NJDEP Deadlines and Other Requirements Remain in Effect Despite COVID-19 Pandemic
In a Compliance Alert issued yesterday, the New Jersey Department of Environmental Protection (“NJDEP”) made it clear that, despite the current restrictions imposed in response to the COVID-19 pandemic, all regulatory and permitting requirements currently remain in effect. This includes all permitting timelines, site remediation regulatory and mandatory timeframes, permit condition deadlines, and any other requirements imposed and enforced by NJDEP.
While the Compliance Alert notes that NJDEP may exercise regulatory flexibility in circumstances where compliance with NJDEP requirements may be jeopardized as a result of the pandemic, NJDEP will assess any such flexibility on a case-by-case basis. The Alert notes that any regulatory flexibility will be narrowly tailored to “ensure the continued protection of public health, safety and the environment.” NJDEP is apparently also conducting an assessment of each of its programs to determine where such regulatory flexibility might be appropriate under the circumstances occasioned by the COVID-19 pandemic, but overall it is clear that all current regulatory requirements and obligations imposed on regulated entities remain unchanged.
Importantly, the Alert also sets forth guidelines for what regulated entities should do in the event that they cannot satisfy a regulatory or permit obligation as a result of circumstance arising out of the pandemic. According to the Alert, regulated entities must notify NJDEP within two (2) business days of the discovery of noncompliance. If compliance can be reestablished within seven (7) days, the regulated entity should write to NJDEP and provide specific information regarding the specific noncompliance and achievement of compliance once again. If compliance cannot be reestablished within seven days, the Alert indicates that the regulated entity should contact its regional NJDEP enforcement office to obtain approval of a detailed compliance plan to address the noncompliance. The regulated community may also request guidance on specific compliance issues by writing to firstname.lastname@example.org.
In sum, it is clear that NJDEP currently is not offering broad-based relief from the requirements of its regulatory programs and related deadlines. Permit holders and other regulated entities, especially those currently constructing a project subject to an NJDEP permit or conducting a remediation under the guidance of a Licensed Site Remediation Professional, should review all applicable deadlines to determine if compliance will be impacted by COVID-19 and, as applicable, proactively implement a plan to notify NJDEP and establish a schedule to address the issue.