Legal Blogs and Updates

On May 2, 2020, Governor Murphy signed Executive Order No. 136 (EO 136), which extends the deadlines of certain State environmental statutes for the duration of the COVID-19 public health emergency, tolling current permitting approval timeframes such that it is expected to cause permitting delays. EO 136 affects development and construction, solid waste management, waste recycling, and soil and fill recycling. It also includes mandates that are applicable to the New Jersey Department of Environmental Protection (NJDEP) as a whole.

Development and Construction.  EO 136 affects application timelines for construction permits pursuant to the Waterfront Development Act, the Wetlands Act of 1970, the Coastal Area Facility Review Act (CAFRA), and the Flood Hazard Area Control Act, as well as their corresponding regulations. Pursuant to N.J.S.A 13:1D-32, NJDEP was required to approve or deny construction permits within 90 days of the application, or such application would be deemed approved. For that provision, as well as for N.J.S.A. 13:19-8 (CAFRA) and N.J.S.A. 58:16A-67 (Flood Hazard Area Control Act), EO 136 has tolled “[a]ll timeframes governing public notice, review, or final action on applications for, or renewals of permits, registrations, plans, petitions, licenses, rates, and other approvals” beginning on March 9, 2020, by each day during the Public Health Emergency. No permit applications submitted pursuant to these provisions will be deemed complete or approved if NJDEP fails to act within the prescribed statutory timeframes.

Solid Waste Management.  EO 136 notes that the 30 or 60 day NJDEP application review periods under N.J.S.A. 48:3-7 are “tolled, beginning on March 9, 2020, by each day during the Public Health Emergency,” and that “no request submitted pursuant to” N.J.S.A. 48:3-7 “shall be deemed complete or approved for failure to act within the prescribed timeframe.”

Waste Recycling.  The following recycling requirements are extended by 60 days:

• the deadline for a municipality’s governing body to submit its yearly recycling tonnage report to NJDEP (under N.J.S.A. 13:1E-99.16.e); and
• the deadline for recyclers, manufacturers, collection locations and local government units who collect electronic device waste to submit their semiannual report to NJDEP (pursuant to N.J.S.A. 13:1E-99.105c).

Soil and Fill Recycling.  The following Dirty Dirt Law time limits are extended by the number of days of the Public Health Emergency plus an additional 60 days:

• businesses’ time to register with NJDEP to engage in soil and fill recycling services (pursuant to N.J.S.A. 13:1E-127.1);
• NJDEP’s time to review and issue such registration;
• the deadline after which a business may not engage in soil and fill recycling services without a valid registration; and
• the timeframe for a registrant to submit an administratively complete license application to the Attorney General.

The Order also directs the Commissioner of NJDEP to extend all regulatory timeframes for accepting public comments on “applications for, or renewals of permits, registrations, plans or other approvals where necessary to ensure adequate public participation.” EO 136 authorizes NJDEP to “establish earlier timeframes for review and decisions on specific permit applications” in certain circumstances, although these circumstances are not defined.

Executive Order 136 takes effect immediately. Connell Foley will continue to monitor the situation and provide updates as necessary.