NJDEP Proposes Significant Amendments to Remediation Standards
The New Jersey Department of Environmental Protection (“NJDEP”) Site Remediation and Waste Management Program proposed major changes to the Remediation Standards, N.J.A.C. 7:26D, in a comprehensive 273-page proposal, published on April 6, 2020 (the “Proposed Rule”). The State published the full 273-page proposal, along with the Public Notice document with a general overview of the rule proposal.
Some key developments as contemplated by the Proposed Rule are as follows:
Impact to Ground Water Soil Remediation Standards. In the existing rules, there is no remediation standard for the impact to ground water soil exposure pathway. Rather, only default “screening levels” were published and the NJDEP requires responsible parties to establish site-specific remediation standards for impact to ground water (“IGW”) using a case-by-case, site-by-site, approach based on the criteria found in NJDEP technical guidance. The Proposed Rule seeks to replace the site-specific development of soil remediation standards for IGW by codifying existing soil and soil leachate screening levels contained in NJDEP technical guidance.
Indoor Air Vapor Intrusion Screening Levels. The existing rules do not address remediation standards for indoor air (“IA”) by way of the vapor intrusion (“VI”) exposure pathway, again relying on “screening levels” and “rapid action levels” by reference to guidance documents to trigger certain remedial obligations. However, NJDEP technical guidance for IA has carried enforcement weight when such triggering events occur. For instance, remediation and mitigation requirements are triggered when IA levels for a given volatile organic compound are found to exceed the rapid action level (“RAL”) which create an immediate environmental concern (“IEC”) condition. The Proposed Rule creates an IA remediation standard for contaminants by way of the VI exposure pathway “based upon the more stringent value of the carcinogenic or noncarcinogenic indoor air human health-based criterion … or the reporting limit, if the reporting limit is greater than the health-based criterion.” The Proposed Rule includes IA remediation standards for the VI exposure pathway for residential IA and nonresidential IA.
Proposed Rule’s Potential Retroactive Effect on Remediated Sites. Pursuant to the Brownfield and Contaminated Site Remediation Act, the NJDEP would not be able to compel the use of the newly promulgated remediation standards found in the Proposed Rule at a site that has been issued a final remediation document or where a remedial action workplan has been approved unless certain conditions are met. For instance, according to the NJDEP, once a final remediation document is issued the new remediation standards should not apply retroactively unless: “(1) the new remediation standard is more stringent than the remediation standard approved in the final remediation document by an order of magnitude or more; and (2) the difference between the new remediation standard and the level or concentration of a contaminant at the site differs by an order of magnitude or more.” The NJDEP identifies that under the Proposed Rule an order of magnitude analysis is implicated for the following contaminants: benzaldehyde, cobalt, butylbenzylphthalate, caprolactum, ethylbenzene, hexachlorocyclopentadiene, and 1,1-dichloroethene. Such change in remediation standards in the Proposed Rule have important implications to the real estate market, as an unsuspecting purchaser of a property may find themselves responsible for further site-remediation despite a buyer’s presentation of a final remediation document for the property. Given the potential implications for buyers, sellers, and other potentially responsible parties, careful contractual planning is critical during the transaction to avoid obstacles to closing and potential disputes.
Alternative Remediation Standards. The Proposed Rule provides that a person responsible for conducting the remediation may submit to the NJDEP a request to use a site-specific alternative remediation standard pursuant to N.J.A.C. 7:26D-4 and 5 (soil, soil leachate, and IA). The NJDEP views the remediation standards promulgated pursuant to N.J.A.C. 7:26D as default standards that a remediating party must meet if an alternative, potentially less stringent, remediation standard is not developed.
No Changes to Groundwater and Surface Water Remediation Standards. The Proposed Rule will continue to use the Ground Water Quality Standards, N.J.A.C. 7:9C, and Surface Water Quality Standards, N.J.A.C. 7:9B, as remediation standards for ground water and surface water.
Written comments to the Proposed Rule were originally due to NJDEP by June 5, 2020. However, on April 8, 2020, NJDEP extended the comment period another 60-days to August 5, 2020.