New Jersey Finalizes Soil Remediation Standards

August 16, 2008
by BRUCE KATCHER
Client Alert Newsletter August 2008

As reported in a recent MGKF Special Alert, the New Jersey Department of Environmental Protection ("NJDEP") finalized the state's new soil remediation standards in the June 2, 2008, New Jersey Register. The new standards will replace NJDEP's soil cleanup criteria ("SCC") and include residential and non-residential direct contact standards for 136 contaminants commonly found in New Jersey. NJDEP decided not to promulgate impact to groundwater ("IGW") standards at this time while it continues to review the issues raised by commenters. Instead, IGW standards must be developed on a "site-by-site basis" until new rules are adopted. NJDEP has made available new guidance on its web site for making these determinations.

While there are several contaminants for which the new standards are less restrictive than the SCC, for many compounds the standards are more restrictive. In addition, a significant number of the new standards are at least an order of magnitude lower than the SCC, including chloroform, 4 methylphenol and naphthalene, which are compounds commonly encountered at New Jersey contaminated sites. Where standards change by an order of magnitude, the agency may require additional cleanup at a closed site 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. The regulations also provide mechanisms for setting site-specific alternative remediation standards and rules governing how the new standards will be applied to pending cases. Finally, NJDEP is continuing to work on a new standard for total petroleum hydrocarbons, which was not addressed in the rule released on June 2.