amendment with one exception.  The Court has said that a state could avoid payment when the regulation controls an aspect of ownership that was not part and never was part of the property’s bundle of rights.  A property owner could not flood his neighbor’s property so a regulations or a statute that prohibited such a use, even if that was the only use of the property would not be a taking.

When a regulation does not take all economic value from the property as a whole the court will take a look at whether the regulation substantially advances a legitimate state interest. If the legislation substantially advances a legitimate state interest than the Court is unlikely to find a taking.  The Supreme Court in Lucas v. South Carolina Coastal Commission set out some items to look at in these situations:

  • Degree of harm to public lands and resources or adjacent  private property
  • Social value of the claimants activities
  • Suitability of the activity to the area
  • Relative ease with which the alleged harm can be avoided through measures taken by the claimant or the government
  • Whether the use has be historically engaged in by surrounding properties.

In light of the criteria above, the Highlands Act clearly does not violate the criteria.  The Highlands Act was enacted to counter the damage that unrestrained growth was having on the State’s water supply.  This unrestrained growth was impacting not only the quality of water but the quantity as well.  There were no realistic alternatives to protect the water quality and quantity other than to protect the lands that recharged the waters.  I would also argue that historically development in the Highlands area was very spread out and low intensity.  It was only in recent years that development concentrated in the area.  To sort of wrap this up, the Highland Regional Master Plan requires land within the preservation area and not part of a sewer service area to have large lots.  Is that a taking?  Under current constitutional law, the answer is no.  Attacks against the Highlands Act have been unsuccessful in State as well as Federal Courts.

The lessons we have learned in the Pinelands and the Highlands may help guide us as we hopefully address our coastal region.  Hopefully the State will put into place regulations to protect the coastal region.  If that occurs I would suspect that we may hear the same false claims as in the Highlands.  Luckily no matter how many times it is said, mere regulation of property is not a taking.

SRRA, LSRP, SRPLB and what it all means.

Written by Mike Pisauro on August 15th, 2012 in Clean Up, legislation, Regulation, Site Remediation | No Comments »

On May 7th we entered a brave new world.  As of that date all contaminated sites are now required to hire a Licensed Site Remediation Professional (LSRP).  LSRPs were created as a result of the Site Remediation Reform Act (SRRA) that was passed in 2009.  The State was moved to pass SRRA because many stakeholders thought that the process at that time was broken and that change was needed to address the 16,000 to 20,000 sites in need of remediation.  What exactly is an LSRP and what does SRRA do?  Following is an expansion on a presentation I gave at the New Jersey State Bar Association’s Environmental Law Section’s Environmental Law Weekend.  Hopefully, this explanation can provide some answers to those questions – and more.

 

             What is an LSRP?

According to SRRA, an LSRP is “an individual who is licensed by the board pursuant to Section 7 of P.L 2009, c. 60 (C.58:10C-7) or the department pursuant to section 12 of P.L. 2009, c. 60 (C.58:10C-12)” but that definition is not very helpful.  DEP further defines an LSRP as a person who, by education, training and experience, is licensed by the State of New Jersey to oversee the remediation of contaminated sites.  I like to think of them as the professionals who determine if a property is contaminated, how contaminated it is and how to clean it up and who oversees the cleanup and then declares the property clean.

According to SRRA, to be eligible to become an LSRP a candidate must meet the following standards:

  • Hold a minimum of a bachelor’s degree in natural, chemical or physical science or an engineering degree in a discipline related to site remediation.
  • Have eight years of full time professional experience.Have a minimum of 5,000 hours of relevant professional experience within the state
  • Have not been convicted of, or pled guilty to an environmental crime, any similar or related criminal offense; or any crime involving fraud, theft by deception, forgery or any similar or related offense.
  • Has not had another professional license revoked within the previous 10 years

The statute defines “full-time professional experience”as experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site.  The Board further defines full time professional experience as having primary decision making responsibility.

In addition to the requirements for education, training and experience, the LSRP is guided by a code of conduct which encompasses 26 items.  Most importantly –and, consequently, first on that list – is that: An LSRP’s highest priority in the performance of professional services shall be the protection of the public health and safety and the environment.  Another big item is that an LSRP shall exercise independent judgment and is required to notify the client and the Department if the client deviates from the remedial action work plan.  Theoretically, the LSRP’s primary job is to insure that the remediation is protective of human health and the environment.

Assuming the LSRP performs their job, when the remediation is complete they certify the property was remediated in accordance with the standards and issues a Response Action Outcome (RAO).  RAOs are the functional equivalent of the No Further Action (NFA) letters that DEP issued at the end of a remediation.  The Department may invalidate an RAO under certain circumstances but must do so within three years of its issuance.

             Who oversees the LSRP?

SRRA not only created the LSRP but also put into place a board to oversee the LSRPs – the Site Remediation Professional Licensing Board

Site Remediation Professional Licensing Board

SRPLB Logo

(SRPLB).  The board consists of 13 members comprised of the following groups:

  • State Geologist
  • 6 LSRPs
  • 3 members of environmental organizations – one of whom  must also be an LSRP
  • 1 Representative of the business community
  • 1 Academic member

The current Board is short two members – the academic member and the environmental member who is also an LSRP.

The Board is responsible for administering the LSRP program.  This includes:

  • Reviewing applications to become an LSRP and approving or denying such requests.
  • Administering and evaluating the licensing exam
  • Issuing licenses and license renewals
  • Establishing standards and requirements for continuing education
  • Approving and offering continuing education classes
  • Adopting and administering standards for professional conduct
  • Investigating complaints
  • Imposing discipline
  • Providing information to the public

In order to accomplish these tasks the Board has been meeting since November 2010 and has created several committees to oversee its many obligations.  Those standing committees are:

  • Bylaws
  • Licensure
  • Continuing Educations
  • Rules
  • Outreach
  • Professional Conduct Committee
  • Finance

 Licensure

From 2009 to May 2012, while it was waiting for the Board to be installed, the DEP administered a temporary licensure program and issued a total of 572 temporary licenses.  The exams to become a permanent licensee began on May 7th.  To become an LSRP a person must apply to the Board and, once the Board reviews and approves that application, the individual is then authorized to take the examination.  305 people were authorized to take the first exam on May 7, 2012.  Of this 305, 278 took the test and 216 passed it.  The next test date is September 24th and there will also be exams in November 2012 and January 2013.  All temporary LSRPs have until January 2013 to take the exam.  After the last exam any temporary LSRP who has not taken or passed the exam will lose their temporary LSRP status and cannot act as an LSRP.  Any temporary LSRP who fails an exam can retake that exam up to three times before losing their temporary license.  After January 2013 the exam will be given on a periodic basis to be determined by the Board.  All licensees must renew their license every three years.

 Continuing Education

This committee is responsible for determining the continuing education requirements for an LSRP. It was the recommendation of the committee that an LSRP complete 36 credits of continuing education over the course of their three year licensee.  Upon applying for renewal of their license an LSRPs must be demonstrate that they have obtained the following::

—  14 Scientific & Technical credits

—  3 Ethical credits

—  10 Regularity credits

—  Balance from any of the above areas

The continuing education committee also reviews course applications and issues a recommendation on whether a course should be approved to provide continuing education requirements.

Rules

The Rules committee is in the process of taking the process documents from various committees and preparing a rule for publication and eventual adoption.  There are currently 4 subsections of the rule up for informal public comment on the Board’s website.

Outreach

This committee is tasked with encouraging public participation in the LSRP Board and it maintains the Board’s website.

PCC

As noted above, the Board is in charge of investigating complaints against LSRPs.  Any person can make a complaint.  A complaint form can be found on the Board’s website.  The job of investigating a complaint is assigned to the Professional Conduct Committee (PCC).  The PCC is made up of five board members.  When a complaint is received it is forwarded to the PCC with the name of the LSRP redacted.  Neither the PCC nor a majority of the Board knows the identity of the LSRP while the complaint is being investigated and the decision rendered.  The only person who knows the name of the LSRP is the Board Secretary who receives the complaints and does the redaction.  The same anonymity cannot be said of the complainant.  Not only does the PCC know the name of the complainant, but the LSRP being investigated is given an unredacted copy of the complaint.  Under exceptional circumstances the PCC may withhold the name of the complainant, but that is anticipated to be a very rare occurrence.  While the Board discourages anonymous complaints, under certain circumstances the PCC will review and investigate those complaints.  Assuming the complaint is not completely without merit, the PCC sets up a Complaint Review Team.

The CRT is comprised of a Deputy Attorney General, an LSRP Board member and one of the non-LSRP board members.  The CRT reviews the material provided by the complaint and can obtain additional documents and information from the DEP, complainant, the LSRP, or their parties.  The CRT also may provide both the LSRP and the complainant an opportunity to submit additional information or to speak with the CRT.  Once the CRT has investigated the complaint it makes a recommendation to the PCC. This recommendation identifies  whether there was a violation of the code of conduct, and, if so which sections of the code of conduct were violated and what the proposed penalty should be.  The PCC may accept this recommendation or send the matter back to the CRT for additional investigation.  The PCC may also modify the recommendation.  The PCC then takes the recommendation to the Board which considers the matter in a closed session. The Board will then vote on the matter in open session. Once the Board votes on the matter, the name of the LSRP becomes public and a summary of the matter is placed on the Board’s website. The LSRP then has 35 days to appeal the Board’s decision.

The PCC has received 7 complaints since its inception.  Four of those complaints are in the process of being investigated.  One of those complaints was referred to the PCC as a result of an audit.   The remaining complaints were investigated and, of those, two were dismissed, one with a warning and one reprimand has been issued.

Audit

Another very important aspect of the Board is the conducting of audits.  SRRA requires the Board to audit at least 10% of the LSRPs each year.  Since the beginning of this year, the Audit committee has been randomly selecting 5 names each month and sending those LSRPs a questionnaire to complete and return.  The number of LSRPs audited will be adjusted depending on the number of licensed LSRPs at the beginning of each year.  Each month a new Audit Review Team (ART), comprised of two Board members,  is selected to perform the audit.   According to the draft rules the Board has been writing, the Board will audit the submissions and conduct of an LSRP to ensure that the LSRP‘s highest priority in the performance of professional services is the protection of public health and the safety of the environment.  The ART reviews the completed questionnaire, and reports prepared by DEP and, based upon this review can request additional information from the LSRP and DEP.  Theoretically, the ART has additional powers to obtain information.  I would suggest the ART could request documents and information from third parties and could perform its own site inspection and testing if it felt it was appropriate.

Once the ART has performed its review it advises the Audit committee if the LSRP’s audit was satisfactory or not.  If the audit outcome is unsatisfactory the Audit committee can refer the LSRP to the PCC for a disciplinary proceeding.

 

The enactment of the SRRA signaled a major shift on how remediation occurs in the State.  The DEP, responsible parties; LSRPs and the public are adjusting to this new paradigm. The Board is putting into place the procedures and policies to guide everyone.  Eventually these policies and procedures will be adopted as rules which the Board is writing.

DEP TO START ACCEPTING WAIVER RULE APPLICATIONS ON AUGUST 1, 2012

Written by Mike Pisauro on July 31st, 2012 in Regulation | No Comments »

Beginning August 1, 2012 the gates at DEP will be open to receive applications under the new “Waiver rule.” Under this regulation, DEP has authorized itself to waive an applicant’s requirement to comply with nearly all of DEP’s rules if the applicant can show that it meets one of four very broad and undefined categories.  Although the rule was adopted on April 2, 2012, DEP delayed its implementation so that it could develop:

an internal process that will ensure consistency and transparency in the handling of all applications.  This includes standardized submissions forms, . . .  and on-line reports that will allow the public to know when applications are received and to access the DEP’s decisions.

Snapshot of DEP's waiver rule page

However, we are just hours away from the start date and a review of their website today showed no indication from DEP that any of its processes are in place. There is no online form to complete.  There are no online reports for the public to view the status of waiver requests.

DEP was also supposed to prepare internal processes to prioritize waivers and to insure that all waivers are handled in a consistent and transparent manner.  Again there is nothing available to the public that indicates that DEP has done any of this.  One has to wonder just how transparent a hidden process really is.

 

Because DEP has not indicated that it is ready to handle these applications and because of the lawsuit filed by 28 environmental and labor organizations, those groups asked DEP to stay the implementation of the rule because none of the procedures had been put in place.  The Appellants also urged the DEP not to create the procedures internally and without the ability to comment on them; but to propose those procedures through the rule making process.  The Appellants further argued that implementation should be delayed until the Appellate Division has had a chance to rule on the lawsuit.    In response to the Appellants request for a stay; DEP denied it.

So, come tomorrow, DEP will be in the business of waiving compliance with regulatory requirements.  It will be interesting to see what form those inevitable applications will take and how DEP will process processing the applications and make decisions  - as they have yet to make public what standards or processes they plan to use.  The only thing that we can be certain of is that any waivers that do come in will most certainly be appealed upon DEP’s issuance.

Past Posts on the Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

Property Owners no longer need to certify their propert is clean to get ISRA exemption.

Written by Mike Pisauro on July 13th, 2012 in Clean Up, Courts, Regulation, Site Remediation | 1 Comment »

The New Jersey Appellate Division has just made it even harder for NJDEP to insist that contaminated sites be cleaned up. In a decision rendered last week the Court invalidated DEP’s requirement that applicants for a de minimis exception certify that the property is clean. While the Court stayed the decision for 30 days to allow for the inevitable appeal to be filed, we will have to wait to see if that blow was also dealt to NJ’s environment or if it is limited to a very particular set of facts and regulations.

The case that brought about this decision was filed by Des Champs Laboratories, Inc. The property owner sold a property in 1997 after receiving a No Further Action (NFA) from the Department. In 2008 DEP tracked down contamination that it determined was emanating from Des Champs’ property and rescinded the NFA. DEP further required the property owner to proceed with a site investigation, preliminary assessment and, ultimately, to hire an LSRP.

The property owner, however, refused to abide by DEP’s requirements and instead sought DEP’s approval for a de minimis quantity exemption (DQE). The Industrial Site Remediation Act (ISRA) provides for an exception to its applicability if a property owner or operator qualifies as a DQE. Under ISRA an owner or operator qualifies if the following conditions are met:

  • The total hazardous substances or wastes on the property does not exceed 500 pounds or 55 gallons; or
  • If mixed with nonhazardous substances the total quantity does not exceed 500 pounds or 55 gallons; or
  • No more than 220 gallons of hydraulic or lubricating oil in the aggregate.

The applicant, in this case, indicated that, in addition to using only de minimis quantities of hazardous substances they did not use any of the substances found in the ground water. DEP, however, denied their DQE application because “the overlying presumption that an industrial establishment, without regard to fault, should not qualify for a DQE when contamination is known to exist at the site.” This requirement was not in the regulation implementing ISRA, at the time Des Champs DQE application was made but was subsequently added in the 2009 re-adoption of the regulations. It is not in the ISRA statute.

The Court rejected DEP’s rejection – as well as the 2009 regulations – explaining that, ), the Legislature has moved the State to a more streamlined and less burdensome process since the Environmental Cleanup Responsibility Act of 1983 (ECRA). By enacting ISRA the State responded comments that ECRA interfered with the transfer of properties. As part of ISRA the State specifically wanted to “reduc[e] oversight of those industrial establishments where less extensive regulatory review will ensure the same degree of protection to public health, safety, and the environment.” With ISRA the State also wanted to “guard against redundancy from the regulatory process and to minimize governmental involvement in certain business transactions.” The Court then noted that the State continued this trend of “minimizing governmental involvement,” when it passed the Site Remediation Reform Act (SRRA).

The Court ruled that “despite its important regulatory role and its expertise over environmental matters, [DEP] acted in the present context beyond its legislatively-delegated powers. . . .” going too far beyond the requirements set out in ISRA. In short, since ISRA did not require the property to be free of contamination in its DQE requirements, DEP could not add that requirement. The Court believed that requiring property owners to investigate their properties to insure that they are contaminant free was too substantial a burden and counter to ISRA and SRRA’s intent to remove State involvement in these kinds of business transactions.

Since the Appellate Court has stayed its decision for 30 days to allow an appeal to be filed. It is possible that the Supreme Court could overturn this decision

In its decision the Court made a couple of observations that are worth noting. First, although DEP could not compel an applicant to certify the property was clean; that did not mean that DEP was without power to require a cleanup under the Spill Act or other regulation. Second, the Court also seemed to be inviting the Legislature to correct their mistake by passing legislation giving DEP the power it sought to exercise. Lastly, the Court also seemed to be indicating that the subsequent property owner may have contractual or legal rights to compel Des Champs to investigate the property and clean it up.

While it is always possible that the Legislature may give DEP the power it seeks, I think that is highly unlikely as this Legislature has been steadily moving away from protecting the environment and more towards easing restrictions on businesses. The more interesting possibility of compelling cleanups is the rights between the parties. Who would like to buy property that may be contaminated just because the seller may not have been the one to do the contamination or use large quantities of hazardous substances? Purchasers of industrial properties may, in their contracts, require that the seller insure that the property is not contaminated.

Senate To Vote on Permit Extension Act and Waiver Rule: One Bad and One Good.

Written by Mike Pisauro on May 31st, 2012 in land use, legislation, Regulation | 1 Comment »

This afternoon the New Jersey Senate is voting on two very important bills:  SCR59, The Waiver Rule and S703, Permit Extension Act of 2008. These two bills are very important as SCR59 will be an important step in stopping the DEP from undermining environmental protection and S743 will help undermine environmental protections including the Highland Planning Area and the Pinelands Preservation Area.  That both bills are up at the same time is somewhat troubling.  Is the senate looking to do one good thing so that they can vote in favor of a bad thing?  While the legislative process is always one of compromise, there should not be any compromise of basic environmental protection.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

  1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
  2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
  3. Protection and maintain the essential character of the Highlands environment;
  4. Preserve farmland and historic sites and other historic resources
  5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
  6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
  7. Promote conservation of water resources
  8. Promote brownfield remediation and redevelopment
  9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

 

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

 

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

Waiver Rule: One Rule to Rule Them All!

Written by Mike Pisauro on April 30th, 2012 in Courts, legislation, Regulation | 1 Comment »

With the adoption of the “Waiver Rule” on March 6, 2012 the Department of Environmental Protection (DEP) attempted to give itself the authority to waive the requirement of any environmental regulations.  In order to qualify for a waiver one of the following four categories must be met:

  • Conflicting rules
  • Strict compliance with the rule would be unduly burdensome
  •  net environmental benefit; or
  • A public emergency

28 environmentalist and labor organizations immediately filed a lawsuit against the DEP asserting that the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization.  The promulgation violates separation of powers provisions of the New Jersey Constitution.  The waiver rule also fails to meet required standards for specificity.  The waiver rule fails to set up necessary process for the issuance of waivers.  The promulgation of a single waiver rule for all environmental statutes is overly broad.”

What does this all mean?  Let us take a closer look at each of these points.

First, the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization” and ‘the promulgation violates separation of powers provisions of the New Jersey Constitution.” Put plainly, does DEP have the authority to issue one rule that can affect the implementation of hundreds of other rules?  Did the Legislature grant DEP the authority to waive statutory or regulatory requirements? “An administrative agency only has the powers that have been ‘expressly granted’ by the Legislature and such ‘incidental powers [as] are reasonably necessary or appropriate to effectuate’  those expressly granted powers.”  Borough of Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super 590, 607 (App. Div. 2008).

That delegation of authority can be expressed or implied.  I do not believe that even DEP believes it has the express authority to issue this waiver rule.  DEP asserts that this power arises out of the implied powers in its authorizing statute as well as various other statutes.  There is a problem with this argument.

If the power is derived from its implicit powers, those powers must be fairly necessary to the implementation of the statutory authority.  In looking at the exercise of implicit authority, the Courts have stated that where there is “reasonable doubt as to whether such power is vested in the administrative body, the power is denied.”  This is because an agency only has the power that has been granted or delegated to it.  There is no statute which provides the Department with the authority, independent of its various individual statutes, to issue a blanket waiver.   Just as important, when the exercise of an implicit power concerns a policy question of significance, that power has not been delegated by the Legislature to an agency.  The Legislature has reserved policy questions of significance to itself..  What “greater policy question” can there be than which environmental protection is inferior to other protections?

Second, “the waiver rule also fails to meet required standards for specificity.” This is evidenced by the fatal deficiencies in qualifying 3 out of the 4 categories under which an applicant is eligible to apply for a waiver. Under the “conflicting rules” category are situations where compliance with one rule is prohibited by compliance with another rule – resulting in a conflict.  Further, this conflict is not limited to environmental regulations – it extends to   other agency rules as well.  The Waiver Rule, however, does not provide any guidance as to how a conflict is to be resolved.  For example, if a DOT rule requires 30 foot wide roads but constructing a 30 foot road on a parcel of property would put a portion of that road into the wetlands, under the Waiver Rule the wetland might be sacrificed for the road.  Another conflict might arise when a project is required to have zero net fill in a wetland but, in order to comply with that requirement, the road would be subject to flooding.  Which requirement takes precedence?

Under the second category, a waiver could be issued in situations where strict compliance with the rule would be unduly burdensome.  The rule ‘defines’ unduly burdensome as either:

  1. Actual, exceptional hardship for a particular project or activity, or property; or
  2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

However, the rule does not define an “actual, exceptional hardship.” Rather, the rule continues to state that one of factors to be considered is whether “the person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome.”  This means that even if the applicant caused the hardship they will not be prohibited from getting a waiver.  For example if an applicant subdivided its property so that one or more lots are impacted by wetlands that applicant can seek a waiver from strict compliance with the wetlands rules, because it would be an exceptional hardship to comply with those rules.  DEP may still grant that waiver even though the applicant has created its own need for a waiver.   This creates an incentive for applicants to create hardships so as to maximize their economic profits while maximizing environmental damage.

The second part of the definition of “unduly burdensome” is also a bit vague on the details. The Waiver Rule does not require that the “alternative measure of compliance”  provide protection for the resource that was originally protected by the rule for which the waiver is being sought..  How then does one judge the importance of protecting one resource over another?  Is clean water more important than a nesting site for an endangered species?  Is clean air more important than protecting the water quality of a category one river?  One can certainly envision the arguments of a developer that they want to remediate and develop a contaminated site but to do so they need to impact a river.

The third criteria requires a net environmental benefit.  This provision is not limited to a situation where an applicant thinks that it may have a better way to meet the standards than what is required by the rule.  It could also apply to situations where an applicant is proposing exceeding one standard but may subject another media to less protection.  As noted above, regarding unduly burdensome, how does DEP make the determination that one statutory scheme deserves more protection than another.

The third issue raised by the waiver rule is that “the waiver rule fails to set up necessary process for the issuance of waivers.” The Courts have required agencies to “to structure and confine their discretionary powers through safeguards, standards, principles and rules”  in order to satisfy due process and produce reasoned and principled decisions” (Crema v. N.J. Dep’t of Envtl. Prot., 94 N.J. 286, 301, 463 A.2d 910 (1983)). There are no safeguards, and no standards or principles by which to judge or evaluate a request for a waiver.  In fact, DEP is delaying implementation of the waiver rule until August 1st in order to devise these guidelines.  There is no way that anyone could look at a particular project and apply the Waiver rule to it and know before applying whether that project would get the requested waiver or not.

As pointed out above 3 of the 4 categories for a waiver are so broad and undefined as to be meaningless.

The issue raised by the rule is that “the promulgation of a single waiver rule for all environmental statutes is overly broad.”  given that many of the statutes and their implementing regulations already provide for a relaxation of the rules under certain expressed circumstances, why does the department really needs one rule to rule them all.  They do not need the rule and more importantly they do not have the authority to issue the rule.

This blog post is my own opinion and is not intended to reflect the opinion of any client or organization.