By Cathleen M. Devlin, Cristina Stummer, and Melissa A. Clarke of Saul Ewing Arnstein & Lehr LLP
Published April 29, 2020
This alert reports on Executive Order No. 122 pertaining to the remediation of contaminated sites in New Jersey; recent New Jersey Department of Environmental Protection (NJDEP) guidance and emergency rule adoptions for extension requests; and Executive Order No. 127 extending the time for adoption of proposed rules—including proposed rules for PFOS and PFOA drinking water MCLs and proposed rules making significant changes to existing New Jersey remediation standards.
NEW JERSEY EXECUTIVE ORDER NO. 122 – SITE REMEDIATION
New Jersey Governor Murphy recently signed Executive Order No. 122 (E.O. 122) directing, among other things, that all non-essential construction activity in the Garden State cease until further notice on April 10, 2020. The Executive Order expressly excepted certain types of “essential construction projects” from this directive, which are allowed to proceed (with various specified protective measures in place), including:
- 2.m. Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
- 2.n. Any emergency repairs necessary to ensure the health and safety of residents.
These provisions of E.O. 122 appear to allow a non-essential construction project to proceed if it is being undertaken to address an environmental emergency (such as a leaking underground storage tank), remediate a discharge of contamination, and/or respond to a threat to human health and safety. Even so, the decision to proceed with such a project is a business decision that should be carefully assessed on a case-by-case basis.
Responsible parties performing site field work to remediate contamination in New Jersey should be able to continue with those activities, so long as the lists of worksite protective measures set forth in Paragraphs 3 and 4 of E.O. 122 are adopted. Also, if remediation of contamination and/or a response to an environmental emergency is coupled with redevelopment, responsible parties should be able to perform the remediation and/or abate the emergency, but E.O. 122 does not authorize any new construction to commence, unless that construction is excepted by E.O. 122 as “essential.”
UPDATE: On April 21, 2020, NJDEP issued a statement confirming that “construction related to site remediation projects are allowed to continue under E.O. 122. . . . [T]he person responsible for conducting remediation and the environmental professional (such as a retained [LSRP] or certified subsurface evaluator) should document all activities conducted during the remediation.” NJDEP included a reminder that any variation from rule or deviation from guidance should be documented, and should contain details about how the remediation is protective of public health, safety and the environment.
This NJDEP guidance also recommends that “all persons involved in remediation” (including remediation being conducted under ISRA, the Spill Act and UST requirements) consider the concepts outlined in USEPA’s recent interim guidance for considering potential slowdowns or shutdowns of remedial field work at federal Superfund and Resource Conservation Recovery Act (RCRA) sites across the nation in light of the COVID-19 pandemic. USEPA expects its regional offices to coordinate and collaborate with individual states regarding the status and progress of such work. In particular, USEPA has encouraged its regional offices to share USEPA’s interim guidance with the states, and to employ the considerations set forth in that guidance in state-lead Superfund and RCRA cleanups.
NJDEP EXTENSION OF TIMEFRAMES FOR ENVIRONMENTAL COMPLIANCE
On April 21, 2020, NJDEP issued general guidance on how a party can seek an extension of a regulatory timeframe that may be missed due to the COVID-19 pandemic (“General Guidance”). On April 24, 2020, NJDEP also adopted a temporary modification to allow for waiver of certain administrative and mandatory timeframes related to the remediation of contaminated sites in New Jersey (the “Emergency Remediation Rule”). The key takeaways from these newly-issued guidance documents are summarized below. Importantly, as detailed below, NJDEP’s Emergency Remediation Rule does not automatically extend mandatory timeframes for completion of a remedial action at a contaminated site in New Jersey.
APRIL 21, 2020 GENERAL GUIDANCE
NJDEP’s General Guidance creates an over-arching framework for reporting and correcting non-compliance with a statute, regulation or permit due to the COVID-19 pandemic. The General Guidance also establishes a website and email address for NJDEP to receive COVID-19 related compliance requests from the regulated public:
1. Creation of an NJDEP COVID-19 Website and Email Address: NJDEP has created a website and email address (email@example.com) for parties to submit requests for program-specific guidance. NJDEP will review these requests on a case-by-case basis, and the submitting party must continue to comply with all applicable statutes, regulations and permit requirements during the pendency of a request, and unless and until approved or otherwise directed by NJDEP in writing.
2. Notification Process for Non-Compliance:
- For any non-compliance that cannot be avoided due to the COVID-19 pandemic, the regulated entity must notify NJDEP within two (2) business days of discovery using the NJDEP hotline (1-877-WARN DEP), unless shorter timeframes apply (such as in the case of notifying about a discharge of a hazardous substance to the environment).
- If the regulated entity is able to re-establish compliance within seven (7) days following the report to the NJDEP hotline, the entity must send notice to the agency via firstname.lastname@example.org and notify the program-specific regional enforcement office within fourteen (14) days of notification. The General Guidance details the information that must be included in the notice.
- When compliance cannot be achieved in seven (7) days, the entity must contact both email@example.com and the program-specific regional enforcement office immediately after calling the NJDEP hotline to develop a compliance plan, which must be approved by NJDEP.
3. Waiver of Penalties? If a regulated entity follows the General Guidance concerning reporting of non-compliance, expeditiously corrects and takes steps to prevent recurrence or further violation, NJDEP will not automatically waive fines and penalties. Instead, the agency states that an entity “may be eligible for a reduction” of any civil administrative penalty, if a penalty applies.
APRIL 24, 2020 EMERGENCY REMEDIATION RULE
NJDEP’s Emergency Remediation Rule is effective until the expiration of Executive Order 103 (E.O. 103), in which Governor Murphy declared a statewide Public Health Emergency and State Emergency due to COVID-19. Pursuant to this Emergency Remediation Rule, NJDEP is extending certain administrative and mandatory remediation timeframes by ninety (90) days, where the timeframe would otherwise expire while E.O. 103 is still in effect. Additionally, the Emergency Remediation Rule grants NJDEP the authority to consider, on a case-by-case basis, a request to extend a remediation timeframe longer than 90 days, or in the event a timeframe is not specifically enumerated in the Rule, then on a case-by-case basis governed by the existing applicable NJDEP regulations.
This Emergency Remediation Rule also authorizes NJDEP to waive, suspend, modify or relax other provisions of N.J.A.C. 7:26C (Administrative Rules for Remediation of Contaminated Sites) and N.J.A.C. 7:26E (Technical Requirements for Site Remediation) on a site-specific basis, upon a finding that such action is:
- “Necessary to ensure the continued management of remediation activities and the services that support same;
- Narrowly tailored to include only those regulatory modifications necessary to address circumstances created by or directly related to the COVID-19 pandemic;
- Applied consistently to similar situated entities and individuals; and
- Limited to the period which E.O. 103 is in effect.”
A glaring omission from the Emergency Remediation Rule is that mandatory remedial action timeframes, including the timeframes set to expire on or before May 2021, are NOT automatically extended by 90 days. Given this, responsible parties must continue to perform their remedial actions and familiarize themselves with the regulatory provisions for extension requests governed by N.J.A.C. 7:26C-3.5. This provision requires the submission of an extension request 60 days prior to the end date of the mandatory remediation timeframe. This provision also identifies the information that must be included in support of an extension request, including the reasons that extra time is needed to complete the work, and the steps taken to minimize the extra time needed to complete the work. The rules authorize NJDEP to issue an extension of a mandatory timeframe when there are "other circumstances beyond the control of the person responsible for conducting the remediation, such as fire, flood, riot or strike." N.J.A.C. 7:26C-3.5 (d)(3). As such, even if NJDEP ultimately does not make another emergency rule to modify mandatory remedial action timeframes, this regulation is likely broad enough to cover a request for an extension due to the COVID-19 pandemic. Keep in mind, however, that the extension request must still be timely filed, and must document both the reasons that extra time is needed and the steps taken to minimize the need for extra time.
NEW JERSEY EXECUTIVE ORDER NO. 127 - EXTENDING TIMEFRAMES FOR RULEMAKING
Governor Murphy recently signed Executive Order No. 127 (E.O. 127) extending timeframes for administrative rulemaking, which extension applies to rules that will expire during the COVID-19 Public Health Emergency declared in E.O. 103. Agencies have one year to adopt a proposed rule, otherwise the rule proposal expires, provided there is an exception for substantial changes between the rule proposed and the rule adopted, which expires eighteen (18) months from the notice of proposal in the Register. E.O. 127 extends notices of rule proposals subject to the one-year expiration date until 90 days after the last day of E.O. 103, if the notice of proposal was published in the Register on or after April 15, 2019, and the notice of rule proposal would otherwise expire without the benefit of such an extension.
PROPOSED RULES FOR DRINKING WATER MAXIMUM CONTAMINANT LEVELS FOR PFOS AND PFOA
On April 1, 2019, NJDEP proposed rules setting Maximum Contaminant Levels (MCLs) in drinking water for perfluorooctanoic acid (PFOA) of 0.014 micrograms per liter (µg/l), and for perfluorooctanesulfonic acid (PFOS) of 0.013 µg/l. Additionally, NJDEP proposed to amend the Ground Water Quality Standards at N.J.A.C. 7:9C to establish a specific ground water quality standard for PFOA of 0.014 µg/l and a specific ground water quality standard for PFOS of 0.013 µg/l. E.O. 127 does not appear to extend the rulemaking timeframe for this proposed rule, however, and the time to adopt the proposed rule may have expired under the one-year timeframe. Even so, it is anticipated that NJDEP may publish the adoption notice in the May 2020 Register. If the proposed rule is adopted, regulated parties will likely scrutinize NJDEP’s adoption notice to determine whether or not the agency timely complied before the rule proposal expired.
PROPOSED RULE TO CHANGE EXISTING NEW JERSEY REMEDIATION STANDARDS
On April 6, 2020, NJDEP published a rule proposal at 52 N.J.R. 566(a) which, if adopted, will make extensive changes to New Jersey’s remediation standards, codified at N.J.A.C. 7:26D et seq. Persons responsible for remediation of contaminated sites in New Jersey may be affected by the proposed changes, which include:
- NJDEP proposes to codify remediation standards for exposure pathways that are not in the existing rules, including soil and soil leachate remediation standards for the migration to ground water exposure pathway, and indoor air remediation standards for the vapor intrusion exposure pathway. This codification would establish a basis for enforceability, as current screening levels are not legally enforceable.
- The proposed rules separate existing soil remediation standards based on direct human contact into standards for the ingestion-dermal exposure pathway and inhalation exposure pathway.
- Under the proposed rules, whether the residential or nonresidential standard applies depends solely on the use of the property (as opposed to a person’s exposure time).
- The proposed rules expand NJDEP’s processes for establishing interim remediation standards and for updating remediation standards to include soil and soil leachate for migration to groundwater and indoor air.
- The proposed rules expand the process by which a party responsible for conducting remediation may request an alternative remediation standard to include soil and soil leachate for migration to groundwater and indoor air.
- The proposed rules delete remediation standards for some existing chemicals and add remediation standards for new chemicals.
- NJDEP has proposed numerical changes to the existing remediation standards. The soil remediation standards for some contaminants are proposed to be more stringent by a factor of ten or more. This will have an impact on some remediations that are otherwise closed.
Written comments on the Remediation Standards rule proposal may be submitted to NJDEP until August 5, 2020. NJDEP anticipates holding a public hearing on the proposal, with the date and time of such a hearing yet to be determined in light of the COVID-19 pandemic.
Parties responsible for the remediation of contaminated sites in New Jersey should review the Remediation Standards rule proposal to determine whether any site remediation requirements or permitting may be impacted.
Cathleen M. Devlin is a Partner in the Philadelphia office of Saul Ewing Arnstein & Lehr LLP. She litigates a broad array of business disputes, including complex commercial contract and business tort matters as well as piercing the corporate veil and alter ego liability issues. She also handles class action defense matters and environmental cost recovery and contribution actions. In addition, she counsels clients in navigating investigations and audits arising from federal and state government inquiries. She can be reached at Cathleen.firstname.lastname@example.org or 215.972.8562.
Cristina Stummer is a Partner in the Princeton, NJ office of Saul Ewing Arnstein & Lehr LLP. She concentrates her practice on environmental law, with a particular focus on regulatory compliance, complex liability transfer agreements, insurance recovery, OSHA compliance and environmental litigation in both civil and administrative forums. Her practice includes pursuing or defending claims for cost recovery and defending clients against natural resource damages claims under both federal and state law. She can be reached at email@example.com or 609.452.5023.
Melissa A. Clarke is an Associate in the Princeton, NJ office of Saul Ewing Arnstein & Lehr LLP. She assists clients with civil litigation, especially matters involving state and federal environmental laws and CERCLA/Superfund actions. She also handles complex title and foreclosure litigation. In addition to her litigation work, Melissa advises corporate and real estate clients on environmental compliance and land use matters. She can be reached at Melissa.firstname.lastname@example.org or 609.452.3142.