Proposed Changes to New Jersey Soil Standards Could Drastically Increase Site Remediation Costs

May 11, 2007
by BRUCE KATCHER, DARRYL BORRELLI and MICHAEL NINES
MGKF Special Alert

The New Jersey Department of Environmental Protection's ("NJDEP's") long awaited proposal to set regulatory standards for the remediation of contaminated soil was finally published in the May 7, 2007 New Jersey Register, with comments due by July 6, 2007. The proposed standards lower the most stringent cleanup levels for many prevalent contaminants (including those associated with petroleum and chlorinated solvents) to the practical quantitation limit for those contaminants, meaning that cleanups may have to meet "non-detect" levels. The new standards will replace NJDEP's soil cleanup criteria ("SCC"), which were established as guidance to be applied on a case by case basis. The ability to use engineering or institutional control remedies is not directly affected by the proposed changes.

If, after reviewing the following brief summary, you have any questions, or are interested in submitting comments to NJDEP either individually or as part of a group, please see the contact information at the end of this Special Alert. You may also use these contacts to obtain a table comparing the new proposed standards to the current SCC.

Types of Standards

The proposed standards include residential and non-residential direct contact standards and impact to groundwater standards for 136 common contaminants found in New Jersey. Typically, the most stringent of the three standards apply. The direct contact standards are based on the most stringent of ingestion, dermal or inhalation health-based criteria. The regulations also provide a mechanism for setting interim standards for contaminants that are not included on the list, a mechanism to administratively update a standard when certain factors underlying the standard change, and procedures for setting site specific alternative soil remediation standards in limited instances.

Changes in Standards

There are several contaminants for which the new standards are less restrictive, however, for the organic compounds that are most prevalent in New Jersey—benzene, trichloroethylene ("TCE"), tetrachloroetheylene ("PCE") and toluene—there is a change of two orders of magnitude (from parts per million to parts per billion), which will require a major adjustment in many cleanups and may trigger the reopening of closed cases in some instances. With respect to inorganic contaminants, the arsenic standard, which many feared would change substantially and might vary geographically, is proposed to change from 20 to 19 mg/l throughout the state.

Effect on Pending Cases

The proposal provides that cleanups for which a remedial action workplan ("RAW") or remedial action report that satisfies the requirements of the NJDEP's Technical Regulations, is submitted within six months after the effective date of the new standards may use the SCC rather than the new standards; however, cleanups involving contaminants for which there is an order of magnitude or greater change in the standard must use the new standard for that contaminant when the standards go into effect. NJDEP attributes this to the requirements of the Brownfield and Contaminated Site Remediation Act ("BCSRA"), which authorizes (but does not require) NJDEP to apply new standards which differ from old standards by an order of magnitude or greater where a RAW has been approved — lesser changes may not be applied unless the RAW is not being timely implemented.

Where a site is still in the investigatory phase or has completed the investigation, but does not qualify for use of the SCC because of the timing of the RAW submission, additional investigation may be required to delineate soil contamination to the new standards.

Effect on Closed Cases

BCSRA also bars NJDEP from applying new standards to completed cleanups (e.g., those for which a no further action letter has been issued), with one exception—where standards change by an order of magnitude, the agency may require additional cleanup by a party that is liable under the Spill Compensation and Control Act and does not qualify for the various innocent party defenses available under that law. Many brownfield developers who acquired and cleaned up properties after they were contaminated may be protected from a reopener, although the party who contaminated the property in the first place (regardless of whether they cleaned it up) would not.

Cases that are reopened could be exposed to a wide variety of changes beyond just have to do more extensive investigation and cleanup. For example, vapor intrusion requirements and more conservative soil sampling and analysis procedures (especially for organics) have been applied to more recent cleanups that were not in effect for older cleanups. These requirements could result in the discovery of vapor problems and more extensive soil contamination that will need to be addressed.

More Information

If you have any questions concerning the above or would be interested in submitting comments on the proposed changes either individually or as part of a group, please contact Bruce Katcher (bkatcher@mgkflaw.com or 484-430-2320) or one of our technical consultants, Darryl Borrelli (dborrelli@mgkflaw.com or 484-430-2302) or Mike Nines (mnines@mgkflaw.com or 484-430-2350), by May 25 to allow for the preparation of comments.