In re N.J.A.C. 7:1B-1.1
431 N.J. Super. 100
N.J. Super. Ct. App. Div.2013Background
- EO2 directed agencies to adopt waiver rules to alleviate regulatory burdens and publish waiver policies on websites.
- DEP proposed and adopted broad waiver rules N.J.A.C. 7:1B-1.1 to -2.4 in 2012, post-hearing and comment.
- Twenty-eight environmental and labor groups challenged the waiver rules as ultra vires or lacking standards and as de facto rulemaking via DEP postings.
- Court analyzes DEP’s authority under broad statutory rulemaking powers and its compliance with APA standards.
- Court addresses de facto rulemaking by DEP website guidance and FAQs, which it invalidates to the extent beyond the waiver rules themselves.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is DEP’s waiver rulemaking ultra vires? | DEP lacks broad waiver authority | DEP has implied authority within broad statutory powers | DEP's waiver rules validly promulgated under implied authority |
| Do the waiver rules provide adequate regulatory standards? | Standards are vague and undefined | Standards are definite and draw on existing agency criteria | Waiver rules contain adequate standards and evaluation criteria |
| Is DEP’s post-promulgation guidance on its website de facto rulemaking violating the APA? | Guidance documents amount to new substantive requirements | Guidance aids implementation within APA | Web postings invalid as de facto rulemaking; remand to limit to APA-compliant rulemaking |
| May DEP supplement the rules with internal procedures and forms without APA notice? | Internal processes/forms create binding procedures | Internal processes assist consistency; not binding unless rules amended | Internal processes must be adopted through notice-and-comment rulemaking |
Key Cases Cited
- In re Petition of N.J. Am. Water Co., 169 N.J. 181 (2001) (regulatory review of agency rulemaking deference to agency expertise)
- In re Adoption of N.J.A.C. 7:26B, 128 N.J. 442 (1992) (deference to agency rule interpretation within scope of enabling statute)
- Bergen Pines Cnty. Hosp. v. N.J. Dep’t of Human Servs., 96 N.J.456 (1984) (agency flexibility in administering regulations)
- A.A. Mastrangelo, Inc. v. Comm’r of Dep’t of Envtl. Prot., 90 N.J.666 (1982) (agency power to adapt regulations to changing conditions within statutory mandate)
- N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J.544 (1978) (deference to agency interpretations; standard for regulatory review)
- SMB Assocs. v. N.J. Dep’t of Environmental Protection, 264 N.J.Super.38 (1993) (agency waiver authority generally requires rulemaking; ultra vires if not)
- In re CAFRA Permit No. 87-0959-5 Issued to Gateway Associates, 152 N.J.287 (1997) (implication that waivers should be adopted via regulation setting standards)
- County of Hudson v. Department of Corrections, 152 N.J.60 (1997) (agency should not waive regulations absent statute/regulation authorizing waiver)
- Cooper Univ. Hosp. v. Jacobs, 191 N.J.125 (2007) (waivers generally must be embodied in APA-regulated rules; agency action must align with statute)