Bill Banning Enforcement of Guidance Moves to Governor Christie’s Desk

Posted on December 19, 2011 by Bill Wolfe

Bill Would Hamper Compliance and Enforcement of Environmental Laws

Lt. Gov, Guadagno - Christie's "Red Tape Czar"

Lt. Gov, Guadagno – Christie’s “Red Tape Czar”

Last week, legislation that was originally intended to outright ban the use of Guidance documents by State Agencies passed both houses, and is now on Governor Christie’s desk.

Guidance documents generally interpret regulations and provide detailed directions on how to comply.

They are intended to make it more efficient and easier to implement and enforce regulations.

But many big polluters and developers have long sought to kill Guidance dcouments, as a means of blocking what they mistakenly view as an expansion of regulatory burdens and unlawful enforcement of environmental regulations.

The bill (A2464/S1783) was one element of a package to legislatively codify and implement Governor Christie’s “common sense regulation” and “Red Tape” Executive Order based initiatives.

There is no debate that the legislation targets DEP and environmental programs.

We testified before the Assembly Regulatory Oversight Committee in opposition on March 4, 2010 to explain how wrongheaded such a bill would be, given numerous DEP Guidance documents that are necessary to implement virtually every environmental program.

Remarkably, however, DEP Deputy Commissioner Kropp testified in support of the ban version of the bill (see: Democrats in Legislature Join Christie’s Red Tape Environmental Rollback Juggernaut).

In response to some of our concerns, Chairmen Burzichelli agreed to amend his bill.

(On a related note, it looks like the companion Red Tape bill, A2486[2R] to prohibit State standards more stringent then federal requirements – (S1986) – is stalled in the Senate.)

The bill subsequently was amended on March 15, 2010 on the Assembly floor to eliminate the outright ban on Guidance. Doing a complete U-Turn, instead of a ban, the amendments specifically would allow the use of Guidance.

But the floor amendments raised additional concerns, by restricting then scope and prohibiting the enforcement of Guidance documents:

A regulatory guidance document authorized pursuant to this subsection, until such time as it is adopted as a rule pursuant to P.L.1968, c.410, shall not:

(1) impose any new or additional requirements that are not included in the rule that the regulatory guidance document is intended to clarify or explain; or

(2) be used by the State agency for enforcement purposes.

One example I offered in testimony to illustrate why the bill was a bad idea was the 47 Guidance documents used in the DEP Site Remediation Program.

Some of these Guidance documents include “requirements that are not in the rule” and are specifically incorporated in the regulations by reference, making them enforceable.

As such, the bill would ban or restrict their use and raise numerous legal and enforcement issues, many of which are likely to spawn litigation.

A key example is the controversial Vapor Intrusion Guidance.

Toxic chemical vapors could be migrating into homes and buildings at hundreds of sites across the state.

The vapor issue is now in the national spotlight, because due to vapor risks, EPA recently announced an intention to begin to consider vapor intrusion as a factor in Superfund listing decisions.

But it is not just the Site Remediation Program that would be impacted.

Here are some other examples of DEP implementation Guidance:

This legislation is all about handcuffing DEP and preventing them from enforcing environmental laws.

Ironically, the regulated community historically has requested – and benefitted from – DEP Guidance documents, which interpret complex regulations and aid compliance.

We urge the Governor to veto the bill.

But we suspect he will welcome them as tools to implement his “common sense regulation” and “Red Tape” initiatives.

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