www.drinkerbiddle.comEnvironmental Practice Group
It may be time to teach some old New Jersey dogs some new environmental tricks – and the task may not be easy.
The process of site remediation in New Jersey has changed significantly with the adoption by the New Jersey Department of Environmental Protection (NJDEP) of its Remediation Standards Rule, N.J.A.C. 7:26D-1 et seq. (the Rule) June 2, 2008. One of the most important changes is the promulgation of new soil remediation standards reflecting the evolution of NJDEP’s scientific and technical approach. The Rule governs all site remediation activities in New Jersey conducted under NJDEP oversight, including reme-diations performed pursuant to the Industrial Site Recovery Act (ISRA), the Spill Compensation and Control Act (Spill Act), and the Underground Storage Tank and Voluntary Cleanup programs. The Rule gathers in one place the new cleanup standards for soil, along with the standards for groundwater and surface water that have been in place for some time in other parts of New Jersey’s Administrative Code.
New Soil Remediation Standards
The new soil remediation standards are the most significant part of the Rule. For many compounds, the new soil remediation standards are more strin-gent than the old Soil Cleanup Criteria (SCC). For example, several of the polycyclic aromatic hydrocar-bons, which previously had SCC of 0.66 parts per mil-lion, now have soil remediation standards of just 0.20 parts per million. Delineation of these ubiquitous soil contaminants at the prior SCC frequently proved very difficult; delineation at the extremely low levels required by the new remediation standards now may be virtually impossible.
Despite the new stricter remediation standards, the Rule may also provide potential benefits in certain
cases. Some remediation standards, such as those for nickel, beryllium and 1,2-dichlorobenzene, are less stringent than their prior SCC, and this change may present an opportunity for sites previously unable to meet residential cleanup criteria to be relieved from existing institutional or engineering controls. There-fore, careful consideration of the new soil remedia-tion standards is warranted for New Jersey proper-ties at which remediation subject to NJDEP oversight is either completed or pending.
Under the Rule, determining the appropriate soil re-mediation standard is a two-part analysis. As with the prior SCC, the numeric standard depends on whether the post-remediation use of the property will be residential. An analysis of the possible exposure pathways to the contaminant at issue is also required. The dermal/ingestion pathway has one set of numer-ic standards and the inhalation pathway has another. Under the Rule, the applicable soil remediation stan-dard is the more stringent of either the dermal/inges-tion standard or the inhalation standard, but not less than the practical quantitation limit (PQL) for the contaminant. Tables of the applicable numeric stan-dards and PQLs for each contaminant are set forth in Appendix 1 to the Rule.
Not all hazardous substances are listed in Appendix 1 and the Rule provides a method by which NJDEP can approve an interim remediation standard for a contaminant that then becomes a formal standard. Once such a standard is developed, presumably in response to the need at a particular site, NJDEP will publish the standard on its website. Then, as if it had been adopted by regulation, the new standard will have the same force and application with respect to all sites. The Rule requires NJDEP to promulgate formally the new standard as a soil remediation stan-dard as soon as reasonably possible. The Rule also allows NJDEP to modify soil remediation standards
NJDEP Adopts New Soil Remediation Standards For Its Site Remediation Program
ENVIRONMENTAL LAW ALERT | June 2008
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to reflect changes in the United States Environmen-tal Protection Agency’s Integrated Risk Information System database by publication of a notice in the New Jersey Register.
These mechanisms for revising regulations without going through the notice, comment period and adop-tion requirements of the Administrative Procedures Act is an innovative approach to regulation that could potentially be subject to legal challenge.
Alternate Remediation Standards
The Rule includes a provision for alternate reme-diation standards. While various statutes have long provided for site-specific cleanup standards, NJDEP has been generally unreceptive to risk-based clean-ups and approvals of site-specific cleanup standards have been hard to obtain. Whether the practice will change under the Rule remains to be seen.
An alternate soil remediation standard may be pro-posed by a person responsible for remediation or may be required by NJDEP on its own initiative. The re-quirement for an alternate remediation standard may be based on new toxicity data, new risk assessment methodology, planned land use or specific site condi-tions. Appendices to the Rule provide the technical procedures to develop an alternate remediation stan-dard and a form to apply for its approval. The Rule makes it clear that an alternate remediation standard is site specific and may not be used at another site. It also makes clear that an alternate remediation stan-dard may be more stringent than the soil remediation standards in Appendix 1.
Status of Total Petroleum Hydrocar-bon Standard
NJDEP has indicated that it will no longer use the total organics SCC of 10,000 parts per million for generic total petroleum hydrocarbon (TPH) contamination. Instead, cleanup of petroleum will be driven by the concentrations of the individual constituent chemi-cals. NJDEP has also indicated that it is developing a diesel-range organics remediation standard that may be published as an interim cleanup standard in the near future. Such a standard could replace the prior TPH SCC, which has played a large role in the reme-diation of underground storage tank cases.
Impact to Groundwater and Ecologi-cal Cleanup Standards
While the Rule’s remediation standards specify the required cleanup levels for most soil remediation, there are two areas that remain uncertain: impact to groundwater and ecological cleanup standards.
Although the Rule proposal published in May 2007 included a set of impact to groundwater soil remedia-tion standards (IGWSRS), those proposed standards were deleted from the final Rule as adopted June 2, 2008. Even though the proposed IGWSRS were not adopted, the real possibility exists that NJDEP case managers may look to the proposed values for guid-ance in establishing case-by-case impact to ground-water soil cleanup standards. Indeed, such was the case with the SCC, that, although based on a rule pro-posal that was not adopted and thus only guidance, assumed the force of law for nearly 15 years.
NJDEP is precluded from adopting ecologically based cleanup standards until after the report of the Environmental Advisory Task Force. Since that Task Force was never convened, whether or when NJDEP will be adopting ecologically based remediation stan-dards remains unclear. For the foreseeable future, cleanups of soil contamination that impact ground-water and ecologically driven cleanups will continue to be subject to remediation standards set on a case-by-case basis.
Order of Magnitude Issues
By the adoption of the new soil remediation stan-dards, NJDEP has invoked a provision of the Brown-fields Act that has the potential to reopen complet-ed site remediations. Under the so-called “order of magnitude rule,” N.J.S.A. 58:10B-12j and 13e, after it approves a remedial action workplan (RAWP) or the remediation of a site (i.e. through the issuance of a No Further Action letter (NFA)), NJDEP may not subsequently require compliance with a different remediation standard unless the new remediation standard differs from the approved standard by an order of magnitude. An order of magnitude has been interpreted as a factor of 10. In the Rule, 13 com-pounds including naphthalene, chloroform, 1,1-Di-chloroethane and 1,2-Dichloroethane, have new soil remediation standards that are more than 10 times lower than their prior SCC.
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Ironically, sites previously remediated to meet less strin-gent, non-residential cleanup criteria may fare better under the order of magnitude analysis because an engi-neering control likely is in place, so the remedy may still meet the one-in-a-million risk factor requirement of the Brownfields Act. In other words, the change in standards – even if by an order of magnitude – may not impact the protectiveness of the remedy. At sites remediated to meet residential cleanup criteria at the time, which would not have required a cap or other engineering control, there exists no protection against dermal, inhalation or ingestion pathways, and a conslusion may be difficult to support that the existing remedy remains protective of human health and the environment. These sites, which may have been purchased in reliance on a NFA, are at risk for reopening if a new site remediation obligation is trig-gered.
Phase-In Provisions for Old Remediation Standards
The application of the Rule to current site remediation cases will depend on whether a RAWP or remedial action report (RAR) conforming to the Technical Requirements for Site Remediation (Tech Rules) is submitted to NJDEP before December 2, 2008. Compliance with the Tech Rules is difficult, as those rules are very complex and still subject to some interpretation.
Under the Rule, a party conducting remediation may have a choice about the remediation standards to use at a par-ticular site. Pursuant to N.J.A.C. 7:26E-1.3(d)1, a person responsible for conducting remediation may use the SCC in effect prior to June 2, 2008, when:
a RAWP or a RAR is submitted to NJDEP prior to December 2, 2008;
the RAWP or RAR is in compliance with the Tech Rules; and
the SCC for the site are not greater by an order of magnitude or more than the soil remediation stan-dards adopted at N.J.A.C. 7:26D.
According to NJDEP’s recently posted “Phase In Period Guidance,” a RAWP or RAR will be deemed “in compli-ance” with the Tech Rules under any of the following cir-cumstances:
NJDEP approved the RAWP or RAR;
NJDEP issues a Notice of Deficiency and the re-mediating party rectifies all deficiencies to NJDEP’s satisfaction within the specified timeframe; or
the remedial action is conducted within the time-frame specified in the RAWP.
If NJDEP ultimately issues a Notice of Violation to the remediating party, the ability to utilize the lower SCCs in effect prior to June 2, 2008 is lost and, at that point, the remediating party must comply with the new soil reme-diation standards under N.J.A.D. 7:26D and the impact to groundwater soil remediation standards developed on a site-by-site basis pursuant to N.J.S.A. 58:10B-12a. If at all possible, a remediating party needs to work with its NJDEP case manager and obtain a written approval of its RAWP or RAR sooner rather than later. For qualifying parties, an approved RAWP or RAR will resolve any po-tential issue about compliance with the Tech Rules and lock in the ability to use the SCC in effect prior to June 2, 2008.
New Tricks
As in the past, responsible parties, their consultants and NJDEP case teams must climb the learning curve as pro-cedures, policies and practices evolve over the next sev-eral years. Some New Jersey remediation cases will ben-efit from the new soil remediation standards; other cases will now be further away from an NFA than before June 2, 2008. As with any significant change, adaptation will undoubtedly slow the processing of cases. Over time the parties will learn the new tricks, not without complaining in the interim that the process has again been made too time consuming, expensive and inefficient.
At present, a comparison of the new soil remediation stan-dards to the remediation standards used for your closed and pending New Jersey remediation cases will help you and your company understand the potential risks and benefits the Rule creates for your business interests.
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Bonnie A. Barnett(215) [email protected]
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