The New Jersey Department of Environmental Protection (NJDEP or Department) issued two major announcements concerning site remediation arising out of Governor Murphy’s March 9, 2020 State of Emergency and Public Health Emergency declarations. The Department clarified that construction related to site remediation may continue and also granted emergency waivers of certain site remediation timeframes and deadlines.


Non-Essential Construction Exemption for Site Remediation Projects

On April 21, 2020, the NJDEP clarified that “construction related to site remediation projects are allowed to continue” under Governor Murphy’s April 8, 2020 Executive Order (EO) 122. EO 122 directed a mandatory cessation of all “non-essential construction” in the Garden State. The Department cautioned that the social distancing requirements and objectives of EO 122 must be adhered to, including staggering of on-site work and making determinations as to what construction must be accomplished immediately and what may be postponed.

The NJDEP further advised that the Person Responsible for Conduction Remediation (PRCR) and the environmental professional, including a retained LSRP or subsurface evaluator, should document all activities conducted during the remediation. Moreover, a scientific and technical rationale should be logged in detail for any deviation from rule requirements or guidance to detail that the remediation “remains protective of public health and safety and of the environment.”

PRCRs should keep detailed records of activities to document compliance, including issues related to COVID-19, in case of spots checks or audits. Similarly, where there are regulatory or other mandates, including environmental, requirements or deadlines for certain actions (which may be pursuant to contractual obligations or an Administrative Consent Order, Consent Order or Settlement Agreement), a responsible party should review, assess and inventory their requirements as well as document and justify their actions.

Emergency Waiver Grants 90 Day Extension of Deadlines and Relaxation of Timeframes

On April 24, 2020, NJDEP Commissioner Catherine R. McCabe issued an emergency waiver of certain Rule provisions in the Administrative Requirements for Remediation of Contaminated Sites and Technical Requirements for Site Remediation, N.J.A.C. 7:26C and E (ARRCS and Technical Requirements), respectively. The waivers are effective retroactively to March 9, 2020, and extend specific site remediation timeframes by ninety (90) days while relaxing certain PRCR requirements and deadlines concerning Mandatory Remediation Timeframes, Expedited Site Remediation Timeframes, Regulatory Timeframes and Regulatory Remedial Action Timeframes.

Commissioner McCabe also left open the possibility for individual PRCRs to request further extensions of any site remediation timeframe or deadline “on a site-specific basis” by individualized request to the Department. Those requests will be evaluated in accordance with the provisions of ARRCS or the Technical Requirements.

The effective date of the waivers is tied to Governor Murphy’s March 9, 2020, joint declaration of a State of Emergency and Public Health Emergency under Executive Order (EO) 103. The waivers apply to deadline and timeframes “that have been and will be reached” while EO 103 in effect. Section 6 of EO 103 specifically authorized agency heads to waive, suspend or modify any existing rule “where the enforcement of the rule would be detrimental to the public welfare during the COVID-19 emergency.”

In announcing the waivers, NJDEP Commissioner McCabe found “strict adherence to the [] rules may, in certain circumstances, be detrimental to the public welfare during this emergency.” Therefore, she continued, “[i]n light of these unprecedented circumstances and recognizing that the continued, uninterrupted management of remediation activities is essential to the protection and preservation of public health and the environment, the Department is extending certain timeframes for remediation activities, as described below, by ninety (90) days.” The specific waivers granted and the associated regulatory citation are:

Mandatory Remediation Timeframe

For sites not subject to N.J.S.A. 58:10C-27a(3) (which concern a site where, absent court order, there was a failure to complete the remedial investigation of the entire contaminated site 10 years after the discovery of a discharge at the site and failure to complete the remedial investigation of the entire contaminated site within five years after the date of the 2009 statutory enactment) or N.J.S.A. 58:10C-27.1 (where the PRCR has a history of noncompliance with the laws concerning remediation, or any rule or regulation adopted pursuant thereto, that includes the issuance of at least two enforcement actions after the date of the 2009 statutory enactment during any five-year period concerning a remediation), only:

N.J.A.C. 7:26C-3.3(b)1
If the PRCR is required to conduct a preliminary assessment and site investigation pursuant to the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., or a site investigation pursuant to the New Jersey Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-21 et seq., then the PRCR shall submit the preliminary assessment and/or site investigation report, as applicable, within two years from the later of the specific dates noted at 3.3(b)l.

N.J.A.C. 7:26C-3.3(b)2
The PRCR shall submit the initial receptor evaluation report containing the information required by N.J.A.C. 7:26E-1.12 through 1.16 known at the time the report is submitted within two years from the later of the specific dates noted at 3.3(b)2.

N.J.A.C. 7:26C-3.3(b)3
The PRCR shall initiate immediate environmental concern contaminant source control and then submit an Immediate Environmental Concern Contaminant Source Control Report, pursuant to the Technical Requirements, at N.J.A.C. 7:26E-1.11, no later than two years from the later of the specific dates noted at 3.3(b)3.

N.J.A.C. 7:26C-3.3(b)4
The PRCR shall complete a remedial investigation for the delineation of light non-aqueous phase liquid (LNAPL), initiate implementation of an LNAPL interim remedial measure, initiate monitoring, and submit an LNAPL interim remedial measure report with a form available from the Department’s website, pursuant to the Technical Requirements, at N.J.A.C. 7:26E-1.10, within two years from the later of the specific dates noted at 3.3(b)4.

N.J.A.C. 7:26C-3.3(b)5
The PRCR shall complete the remedial investigation of the contaminated site and submit the remedial investigation report, with a form found on the Department’s website, as described at N.J.A.C. 7:26E-1.6(a)1, by the date which is two years after the date of the regulatory timeframes established pursuant to the Technical Requirements at N.J.A.C. 7:26E-4.10.

Expedited Site-Specific Remediation Timeframe

N.J.A.C. 7:26C-3.4
The Department may establish an expedited site-specific remediation timeframe that shall apply to a particular site, and the PRCR shall comply. If the PRCR fails to meet the timeframe, the site shall become subject to direct oversight by the Department.

Regulatory Timeframe

N.J.A.C. 7:26E-1.10(c)
Within one year after LNAPL is discovered pursuant to N.J.A.C. 7:26E-1.10(b), the PRCR shall complete the delineation of the LNAPL, initiate implementation of an LNAPL interim remedial measure to prevent LNAPL migration, reduce LNAPL contaminant mass to the extent practicable and initiate monitoring of the interim remedial measure, and document the actions taken pursuant to this section and submit to the Department an LNAPL interim remedial measure report with a form available on the Department’s website.

N.J.A.C. 7:26E-1.12(b)
The PRCR who completes an unrestricted use remedial action is not required to conduct a receptor evaluation, except as pursuant to N.J.A.C. 7:26E-1.16, when a final remediation document is filed with the Department within one year after the earliest applicable requirement to remediate, listed at N.J.A.C. 7:26C-2.2.

N.J.A.C. 7:26E-1.12(c)
The PRCR shall submit an initial receptor evaluation for a contaminated site, on a form found on the Department’s website, one year after the earliest applicable requirement to remediate listed at N.J.A.C. 7:26C-2.2. The PRCR shall include in the initial receptor evaluation the information that is known by that person at the time the report is submitted.

N.J.A.C. 7:26E-3.14(a)1
If no contaminated areas of concern are identified during the site investigation, no further remediation is required at the site, except that the PRCR shall submit to the Department a preliminary assessment report and a site investigation report, prepared pursuant to this subchapter, and a four’ found on the Department’s website no later than one year after the applicable requirement to remediate pursuant to N.J.A.C. 7:26C-2.2 for sites being remediated pursuant to the Industrial Site Recovery Act, supra, and the Industrial Site Recovery Act rules, supra.

N.J.A.C. 7:26E-3.14(b)1
If a contaminated area of concern is identified during the site investigation, the PRCR shall conduct a remedial investigation pursuant to N.J.A.C. 7:26E-4, and shall submit to the Department a preliminary assessment report and a site investigation report, prepared pursuant to this subchapter, and forms found on the Department’s website no later than one year after the applicable requirement to remediate pursuant to N.J.A.C. 7:26C-2.2 for sites being remediated pursuant to the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the Industrial Site Recovery Act rules, N.J.A.C. 7:26B.

N.J.A.C. 7:26E-4.10(a)1
Except as provided in 4.10(d) and 4.10(f), or as lengthened under 4.10(b) and 4.10(c), the PRCR shall complete the remedial investigation and submit to the Department a remedial investigation report prepared pursuant to N.J.A.C. 7:26E-4.9 by the earliest applicable regulatory timeframe. The PRCR who is remediating the industrial establishment pursuant to the Industrial Site Recovery Act, supra, and the Industrial Site Recovery Act rules, supra, shall complete the remedial investigation and submit a remedial investigation report by specific dates noted at 4.10(a)1.

N.J.A.C. 7:26E-4.10(a)2
Except as provided in 4.10(d) and 4.10(f), or as lengthened under 4.10(b) and 4.10(c), the PRCR shall complete the remedial investigation and submit to the Department a remedial investigation report prepared pursuant to N.J.A.C. 7:26E-4.9 by the earliest applicable regulatory timeframe. The PRCR who is remediating a discharge from the underground storage tank pursuant to the Underground Storage of Hazardous Substances Act, supra, and Underground Storage Tank rules, supra, shall complete the remedial investigation and submit a remedial investigation report by specific dates noted at 4.10(a)2.

N.J.A.C. 7:26E-4.10(a)3
Except as provided in 4.10(d) and 4.10(f), or as lengthened under 4.10(b) and 4.10(c), the PRCR shall complete the remedial investigation and submit to the Department a remedial investigation report prepared pursuant to N.J.A.C. 7:26E-4.9 by the earliest applicable regulatory timeframe. For all other contaminated sites not included in (a)1 and 2 above, the PRCR shall complete the remedial investigation and submit a remedial investigation report by specific dates noted at 4.10(a)3.

N.J.A.C. 7:26E- 5.8(b)3
The PRCR shall complete the implementation of the remedial action and submit a remedial action report for a contaminated site within specific regulatory timeframes. For every other site not subject to 5.8(b)1 or 5.8(b)2, by specific dates noted at 5.8(b)3.

N.J.A.C. 7:26F-3.2
The owner shall, within 60 days after identifying the presence of free product, initiate the removal of free product and treat or remove all free product saturated soil to the extent practicable, or contain free product when treatment or removal is not practicable. The owner shall delineate the horizontal and vertical extent of free product, determine the thickness of the free product, remediate free product until either there is no observable sheen, or there is only a discontinuous sheen, complete the remediation of free product within one year after its discovery, and after the removal of free product, remediate contaminated ground water pursuant to N.J.A.C. 7:26F-4.

Regulatory Remedial Action Timeframe

N.J.A.C. 7:26E-5.8(b)1
The PRCR shall complete the implementation of the remedial action and submit a remedial action report for a contaminated site within specific regulatory timeframes. Except as provided in 5.8(b)2, the PRCR shall complete the remedial investigation on or before May 7, 2014, by specific dates noted at 5.8(b)1 for sites subject to the statutory requirement at N.J.S.A. 58:10C-27.a(3).

N.J.A.C. 7:26E- 5.8(b)2
The PRCR shall complete the implementation of the remedial action and submit a remedial action report for a contaminated site by specific dates noted at 5.8(b)2 for sites subject to the statutory requirement at N.J.S.A. 58:10C-27.a(3) to complete the remedial investigation on or before May 7, 2014, and that obtained and maintained an extension to complete the remedial investigation on or before May 7, 2016, pursuant to N.J.S.A. 58:10C-27.1.

N.J.A.C. 7:26E- 5.8(b)3
The PRCR shall complete the implementation of the remedial action and submit a remedial action report for a contaminated site within specific regulatory timeframes. For every other site not subject to 5.8(b)1 or 5.8(b)2, by specific dates noted at 5.8(b)3.

Click here to read the NJDEP SRRA Documents: https://www.nj.gov/dep/srp/srra/listserv_archives/

Click here to read Governor Murphy’s Executive Order 103: https://nj.gov/infobank/eo/056murphy/pdf/EO-103.pdf

Click here to read Governor Murphy’s Executive Order 122:  https://nj.gov/infobank/eo/056murphy/pdf/EO-122.pdf