Riker Danzig Scherer Hyland & Perretti LLP
Laurie J. Sands
August 1, 2017
Reprinted with permission. © 2017 Riker Danzig Scherer Hyland & Perretti LLP.
Recently, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance regarding the regulatory and mandatory timeframes for the submission of a remedial action report pursuant to the Technical Requirements for Site Remediation and the Administrative Requirements of the Remediation of Contaminated Sites. The guidance is meant to assist persons responsible for conducting the remediation (“PRCR”) in determining when remedial action reports are due, when to request an extension of the regulatory and mandatory deadlines for submission of such reports and in what situations the NJDEP will consider such an extension.
The remedial action report documents either: 1) the achievement of all applicable standards and the subsequent issuance of an unrestricted Response Action Outcome or 2) in the case of contamination remaining at a site, that the remedial action is operating as designed under engineering and/or institutional controls resulting in the submission of a remedial action permit (“RAP”) application. For cases involving only soil contamination, the regulatory timeframe for the submittal of the remedial action report is within three years of the due date of the remedial investigation report (the “RIR Due Date”), and the mandatory timeframe is within five years of the RIR Due Date. For cases involving the remediation of all other contamination, the regulatory timeframe is within five years of the RIR Due Date, and the mandatory timeframe is within seven years of the RIR Due Date.
It is important to note that the PRCR also must complete the remedial action within the same timeframes as the submittal of the remedial action report. In order to complete a remedial action, a PRCR must: 1) implement all remedial actions required to address the contamination at the site; 2) submit a remedial action report; and 3) submit a final remediation document to the NJDEP.
A PRCR may request an extension of both the regulatory and mandatory deadlines for the submission of the remedial action report and completion of the remedial action, and, in fact, a request for a regulatory timeframe extension is automatically approved unless the NJDEP specifically advises the PRCR that the request is denied. Requests for a mandatory timeframe extension, however, are reviewed by the NJDEP and either approved or denied in writing.
In cases where a remedial action involves an institutional or engineering control, a RAP is needed to complete the remedial action. According to NJDEP’s guidance, PRCRs that fail to submit administratively and technically complete RAP applications to the NJDEP prior to the remedial action report submission due date will not receive an extension. A PRCR also must be cognizant of the fact that the NJDEP is currently taking 150 – 200 days to review applications and issue a RAP. Therefore, when considering the deadline for submission of the remedial action report and completion of the remedial action, a PRCR must consider the time it is currently taking NJDEP to review and issue RAPs.
Furthermore, NJDEP will not grant an extension in cases where the PRCR failed to select and implement a remedial action that meets the remedial objectives of the report. Nor will the NJDEP grant an extension when a PRCR waits until after the due date for the submission of the remedial action report to determine that the selected remedial action is not working. In cases where the remedial action is not working, the PRCR is required to submit a revised remedial action work plan and demonstrate that the PRCR has taken aggressive action to modify the remedial action within the applicable timeframes.
If the PRCR cannot submit a remedial action report within the regulatory and mandatory timeframes, including any approved extension, the site will be subject to the NJDEP’s direct oversight requirements and may be subject to penalties of up to $20,000/day. Moreover, the Licensed Site Remediation Professional (“LSRP”) for the site is required to advise the PRCR in writing when it will miss a regulatory timeframe and must advise both the PRCR and the NJDEP when a mandatory timeframe will be missed.
The NJDEP believes that five to seven years from the RIR Due Date is sufficient to complete the remedial action and submit the remedial action report. Therefore, PRCRs, and their LSRPs, must determine the applicable due date to ensure that they conduct all work necessary to meet the deadline, including obtaining a RAP, if required, or request a timely extension. If they fail to do so, PRCRs face direct oversight by the NJDEP and possible penalties.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Ms. Sands and may not reflect the opinions of Synergy Environmental, Inc., Riker Danzig Scherer Hyland & Perretti LLP or either of those firms’ clients