On June 2, 2008, the New Jersey Department of Environmental Protection (NJDEP) promulgated new, and in some cases more stringent, Remediation Standards that are expected to dramatically change the way cleanups are performed in New Jersey. See N.J.A.C. 7:26D-1.1 et seq. These rules are the first to be promulgated in the much anticipated overhaul of NJDEP's Site Remediation Program. For the first time in the history of the program, remediation standards for soil, groundwater and surface water can all be found in one section of the regulations. In addition, soil cleanup standards have been elevated to the strictest formal regulations, as opposed to mere guidelines, resulting in greater certainty for companies involved in remediation.
The new soil remediation standards contain a six (6) month grace period to allow parties to continue to use the previous standards if: (1) the remediating party submits a remedial action workplan or a remedial action report before December 2, 2008 that establish the Soil Cleanup Criteria, NJDEP's current cleanup guidance, as the standards for the site; (2) the remedial action workplan or a remedial action report is in compliance with the Technical Rules, N.J.A.C. 7:26E-6; and (3) the Soil Cleanup Criteria for the site are not greater by an order of magnitude or more, than the soil remediation standards adopted by N.J.A.C. 7:26D.
Important Changes to the Soil Remediation Standards
1. Residential and Non-Residential Cleanup Standards are now based on what NJDEP considers "sound science." Thus, the standards are now based on:
1. Ingestion and Dermal Pathways; and
2. Inhalation Pathways.
2. There are fourteen order of magnitude changes for contaminants in the new Soil Cleanup Criteria. Thus, if you have a No Further Action Letter that requires engineering or institutional controls, or if you trigger an NJDEP review at your site under ISRA or otherwise, the agency could require you to remediate to the new standards for those contaminants. No Further Action letters come under further scrutiny by the NJDEP.
3. Although originally proposed, NJDEP did not promulgate Impact to Groundwater Standards ("IGW"), standards to measure the impact of soil contamination on underlying groundwaters. Instead, NJDEP decided to create a guidance document that sets forth the revised impact to groundwater standards.
4. The new soil cleanup standards also allow for Alternative Soil Remediation Standards. These are standards that can be used upon request and approval of NJDEP instead of the new soil cleanup standards, when there is (1) new chemical toxicity data; (2) new risk assessment methodology or models; (3) alternative land use planned for the site; or (4) site specific conditions that support the modification of input parameters for models used to develop alternative soil remediation standards, that would warrant a change from the new standards1.
These new soil cleanup standards will increase the expense of remediating properties and may be more time consuming both in terms of the cleanup and in terms of gaining approvals from NJDEP.
It seems likely that additional changes will be coming, such as a recent proposal in the Legislature to create a system of licensed site professionals to alleviate the work load of NJDEP case managers.
For more information on how these new standards may impact you or your business, your previously obtained No Further Action Letter, or future transactions, please contact the Environmental/Land Use and Real Estate Department at Herold and Haines, PA.
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