New Jersey Finalizes New Soil Cleanup Standards

June 5, 2008
by BRUCE KATCHER, DARRYL BORRELLI and MICHAEL NINES
MGKF Special Alert

The New Jersey Department of Environmental Protection (NJDEP) finalized its long-awaited regulations prescribing cleanup standards for the remediation of contaminated soils in the June 2, 2008 New Jersey Register. The new standards will replace NJDEP's soil cleanup criteria (SCC). The regulations lower the most stringent cleanup levels for many contaminants, several of which are now set at the practical quantitation limit, meaning that some cleanups may have to meet "non-detect" levels. A copy of our updated table comparing the new standards to the SCCs may be found here. Several important issues are left unaddressed by the standards, although NJDEP promises to address those issues in future guidance or changes to the Technical Requirements for Site Remediation (Tech Regs), the agency's regulations governing cleanup procedures.

Types of Standards

The standards include residential and non-residential direct contact standards for 136 contaminants commonly found in New Jersey. The direct contact standards are based on the most stringent of ingestion, dermal or inhalation health-based criteria. While the proposed regulations also included impact to groundwater (IGW) standards, NJDEP decided not to promulgate the IGW standards at this time while it continues to review the issues raised by commenters. Instead, NJDEP will develop IGW standards on a "site-by-site basis" until new rules are adopted and will make available new guidance for making these determinations.

Changes in Standards

General: There are several contaminants for which the new standards are less restrictive than the SCC, however, 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, compounds that are commonly encountered at New Jersey contaminated sites. As explained below, an order of magnitude change may trigger the reopening of closed cases.

PAHs: With respect to poly-aromatic hydrocarbons (PAHs), frequently found in historic fill, while NJDEP further reduced the already very low cleanup standards, it noted that it was considering an approach that may allow a person who determines that PAHs at a site are due to regional background conditions and not a "local discharge", to handle the PAHs "the same way that natural background is handled"— presumably not requiring a cleanup. With respect to inorganic contaminants, the arsenic standard, which many feared would change substantially, was only reduced from 20 to 19 mg/l.

Total Petroleum Hydrocarbons: The new regulations eliminated the SCC cap on total organics of 10,000 ppm that had long been used as the cleanup standard for fuel oil using analysis for total petroleum hydrocarbons (TPH) as the measurement of compliance. Consequently, the new standards do not include any standard for TPH, a particular concern to the many parties remediating fuel oil releases to soil. NJDEP stated that the old 10,000 ppm standard for TPH could not be adopted as a standard because it was ecologically-based rather than human health-based. It acknowledged a shared concern over the absence of a TPH standard and indicated that it is working on developing a human health-based standard for TPH which it hopes to provide "as soon as possible." In the meantime, it appears that fuel oil cleanups will have no choice but to use the standards for individual petroleum constituents, unless the cleanups qualify for the grandfather provision discussed below.

Setting Interim, Updated and Alternative Standards

The regulations also provide mechanisms for setting interim standards for contaminants that are not included on the final list, administratively updating standards when certain factors underlying the standards change, and setting site-specific alternative remediation standards (ARSs). Interim standards and updates will be effective upon posting on NJDEP's website and in the New Jersey Register, although NJDEP must also promulgate any interim standard as a final rule "as soon as reasonably possible." To limit the potential for significant process delays occasioned by the development and review of ARSs, NJDEP indicated that guidance would be published to expedite the development and review of ARS petitions and amendments would be proposed to the Tech Regs to further aid in the process. Because an ARS is site-specific, once established, it cannot be applied automatically to another site.

Effect on Pending Cases

Cleanups for which a remedial action workplan (RAW) or remedial action report that satisfies the requirements of the NJDEP's Tech Regs 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 effective June 2, 2008. Presumably, where a site is still in the investigatory phase or has completed the investigation, but will 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

The Brownfield and Contaminated Site Remediation Act (BCSRA) 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 other changes beyond just having to do more extensive investigation and cleanup.

Sites utilizing engineering and institutional controls that are subject to the NJDEP's biennial certification requirements need to recertify as to the protectiveness of the cleanup every two years. Parties responsible for filing these certifications will need to consider the impact of the new standards on their ability to make such a certification.

NJDEP has indicated that it is developing a policy to identify situations that would warrant reevaluation of implemented remedies and amendments to their oversight rules that would define who qualifies as an innocent party and their responsibilities. NJDEP has indicated that they do not anticipate that there will be many circumstances warranting the reopening of closed cases.

More Information

If you have any questions concerning the above 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).