February 10, 2021
Bruce S. Katcher
MGKF Special Alert
Effective February 1, 2021, the Commissioner of the New Jersey Department of Environmental Protection (NJDEP) has issued a temporary rule extending various regulatory and mandatory remediation timeframes set forth in the Site Remediation Program rules due to the ongoing COVID-19 Public Health Emergency and State of Emergency that was declared by Governor Murphy in Executive Order 103. Such rule modifications are authorized under EO 103 as explained here. Also granted is a one-year extension of the May 7, 2021 remedial action completion deadline for those remediations subject to the May 7, 2014 and May 7, 2016 statutory deadlines to complete a remedial investigation (RI). The rule does not extend any timeframes for the mitigation of immediate impacts to human receptors.
The extension adds an additional 185 days (approximately another six months) to the prior two extensions granted by NJDEP for a total extension of 455 days, or approximately one year plus one quarter (the original extension is addressed here). As before, the extension is automatic (i.e., you don’t have to apply for it) and is triggered by an applicable deadline falling within the period covered by the Governor’s EO 103, which began with the issuance of the EO on March 9, 2020 and ends when the Governor determines that the emergency period is over. It also has the effect of extending any deadlines that are triggered by a deadline falling within this period, whether occurring before or after the issuance of the temporary rule, regardless of when that other deadline would otherwise occur. This extension does not apply to the remedial action timeframes for sites subject to the May 7, 2014 and May 7, 2016 statutory timeframes for completion of the RI.
For example, if a remedial investigation report would have been due on December 31, 2020 under a regulatory or mandatory deadline in the absence of any extension, that deadline is now extended 455 days or to March 31, 2022. In addition, the period for completing the remedial action, which under the rules begins to run following the completion of the RI, would also effectively be extended. Finally, if a deadline falls outside of the period covered by EO 103 (the endpoint for which is unknown at this time), it is not extended at all even though COVID-19 may still have affected the ability of the party conducting the remediation to meet the deadline. Those parties will have to apply for extensions on a case by case basis under the standard procedures set forth in the regulations when the time comes.
In addition to the 455 day extension, the temporary rule modification contains a separate one year extension for the completion of remedial actions for those site remediations that were subject to the Site Remediation Reform Act statutory deadlines to complete the RI by May 7, 2014 or qualifying for the statutory extension to 2016. For the former sites, remedial actions involving multimedia were due to be completed by May 7, 2021 and now have one more year (May 6, 2022) and the same would apply to the latter sites involving a single contaminated medium.
If you have any questions about the extension, please contact our partner, Bruce Katcher at 484-430-2320.