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Compliance and Enforcement (C&E)

For general information about this program, please visit http://www.nj.gov/dep/enforcement/

Compliance & Enforcement (C&E) is comprised of the following programs:
            Division of Solid Waste & Pesticide Enforcement
            Division of Water & Land Use Enforcement
            Division of Air & Hazardous Materials Enforcement
            Office of Strategic Management

C&E is the lead for very few of the Department’s regulations.   The following is a list of C&E regulations under which a waiver may be considered* and the C&E program responsible for the rule:

Regulation Name

NJ Administrative Code Cite

C&E Program

County Environmental Health Standards of Administrative Procedure and Performance

N.J.A.C. 7:1H

Division of Air & Hazardous Materials Enforcement

Noise Control  

N.J.A.C. 7:29

Division of Air & Hazardous Materials Enforcement

Pesticide Control Code    

N.J.A.C. 7:30

Division of Solid Waste & Pesticide Enforcement

 *Many provisions of the above noted rules may not be waived in accordance with prohibitions in N.J.A.C. 7:1B.  Additionally, C&E encourages potential waiver applicants to consider whether existing program rule variances or waiver procedures are applicable to your specific situation prior to submitting a waiver application to the Department under the waiver rule at N.J.A.C.  7:1B.

  1. Are there any existing waiver, variance, or exemption provisions within this program’s rules?
  2. What are the public notification requirements associated with a waiver request under C&E’s regulations?
  3. Can I get a waiver for a rule that is established under a Federally authorized, delegated or assumed program?
  4. Can a waiver be used as a defense to an enforcement action or to excuse prior violations?
  5. How will waiver approvals be enforced?
  6. Can DEP revoke an approved waiver?

 

  1. Q: Are there any existing waiver, variance, or exemption provisions within this program’s rules?

    A:  Although C&E is the lead for very few of the Department’s regulations, there is a waiver provision under Pesticides Control as listed below.  Otherwise, be sure to check the FAQ’s for the lead program (Solid & Hazardous Waste, Hazardous Materials, Air, Water, Land Use) for more information on existing provisions. 

    Pesticide Regulations, N.JA.C. 7:30
    7:30-6.2(g) Waiver of Pesticide Applicator Certification Testing
    7:30-9.10(c) Waiver of Notification: Where an application takes place pursuant to 7:30-10.6(t), and compliance with community or area-wide notification requirements pursuant to N.J.A.C. 7:30-9.10 is not possible due to the timing of the application, the applicator shall request a waiver from the provisions of N.J.A.C. 7:30-9.10, pursuant to N.J.A.C. 7:30-9.10(c).

  2. Q.  What are the public notification requirements associated with a waiver request under C&E’s regulations?

    A.   As stated previously, C&E is the lead for very few regulations.  Please check the FAQ’s for the lead program (Solid & Hazardous Waste, Hazardous Materials, Air, Water, Land Use) for regulation specific information.

  3. Q.  Can I get a waiver for a rule that is established under a Federally authorized, delegated or assumed program?

    A.  Regulations established under Federally authorized, delegated or assumed program cannot be waived pursuant to the Waiver Rule.  Please check the FAQ’s for the lead program (Solid & Hazardous Waste, Hazardous Materials, Air, Water, Land Use) for regulation specific information.

  4. Q.  Can a waiver be used as a defense to an enforcement action or to excuse prior violations?

    A.  No.  Waivers are not a defense to an enforcement action for a violation that predates the waiver, and do not justify or excuse prior violations.  The approval of a waiver will not affect the penalty portion of an enforcement action.

  5. Q. How will waiver approvals be enforced?

    A.   Approved waivers are enforceable just like other DEP approvals/permits;  DEP enforcement is charged with monitoring a waiver recipient’s compliance with waiver conditions.

  6. Q. Can DEP revoke an approved waiver?

    A.  Yes.  For example, DEP can revoke a waiver for noncompliance with a waiver condition or for submittal of false or inaccurate information.

 

Environmental Management Information and FAQs

For general information about this program, please visit http://www.nj.gov/dep/cem/

Division of Air Quality

  1. Are there any existing waiver or variance provisions within the Air Pollution Control rules?
  2. What are the public notification requirements associated with a waiver request under Air Pollution Control rules?
  3. Can I get a waiver for a rule that is established under a Federally authorized, delegated, or assumed program?

 

  1. Q.  Are there any existing waiver or variance provisions within the Air Pollution Control rules?

    A.  Yes.  There are case by case waiver provisions built into several air rules.  Any such case by case waiver has a separate process.  If the rule has a waiver of a requirement that is part of the State Implementation Plan, approval of any such waiver must be by NJDEP and the Federal EPA, both processes include opportunity for public comment.

    Existing waiver/variances provisions of the Air Pollution Control Regulations include:
    • N.J.A.C. 7:27-6.5:  CONTROL AND PROHIBITION OF PARTICLES FROM MANUFACTURING PROCESSES – the Department can grant a variance where control technology is not sufficiently advanced for the source to meet the emission standards or, for a source that is a glass furnace, a cullet percentage threshold is exceeded.
    • N.J.A.C. 7:27-9.4:  SULFUR IN FUELS - Waiver of air quality modeling - The Department may waive the air quality simulation modeling requirements of N.J.A.C. 7:27-9.2(d) (for fuels included in an alternative emission control plan) based upon a prescribed demonstration by the applicant.
    • N.J.A.C. 7:27-14.7(j):  CONTROL AND PROHIBITION OF AIR POLLUTION FROM DIESEL-POWERED MOTOR VEHICLES -  hardship for certified diesel emission inspector to submit an NJ DEIC Inspection Form electronically
    • N.J.A.C. 7:27-14.8(i):  CONTROL AND PROHIBITION OF AIR POLLUTION FROM DIESEL-POWERED MOTOR VEHICLES  - hardship for certified diesel emission repair technical to submit an NJ Diesel Emission Repair Report form electronically
    • N.J.A.C. 7:27-16.17:  CONTROL AND PROHIBITION OF AIR POLLUTIONBY VOLATILE ORGANIC COMPOUNDS - This section allow an owner or operator to proposes an alternate VOC emission rate limit for equipment or source operations that are unable to comply with the existing rule standard because of  infeasibility due to cost or technical limitations.
    • N.J.A.C. 7:27-16.26:  CONTROL AND PROHIBITION OF AIR POLLUTION BY VOLATILE ORGANIC COMPOUNDS - Whenever a person responsible for the emission of any VOC believes that advances in the art of control for the kind and amount of VOC emitted have not developed to a degree which would enable the requirements of this subchapter to be attained, such person may apply to the Department in writing for a variance, setting forth any reason and justification therefor.
    • N.J.A.C. 7:27-19.13:   CONTROL AND PROHIBITION OF AIR POLLUTION BY OXIDES OF NITROGEN - This section allow an owner or operator to proposes an alternate NOx emission rate limit for equipment or source operations that are unable to comply with the existing rule standard because of  infeasibility due to cost or technical limitations.
    • N.J.A.C. 7:27-23.3:  PREVENTION OF AIR POLLUTION FROM ARCHITECTURAL COATINGS -  The Department honors a variance or exemption issued by another state with rules substantially equivalent to the New Jersey requirements.  There has to be a demonstration that the variance/exemption meets a number of criteria to establish equivalency and effectiveness.  The manufacturer must also provide information regarding, among other things, how much product is being used in New Jersey and the VOC content of the product.
    • N.J.A.C. 7:27-24.4(j):  PREVENTION OF AIR POLLUTION FROM CONSUMER PRODUCTS, Chemically formulated consumer products  - exempts a product with an IPE, ACP or variance granted by CARB or another state with rules equivalent to the OTC "Model Rule for Consumer Products" that is current and in effect and that meets other requirements to be in effect in New Jersey.
    • N.J.A.C. 7:27-24.8(d):  PREVENTION OF AIR POLLUTION FROM COSUMER PRODUCTS, Portable fuel containers and spill-proof spouts: certification requirements - exempts products in this category with an IPE or variance granted by CARB, the EPA, or another state with rules substantially equivalent to the OTC “Model Rule for Portable Fuel Container Spillage Control" that otherwise meets requirements to be considered valid for use in New Jersey.
    • N.J.A.C. 7:27-25.7:  CONTROL AND PROHIBITION OF AIR POLLUTION BY VEHICULAR FUELS - The Department may, at its discretion, issue an exemption allowing any person to store, transfer, or use non-conforming gasoline, provided the gasoline is used solely for the purpose of research, product development, and trial use.
    • N.J.A.C. 7:27-32.4(c):  DIESEL RETROFIT PROGRAM – Allows for exemption from retrofitting a school bus with CCVS if it is documented to be incompatible with the bus design.
    • N.J.A.C. 7:27-32.14(b):  DIESEL RETROFIT PROGRAM - Allows for reduced control level or exemption from retrofitting with BART is documented to be technically infeasible.
    • N.J.A.C. 7:27-32.14(b)1:  DIESEL RETROFIT PROGRAM - Allows for retirement (thus not retrofitted with BART) of a vehicle through “reduced usage.”

  2. Q.  What are the public notification requirements associated with a waiver request under Air Pollution Control rules?

    A.  Waiver requests associated with rules related to Air Operating Permits require public notice in accordance with N.J.A.C. 7:27-22.11.  The Department is required to provide notice by publication in a newspaper of general circulation in the area of the facility and by mail to those persons on the mailing list.  Other means may also be used to assure adequate notice.  The Department will also hold a public hearing if there is a significant degree of public interest.  The public comment period is a minimum of 30 days.

    For waiver requests associated with rules related to Permits and Certificates for Minor Facilities or Major Facilities without an Operating Permit, public notice requirements can be found at N.J.A.C. 7:27-8.10.  The Department shall seek comments from the general public prior to making any final decision on those applications for which such comment is required by State or Federal statutes.  Such applications include, but are not limited to, those applications which:  are subject to the PSD requirements published at 40 CFR 52; must be submitted to the EPA for approval as revisions to any state implementation plan; or are subject to emissions offset requirements under N.J.A.C. 7:27-18.  Also, the Department may seek comments from the public whenever it finds a significant degree of public interest in an application, or whenever it determines such comments might clarify one or more issues involved in the decision on the application.

  3. Q.  Can I get a waiver for a rule that is established under a Federally authorized, delegated, or assumed program?

    A.  The Waiver Rule at N.J.A.C. 7:1B-2.1(b)2 precludes the Department from waiving a rule providing for a Federally delegated, authorized or assumed program where the waiver would not be consistent with New Jersey’s delegation, authorization, or assumption of authority.  The DEP will evaluate each such waiver request to ensure that approving the waiver would be consistent with New Jersey’s delegation, authorization or assumption of authority pursuant to a Federal program.

 

Division of Environmental Safety and Health

  1. Are there any existing waiver or variance provisions in the regulations for which the Division of Environmental Safety and Health (DESH) is responsible?
  2. What are the public notification requirements associated with a waiver request under DESH rules?
  3. Can I get a waiver for a rule that is established under a Federally authorized, delegated, or assumed program?
  4. Are waivers of any Discharge Prevention Program rules promulgated at N.J.A.C. 7:1E-1.10 transferable?

 

  1. Q: Are there any existing waiver or variance provisions in the regulations for which the Division of Environmental Safety and Health (DESH) is responsible?

    A:
     Yes.  Existing waiver/variance provisions under DESH regulations include:
    • N.J.A.C. 7:1E-1.10:  DISCHARGE PREVENTION - The Department, when it determines that the application of the rules would impair expeditious containment or cleanup and removal of discharges, or endanger life, health, safety or the environment, may waive any provision of these rules.
    • NJAC 7:28-2.8:  RADIATION – The Department, upon application and a showing of hardship or compelling need, with the approval of the Commission, may grant an exemption from any requirement of these rules should it determine that such exemption will not result in any exposure to radiation in excess of the limits permitted by NJAC 7:28-6, Standards for protection against radiation.

  2. Q.  What are the public notification requirements associated with a waiver request under DESH rules?

    A.  There are no public notification requirements associated with DESH rules.  Therefore, waivers for DESH rules are noticed through the Department’s Waiver Rule website. 

  3. Q.  Can I get a waiver for a rule that is established under a Federally authorized, delegated, or assumed program?

    A.  The Waiver Rule at N.J.A.C. 7:1B-2.1(b)2 precludes the Department from waiving a rule providing for a Federally delegated, authorized or assumed program where the waiver would not be consistent with New Jersey’s delegation, authorization, or assumption of authority.  In DESH, the Toxic Catastrophe Prevention Act Program is a Federally delegated program.  Also, the radioactive material regulations at N.J.A.C. 7:28 are part of an Agreement State program as it is an assumed authority from the Nuclear Regulatory Commission.  The DEP will evaluate each such waiver request to ensure that approving the waiver would be consistent with New Jersey’s delegation, authorization or assumption of authority pursuant to a Federal program.

  4. Q Are waivers of any Discharge Prevention Program rules promulgated at N.J.A.C. 7:1E-1.10 transferable?

    A.  Any waiver of a Discharge Prevention Program rule is applied to a specific activity at a specific location.  It cannot be transferred from one specific activity and location to another specific activity and location.  If a discharge prevention, containment and countermeasure (DPCC), and discharge cleanup and removal (DCR) plan of a major facility include a waiver of a rule, the plan can be transferred to a new owner or operator following the procedures at N.J.A.C. 7:1E-4.8.  The waiver that is part of the DPCC and DCR plan would also be transferred to the new owner or operator.  The new owner or operator would have to comply with all the conditions specified in the decision of the Department waiving a specific rule provision.

Solid & Hazardous Waste Management Program

  1. Are there any existing waiver or variance provisions in the regulations for which the Solid & Hazardous Waste Management Program is responsible?
  2. What are the public notification requirements associated with a waiver request under Solid & Hazardous Waste Management Program rules?
  3. Can I get a waiver for a rule that is established under a Federally authorized, delegated, or assumed program?
  4. Are waivers issued under Solid & Hazardous Waste Management Program rules transferable to another person/entity?
  5. Can I get a waiver from any requirement for Recycling Grants and Loans, N.J.A.C. 7:26-15?
  6. Can I get a waiver from any requirement for Processing Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.A.C. 7:1I?
  7. Does my Solid Waste Facility or Recycling Center have to be included in the District Solid Waste Management Plan to receive a waiver of strict compliance with a Solid Waste or Recycling Rule?

  1. Q: Are there any existing waiver or variance provisions in the regulations for which the Solid & Hazardous Waste Management Program is responsible?

    A:
    Yes.  Existing waiver/variance provisions under Solid & Hazardous Waste Management Program regulations include:

    • NJAC 7:26-2.9(b):  SOLID WASTE DISPOSAL - The Department can allow variances to the Environmental and Health Impact Statement (EHIS) requirements for a Solid Waste Facility Permit Application if the applicant demonstrates that specific categories are not applicable or the area is not appropriately subject to the EHIS based on the type, size and location of the proposed solid waste facility
    • NJAC 7:26-2A.6(j):  ADDITIONAL SPECIFIC DISPOSAL REGULATIONS FOR SANITARY LANDFILLS - The Department may permit reductions in the performance, design standards, and construction requirements for Class II and Class III sanitary landfills based on specified factors.
    • NJAC 7:26-2A.9(e)3:  ADDITIONAL SPECIFIC DISPOSAL REGULATIONS FOR SANITARY LANDFILLS - The Department may waive requirements for closure and post-closure care measures at a sanitary landfill should specific health and/or environmental circumstances justify such action.
    • NJAC 7:26-2B.4(b)20:  ADDITIONAL SPECIFIC DISPOSAL REGULATIONS FOR THERMAL DESTRUCTION FACILITIES - The Department may permit a reduction in the setback limit for a thermal destruction facility if the applicant satisfactorily demonstrates that such a reduction will not pose an adverse impact on the adjacent land use activities.
    • NJAC 7:26-2B.5(b)10:  ADDITIONAL SPECIFIC DISPOSAL REGULATIONS FOR TRANSFER STATIONS - The Department may permit a reduction in the setback limit for a transfer station if the applicant satisfactorily demonstrates that such a reduction will not pose an adverse impact on the adjacent land use activities.
    • NJAC 7:26-3.6(o):  SOLID WASTE TRANSPORTATION - The owner/operator of an intermodal container facility may obtain a variance from the 72-hour storage time limit for ID 10 (non-putrescible), ID 13, ID 13C and ID 27 solid wastes if the Department finds that no additional hazard or potential hazard will be posed to human health or the environment.
    • NJAC 7:26G-11.1(b)2.iv and 11.1(e):  HAZARDOUS WASTE LAND DISPOSAL RESTRICTIONS - The regulated community may apply to the USEPA for variances from certain aspects of the Hazardous Waste Land Disposal Restrictions of 40 CFR Part 268.
    • NJAC 7:26G-12.2(h):  HAZARDOUS WASTE PERMIT PROGRAM – For a Hazardous Waste Facility Environmental and Health Impact Statement, the Department may waive any aspect of the proposed project's environmental setting and the analysis of the proposed project's impact on the aspect of the environmental setting when, in the opinion of the Department, such aspect of the environmental setting is not relevant to the proposed project.
    • NJAC 7:26G-16.11(f):  HAZARDOUS WASTE AVAILABILITY OF INFORMATION; CONFIDENTIAL BUSINESS INFORMATION - The Department may reduce or waive a fee for copies of public records if it determines that the reduction or waiver is likely to contribute significantly to public understanding of the operations or activities of the government.
    • NJAC 7:26H-2.7(c):  SOLID WASTE UTILITY REGULATIONS, RULES OF PRACTICE - All motions shall be deemed denied if not decided within 60 days after the filing. The Department may waive this rule on its own motion or for good cause shown by a party.
    • NJAC 7:26H-3.6(b):  SOLID WASTE UTILITY REGULATIONS, TRANSACTION FILINGS - The Department may waive the 30 day notice requirement for solid waste collection or disposal utility management agreements where extraordinary circumstance can be shown.
    • NJAC 7:26H-5.11(a)3.iii:  SOLID WASTE UTILITY REGULATIONS, SOLID WASTE COLLECTION EFFECTIVE COMPETITION MONITORING - The Department may waive the requirement that a solid waste collector supply requested information regarding a transaction within 30 days of receipt of the request.

  2. Q.  What are the public notification requirements associated with a waiver request under Solid & Hazardous Waste Management Program rules?

    A.  Public notification requirements under Solid & Hazardous Waste Management Program rules vary greatly depending on the regulatory chapter, the type of facility/regulated entity, and the type of application that may be associated with any particular waiver request.  The following is a brief description of most of the public notice requirements, however, one should refer to the applicable regulation for complete information.

    Public notice for waivers associated with Solid Waste Facility (i.e. sanitary landfills, transfer stations, resource recovery facilities) requirements can be found in N.J.A.C. 7:26-2.4(g).  The Department is required to provide a copy of complete applications to certain local, State and Federal agencies and to provide written notice to other local officials.  At the time of tentative approval, the Department must provide notice via mail to the applicant, local officials, interested parties and State/Federal agencies.  A notice of the tentative approval must also be published in 2 newspapers.  The Department must hold a public hearing for tentative approvals involving a new solid waste facility and when someone requests a hearing and provides significant issues of fact.  The comment period is a minimum of 30 days.  The Department must also publish notice each significant agency action regarding the application in the DEP Bulletin.

    Waiver requests associated with Intermodal Container Facility and Regulated Medical Waste Collection Facilities must be sent by the applicant to the host municipality and the applicable district solid waste planning agency as required by N.J.A.C. 7:26-3.6 and N.J.A.C. 7:26-3A.39, respectively.

    For waivers associated with Recycling Centers the applicant is required to send copies of the application to the host municipality and either the Solid Waste Coordinator or the Recycling Coordinator of the Solid Waste Management District in accordance with N.J.A.C. 7:26A-3.

    Waivers associated with Hazardous Waste Facilities would have to comply with the public participation requirements of 40 CFR Parts 124 and 270 as incorporated by reference in N.J.A.C. 7:26G-12 and 13.  Waivers related to new Hazardous Waste Facilities would require the applicant to notice and hold a pre-application meeting with the public.  Notice of the pre-application public meeting must be in the form of a newspaper advertisement, posting of a sign, and a broadcast media announcement.  The Department must notify a mailing list of interested persons and appropriate units of State and local government when the application is submitted.  The Department must also public notice draft decisions by mailing to Federal, State and local agencies and interested persons, newspaper publication and radio broadcast.  The comment period on a draft decision is a minimum of 45 days.  A public hearing is required if requested or at the discretion of the Department.  Waivers associated with existing Hazardous Waste Facilities with current permits would require public notification procedures in accordance with the applicable Class 1, 2 or 3 modification type as described in 40 CFR 270.42.

    The Solid Waste Utility Regulations at N.J.A.C. 7:26H also include public notice requirements for certain actions, such as a solid waste utility sale/lease of property, mergers or consolidations, management agreements and tariff filings above the peak rate.  Notice requirements for these actions can be found in N.J.A.C. 7:26H-3 and can include newspaper publication, mailings to the public, municipalities and other solid waste utilities, and bill inserts to customers.

  3. Q.  Can I get a waiver for a rule that is established under a Federally authorized, delegated, or assumed program?

    A.  The Waiver Rule at N.J.A.C. 7:1B-2.1(b)2 precludes the Department from waiving a rule providing for a Federally delegated, authorized or assumed program where the waiver would not be consistent with New Jersey’s delegation, authorization, or assumption of authority. The Solid & Hazardous Waste Management Program implements an authorized Hazardous Waste Program under the Federal Resource Conservation and Recovery Act.  New Jersey’s Hazardous Waste Regulations are found at N.J.A.C. 7:26G.  These rules prospectively incorporate by reference the Federal standards at 40 C.F.R. Parts 124, 260-266, 268 and 270.  The DEP will evaluate each waiver request to ensure that approving the waiver would be consistent with New Jersey’s delegation, authorization or assumption of authority pursuant to a Federal program.

  4. Q.  Are waivers issued under Solid & Hazardous Waste Management Program rules transferable to another person/entity?

    A.  To the extent that a waiver is related to a permit or approval issued under the Solid Waste Regulations (N.J.A.C. 7:26), the Recycling Rules (N.J.A.C. 7:26A), the Hazardous Waste Regulations (N.J.A.C. 7:26G) and the Solid Waste Utility Regulations (N.J.A.C. 7:26H) and the regulations provide for procedures to transfer the permit or approval to a new owner/operator, the waiver is also transferable using the applicable procedure for transfer.  This is true provided the circumstances upon which the waiver was obtained have not changed.  The new owner or operator would have to comply with all the conditions specified in the decision of the Department waiving a specific rule provision.  Procedures for transfer of Solid Waste Facility Permits, Recycling Center Approvals and Hazardous Waste Facility Permits can be found at N.J.A.C. 7:26-2.7, N.J.A.C. 7:26A-3.15, and 40 CFR 270.40, respectively.

  5. Q.  Can I get a waiver from any requirement for Recycling Grants and Loans, N.J.A.C. 7:26-15?

    A.  No.  In accordance with N.J.A.C. 7:1B-2.1(b)8, the Department cannot waive a rule providing for a remediation funding source, claim or other reimbursement, grant, loan, or other financial assistance.

  6. Q.  Can I get a waiver from any requirement for Processing Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.A.C. 7:1I?

    A.  No.  In accordance with N.J.A.C. 7:1B-2.1(b)8, the Department cannot waive a rule providing for a remediation funding source, claim or other reimbursement, grant, loan, or other financial assistance.

  7. Q.  Does my Solid Waste Facility or Recycling Center have to be included in the District Solid Waste Management Plan to receive a waiver of strict compliance with a Solid Waste or Recycling Rule?

    A.  Yes.  The Program will deny any request for a waiver that would need an amendment or administrative action of a District Solid Waste Management Plan.  This applies to both newly proposed facilities as well as any changes to existing facilities that would need a Plan amendment/administrative action.  The applicant must first apply and receive approval of the Plan amendment/administrative action.

 

Division of Land Use Regulation Waiver FAQs

  1. Are there existing hardship, waiver, exception, variance, or emergency authorization provisions in the Division's program rules?
  2. If I am submitting a waiver request are there public notice requirements that I have to meet?
  3. Can I request a waiver of a Land Use Management rule providing for a federal delegated, authorized and/or assumed program?
  4. Should I submit my waiver request and my permit application at the same time?
  5. Can I submit a waiver request independent of a permit application?
  6. Can I apply for a waiver of a rule where there is joint jurisdiction between the Division and the Army Corps of Engineers?

For information on this Division, visit http://www.nj.gov/dep/landuse/

  1. Q: Are there existing hardship, waiver, exception, variance, or emergency authorization provisions in the Division’s program rules?

    A: Yes, some Division rules contain waiver provisions.  For instance, the Flood Hazard Control Act Rules, N.J.A.C. 7:13 provide for a Hardship Exception at N.J.A.C. 7:13-9.8.  Review and analysis of the information required in the existing Flood Hazard Hardship Exception application will play an integral role in the review of waiver eligibility and assist in the Division’s determination. 

  2. Q: If I am submitting a waiver request are there public notice requirements that I have to meet?

    A: Yes, notice of the waiver request is to be done in accordance with the requirements set forth in the rule which is being requested to be waived. 

  3. Q. Can I request a waiver of a Land Use Management rule providing for a federal delegated, authorized and/or assumed program?

    A:  The Division is currently determining which, if any, Freshwater Wetland and Highlands Water Protection and Planning Act rules can be waived. The Division recommends a careful evaluation of the rule requested to be waived prior to your submission.  Additional information and clarification will be provided on the Waiver website.

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

    A: Yes, if you are submitting both a waiver request and a permit application, the Division recommends that they be submitted at the same time.  Concurrent submission will aid the Division in the review and analysis of the waiver request.

  5. Q: Can I submit a waiver request independent of a permit application?|

    A: Yes, provided that the waiver request is not related to a regulated activity or project.  If the waiver request is related to a regulated activity or project, the Division recommends concurrent submission of the waiver request and permit application.  The permit application will provide the Division with information that is necessary for a complete review and analysis of the waiver request.  

  6. Q. Can I apply for a waiver of a rule where there is joint jurisdiction between the Division and the Army Corps of Engineers?

    A: Yes, you can apply for such a waiver; however, the waiver will only apply to the Division rule.  The Division shall not waive a requirement of, or duty imposed by, a Federal or State statute or Federal regulation, unless that statute or regulation provides for such a waiver.  Furthermore, the granting of a waiver by Division will not undermine the jurisdiction of the Army Corps of Engineers.   

Site Remediation Program (SRP)

  1. Are there existing hardship, waiver, exception, variance, or emergency authorization provisions in SRP?
  2. Is seeking a waiver an appropriate means for a person responsible for conducting the remediation or a licensed site remediation professional to gain Department concurrence on a professional judgment decision made by an LSRP?
  3. What are the notice obligations for an applicant for a waiver request if that applicant is under direct Department oversight?
  4. What parts of N.J.A.C. 7:26C-1.7, Notification and Public Participation, apply to a waiver request?
  5. Does the clock stop ticking on a regulatory or mandatory timeframe at the time the waiver request is submitted?
  6. How much time should be requested in the application for an extension of a timeframe?
  7. May a waiver request be submitted regarding the terms of a permit and if so, when should that request be submitted?

For information on this program, visit http://www.nj.gov/dep/srp/

  1. Q: Are there existing hardship, waiver, exception, variance, or emergency authorization provisions in SRP?

    A:
    Waivers are allowed  under the ARRCS rules at N.J.A.C. 7:26C-1.3(a)2 or by waiving a technical requirement within the parameters of the Technical Requirements for Site Remediation (Technical Requirements) at N.J.A.C. 7:26E-1.7. 

  2. Q.  Is seeking a waiver an appropriate means for a person responsible for conducting the remediation or a licensed site remediation professional to gain Department concurrence on a professional judgment decision made by an LSRP?

    A:  No.  The Site Remediation Reform Act, N.J.S.A. 58:10C, and related amendments to the Brownfield Act, require a person to remediate a site under the supervision of an LSRP without Department oversight, except under limited circumstances.  The Department has established an inspection and review process through which it reviews all forms and key documents submitted by the LSRP, to ensure that the remediation is progressing in a manner that is consistent with the Department’s applicable rules. Department staff will contact the LSRP if there are any questions or concerns about how the remediation is being conducted.  It is not appropriate to use the Waiver Rule process to elicit the Department’s concurrence with actions taken by the LSRP

  3. Q.  What are the notice obligations for an applicant for a waiver request if that applicant is under direct Department oversight?

    A:  If the request for a waiver involves an issue under direct oversight, the person responsible for conducting the remediation must notify the public as required under the public participation plan. 

  4. Q.  What parts of N.J.A.C. 7:26C-1.7, Notification and Public Participation, apply to a waiver request?

    A:
    If the request for a waiver involves an issue pertaining to the remedial investigation or the remedial action, all public entities who must receive advanced notice prior to the person responsible for conducting the remediation engaging in those activities must also receive advanced notice of the waiver request and any terms of its grant or denial.

  5. Q.  Does the clock stop ticking on a regulatory or mandatory timeframe at the time the waiver request is submitted?

    A:  No.  This is because the Brownfield and Contaminated Site Remediation Act at N.J.S.A. 58:10B-1.3.b(3) requires the person responsible for conducting the remediation to continuously remediate unless directed otherwise by the Department.  If the waiver applicant anticipates that a timeframe may run out, that applicant should request an extension of that timeframe pursuant to the ARRCS rules at N.J.A.C. 7:26C-3.5. 

  6. Q.  How much time should be requested in the application for an extension of a timeframe?

    A:  The amount of time for which the extension is requested is a site-specific consideration.  However, under no circumstances may the request be open ended.  For example, the extension request should not be made for “such time as it may take the Department to review and approve or deny the waiver request.”  Rather, it should be for a specified number of days.

  7. Q.  May a waiver request be submitted regarding the terms of a permit and if so, when should that request be submitted?

    A: No.  A waiver request may only be considered for a waiver of a Department rule, not of a permit term or condition.  However, certain waiver request decisions may impact a permit term or condition.  In those cases, the waiver applicant must make an appropriate permit action (such as new, renewal, or modification) request in addition to the waiver request.  It is in the applicant’s best interest to submit the waiver decision approval letter with the permit application when it comes time to apply for the permit.
     
    If the waiver request is made at the same time of the permit action request, the Department will incorporate any approved waiver request items into the permit as terms and conditions of that permit. Permit application fees pursuant to N.J.A.C. 7:26C-4.5 must accompany the permit application.

    If the waiver request comes in after the Remedial Action permit is issued, the permit modification is to be handled through ARRCS permit modification provisions at N.J.A.C. 7:26C-7.12 and must be accompanied by permit modification fees. 

 

Water Resource Management

  1. Are there any existing waiver, variance, or exemption provisions within this program’s rules?
  2. What are the public notification requirements associated with a waiver request under WRM rules?
  3. Can I get a waiver for a rule that is established under a Federally authorized/delegated/assumed program?

For information on these programs, visit http://www.nj.gov/dep/infofinder/topics/water.htm

 

  1. Q. Are there any existing waiver, variance, or exemption provisions within this program’s rules?

    A: Water Resource Management (WRM) implements over 15 different chapters of rules. There are different types of waiver provisions already incorporated into some of these rules. A waiver request applicant should  evaluate the program rules from which a waiver is sought and determine if a waiver provision in those rules is more appropriate.

  2. Q.  What are the public notification requirements associated with a waiver request under WRM rules?

    A:  The term public notice includes, but is not limited to:
    • Any request for endorsement, comment or objection from an entity, including but not limited to a municipality, local authority/agency, or Commission,
    • The requirement to submit a copy of a permit application to any of the entities outlined above,
    • Any written notification to adjacent property owners; and/or
    • The publication of any notice of the intent to file an application, receipt of an application or the publication of a draft or final permit decision in any local newspapers, the DEP Bulletin, and/or the New Jersey Register.

    The following table summarizes public notice citations within WRM’s rules.

    Regulation Name

    Regulation

    Public Notice Required

    Citation

     

    Safe Drinking Water

     

    N.J.A.C. 7:10

    Y

    7:10-10.5
    7:10-11.5
    7:10-12.42

    Shelllfish  Growing Water Classification

    N.J.A.C. 7:12

    N

    N/A

     

    NJPDES

     

    N.J.A.C. 7:14A

    Y

    N.J.A.C. 7:14A-4.3
    N.J.A.C. 7:14A-15.10-15.17
    N.J.A.C. 7:14A-22

    Sludge Quality Assurance

    N.J.A.C. 7:14C

    N

    N/A

    Determination of Environmental Benefit Reuse of Treated Effluent

     

    N.J.A.C. 7:14D

    Y

    N.J.A.C 7:14D-2.2

    Water Allocation

    N.J.A.C. 7:19

    Y

    N.J.A.C. 7:19-2

    Stormwater Management

    N.J.A.C. 7:8

    N

    N/A

    Standards for Individual Subsurface Sewage Disposal Systems (Ch. 199)

     

    N.J.A.C. 7:9A

    Y

    N.J.A.C. 7:9A-3.9

     

    Surface Water Quality Standards

     

    N.J.A.C. 7:9B

    y

    N.J.A.C. 7:9B-1.8
    N.J.A.C. 7:9B-1.9
    N.J.A.C. 7:9B-1.10
    N.J.A.C. 7:9B-1.11

    Ground Water Quality Standards

    N.J.A.C. 7:9C

    Y

    N.J.A.C. 7:9C-1.10

    Well Construction

    N.J.A.C 7:9D

    N

    N/A

    Private Well Testing

    N.J.A.C. 7:9E

    N

    N/A

           

  3. Q.  Can I get a waiver for a rule that is established under a Federally authorized/delegated/assumed program?

    A:  DEP will evaluate each waiver request to ensure that approving the waiver would be consistent with New Jersey’s delegation, authorization or assumption of authority pursuant to a Federal program.  For more information, see the delegation document (pdf).

 

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Last Updated: October 29, 2013