One of the most draconian aspects of NJ’s 2009 Site Remediation Reform Act is the authority of NJDEP to take direct oversight of older cleanups, stripping responsible parties of cleanup decision-making and requiring a trust fund in the amount of the cleanup to be established. That trust fund makes NJDEP the named beneficiary in the event of default. One path to direct oversight under the law: the failure of a party remediating a site since May 1999 or before to complete the remedial investigation phase of the cleanup by May 7, 2014.
Assembly bill 4543, which was passed by the Assembly and the Senate on January 13, 2014, offers a two-year extension, allowing subject parties to apply for an extension of time to complete the remedial investigation until May 7, 2016. The legislation is the result of industry groups in the state pressing the legislature for relief, and by most accounts, NJDEP itself will be relieved when the bill is signed since taking direct oversight would mean dedicating state resources that are already spread thin.
The downside to the extension: the applicant must establish a trust fund in the amount projected to complete the remedial investigation. While the amount of this fund is far less than the requirement under direct oversight (the amount of the entire cleanup), it still may be more than a company or individual has available at any one time. Careful review of NJDEP’s recent guidance on what aspects of the remedial investigation must be completed, and certain flexibility offered to do so, is imperative and can impact the amount of the trust fund.
The extension is not automatic. The applicant must establish compliance with certain key aspects of the act, including having retained a Licensed Site Remediation Professional for the project, having satisfied technical requirements on certain key filings and met mandatory timeframes, and being current on the payment of NJDEP fees. Application for the extension must be made by March 7, 2014 or 30 days from passage of the bill, whichever later.
The new law is expected to be signed soon by Governor Christie.