NJDEP Remedial Action Extension and Clarifications

Much Needed Relief for Certain Sites with Looming Mandatory Remediation Deadlines

Effective February 1, 2021, the New Jersey Department of Environmental Protection (NJDEP) issued an extension of the mandatory remedial deadlines for certain qualified sites. For sites with contamination pre-dating 1999 with remedial action deadlines of May 6, 2021, this extension extends that deadline, and also extends other remedial action deadlines set to expire during the timeframe of Governor Murphy’s original COVID-19-related State of Emergency Order (Executive Order 103). On February 18, 2021, the NJDEP issued a further clarification for certain “soils-only” cases. On February 24, 2021, the NJDEP issued a second clarification on the withdrawal of Remedial Action Permit (RAP) applications for sites eligible for a one-year remedial action extension.

Even with the two clarifications, the February 1st notice and extension remains less than clear and must be evaluated by a qualified professional on a site-by-site basis. It is critical that your sites maintain compliance with all regulatory and mandatory deadlines in order to qualify for future extensions and to avoid statutory penalties and the imposition of additional oversight obligations by the NJDEP. Given the ongoing roll-outs by the NJDEP of further clarifications to the February 1st notice, site owners and environmental professionals should monitor the NJDEP website for further developments.

Here is a more detailed break-down of the deadlines extended by the NJDEP’s February 1st notice, as well as the February 18th and February 24th clarifications:

Non-Pre-1999 Contamination Sites

For remediations that were not subject to the statutory timeframes [non-pre-1999 contamination sites] set forth in the Site Remediation Reform Act (SRRA) at N.J.S.A. 58:10C-27 and 27.1 to complete the remedial investigation by either May 7, 2014 or May 7, 2016:

  • The Notice further extends certain timeframes for remediation activities, for a total of 455 days.
    • Note that this is inclusive of the prior 270-day extension allowed by the April 24, 2020 and August 17, 2020 Notices of Rule Waiver/Modification/Suspension.
  • All subsequent timeframes are also extended.
    • For example: if the remedial investigation regulatory timeframe for a remediation with impacted groundwater is extended from March 9, 2020 to June 7, 2021, the remedial investigation mandatory timeframe is extended to June 7, 2023, the remedial action regulatory timeframe is extended to June 7, 2026, and the remedial action mandatory timeframe is extended to June 7, 2028.

The uncertainty with these sites is that it is unknown whether EO 103 will remain in effect when this additional extension expires and whether the NJDEP will extend these timelines further. Furthermore, the NJDEP has stated that it will not review extension requests submitted for timeframes that are subject to this notice. As a result, the most prudent course is to presume that no further extensions will be granted and plan for site compliance accordingly.

Pre-1999 Contamination Sites

For remediations that were subject to the statutory timeframes [pre-1999 contamination sites] set forth in the SRRA at N.J.S.A. 58:10C-27 and 27.1 to complete the remedial investigation by either May 7, 2014 or May 7, 2016, including where the timeframes are set forth in an Administrative Consent Order:

  • If the timeframe to complete the remedial action (whether regulatory or mandatory) has not yet passed, this notice extends the timeframe to complete the remedial action from May 6, 2021 to May 6, 2022.

In order to qualify for this extension, prior regulatory or mandatory deadlines must not have been missed. It remains critical to ensure that your site remain compliant with all regulatory or mandatory deadlines going forward and that a qualified professional is retained to ensure compliance.

February 18 Clarification

The NJDEP explained that a certain class of cases, specifically, soil-only cases subject to the statutory requirement to complete remedial investigation by May 7, 2014 and for which no extension was obtained, were inadvertently omitted from the February 1st notice. These sites were subject to a February 6, 2021 mandatory deadline to complete the remedial action [see N.J.A.C. 7:26E-5.8(b)1.i]. On February 18, the NJDEP clarified that a licensed site remediation professional (LSRP) may submit a mandatory timeframe extension request to the NJDEP by May 1, 2021 and a one-year extension would be granted to February 6, 2022.

February 24 Clarification

The NJDEP clarified that the February 1 notice permits the withdrawal of previously submitted Remedial Action Permit (RAP) applications for cases that were subject to the statutory deadline to complete the remedial investigation by either May 7, 2014 or May 7, 2016. A RAP withdrawal request must be submitted to the NJDEP by March 15, 2021.  An additional RAP application fee will not be charged when the subsequent RAP application is submitted, as long as the NJDEP has not issued deficiencies for the original RAP application and the revised RAP application is received on or before May 6, 2022.

Important Notes:  In order to qualify for either of the above extensions in the February 1 notice, the person responsible for conducting the remediation must have retained an LSRP.

Additionally, parties remain responsible to investigate known or suspected receptors and immediate environmental concerns related to human health.

The full text of the NJDEP’s February 1, 2021 Extension Notice can be found as follows:

https://www.nj.gov/dep/covid19regulatorycompliance/docs/srp-remedial-timeframes-20210201.pdf

If you have any questions about this alert or would like to speak to an attorney concerning the application of this notice to your environmental remediation site, please contact the author, Laura A. Siclari, or any of the other members of MARC Law’s Environmental Group.

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