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NJDEP Offers Guidance On Remedial Action Report Submittal Deadlines

Month: August 2017

NJDEP Offers Guidance On Remedial Action Report Submittal Deadlines

Posted on by rd_admin

Recently, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance regarding the regulatory and mandatory timeframes for the submission of a remedial action report pursuant to the Technical Requirements for Site Remediation and the Administrative Requirements of the Remediation of Contaminated Sites.  The guidance is meant to assist persons responsible for conducting the remediation (“PRCR”) in determining when remedial action reports are due, when to request an extension of the regulatory and mandatory deadlines for submission of such reports and in what situations the NJDEP will consider such an extension.

The remedial action report documents either: 1) the achievement of all applicable standards and the subsequent issuance of an unrestricted Response Action Outcome or 2) in the case of contamination remaining at a site, that the remedial action is operating as designed under engineering and/or institutional controls resulting in the submission of a remedial action permit (“RAP”) application.  For cases involving only soil contamination, the regulatory timeframe for the submittal of the remedial action report is within three years of the due date of the remedial investigation report (the “RIR Due Date”), and the mandatory timeframe is within five years of the RIR Due Date.  For cases involving the remediation of all other contamination, the regulatory timeframe is within five years of the RIR Due Date, and the mandatory timeframe is within seven years of the RIR Due Date.

It is important to note that the PRCR also must complete the remedial action within the same timeframes as the submittal of the remedial action report.  In order to complete a remedial action, a PRCR must: 1) implement all remedial actions required to address the contamination at the site; 2) submit a remedial action report; and 3) submit a final remediation document to the NJDEP.

A PRCR may request an extension of both the regulatory and mandatory deadlines for the submission of the remedial action report and completion of the remedial action, and, in fact, a request for a regulatory timeframe extension is automatically approved unless the NJDEP specifically advises the PRCR that the request is denied.  Requests for a mandatory timeframe extension, however, are reviewed by the NJDEP and either approved or denied in writing.

In cases where a remedial action involves an institutional or engineering control, a RAP is needed to complete the remedial action.  According to NJDEP’s guidance, PRCRs that fail to submit administratively and technically complete RAP applications to the NJDEP prior to the remedial action report submission due date will not receive an extension.   A PRCR also must be cognizant of the fact that the NJDEP is currently taking 150 – 200 days to review applications and issue a RAP.  Therefore, when considering the deadline for submission of the remedial action report and completion of the remedial action, a PRCR must consider the time it is currently taking NJDEP to review and issue RAPs.

Furthermore,  NJDEP will not grant an extension in cases where the PRCR failed to select and implement a remedial action that meets the remedial objectives of the report.  Nor will the NJDEP grant an extension when a PRCR waits until after the due date for the submission of the remedial action report to determine that the selected remedial action is not working.   In cases where the remedial action is not working, the PRCR is required to submit a revised remedial action work plan and demonstrate that the PRCR has taken aggressive action to modify the remedial action within the applicable timeframes.

If the PRCR cannot submit a remedial action report within the regulatory and mandatory timeframes, including any approved extension, the site will be subject to the NJDEP’s direct oversight requirements and may be subject to penalties of up to $20,000/day. Moreover, the Licensed Site Remediation Professional (“LSRP”) for the site is required to advise the PRCR in writing when it will miss a regulatory timeframe and must advise both the PRCR and the NJDEP when a mandatory timeframe will be missed.

The NJDEP believes that five to seven years from the RIR Due Date is sufficient to complete the remedial action and submit the remedial action report.  Therefore, PRCRs, and their LSRPs, must determine the applicable due date to ensure that they conduct all work necessary to meet the deadline, including obtaining a RAP, if required, or request a timely extension.  If they fail to do so, PRCRs face direct oversight by the NJDEP and possible penalties.

For more information, please contact the author Laurie Sands at lsands@riker.com or any attorney in our Environmental Practice Group.

Eighth Circuit Court of Appeals Denies Borrowers’ Attempt to Rescind Under TILA

Posted on by rd_admin

In a case brought by plaintiffs under the Truth in Lending Act (“TILA”) to rescind their mortgage loan, the United States Court of Appeals for the Eighth Circuit recently affirmed the district court’s grant of summary judgment in favor of the defendant lender and servicer (collectively as “defendants”), finding that plaintiffs’ conclusory affidavits could not rebut the presumption that they received the required notices under the TILA and that the disclosure statements received by plaintiffs were within TILA’s allowable margin of error.  See Keiran v. Home Capital, Inc., 858 F.3d 1127 (8th Cir. 2017).  In the case, plaintiffs executed a promissory note in exchange for a mortgage on real property purchased by plaintiffs in December 2006.  In October 2009, plaintiffs sent rescission notices to defendant, alleging that they did not receive sufficient copies of the disclosures required by the TILA at the December 2006 closing.  See 15 U.S.C. 1635.  In January 2010, defendant informed plaintiffs that no basis for rescission existed.  Plaintiffs then filed the instant action, seeking rescission of the mortgage loan.  After the district court granted defendant’s motion for summary judgment, the case went up to the Supreme Court regarding the question of whether a party needs to file a lawsuit or simply send a rescission notice within the statutory rescission period.  After the Supreme Court’s decision, the district court’s grant of summary judgment was vacated and the case was remanded.  Both parties again moved for summary judgment.  The district court again granted summary judgment in favor of defendant, holding that plaintiffs did not rebut the presumption that they received all of the disclosures required by law, and rejecting the argument that the disclosure statements were materially inaccurate.  Because the court found no violations of TILA occurred and the right of rescission expired, the court held that defendant was not required to respond to plaintiffs’ notice of rescission.  Plaintiffs appealed.

On appeal, the Eighth Circuit rejected plaintiffs’ argument that they are entitled to rescission because they did not each receive a copy of a TILA disclosure statement.  The Eighth Circuit affirmed that a rebuttable presumption of delivery is created if a consumer acknowledges in writing that he or she received a required disclosure.  In this case, it is undisputed that both plaintiffs signed an acknowledgement stating they each received a complete copy of the disclosure.  Plaintiffs’ conclusory assertions that they did not receive the disclosures, without more evidence, were insufficient to overcome the presumption.  Therefore, the three-day rescission window of 1635(a) barred their request for rescission.

The Eighth Circuit also rejected plaintiffs’ argument that the finance charges in the disclosure statements were materially inaccurate.  First, plaintiffs did not raise any specific objections to the accuracy of the disclosure statements during the first summary judgment proceedings; further, in the first round of proceedings the district court held that the statements were accurate.  As such, the Eighth Circuit found this to be the law of the case (and in any event, plaintiffs’ allegations were deemed waived).  Second, even if plaintiffs had not waived the argument, the Court found that the cumulative amount of alleged violations was less than 0.5% of the total credit extended, which would be within the allowable margin for error.  Finally, in light of the fact that plaintiffs had no more than a three-day window to rescind and that window closed in early 2007, the Eighth Circuit found plaintiffs’ claim that the security interest is void because defendants’ failed to adequately and timely respond to their notice of rescission in October 2009 to be without merit.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Clarissa Gomez at cgomez@riker.com.

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