Upcoming Mandatory and Regulatory Deadlines to Complete the Remediation of Contaminated Properties in New Jersey
New Jersey’s history of industrial and commercial innovation and operation had the unintended consequence of causing environmental contamination. Arising from concerns regarding potential impacts to human health and the environment, a body of laws were enacted to address and regulate the cleanup of contamination. The Site Remediation Reform Act and regulations issued by the New Jersey Department of Environmental Protection (NJDEP) address environmental cleanup and include legally mandated timeframes to start and complete remediations. Failure to undertake and complete remediations as required by law, subjects owners and operators of contaminated sites to possible penalties, governmental enforcement, and other legal liabilities. Owners of property and businesses may be impacted by an important looming deadline that could impose legal liability if not met.
Specifically, the deadline of May 7, 2021 is quickly approaching for certain parties to complete remedial action of a contaminated site and submission to the New Jersey Department of Environmental Protection of a Remedial Action Report (RAR). There are two different deadlines arriving on May 7, 2021. One is a “mandatory” deadline, and the other is a “regulatory” deadline. The May 7, 2021 deadlines are applicable to properties where contamination was discovered prior to May 7, 1999. Initially, those parties were required to complete the remedial investigation by May 7, 2014. Certain sites subject to the May 7, 2014 were able to obtain an extension of the timeframe for completing the investigation to May 7, 2016. If that deadline has not already passed, and the site obtained and maintained an extension to complete the Remedial Investigation until May 7, 2016, then May 7, 2021 should be the “regulatory” deadline. If a Remedial Investigation report was submitted on or before May 7, 2014, or an extension of the May 7, 2014 deadline was not obtained, then May 7, 2021 should be the “mandatory” deadline to complete the remedial action.
The May 7, 2021 Mandatory Deadline
“Mandatory” deadlines to complete the remedial action are defined by NJDEP regulation, as two years following the “regulatory” deadline to complete the remedial action. (N.J.A.C. 7:26C-3.3(b)(6)). Thus, to know the “mandatory” deadline for completing the remedial action, you first need to know the initially applicable “regulatory” deadline, which is based on the discovery of initial discharges of hazardous substances that first required investigation or remediation. For many parties remediating contaminated property in New Jersey, this means the mandatory deadline is May 7, 2021.
NJDEP issued guidance to help determine what the responsible person must do to document completion of the remedial action, which includes:
• The achievement of all applicable remediation standards, submitting a remedial action report and receiving an unrestricted use Response Action Outcome (see N.J.A.C. 7:26E-5.7(b)6ii); or
• If contamination above the applicable remediation standards may remain at the site, but engineering or institutional controls are constructed and permitted consistent with DEP regulations (see N.J.A.C. 7:26E-5.7(b)), regarding timing and submission of remedial action permit application(s) concurrent with submission of the remedial action report.
(See NJDEP Administrative Guidance Regarding Compliance with Remedial Action Report Timeframes, April 4, 2017). If the remedial action is not completed within the proscribed time frame, the site and regulated party can be subject to NJDEP direct oversight, fines and penalties. (See N.J.A.C. 7:16C-3.3(c), 9.5(b)).
Regulations provide the ability for mandatory deadlines to be extended, however, requests for extension must be submitted at least 60 days before expiration of the timeframe, which is at least the beginning of March 2021, and the 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 such justification. The Department’s guidance can be found on the State’s official website. 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. Taken together, the Department’s guidance and its regulations suggest that extension requests may not be perfunctorily granted. Rather, it appears the Department may carefully scrutinize requests to extend mandatory deadlines, and responsible parties should plan for extension requests now, and submit those requests promptly to avoid missing deadlines.
The May 7, 2021 Regulatory Deadline
For those parties that obtained and maintained an extension allowing the remedial investigation report to be submitted on or before May 7, 2016, then May 7, 2021 can be their “regulatory” deadline to complete the remedial action and submit a remedial action report. Requests to extend the regulatory deadlines are deemed granted if the NJDEP does not respond denying the request. However, these extension requests must be submitted at least 30 days before the deadline which is the beginning of April and quickly approaching. Accordingly, parties should begin planning for extension requests now if the remediation will not be complete by May 7, 2021.