Since August 1, 2012, the New Jersey DEP has been entertaining applications for relief pursuant to its rules governing the waiver of DEP regulations.  In the first two cases in which DEP has decided waiver applications on their merits, DEP denied both waiver requests.

In one case, the applicant sought a waiver from the Filled Water's Edge Rule under the Coastal Zone Management Rules.  DEP denied the waiver application finding that the applicant did not meet any one of the four specified bases for a waiver, and that the applicant did not demonstrate that it satisfied the waiver evaluation criteria.  DEP also found that the applicant failed to demonstrate that the requested waiver would be consistent with the purposes and intent of the Filled Water’s Edge Rule.

In the second case, the applicant sought a waiver from the requirements for remedial action workplans established by the Technical Requirements for Site Remediation.  In denying the waiver application, DEP again found that the applicant failed to establish that it met any of the four bases for a waiver, that it satisfied the waiver criteria, and that the waiver would be consistent with the purposes and intent of the applicable statutes and rules.

These initial decisions confirm that DEP meant what it said at the time it adopted the rules allowing waivers — DEP will grant waiver applications only in limited circumstances that satisfy the narrow criteria specified in the waiver rules.