CSG Law Alert: As the Pandemic Approaches An End, Beware Of Your Environmental Deadlines
With the distribution of vaccines to fight the COVID-19 pandemic underway, New Jersey is starting to see the light at the end of the tunnel. At some point, the public health emergency will end, and the process of government will go back to normal. Businesses and the regulated community, in general, need to start planning now for the resumption of the numerous environmental law and regulatory deadlines suspended during the pandemic.
Less than two months after declaring a public health emergency, on May 2, 2020, Governor Murphy issued Executive Order 136 which extended statutory deadlines governing various environmental laws. Those extensions dealt with everything from the timeframes governing NJDEP review under certain statutes, such as the 90-Day Review Law, to extending deadlines for submitting reports required under the statute. Following the Governor’s lead, the Commissioner of NJDEP followed suit by issuing a series of Administrative Orders, as well as temporary rule waivers and modifications allowing regulatory timeframes to be extended or, in some cases, suspended until after the public health emergency is lifted by the Governor. Most recently, on March 1, 2021, Acting Commissioner LaTourette issued a Notice of Rulemaking/Modification/Suspension which extended submission deadlines under the Administrative Requirements for the Remediation of Contaminated Sites, the Technical Requirements for Site Remediation, and the Heating Oil Tank System Remediation Rules.
At some point, the Governor will declare that the public health emergency is over. When that occurs, suspended deadlines governed by EO 136 will resume, or have a short window to resume. Many of the rules that were administratively suspended or extended will resume their normal time clock. It is not too early to begin evaluating the landscape of your regulatory compliance deadlines and to start planning to perform the work necessary to meet those deadlines once the emergency is lifted. For example, any site remediation deadlines need to be evaluated with your site remediation professional to anticipate the work necessary and, more importantly, the time frame to complete that work, so that you are not in violation of the law when the emergency has ended.
This is particularly true for newly regulated activities required to be implemented during the pandemic. For example, on January 21, 2020, Governor Murphy signed PL. 2019, c. 397, otherwise known as the “Dirty Dirt Law,” which required any business engaging in soil and fill recycling services without an A-901 license to submit a registration form no later than April 20, 2020, and a validly and administratively complete application for a soil and fill A-901 license no later than October 19, 2020. All business that did not have a valid A-901 or registration was prohibited under the Dirty Dirt Law after July 20, 2020. EO 136 extended these deadlines the length of the public health emergency plus 60 days. NJDEP understandingly has not had time to adopt regulations implementing the Dirty Dirt Law, which was enacted less than two months before the public health emergency. There are questions of the scope of this law which had been raised at the beginning of the pandemic which still need to be addressed by NJDEP. It is unclear whether NJDEP will provide any of this clarity prior to the end of the pandemic. However, it is clear that these deadlines will be reinstated at the end of the pandemic. Those engaging in soil and fill recycling, which has significant policy implementation questions, should begin preparing now, and engaging with the NJDEP to make sure that the resolution of these policy considerations remains a priority with NJDEP prior to the deadlines in the statute resuming.
It is great news that the pandemic is on track to end. However, you need to be aware that when this pandemic ends, your business may be up against environmental regulatory compliance deadlines very quickly.