Date: March 14, 2019

New Jersey’s Site Remediation Reform Act (“SRRA”), enacted in March 2009, was intended to “speed up the cleanup process” of environmental contamination cases, and “to allow for quicker case completion.”

To achieve this purpose, the SRRA authorized the New Jersey Department of Environmental Protection (“NJDEP”) to establish mandatory timeframes for all phases of environmental investigations and cleanups.”

For sites that involve a discharge detected prior to May 7, 1999 (10 years before the SRRA’s enactment), the initial deadline by which to complete the Remedial Site Investigation was May 7, 2014.  That deadline was subsequently amended and extended by two years, provided that the “responsible person” (i.e., the private party who ‘discharged’ the contaminants, or who was “in any way responsible” for the discharge) applied to the NJDEP for an extension by March 7, 2014.

Responsible persons (a) who did not obtain an NJDEP extension, or (b) who completed the Remedial Investigation, including the submission of a Remedial Investigation Report, on or before May 7, 2014, must complete the remedial action by May 7, 2019.  This regulatory deadline is set forth in New Jersey’s Technical Requirements for Site Remediation at N.J.A.C. 7:26E-5.8(b).

Failure to meet the remedial action deadline may subject the site to Direct Oversight by the NJDEP and the requirements set forth in N.J.S.A. 58:10C-27(a)(2) and N.J.A.C. 7:26C-14.1, et seq.  In short, under Direct Oversight, the licensed site remediation professional (“LSRP”) program, established by SRRA, is supplanted and the NJDEP resumes traditional (pre-SRRA) oversight. As a further consequence, the responsible person loses control over the remedial action options, timeline, and funding.  Instead, the NJDEP dictates the remedial action for the site, and NJDEP approval will be required for each document submission and cost expenditure.  Further, the responsible party under Direct Oversight must establish a remediation trust fund in the full amount of the estimated remedial action and implement an NJDEP-approved “public participation plan” to solicit public comments regarding the remediation and proposed solutions.

On September 20, 2018, the NJDEP clarified what constitutes completion of the remedial action to satisfy the May 7, 2019 deadline.  The NJDEP was unequivocal: “the issuance of a Response Action Outcome (“RAO”) is required to meet the remedial action regulatory timeframe….”

For sites that require institutional or engineering controls to complete its remedial action, it is necessary to obtain one or two remedial action permits (a “RAP”) from the NJDEP before an RAO is issued. The NJDEP recommends that RAP applications be submitted at least 90 days prior to the May 7, 2019 deadline (by February 6, 2019) to give the NJDEP sufficient time for review.  Once an application is submitted, the NJDEP advises that if the responsible person does not receive the permit requested or a response, the responsible person should submit a request for an extension no later than 30 days prior to the May 7, 2019 deadline (by April 5, 2019) to ensure compliance.  Certainly, the NJDEP may consider your compliance with this request-deadline in determining whether to grant such extension.

Responsible persons who are subject to the May 7, 2019 deadline that require a RAP to complete their remedial actions, should plan to apply for one sufficiently in advance to receive it and to have a RAO in hand on or before May 7, 2019.  Responsible parties who are concerned about meeting this deadline should apply for an extension at least 30 days prior to May 7, 2019 (on or before April 5, 2019).

Mandelbaum Barrett PC’s Environmental Law Department welcomes the opportunity to assess your SRRA regulatory compliance and to assist you with your environmental counseling and litigation needs.