The New Jersey Department of Environmental Protection (DEP) has developed numerous guidance documents to help those subject to regulation, as well as its own staff, to better understand and apply regulatory requirements ranging from how to apply for a permit to how to clean up a contaminated site. Guidance documents have served and should continue to serve a valuable and legitimate purpose. However, guidance documents have at times been misused to establish new substantive requirements that may lawfully be established only through the rulemaking procedures prescribed by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 et seq.
In response, the Legislature passed and the governor signed into law in January legislation prohibiting the improper use of guidance documents by regulatory agencies, including DEP, in the place of properly adopted regulations. P.L. 2012, c. 215. The APA already prescribes rulemaking requirements for all executive branch agencies, but the new law supplements the APA, providing direction to agencies regarding the use of guidance documents.
