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Insight Center: Publications

NJ Emergency Rule Modifies Site Remediation Timeframes in Response to COVID-19

Client Alert

Authors: Thomas M. Letizia and Mitchell L. Guc

5/01/2020
NJ Emergency Rule Modifies Site Remediation Timeframes in Response to COVID-19

On April 24, the New Jersey Department of Environmental Protection (DEP) adopted a temporary rule modification that grants extensions to certain site remediation timeframes under the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS), the Technical Requirements for Site Remediation (Technical Requirements), and the Heating Oil Tank System Remediation Rules. The rule modification, adopted pursuant to Gov. Murphy’s Executive Order 103 declaring a public health emergency and state of emergency, is aimed at providing flexibility to regulated entities with compliance deadlines that, if strictly enforced, would be detrimental to the public welfare during the COVID-19 pandemic. The rule modification is retroactive to March 9, 2020 and will run concurrently with the executive order. Click here to view the full text of the rule modification.

The Rule Modification’s Applicability

The rule modification affects a number of DEP remediation timeframes in potentially different ways. All timeframes within the rules listed below were officially extended by 90 days as of March 9, but that extension only applies for those deadlines that have been and will be reached during the period in which the executive order is in effect. Importantly, this 90-day extension also applies where the listed timeframe provisions appear in Administrative Consent Orders (ACOs). DEP intends to provide notice of timeframe extensions on its website.

Additionally, any party responsible for conducting remediation may request an extension (1) in addition to the automatic 90-day extension being given on the timeframes within the rules listed below or (2) for other applicable remediation timeframes not necessarily subject to the automatic 90-day extension. DEP will consider all timeframe extension requests on a site-specific basis in accordance with the ARRCS or the Technical Requirements.

The timeframes and rules receiving the automatic 90-day extension are as follows:

  • Statutory and mandatory remediation timeframes for all sites not subject to direct DEP oversight under N.J.S.A. 58:10C-27a(3):

    • preliminary assessments and site investigation reports required under N.J.A.C. 7:26C-3.3(b)l

    • initial receptor evaluation reports required under N.J.A.C. 7:26C-3.3(b)2

    • immediate environmental concern contaminant source control and the related report required under N.J.A.C. 7:26C-3.3(b)3

    • light non-aqueous phase liquid (LNAPL) remedial activities, including delineation investigations, interim remedial measures, monitoring and the interim remedial measure report required under N.J.A.C. 7:26C-3.3(b)4

    • remedial investigations and their related reports required under N.J.A.C. 7:26C-3.3(b)5.

  • Expedited site-specific remediation timeframes:

    • site-specific timeframes created by DEP pursuant to N.J.A.C. 7:26C-3.4.

  • Timeframes for control of ongoing sources and implementation of interim remedial measures:

    • LNAPL delineations, interim remedial measures, contaminant mass reductions, monitoring and LNAPL interim remedial measure reports required under N.J.A.C. 7:26E-l.10(c).

  • Timeframes for receptor evaluation — general and reporting requirements:

    • final remediation documents required under N.J.A.C. 7:26E-l.12(b) and initial receptor evaluations required under N.J.A.C. 7:26E-l.12(c).

  • Preliminary assessment and site investigation regulatory timeframes:

    • preliminary assessment reports and site investigation reports required under N.J.A.C. 7:26E-3.14(a)l

    • remedial investigations and both the related preliminary assessment reports as well as site investigation reports required under N.J.A.C. 7:26E-3.14(b)1.

  • Remedial investigation regulatory timeframes:

    • remedial investigations and reports required under N.J.A.C. 7:26E-4.10(a)l through (a)3.

  • Remedial action regulatory timeframes:

    • remedial actions and related reports required under N.J.A.C. 7:26E-5.8(b)(1) through (b)(3).

  • Free product remediation under the Heating Oil Rules:

    • free product remediation requirements under N.J.A.C. 7:26F-3.2.

Further, DEP is empowered to waive, suspend, modify or relax any provision of the ARRCS or the Technical Requirements, with the exception of any extensions of time applied pursuant to the rule modification itself. This power extends to provisions in DEP permits “or other approvals issued thereunder,” and will be generally applied “on a case-by-case and site-specific basis.” However, before DEP will take any such action, it must find that this request is:

  • necessary to ensure the continued management of remediation activities and the services that support the same

  • narrowly tailored to include only those regulatory modifications necessary to address circumstances created by or directly related to the COVID-19 pandemic

  • applied consistently to similarly situated entities and individuals

  • limited to the period when the executive order is in effect.

Recommendations for Businesses

For those businesses currently engaged in remediation activity, the rule modification represents a welcome and useful tool in the fight against business disruptions caused by the pandemic. Environmental consultants engaged by affected businesses should consider immediately reviewing all remediation timeframes for possible extension request needs and eligibility.

Also, businesses should consider maintaining an open line of communication with their DEP point of contact. For active ACOs, check to see whether any of the timeframes in these documents were automatically extended by 90 days as listed above. If so, a business may wish to communicate that to DEP as soon as possible. Staying on the same page with the regulators can prevent trouble down the road.

It is noted that the rule modification will be active for as long as Executive Order 103 remains in effect, which currently is an indefinite period. It is therefore difficult to predict with certainty whether the executive order will remain in place for those with upcoming environmental remediation deadlines because the emergency could be rescinded by the governor at any time. Therefore, if businesses have environmental remediation deadlines on the horizon, they should consult their legal counsel and environmental consultants for guidance.

Questions about the topics in this article may be directed to the authors.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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