New Jersey Site Remediation Program Faces Key Issues in 2021
The Site Remediation Program (SRP) is slated to see several key issues occupy the agenda in 2021. These are summarized below:
1. Expected Finalization of Major Rulemaking Revising Soil Remediation Standards
In April 2020, NJDEP published a major proposal to revise the remediation standards for contaminated sites. That proposal will likely be finalized during the second quarter of 2020 and will have a number of implications for sites undergoing remediation.
As it stands, the proposal (summarized in our April 8, 2020 Alert) would revise and codify as regulatory standards for the first time both impact to groundwater soil remediation standards (including soil and soil leachate levels) and vapor intrusion standards. In contrast, both are currently contained in and applied through guidance documents without express regulatory imprimatur. It would also replace the direct contact soil remediation standards with separate soil remediation standards for the inhalation exposure pathway and the ingestion-dermal exposure pathway for both residential and non-residential scenarios. Finally, the proposal includes revised procedures for setting alternate remediation standards, adds and removes standards for some constituents and increases and decreases several standards. No changes were proposed to the groundwater remediation standards.
For those standards which are revised to be more stringent by an order of magnitude or more, remediations which were complete and for which a No Further Action (NFA) letter or Response Action Outcome (RAO) had been issued by NJDEP or an Licensed Site Remediation Professional (LSRP), respectively, will need to be re-evaluated to determine whether they continue to be protective of human health or the environment and if not, additional remediation may be required. Also, for remediations not yet complete, the new standards will apply except for matters where a remedial action workplan incorporating the old standards was approved by the Department or an LSRP or a remedial action report was submitted with the old standards, in which case a similar order of magnitude analysis of the remedial action and possible further remediation would be required. In addition, more rigorous evaluation of exposure pathways may be necessary while the remediation process is ongoing given that both the inhalation and dermal exposure pathways must be evaluated for compliance with their respective standards. The Department’s existing phase-in rules should be consulted to further determine when the new standards first apply to ongoing cases.
2. May 7, 2021 Deadline for Completion of Remedial Actions
A large number of outstanding SRP cases could be facing a deadline to complete remediation by May 7, 2021 which could create complications for LSRPs, remediating parties and the NJDEP.
When the Site Remediation Reform Act (SRRA) was enacted in 2009, special provisions were included to apply to older pending cases that were designed to bring those cases to completion. These provisions focused attention on cases for which a discharge was identified prior to May 7, 1999 or which should have been discovered by that date under certain specified statutory or enforcement requirements. This subjected a large number of outstanding cases to a statutory deadline for the remedial investigation (RI) of May 7, 2014 which, pursuant to the mandatory timeframes set forth in the applicable SRP regulations, subjected these old cases with multimedia contamination to a remedial action completion deadline of May 7, 2021. (Cases which qualified for a two-year statutory extension of the RI deadline are not covered by the 2021 deadline.)
When these cases are combined with other post-May 7, 1999 cases which, in the ordinary course of the remediation process, are facing mandatory deadlines on the same date, this could result in a very large number of cases for which remediation must be complete (i.e., a RAO has been issued by a LSRP) by May 7, 2021. In turn, this could lead to a large backlog of submissions for remedial action permits which must be approved by NJDEP before a RAO can be issued for cases utilizing institutional or engineering controls, thereby resulting in delays in the issuance of RAOs beyond the May 2021 deadline. Similarly, while an extension process is available under the SRP regulations, it may be difficult to justify further extensions of this timeframe for cases that are already considered to be very old by NJDEP.
If the deadline is missed, this could result in cases falling into NJDEP direct oversight status (which requires the posting of financial assurance in the form of a trust fund and affords NJDEP the authority to select the remedial action) and potential civil penalties. While limited relief from some of the direct oversight requirements may be available under the 2019 SRRA amendments, including an administrative consent order to adjust certain of the direct oversight requirements, the strictures of such orders are certainly not preferable to meeting the deadline or obtaining an extension. (See our June 2019 Special Alert).
This situation is further complicated by the temporary rule promulgated by NJDEP on August 17, 2020 that extended a number of SRP deadlines, including this one, by 270 days as long as the Governor’s COVID Public Health Emergency Declaration Executive Order 103 remains in effect (see our August 2020 Special Alert). If EO 103 is still in effect on May 21, 2021, the deadline is extended, however, if EO 103 expires before that date, the deadline is not extended. All of this makes planning particularly important and dictates that careful consideration be given to completion of affected remedial actions, early filing of remedial action permit applications and seeking extensions where necessary. Parties responsible for conducting remediations and their LSRPs should be in the process of considering how to approach these deadlines where applicable.
3. Potential for New Standards
As we’ve previously reported (see our June 2020 Special Alert), NJDEP adopted maximum contaminant levels and groundwater quality standards for two more perfluoroalkyl substances (PFAS) in 2020 - perfluorooctanoic acid (PFOA) at 0.014 micrograms per liter (µg/l) and perfluorooctanesulfonic acid (PFOS) at 0.013 µg/l. A standard for a third PFAS - perfluorononanoic acid (PFNA) - was previously set in 2018. These standards were based on the MCL recommendations of the New Jersey Drinking Water Quality Institute (DWQI). The DWQI is presently considering proposing a recommended MCL for 1,4 dioxane at .33 µg/l which could eventually lead to a slight lowering of the groundwater quality standard which is presently set at .4 µg/l. It is possible that the DWQI could also turn its attention to setting MCLs for additional PFAS in the coming year. Finally, with all the attention being focused on PFAS by the NJDEP and the Attorney General (see the articles elsewhere in this Forecast regarding natural resource damages and additional regulation of PFAS in New Jersey), it would not be surprising to see NJDEP begin the process to propose soil remediation standards for selected PFAS in 2021.