Upcoming 2024 Mandatory and Regulatory Deadlines to Complete the Remediation of Contaminated Properties in New Jersey

Our blog regarding Remediation Deadlines was originally published in 2021. It has been supplemented in 2024 for relevance and insights.

As we move into 2024, the environmental remediation landscape continues to evolve, presenting both challenges and opportunities for property owners, developers, operators, and other parties responsible for remediating contamination. Many parties conducting cleanups find themselves contending with important deadlines and milestones in the remediation process. Unless the New Jersey Department of Environmental Protection has already granted an extension, responsible parties must complete remedial actions by May 7, 2024, where contamination was discovered prior to May 7, 1999, or face a possible enforcement action by the NJDEP.

May 7, 2024 Remedial Action Mandatory Timeframes (MTF)

“Mandatory” timeframes or MTFs to complete remedial actions are defined by NJDEP regulations as two (2) years following the “regulatory” timeframe or deadline to complete the remedial action See N.J.A.C. 7:26C-3.3(b)(6). Thus, to know the MTF deadline for completing the remedial action, you first need to know the initially applicable “regulatory” timeframe (RTF) deadline, which is based on the discovery of initial discharges of hazardous substances that first required investigation or remediation and whether soil (3 years from the date of discovery) or both soil and groundwater (5 years from date of discovery) are impacted at a contaminated site. For many contaminated properties in New Jersey, with applicable prior extensions obtained, the applicable remedial action mandatory timeframe is May 7, 2024.

Can Timeframes Be Extended?

Remedial actions must be completed within the regulatory and mandatory timeframes in order to avoid noncompliance and potential enforcement by NJDEP. If this is not possible, extensions may be or may have been available depending on whether the deadline is for a MTF or a RTF, but in the case of May 7, 2024 mandatory timeframe deadlines, the window may have already passed.

Mandatory Timeframe extension requests for the May 7, 2024 Remedial Action MTF needed to be submitted at least 60 days before expiration of the timeframe, i.e. by or before the beginning of March 7, 2024, and NJDEP has discretion in deciding whether or not to grant such requests. Importantly, such requests must be “justified” and NJDEP regulations limit the situations that may be used for justifying an extension of the MTF. Additionally, NJDEP regulations require the request to include details regarding the causes leading to additional time being necessary, the amount of time needed to complete the remedial action, and the steps taken to minimize the time needed. Although the March 7, 2024 deadline to submit a MTF May 7, 2024 Remedial Action extension request has passed, a party conducting remediation is still free to submit an extension request; however, NJDEP may be unwilling or unable to grant any such extension at this time.

Regulatory Timeframe extension requests are deemed granted if the NJDEP does not deny the request. However, these RTF extension requests must be submitted at least 30 days before the deadline.

Implications for Missing the May 7, 2024 Remedial Action MTF or Other Timeframes

If you are the Licensed Site Remediation Professional, environmental consulting firm, or person responsible for conducting the remediation of a contaminated site that has missed, or will imminently miss a MTF or RTF deadline, and did not timely submit and get approval for an extension request, the Site may be subject to NJDEP enforcement which could include, without limitation: an entering into an Administrative Consent Order; placing the Site into NJDEP Direct Oversight which may reduce flexibility in the remediation process which could add additional regulatory requirements and increase remedial costs; establishment of a remediation funding source for the entire remaining cost of the remediation; and, the incurrence of fines and penalties.

There may be defenses in law or equity available to parties conducting remediation who have missed, will miss a MTF or RTF deadline, or who have been denied by NJDEP for an extension request to a MTF or RTF. For example, the Brownfield and Contaminated Site Remediation Act N.J.S.A. 58:10B-1 et seq., may exclude from enforcement Sites who have missed a MTF or RTF, if the reason for the delay is parties attempting to obtain access to off-site properties to conduct remediation.

Furthermore, remediation of contaminated sites can be time-consuming and costly. If remediation milestones, RTFs, and/or MTFs have not been, or will not be, met because of a lack of capital or funding, previously overlooked funding alternatives such as insurance coverage and payments from historic insurance policies, pursuit of other responsible parties, or government funding programs may be available to assist parties conducting remediation. Our firm has experience assisting clients in exploring these often-overlooked funding options and obtaining alternative financing to help bring their sites into compliance. If this may be helpful to facilitate remediations, we suggest reviewing our practice areas and additional insights regarding insurance and responsible party cost recovery below:

Navigating the complexities of New Jersey’s environmental remediation regulations requires diligence, awareness, and strategic planning. Need help? The attorneys at Davis Environmental Law are familiar with the mandatory and regulatory timeframes and deadlines imposed by SRRA and are ready to assist. Reach out to us to discuss today.

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