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Mandatory Remediation Timeframes Rapidly Approaching - Are You Ready?

November 23, 2011

This is the fifth in a series of Environmental Law Alerts that focus on the recently enacted Site Remediation and Reform Act (“SRRA”) and the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”). The prior three Alerts can be accessed under the “News & Events” section of our website.

Mandatory Deadlines

This Alert highlights mandatory regulatory deadlines by which the “person responsible for conducting the remediation” must complete certain regulatory tasks. For those persons that have initiated remediation prior to November 4, 2009, the following tasks must be completed prior to March 1, 2012*:

a. Submittal of a preliminary assessment and site investigation report pursuant to the Industrial Site Recovery Act (“ISRA”), if applicable, or a site investigation report pursuant to the New Jersey Underground Storage of Hazardous Substances, if applicable;
b. Submittal of an Initial Receptor Evaluation Report;
c. Submittal of an Immediate Environmental Concern (“IEC”) Contaminant Source Control Report, if applicable; and
d. Submittal of a Light Non-Aqueous Phase Liquid (“LNAPL”) Free Product Interim Remedial Measures Report, if applicable.

What Happens if I Miss a Mandatory Deadline?

Failure to meet the above deadlines will subject the person responsible for conducting the remediation to “direct oversight” by the New Jersey Department of Environmental Protection (NJDEP) for the site, area of concern, or condition to which the mandatory remediation time frame applies, which will prove to be a significant regulatory burden for the remediating party. Specifically, for sites that are subjected to direct oversight, SRRA authorizes the NJDEP to, among other requirements, review all technical submissions, to select the remedial action for the site, and to require a remediation funding source in the form of a trust fund (i.e., cash escrow) in the amount of the estimated cost of remediation. In addition, the NJDEP could impose a non-minor base penalty of up to $20,000 per day for each violation that exists until the violation has been satisfied.

Can I Apply for an Extension?

The ARRCS provides an opportunity to request an extension of the mandatory timeframes in certain very limited circumstances. Such circumstances include a delay in obtaining access to the property if access could not, in good faith, be obtained, or other site-specific conditions such as on-going litigation, lack of capital to perform remediation or other situations beyond the control of the responsible party. N.J.A.C. 7:26C-3.5(d). Any extension request for any mandatory remediation time frame must be submitted to the NJDEP at least 60 days prior to the corresponding deadline; therefore, any extension of the March 1, 2012 deadline must be submitted to the NJDEP prior to January 1, 2012.

* For those persons that have initiated remediation on or after November 4, 2009, the tasks referenced above must be completed within two years after any of the triggering events specified at N.J.A.C. 7:26C-2.2(b).

For more information, please contact:

Robert H. Crespi ¦ Member of the Firm ¦ (973) 530-2060 ¦
Todd W. Terhune ¦ Counsel ¦ (973) 530-2091 ¦
Keith E. Morris ¦ Associate ¦ (973) 530-2107 ¦