The Appellate Division’s March 21 decision in In re N.J.A.C. 7:1B-1.1 et seq., constitutes the most recent chapter in the long-running saga concerning the Department of Environmental Protection’s (DEP) authority to waive strict compliance from its regulatory requirements. 2013 N.J. Super. LEXIS 43. For a discussion of the prior events, see L. Goldshore, "DEP’s Long-Awaited Waiver Rule," 207 N.J.L.J. 831 (Mar. 19, 2012), and "DEP’s Waiver Rule Takes Effect," 209 N.J.L.J. 631 (Aug. 20, 2012).
The appeals court was unequivocal in finding that DEP had the authority to adopt the waiver rules and affirming them as written. But it sent the agency back to the drawing board on a secondary and independent issue the validity of a guidance document, frequently asked questions (FAQs) and submission forms posted on the department’s website.
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