Monday, March 8, 2010

A move to get control of regulations in NJ

DEP building

A legislative oversight committee on Thursday released a bill that seeks to reel in what many in the business community view as a runaway regulatory regime at the state’s Department of Environmental Protection.

The legislation, A-2464, prohibits state agencies from using guidance documents as regulatory enforcement tools and requires that all such documents be posted on the NJDEP’s website.

While the legislation would apply to all agencies, it was clear from testimony at the Assembly Oversight and Gaming Committee that the NJDEP was the principal target for the measure.

DEP Assistant Commissioner Irene Kropp was defensive about the need for guidance documents, explaining that they cover a wide field of communications. Some of them, she said, are informative, rather than regulatory, and are designed to help businesses understand what is required to of them to conform with agency regulations. Others are required by federal and state regulations.

Kropp then said that the guidance documents have become the focus of greater attention since they’ve been published to address the state’s new Licensed Site Remediation Professional program.

She said the Department found the documents were necessary to assist newly licensed LSRPs “so they understand what they need to do so that enforcement action isn’t taken against them.”

But, before wrapping up her abbreviated testimony, Kropp slipped in a bombshell of a news bulletin.

She told the committee that Acting DEP Commissioner Bob Martin has decided to adopt an Administrative Order directing all DEP assistant commissioners and managers to develop guidance documents “that are truly best management practices..that an environmental professionals and LSRP can use to determine the best approach using their professional judgment and provide some flexibility” on strictly technical issues.”

She said those guidance documents “will not contain environmental standards or requirements that will be enforceable.” Anything falling into the latter categories, she said “will be put into regulation.”

This represents a radical shift of thinking at the DEP and reflects
the new direction that the administration of Gov. Chris Christie says is necessary make the Department less of a hurdle for business as he endeavors to turn around the state’s failing economy.

The news should be welcomed not only to LSRPs who have feared that guidance documents would be interpreted as inflexible enforceable standards, but also for other consultants who complain that the department often makes unilateral shifts in its requirements with limited scientific basis and no advance notice to the regulated community.

Attorney Neil Yoskin told the committee this can lead to situations where a business can “submit an application on a Monday only to find out that the standard had changed the Friday before.”

Hal Bozarth, executive director of the Chemistry Council of New Jersey congratulated sponsor (ad committee chairman) John Burzichelli (D-Gloucester) for introducing the bill and the DEP for its shift in policy on guidance documents.

He said that the chemical companies he represents provided 80,000 jobs just seven years ago with salaries averaging $95,000.

“Today we’re down to 63,000 and fading fast,” said Bozarth.

Bozarth asserted that DEP regulations in the last decade have been “strangling manufacturing to death” and that jobs have fled to other states “that reformed their regulatory structure to make sure they weren’t driving investment out.”

Representatives of several environmental groups, including Environment New Jersey, the American Littoral Society, NJ Environmental Federation, Sierra Club and PEER expressed reservations about the legislation and no doubt will escalate their opposition when the bill heads to an Assembly floor vote.

To hear all the committee testimony, click here

What do you think about the legislation and the Acting DEP Commissioner’s impending order on guidance documents?
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Committee ponders limits of state agencies' regulations
NJDEP Site Remediation Reform Act Guidance

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