New Jersey Legislature Extends Remedial Investigation Deadline

January 21, 2014
MGKF Special Alert

Legislation passed in the waning hours of the 2012-2013 New Jersey legislative session and signed into law by Governor Christie on January 21, 2014, authorizes a two year extension of the deadline to complete remedial investigations (RIs) at contaminated sites where remediation was required prior to May 7, 1999 and were previously subject to a May 7, 2014 statutory deadline.

What needs to be done to secure the extension?
The extension is contingent on the electronic submission of a qualifying application by a licensed site remediation professional (LSRP) by March 7, 2014. To qualify, the applicant must certify that it has (1) retained the LSRP, (2) met any applicable mandatory deadlines at the time of certification, (3) as applicable, made technically complete submission of an initial receptor evaluation, immediate environmental concern (IEC) source control report, free product interim remedial measure control report, and preliminary assessment and site investigation reports; (4) established a remediation funding source, if required under ISRA, or, if not, a remediation trust fund for the estimated cost of the RI; (5) paid any undisputed NJDEP oversight costs and any applicable annual remediation fees or remediation funding source surcharges. The application is deemed approved when received by NJDEP. NJDEP will presumably have the requisite forms and further guidance available soon.

What happens if I don't seek an extension?
Failure to secure the extension will subject a party to the direct oversight provisions of the Site Remediation Reform Act (SRRA), meaning that the NJDEP and not the LSRP will oversee all remediation activities, and (1) the party must prepare a feasibility study evaluating alternative remedial actions; (2) the NJDEP will select the remedial action; (3) a trust fund must be posted for the full cost of the remedial action, and (4) a public participation program will be required.

If I get the extension, can I lose it?
If the extension is secured, direct oversight will be avoided as long as the conditions to which the applicant certified continue to be met and all subsequent mandatory timeframes are satisfied. In addition to avoiding direct oversight, the legislation seems to implicitly extend any previously missed mandatory deadlines (e.g., for submission of the initial receptor evaluation, IEC reports, etc.) to the date the extension application is submitted. Before the legislation was enacted, (and, now, prior to securing the extension under the new law), the failure to meet those deadlines also would have subjected the party to direct oversight.

If I plan to meet the original May 7, 2014 deadline, does this affect me?Parties who intend to submit a completed RI Report (RIR) by the original May 7 deadline may want to consider making a protective filing to guard against the possibility that NJDEP later (i.e., after May 7) reviews and finds that their RIR did not demonstrate the RI had been completed. In addition, because a compliant application may be considered a way to negate the effect of other previously missed mandatory deadlines, parties who missed such deadlines may want to consider seeking the extension in any event.

For further information, please call 484-430-5700 or contact our partners Bruce Katcher, Jonathan Spergel or Chris Ball or our in-house technical consultant, Darryl Borrelli.