Posted on February 24, 2012 by William Hyatt
Typically, EPA guidance contains a “disclaimer” that it does not impose legally binding requirements and that the agency retains the discretion, on a case-by-case basis, to adopt different approaches. In practice, however, EPA tends to require strict adherence to its guidance as though the guidance had been adopted as a binding regulation. State regulatory agencies have followed the same or similar patterns. The practice avoids the notice and comment protections of the Administrative Procedure Act and its state counterparts, denies access to the courts to challenge unlawful guidance, and creates uncertainty in the regulated community. Recently, however, New Jersey has signaled what may be the beginnings of a departure from that approach.
In January, 2012, after years of advocacy by the regulated community, the New Jersey Legislature adopted Assembly Bill No. 2464, which prohibits the use of guidance documents that have not been adopted as rules, unless the guidance is posted on the agency’s website. On January 17, 2012, Governor Christie signed A. 2464 into law. P.L.2011, c.215 (N.J.S.A. 52:14B-3a). Under the bill, even published guidance cannot impose new or additional requirements not spelled out in state or federal law or rules that the guidance is intended to clarify. Most importantly, guidance not promulgated as a rule cannot be used as a substitute for state or federal law or rules for enforcement purposes.
This issue came to a head when the N.J. Department of Environmental Protection adopted rules implementing the recently enacted Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq. (SRRA), best known for creating a licensed site remediation professional program. The rules explicitly made NJDEP guidance enforceable. That guidance, which contained a number of provisions the regulated community thought were extreme, had not undergone the notice and comment process required by the state APA.
Now, NJDEP finds itself in an awkward position, having adopted rules which run counter to the newly adopted statute and having relied on the enforceability of its guidance to implement the SRRA. As of this writing, the agency has not publicly disclosed how it intends to cope with this awkwardness. It will be interesting to see whether Congress and the legislatures in other states follow the lead of A. 2464.