The Site Remediation Reform Act (“SRRA”), enacted on May 7, 2009, established an affirmative obligation on responsible parties to remediate contaminated sites. In doing so, SRRA also set a statutory deadline of May 7, 2014 for parties to complete the remedial investigation for sites where the discharge was discovered prior to May 7, 1999. N.J.S.A. 58:10C-27a(3). While SRRA was subsequently amended to provide a two (2) year extension of the remedial investigation deadline, responsible parties had to affirmatively apply for the remedial investigation extension. If you are or represent a responsible party that either (i) did not obtain an extension of this deadline or (ii) completed the remedial investigation, including submission of the remedial investigation report, on or before May 7, 2014, you must complete the remedial action by May 7, 2019. This is the regulatory deadline, and can be found in the New Jersey’s Technical Requirements for Site Remediation at N.J.A.C. 7:26E-5.8(b).
Failure to meet the remedial action regulatory deadline can subject the site to onerous Direct Oversight requirements found in N.J.S.A. 58:10C-27(a)(2) and N.J.A.C. 7:26C-14.1, et seq. Under Direct Oversight, the NJDEP resumes traditional (pre-SRRA) oversight and the responsible party loses control over the remedial action options, timeline, and funding. For example, the NJDEP will select the remedial action for the site, and NJDEP approval will be required for each document submission and cost expenditure. Moreover, and often most important, the responsible party under Direct Oversight must establish a remediation trust fund in the full amount of the estimated cleanup (which in turn requires payment of a one percent surcharge) and implement an NJDEP-approved proposed public participation plan to solicit public comments concerning the remediation.
There has been some question as to what constitutes completion of the remedial action to satisfy the regulatory deadline. On September 20, 2018, the NJDEP issued a ListServ notice and stated “the issuance of a Response Action Outcome (“RAO”) is required to meet the remedial action regulatory timeframe….” For sites that will use institutional or engineering controls for its remedial action, this will require obtaining from the NJDEP one or two remedial action permits in order to issue the RAO. As of May 2018, the NJDEP took, on average, approximately 5 ½ months to issue remedial action permits upon receipt of a permit application. In its recent ListServ notice, the NJDEP recommended that remedial action permits be submitted at least 90 days prior to the May 7, 2019 deadline (February 6, 2019) to give the NJDEP adequate time for review. Once an application has been submitted, the NJDEP states that if the responsible party has not received the permit for which it applied, it should submit a request for an extension no later than 30 days prior to the May 7, 2019 deadline to ensure compliance. While not stated, the above recommendations may be considered by the NJDEP in deciding whether or not to grant an extension of the regulatory deadline.
Keeping the NJDEP’s current timeline and the draconian penalties for failing to meet the deadlines in mind, responsible parties subject to the May 7, 2019 deadline that require a RAP to complete their remedial actions should plan to apply for one early enough to receive it and be in position to have a RAO in place on or before May 7, 2019. Responsible parties that are concerned about meeting the regulatory deadline should apply for an extension.