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State of New Jersey Department of Environmental Protection-DEP's Waiver Rule
State of New Jersey Department of Environmental Protection
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  1. What is N.J.A.C. 7:1B (referred to as the “Waiver Rule”)?
  2. Who do I contact if I have questions about the Department’s implementation of the Waiver Rule?
  3. Can the DEP waive any DEP rule?
  4. How will I know if a DEP rule is prohibited to be waived?
  5. Can the DEP waive a provision of a county or municipal ordinance?
  6. Can I request a waiver of the Pinelands rules or other state agency rules?
  7. Can I request a waiver from a provision of a technical manual or guidance document?
  8. Can I request a waiver of a permit condition?
  9. How does a waiver affect a permit or permit conditions?
  10. Can a Licensed Site Remediation Professional (LSRP) waive a DEP rule?
  11. If I think a permit fee is a burden, can it be waived under the unduly burdensome provision of the waiver rule?
  12. If I think a permit fee is a burden, can it be waived under the unduly burdensome provision of the waiver rule?
  13. Do I need to provide public notice of my waiver request?
  14. Should I submit my waiver request at the same time as my permit application?
  15. How do I submit a permit application and waiver request at the same time?
  16. Is there a fee to submit a waiver request under the Waiver Rule?
  17. Before submitting a request under this Waiver Rule, do I have to first apply for any waiver, variance, or exemption available in the program rules? 
  18. What is the process the DEP uses to review a waiver request?
  19. Will the Department hold a pre-application meeting for a waiver request?
  20. Can I submit a waiver request on paper?
  21. How long does it take for DEP to make a decision on a waiver request?
  22. Does the 90-day law apply to waiver requests?
  23. How does a person find information about a waiver request?
  24. How will the public have notice of a waiver request?
  25. Is there an opportunity for the public to comment on a waiver request?
  26. When and how will the Department notify me regarding my waiver request?
  27. Does OPRA apply to the waiver request and DEP waiver decision?
  28. Does a waiver approval have an expiration date?
  29. Is an approved waiver transferable to another party?

 

  1. Q: What is N.J.A.C. 7:1B (referred to as the “Waiver Rule”)?

    A: The New Jersey Department of Environmental Protection (DEP) adopted the Waiver Rule in response to Governor Christie’s Executive Order No. 2, which directs state agencies to implement common sense principles.  The Waiver Rule gives DEP the ability to waive certain DEP rules in limited circumstances.

  2. Q: Who do I contact if I have questions about the Department’s implementation of the Waiver Rule?

    A: Contact the DEP’s Office of Permit Coordination and Environmental Review (PCER) here.

  3. Q: Can the DEP waive any DEP rule?

    A:  No, the Waiver Rule lists DEP rules that cannot be waived at N.J.A.C. 7:1B-2.1(b).

  4. Q: How will I know if a DEP rule is prohibited to be waived?

    A: Consult N.J.A.C. 7:1B-2.1(b) for a list of rules that cannot be waived. It is the applicant’s responsibility to identify the specific rule sough to be waived and demonstrate that a waiver of that rule is not prohibited by N.J.A.C. 7:1B-2.1(b).

  5. Q:  Can the DEP waive a provision of a county or municipal ordinance?

    A:  No.  The DEP can only waive the strict compliance with one of its own rules. 

  6. Q: Can I request a waiver of the Pinelands rules or other state agency rules?

    A: No.  The Waiver Rule applies only to DEP rules.  For example, the Pinelands Commission is independent of DEP and the Pinelands rules at N.J.A.C. 7:50 are not DEP rules. 

  7. Q: Can I request a waiver from a provision of a technical manual or guidance document?

    A: No.  You can only request a waiver of the strict compliance with a DEP rule.

  8. Q: Can I request a waiver of a permit condition?

    A: No.  You can only request a waiver of strict compliance with a DEP rule, not a permit or permit condition. 

  9. Q: How does a waiver affect a permit or permit conditions?

    A: Waiver requests made under the Waiver Rule apply only to DEP rules, not to a permit or permit condition.  But, many permits and the various permit conditions within them are linked to specific DEP rules.  Even if a waiver request is approved, the applicant is still responsible for complying with all other applicable rules and permit conditions.  This may mean the waiver request applicant must still apply for an appropriate new permit, permit modification, or as part of permit renewal with modifications.  This is why the Department highly recommends waiver request applicants consider and apply for any necessary permit applications at the same time.

  10. Q: Can a Licensed Site Remediation Professional (LSRP) waive a DEP rule?

    A: No.  N.J.A.C. 7:1B-1.1(e) provides that the rule “does not authorize any other entity to approve a waiver."

  11. Q:  If I think a permit fee is a burden, can it be waived under the unduly burdensome provision of the waiver rule?

    A: No.  The Department cannot waive a rule providing for a fee.

  12. Q: What should be included in a waiver request?

    A: The Waiver Rule does not proscribe specific information to submit with a waiver request. Prospective applicants should use best professional judgment in providing the Department with sufficient information to justify a waiver request.

  13. Q: Do I need to provide public notice of my waiver request?

    A: Yes, if the applicant is requesting a waiver of a rule in a chapter that includes public notice requirements, those notice requirements apply to the waiver request.  For a quick reference guide of DEP rules with public notice requirements, go here (pdf).

  14. Q:  Should I submit my waiver request at the same time as my permit application?

    A: Yes.  It is in the applicant’s interest to provide a complete understanding of the applicant’s proposal.  Information required by a permit application will assist DEP’s evaluation of the waiver request.  

  15. Q: How do I submit a permit application and waiver request at the same time?

    A: The waiver request is submitted to the DEP’s Permit Coordination and Environmental Review office.  The permit application is submitted to the permitting program in accordance with the program’s rules.  The waiver request application provides fields an applicant can fill out to reference the permit application.  The waiver request applicant should also ensure a permit application references that a waiver request is being submitted.

  16. Q: Is there a fee to submit a waiver request under the Waiver Rule?

    A: No.

  17. Q: Before submitting a request under this Waiver Rule, do I have to first apply for any waiver, variance, or exemption available in the program rules? 

    A: The Waiver Rule does not require that a person seeking a waiver under the Waiver Rule first apply for relief under existing waiver, variance or exemption provisions that may be available in the program rules.

  18. Q: What is the process the DEP uses to review a waiver request?

    A: A waiver request is submitted to the DEP’s Office of Permit Coordination and Environmental Review (PCER), which conducts a preliminary review of the waiver request to ensure the information in the application form is provided.  If the information is not provided, PCER notifies the applicant the waiver request is incomplete and cannot be processed further.  After PCER’s determination that a waiver request is complete, the waiver request is forwarded to the appropriate program for substantive review.

  19. Q: Will the Department hold a pre-application meeting for a waiver request?

    A: The Department will not schedule a waiver-only pre-application meeting. If in the process of applying for a permit, an applicant schedules a pre-application meeting, a waiver request may be discussed as part of the permit pre-application meeting.

  20. Q: Can I submit a waiver request on paper?

    A: Yes, contact PCER for a paper form.  However, the DEP encourages electronic submissions to aid in more efficient processing.

  21. Q: How long does it take for DEP to make a decision on a waiver request?

    A: There is no specific timeframe for waiver decisions.

  22. Q: Does the 90-day law apply to waiver requests?

    A: No, the Department does not apply the 90-day law, N.J.S.A 13:1D-29 et seq., to waiver requests.

  23. Q: How does a person find information about a waiver request?

    A: The DEP is making information on all waiver requests available on its website at http://www.nj.gov/dep/waiverrule/.  Any person can download a copy of the waiver request and generate reports on the status of pending waiver reviews.

  24. Q: How will the public have notice of a waiver request?

    A: When a waiver request relates to rules for which the Department publishes notice of permit decisions in the DEP Bulletin, the Department must publish the notice in the DEP Bulletin. Where the waiver relates to rules for which the DEP does not publish notice of permit decisions in the DEP Bulletin, the DEP will publish the notice on the DEP’s Waiver Rule website.  N.J.A.C. 7:1B-2.3(c) 

    In addition, a person requesting a waiver must include proof of notice of the waiver request in accordance with the public notice requirements of the underlying program rules containing the rule for which a waiver is requested.  N.J.A.C. 7:1B-2.3(a)

  25. Q: Is there an opportunity for the public to comment on a waiver request?

    A: Yes.  Interested persons may submit comments for the DEP’s consideration on any waiver for which notice has been posted.   The underlying program rules containing the rule for which a waiver is requested will ordinarily govern the opportunity for public input for that waiver request, including the length of public comment period, or whether a public hearing is held.

  26. Q: When and how will the Department notify me regarding my waiver request?

    A: Upon receipt of an electronic application, the online system will automatically email the applicant acknowledging receipt of the waiver request.  Upon initial review by DEP’s Office of Permit Coordination and Environmental Review (PCER), the applicant will be informed via email that the request has either been accepted and forwarded to the appropriate program for review, or that the request is incomplete and will not be processed further.  If a paper request is received, the DEP will notify the applicant only if the request has been forwarded to a program for substantive review.

    At the conclusion of substantive review of the request, the DEP will notify the applicant, in writing, of the decision to approve or deny the waiver request.

  27. Q: Does OPRA apply to the waiver request and DEP waiver decision?

    A: Yes.  OPRA applies to any government record as defined in OPRA.  

  28. Q: Does a waiver approval have an expiration date?

    A: Yes.  The DEP will establish the duration of each waiver in the decision document.

  29. Q: Is an approved waiver transferable to another party?

    A: The transferability of a waiver will depend on the underlying program rules and the Department approval of the waiver.  For instance, if the Department approves a waiver as part of an approval of an application for a permit, the permit and the underlying permit rules will ordinarily control the transferability of the waiver.  The Department may also address transferability of its waiver approval in the decision document.

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Last Updated: October 29, 2013