In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.
The May 7, 2016 deadline is the result of the New Jersey Site Remediation Reform Act (“SRRA”), which upended and revamped the process for remediating contaminated sites in New Jersey. Pursuant to SRRA, NJDEP no longer directly supervises the remediation process of every individual site. Instead, LSRPs licensed by the State are responsible for day-to-day oversight, regulatory compliance, and all necessary submissions to NJDEP related to clean-up efforts at most contaminated sites. However, responsible parties who fail to hire an LSRP or otherwise run afoul of the requirements of NJDEP’s site remediation regulations fall into “direct oversight.” The remediation of sites under direct oversight is managed directly by NJDEP and responsible parties lose the autonomy, flexibility, and cost savings that result from an LSRP-managed clean up.
At the time it was enacted, SRRA provided that sites requiring remediation related to discharge of hazardous substances pre-dating May 7, 1999 must complete a site-wide remedial investigation by May 7, 2014, or face direct oversight. That deadline was later extended by legislation to May 7, 2016 for responsible parties who filed for an extension. With that deadline rapidly approaching, NJDEP has indicated that no further extensions will be granted, and no additional legislation is expected.
There are many sites throughout New Jersey that, as a practical matter, simply will not meet the May 7, 2016 RI deadline. Responsible parties that have not submitted an RI by May 7, 2016 should continue their remediation efforts in order to show that they made a good-faith attempt to comply with the deadline. If NJDEP initiates an enforcement action to bring their site into direct oversight, responsible parties who have made a good-faith effort towards compliance may be in a better position to negotiate with NJDEP.
In sum, if you are a party responsible for a discharge that pre-dated May 7, 1999, you should double and triple check with your LSRP that the RI for your site has been completed, or will be completed prior to May 7, 2016. The consequences of failing to meet this deadline could be severe and result in the need for additional resources to address the remediation.