Changes to NJDEP Lead Standards for Soil Remediation

Background

In May 2021, the U.S. Environmental Protection Agency (“EPA”) updated its Integrated Environmental Uptake Biokinetic Model for Lead in Children (“IEUBK”) — a predictive tool that estimates blood lead levels in children exposed to lead from various environmental sources such as soil, water, air, dust, and diet.

Following the EPA’s update, the New Jersey Department of Environmental Protection (“NJDEP”) revised its soil remediation standards and published a notice in March of 2024.This revision effectively halved the previous acceptable lead contamination levels in residential soil, reducing it from 400 mg/kg down to the 200 mg/kg set forth by EPA.

New Jersey’s Administrative Code, specifically section N.J.A.C.7:26D-7.2(a)(4), mandates that the NJDEP modify its remediation standard whenever the IEUBK model is updated. In sum, whenever the EPA refines this national standard, New Jersey must adjust its regulatory standards accordingly. This alignment ensures that New Jersey’s regulations reflect the latest scientific findings and offer appropriate protections for public health surrounding lead exposure, particularly because of its adverse impacts on children.

Affected Sites

The Department expects the new residential lead standard for soil remediation to affect 255 active sites with reported lead levels between the 200 mg/kg and 400 mg/kg benchmark, as the sites will now exceed the upward limit. However, 260 closed sites will not be affected since the new standard is not significantly lower than the previous 400 mg/kg threshold. See provision N.J.A.C. 7:26(D)-1.4(b)(1)(i) of the Division of Solid & Hazardous Waste Rules for more on this point.

Overall, the NJDEP expects very minor economic impacts at about 0.2 percent of all remediation sites (255 out of 118,738) due to the additional cleanup required from the revised standard.

Exclusions and Transitional Provisions

The updated residential soil remediation standard for lead applies to all residential sites as defined in N.J.A.C. 7:26E.

Notably, the NJDEP makes clear in its March notice that responsible parties for remediation may be exempt from applying this new standard if remedial actions on a contaminated site are well underway and nearing completion.

Persons responsible for remediation can continue using the previous standard if they meet the conditions outlined in N.J.A.C. 7:26(D)-7.2(e). Specifically, the older standard may still apply if:

1. A remedial action work plan or report is submitted within six months of the new standard’s effective date **(by November 6, 2024)**;
2. The work plan is approved by the Department or certified by a licensed site remediation professional (“LSRP”);
3. The remediation standard outlined in the remedial work plan or remedial action report is not greater by an order of magnitude than the updated standard; and
4. The remedial action plan must comply with all applicable regulatory timeframes under the Technical Requirements for Site Remediation pursuant to N.J.A.C. 7:26(E)-5.

These transitional provisions provide a six-month phase-in period, allowing responsible parties with substantial remediation efforts underway to proceed without immediate adjustments to the updated lead standards. If one qualifies for this exclusion, the regulation ensures that affected parties are given the necessary time to adjust their remediation efforts while minimizing potential disruptions.

Conclusion

The revised NJDEP lead standard aims to provide enhanced protection against lead exposure, especially in residential areas. For responsible parties currently engaged in soil remediation, the six-month transition period offers critical flexibility, so that established remediation plans are honored without disrupting ongoing efforts.

If you need assistance navigating this rule change, contact Davis Environmental Law for more information and guidance on how to ensure compliance with the updated standard.