NJDEP Extends Site Remediation Program Deadlines During COVID-19 Emergency and Clarifies Remediation is “Essential Construction”

COVID-19 Update

April 27, 2020
Bruce S. Katcher
MGKF Special Alert

By notice dated April 24, 2020, NJDEP Commissioner Catherine McCabe issued a temporary rule to extend most of the regulatory deadlines and mandatory time frames established under the NJDEP Site Remediation Program for 90 days.  The extension only applies to deadlines or time frames that would be or have been reached during the period that the Governor’s Emergency Order 103 is in effect.  EO 103 is the order declaring that a Public Health Emergency and State of Emergency is in effect due to COVID-19 and, among other things, authorizing agency heads to waive, suspend or modify rules where their enforcement would be detrimental to the public welfare during the COVID-19 emergency, notwithstanding the requirements of the New Jersey Administrative Procedure Act. 

In addition to the extension, the Commissioner’s action also acknowledges that site-specific case by case waivers, modifications or suspensions of other site remediation regulatory requirements may be necessary and sets forth the findings that will need to be supported in order to secure such case by case determinations.  

The action is retroactive to March 9, 2020.  For identification of the specific deadlines and time frames that are modified and the details on how the NJDEP will waive other regulatory  requirements, see: https://www.state.nj.us/dep/covid19regulatorycompliance/docs/srp-remedial-timeframes20200424.pdf

In other NJDEP action related to site remediation, NJDEP issued a notice earlier last week (April 21, 2020) clarifying that “construction related to site remediation” was considered to be “essential construction”  allowed to proceed under Executive Order 122.  EO 122 required the cessation of all “non-essential construction” as of April 10, 2020.  NJDEP noted the importance of complying with the social distancing requirements of EO 107 and 122 and of documenting all activities conducted during the remediation. To this end, the agency indicated that “[i]t is essential that any variation from rule or deviation from guidance is described and a thorough explanation provided, including scientific and technical rationale, that details how the remediation remains protective of public health and safety and of the environment.” 

If you have any questions concerning the above, please contact Bruce Katcher at 484-430-2320.

This extension was modified on August 17, 2020 by a separate extension of 270 days, inclusive of the original 90 days as described here