Future Interplay Between Site Remediation and Surface Water Quality

January 16, 2007
Client Alert Newsletter Forecast 2007

We have seen continued activity by state and federal agencies under the Clean Water Act establishing Total Maximum Daily Loads ("TMDLs") for persistent pollutants. In our region, the PCB TMDLs for the Delaware Estuary have highlighted the important regulatory interrelationships between site remediation programs and water quality standards because TMDL-based requirements, by design, reach nonpoint sources including contaminated sites. Through the efforts of the Implementation Advisory Committee ("IAC"), formed in 2004 by the Delaware River Basin Commission as a stakeholder group to assess strategies for reducing PCB loadings to the Delaware Estuary, the potential impact of contaminated sites on surface water quality standards has become a new regulatory focal point. Our firm is a member of the IAC, representing a coalition of municipal and industrial dischargers, and has participated in these important discussions. In 2007 and beyond, we expect a renewed effort by regulatory authorities to impose more stringent soil and groundwater cleanup standards addressing surface water pollutant loadings from riverfront properties. At least on a policy level, this effort may conflict with well-accepted considerations underlying state and federal brownfield programs, potentially presenting very difficult conflicts. As additional TMDLs are established, issues raised by these potentially incompatible programmatic objectives will likely increase with a somewhat uncertain outcome.