Feb 25, 2022
Beware of Upcoming Deadlines to Complete Site Remediation
Current and past owners, operators and other parties deemed responsible for contaminated properties (together “Responsible Parties”), who are subject to the New Jersey Department of Environmental Protection (“NJDEP”) statutory and mandatory remediation timeframes (which required remedial investigation to be completed by either May 7, 2014, or May 7, 2016) as set forth in the Site Remediation Reform Act (N.J.S.A. 58:10C-27) (“SRRA”) are alerted to take action and complete the remedial action by May 6, 2022. In general, Responsible Parties are subject to these deadlines if their properties were already known by the NJDEP to be contaminated or were undergoing remediation at the time the SRRA went into effect (unless NJDEP set a site-specific timeframe).
On February 8, 2021, due to the ongoing COVID-19 pandemic, the NJDEP extended the previous deadline, for one year, from May 6, 2021, to May 6, 2022, after the issuance of Executive Order No. 103 by Governor Murphy. There has been no action to further extend this deadline.
Those who fail to complete remediation by May 6, 2022, and who have not received a NJDEP approved extension, will be deemed to be in “Direct Oversight” under NJDEP regulations and subject to fines, penalties and other conditions and stipulations imposed by NJDEP not required of those who timely complete their remedial actions.
The basis to obtain an extension of these deadlines is set forth in the Administrative Requirements for Remediation, N.J.A.C. 7:26C-3.5 (“ARRCS”) and is extremely limited. Extensions will be deemed granted if the failure to complete the remedial action is due to a delay by NJDEP in reviewing or granting a permit or required submittal, but only if the Responsible Party had filed a technically and administratively complete application. Also, an extension may be granted if there has been a delay in obtaining federal or state funding for the remediation provided the Responsible Party submitted a complete and timely application.
A Responsible Party who does not believe it will timely complete its remedial action must submit a written extension request by March 6, 2022, sixty days prior to the NJDEP deadline of May 6, 2022.NJDEP may grant an extension, in writing, when the Responsible Party’s request is based on the following:
1. a delay in obtaining access to property if the Responsible Party undertook regulatory specified action to obtain access;
2. circumstances beyond its control like fire, flood, riot or strike; or
3. site-specific circumstances that NJDEP determines warrants an extension such as ongoing litigation or where the Responsible Party can demonstrate it is an owner of a small business without sufficient money to complete the remediation.
ARRCS describes, in detail, the information that must be submitted as part of the extension request. Requests for extensions to complete remedial actions after the March 6, 2022deadline will not be considered by NJDEP, and the Responsible Party will automatically enter Direct Oversight.
Direct Oversight is a burdensome and demanding process for Responsible Parties since NJDEP directs all remediation activities, selects the remedial action for each site, and requires pre-approval for all disbursements from a Remediation Trust Fund. Furthermore, Direct Oversight by NJDEP imposes additional requirements on Responsible Parties including the:
1. mandatory establishment of a Remediation Trust Fund;
2. submission of an NJDEP approved feasibility study; and
3. submission of a site specific NJDEP approved public participation plan.
Therefore, it is prudent for all affected Responsible Parties to avoid Direct Oversight if possible.
Plan now to avoid the onerous pitfalls of NJDEP Direct Oversight by at least filing timely extension requests. Even if your request is denied, swiftly moving forward with the remedial action will limit the severe effects of Direct Oversight.