Proposed Extension to the May 7, 2014 Statutory Deadline to Complete a Remedial Investigation

Posted on Friday, January 10, 2014

The Site Remediation Reform Act (“SRRA”), N.J.S.A. 58:10C-1 et seq, established a May 7, 2014 deadline for completing the remedial investigation for all sites that triggered remediation requirements prior to May 7, 1999.   See, N.J.S.A. 58:10C-27a(3).  SRRA further provides that if a responsible party fails to do so, the NJDEP is required to undertake direct oversight of the remediation of the contaminated site.

 Direct oversight means that the responsible party must:

• fund the remediation as directed by the NJDEP;
• conduct and submit a feasibility study to the NJDEP for approval;
• implement each remedial action that the NJDEP selects for the site;
• submit an initial remediation cost review and an annual remediation cost review thereafter;
• establish a remediation trust fund in the amount of the estimated cleanup;
• pay an annual remediation funding source surcharge of one percent;
• obtain NJDEP’s prior approval before making any disbursements from the trust fund;
• ensure that all submissions prepared by the responsible party’s Licensed Site Remediation Professional (“LSRP”) are submitted to the NJDEP; and
• submit a proposed public participation plan to the NJDEP for approval that contains a strategy to solicit public comments concerning the remediation and implement the publically approved plan.

Negative consequences of direct oversight include among other things additional costs associated with establishing a trust fund and the annual surcharge, NJDEP’s selection of the remedial action, and delays due to NJDEP review of all documents submitted by an LSRP.  The NJDEP carried out a comprehensive compliance notification process, and has indicated that it will aggressively enforce the May 2014 deadline.

In June 2013, the NJDEP issued a policy statement entitled “Interpretation of SRRA Requirement to Complete the Remedial Investigation by May 2014.”   Under the NJDEP policy statement, to satisfy SRRA’s May 7, 2014, deadline for completing the remedial investigation sufficient data must be collected so that the responsible party’s LSRP can determine the nature and extent of the contamination to develop the appropriate remedial alternatives.

Legislative relief may be on the way for responsible parties who are engaged in but may not complete remedial investigation activities by the May 2014 deadline.  New Jersey Senators Bob Smith and Christopher “Kip” Bateman have drafted legislation, Senate Bill No. 3075, to provide an extension to the SRRA May 7, 2014 deadline to complete a remedial investigation.  Under the proposed legislation (as amended by the Senate Committee substitute released from Committee on 1/6) to receive an extension, a responsible party would submit an application to NJDEP satisfying the following requirements:

(1) an LSRP has been retained to conduct a remediation of the site;

(2) any remediation requirements included in mandatory remediation timeframes adopted pursuant to N.J.S.A. 58:10C-28 for the site have been met at the time of the certification;

(3) technically complete submissions have been made in compliance with all rules and regulations for site remediation, as applicable, for the initial receptor evaluation, immediate environmental concern source control report, light non-aqueous phase liquid interim remedial measure report, preliminary assessment report, and site investigation report;

(4) a remediation funding source has been established, if required of the applicant by N.J.S.A. 58:10B-3;

(5) if a remediation funding source is not required to be established by the applicant pursuant to law, then a remediation trust fund for the estimated cost of the remedial investigation has been established pursuant to the standards established under N.J.S.A. 58:10B-3;

(6) any oversight costs imposed by the department, known at the time of the application, and not in dispute on the date of enactment of the bill into law, have been paid to the department; and

(7) the annual fees imposed by the department for the remediation and remediation funding source surcharges imposed pursuant to N.J.S.A. 58:10B-11 have been paid to the department, as applicable.

Under the Committee substitute, an extension of time is deemed approved upon receipt of the application by the DEP—but that at any time during the extension, the DEP may intervene and undertake direct oversight if the conditions imposed by the bill are no longer met or if the responsible party fails to meet a mandatory remediation deadline.

Assemblywomen L. Grace Spencer and Holly Schepisi have sponsored an identical bill, A4543, in the Assembly.

The Legislature must approve the bill and it must be signed by the Governor before the current legislative session ends on 1/13—otherwise the bill must be reintroduced in the new session.

For more information, please feel free to contact Susan C. Gieser at sgieser@lawwmm.com.