NJDEP Promulgates Major Revisions to Soil Remediation Standards and Codifies Vapor Intrusion Standards

May 26, 2021
Bruce S. Katcher and William Hitchcock
MGKF Special Alert

On May 17, 2021, the New Jersey Department of Environmental Protection (NJDEP) adopted substantial amendments to the Remediation Standards codified at N.J.A.C. 7:26D, primarily those standards for soils and vapor intrusion.  These amendments and updated guidance and background documents supporting them, may have significant impacts on both active and closed contaminated sites.  Important amendments to the Remediation Standards include:

  • Codification of soil migration to groundwater remediation standards for soil and soil leachate, which replace the development of site-specific soil remediation standards using NJDEP guidance for the migration to groundwater pathway;
  • Codification of indoor air remediation standards, which replace the previously used screening levels for the vapor intrusion pathway;
  • Separate soil remediation standards were promulgated for the inhalation and ingestion/dermal exposure pathways to replace the previous direct contact standards (which were the lower of the inhalation and ingestion/dermal exposure standards for each contaminant);
  • Additions, deletions, and changes (both more and less stringent) to the soil remediation standards based on updated toxicity information and other factors;
  • Supplementation of the existing processes for updating the remediation standards; and
  • Supplementation of the existing processes for development of alternative and interim remediation standards.

Although these amendments took effect on May 17, accompanying phase-in guidance from NJDEP clarifies that remediators have the option to continue to use prior remediation standards, provided they are contained in a Remedial Action Workplan or Remedial Action Report submitted by an LSRP by November 17, 2021 (unless the remediation subsequently fails to meet the applicable remedial action regulatory timeframe).  However, if the newly adopted remediation standards are more stringent than the prior standards by an order of magnitude or more, they must be applied immediately, which could require additional investigation and remedial action. For the new soil migration to groundwater and vapor intrusion standards, the comparison will be made to the prior guidance screening levels (for vapor intrusion) or default values (for migration to groundwater).

An order of magnitude change could have significant consequences for sites that have not yet been issued a Final Remediation Document (No Further Action Letter or Response Action Outcome), as well as for sites that already have a Final Remediation Document. At sites that have achieved a restricted use Response Action Outcome or No Further Action Letter which includes the implementation of Institutional or Engineering Controls, the LSRP must certify the effectiveness of the remedial action biennially. As part of the biennial certification, the LSRP must perform an evaluation to determine if the previous standards have changed by an order of magnitude and, if so, whether the remedy remains protective. If the evaluation reveals that the remedy does not remain protective, additional investigation and remedial action may be necessary.

Order of magnitude evaluations will also be required for previously closed sites for which biennial certifications are not required when that site re-enters NJDEP’s Site Remediation Program for any reason (e.g., ISRA triggers, child-care facility license renewals, update of site conditions required for loan approval in connection with a property sale). As with active sites, additional remediation could be required. 

For sites where the standard has become more stringent by an order of magnitude or more, and for remediation projects that cannot feasibly achieve a Remedial Action Workplan or Report before November 17, 2021, these changes could present significant challenges and expense.  For additional information on the newly adopted standards and guidance documents, and how they may impact your remediation project, please contact MGKF’s Bruce Katcher, Jonathan Spergel, John Gullace, Matthew Sullivan, Will Hitchcock, or Darryl Borrelli.