New Jersey is extending certain remediation timeframes as a result of the ongoing COVID-19 pandemic, but the availability of an extension is subject to some uncertainty. On February 8th, the New Jersey Department of Environmental Protection (“NJDEP”) published a Notice of Rule Waiver/Modification/Suspension (the “Notice”) extending certain timeframes effective February 1, 2021. As reported in our prior blog post, for a large segment of cases with contamination that pre-date 1999 (“Pre-1999 Contamination Cases”), the remedial action (“RA”) was to be completed by May 7, 2021. The Notice provides relief from that May deadline and also extends other timeframes that were or will be reached while Governor Murphy’s Executive Order 103 (“EO 103”) declaring a state of emergency due to the pandemic remains in effect. (The Governor’s order must be extended every thirty (30) days, and has been regularly extended since being issued early in 2020.) The Notice does not extend any timeframes for action necessary to mitigate immediate impacts to human receptors. Further, you must have retained a Licensed Site Remediation Professional (“LSRP”) for your case to take advantage of the extensions provided in the Notice.
Extension of Remedial Action Timeframe for Pre-1999 Contamination Cases
For Pre-1999 Contamination Cases, the Notice extends the May 7, 2021 RA Regulatory Timeframe for one (1) year to May 7, 2022, if your case has not already missed an RA regulatory or mandatory timeframe. The Notice, however, does not expressly extend the RA Mandatory Timeframe for these cases, nor does it state what the effect of the extension of the RA Regulatory Timeframe is on the applicable RA Mandatory Timeframe, which may lead to some confusion. Although the Notice is not a model of clarity, NJDEP’s statements prior to the Notice were clear about its intent to extend the May 2021 RA timeframe for all compliant cases, whether it is a regulatory or mandatory timeframe. Indeed, a reading of the Notice that would extend the RA Regulatory Timeframe beyond the RA Mandatory Timeframe for some cases would not make sense. In response to a specific inquiry from our office, the Department advised that it considers the RA Mandatory Timeframe also to be extended by one year. Whether that extension is to May 2022 or a later date is case specific. In light of these ambiguities, we recommend that remediating parties that are subject to a May 2021 RA Timeframe (regulatory, mandatory or both) carefully evaluate the effect of the Notice on the completion of your case so that its remains compliant.
Extension of Timeframes That Have Been and Will Be Reached While EO 103 is in Effect
The Notice also extends remediation timeframes that are reached while the current state of emergency is in effect. The Department already extended these timeframes by similar Notices issued in April and August, 2020. The current Notice lengthens the extension for these timeframes to a total of 455 days from the original timeframe. Further, for cases with timeframes that receive the 455-day extension, the Notice is explicit that all subsequent timeframes in the case are also extended for 455 days.
While the Notice is helpful for timeframes that have already been or will be reached shortly, it leaves remediating parties guessing as to whether EO 103 will still be in effect when the timeframe in their case is reached. Accordingly, remediating parties should evaluate whether there is protective action to take to ensure your case remains in compliance. Complicating the situation, however, NJDEP, has said that it will not review extension requests submitted for timeframes that are subject to the Notice.
While providing important and needed relief, the Notice is challenging to decipher in any number of specific circumstances. The legal questions and issues raised need to be evaluated on a case-by-case basis so that remediating parties and their LSRPs do not unwittingly miss a timeframe.
If you have any questions about this Alert, please contact the author Alexa Richman-La Londe, either of the department Co-Chairs, Jeffrey B. Wagenbach and Steven T. Senior, or any member of the Environmental Group.