Updated NJDEP Technical Guidance on Use of Fill Material and Off-Site Source Groundwater Investigation

June 18, 2015
Bruce Katcher and Darryl Borrelli
MGKF Special Alert

The New Jersey Department of Environmental Protection (NJDEP) recently released significant revisions to its Site Remediation Program (SRP) guidance document governing the use of fill material at SRP sites (May 2015) and a new guidance document governing the procedures to be used to show that contaminated groundwater beneath a SRP site is being impacted by contamination from an off-site source and therefore not the responsibility of the property owner to remediate (April 2015). 

Fill Guidance:  The primary revision to the fill guidance (formerly called the “Alternative and Clean Fill Guidance for SRP Sites”, but renamed to “Fill Material Guidance for SRP Sites”) is a change in the procedure to support the use of material obtained from a quarry or mine as fill material at a SRP site. 

Formerly, fill material obtained from a quarry or mine that was not located at or impacted by a contaminated site as evidenced by a preliminary assessment or other site review, was acceptable for use as long as the quarry or mine operator had collected at least one sample for each calendar year of operations that met all soil remediation standards and the LSRP determined that the data was reliable.  Otherwise, the LSRP would have had to obtain and analyze at least one sample to determine whether remediation standards were met.

Under the new guidance, material obtained from a licensed quarry or mine may be used at a SRP site without any sampling as long as the quarry/mine operator certifies the material as coming from a licensed facility that has not been subject to a discharged hazardous substance at any time.  The guidance indicates that a description of any steps taken to document or confirm this may be included with the certification or remedial action report for the SRP site. While the certification may be relied upon without such documentation, it seems to be a good practice to do some basic investigation of the source of the material (e.g., check the NJDEP’s contaminated sites at a minimum).  Neither the party conducting the remediation nor the quarry/mine operator desiring testing is precluded from doing so and in the absence of a certification, testing would be required.  Those with a conservative bent may want to continue to test. 

Other revisions in the fill guidance include (1) clarification of the circumstances under which the use of excess fill material is permissible, (2) clarification of when a beneficial use determination (BUD) is needed from the Bureau of Solid and Hazardous Waste Management for the use of alternative or clean fill and when material produced by a Class B recycling center does not require a BUD for such use or may require prior sampling, and (3) clarification on the application of the Solid Waste guidance on concrete recycling as applied to fill material.          

Groundwater Guidance:  NJDEP has issued new guidance regarding the procedures to be used to document that groundwater beneath a Site is being impacted by contamination from an off-site source.  Documenting the presence of an off-site source is important because it relieves a property owner from requirements to remediate contamination discovered at its site under the SRP where the off-site source is the sole source.  NJDEP is also in the process of preparing guidance to address the situation where contamination from an off-site source “comingles” with contamination from an on-site source as sometime occurs in densely urbanized areas.  The process for assigning responsibility for remediation of such commingled sources is complex.   

The guidance continues a NJDEP theme for developing “lines of evidence” to establish the case for an off-site source.  One required piece of evidence will be satisfied by completing a Preliminary Assessment (PA) on the site being impacted.  Completing a PA, and, if necessary, a Site Investigation (SI), may confirm that the contamination is not actually from an on-site source.  The guidance also contains a table of “data gathering tools” that can be utilized to assist in the determination of an off-site groundwater source.

As noted, establishing the presence of an off-site source relieves a site owner or operator from further cleanup liability under state law.  Properly documenting such causation may also greatly enhance potential claims against the party responsible for the off-site source for property damage, diminution in value or toxic tort caused by the off-site contamination.  Expenses related to documenting the off-site source and addressing any damages that result from it may be recoverable in the event such claims are brought. 

If you would like more information concerning these guidance documents, please contact Bruce Katcher (bkatcher@mankogold.com), the partner in charge of the firm’s New Jersey Practice, or Darryl Borrelli (dborrelli@mankogold.com), the firm’s senior technical consultant.