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New Jersey
Update: Final(?) Soil Remediation Standards
February marks the 16th anniversary of the first soil cleanup
criteria (SCC) proposed by the New Jersey Department of
Environmental Protection (NJDEP). This might be the year that the
SCC are promulgated – or is it?
On February 3, 1992, the NJDEP proposed SCC but elected not to adopt
them because the NJDEP thought it would be better to wait for
legislation currently under consideration at that time to make sure
all the legislation and rules were in balance. In 1999 the SCC were
revised. Since 1992, however, the SCC have been used by the NJDEP as
guidance and the NJDEP has rarely deviated from them.
In May 2007 the NJDEP published a draft rule on remediation
standards for public comment. According to the NJDEP, the final rule
is expected to be issued this summer. The rule includes SCC
protective of human health from the ingestion, inhalation, and
groundwater exposure pathways as well as impact to groundwater. As
might be expected, the SCC are designed to be very conservative so
as to be overly protective of human health and the environment.
The current SCC includes three categories: residential direct
contact; nonresidential direct contact and impact to groundwater
standards (typically the most stringent of the three categories).
Engineering and institutional controls are allowable remedial
actions in New Jersey. The Technical Requirements for Site
Remediation (the Tech Regs) in several places specify the use of
engineering and institutional controls in order to protect human
health and the environment (including groundwater). This remedial
approach is common for real estate development in urbanized or
industrialized areas where the use will remain
commercial/industrial. Engineering and institutional controls have
been instrumental in rendering otherwise vacant properties viable
for redevelopment, a cornerstone to revitalization in many urban
areas. In the new legislation the NJDEP significantly diminishes the
role of engineering and institutional controls.
Applying SCC to a soil contamination situation is simple: use the
most stringent of the three categories. The proposed rule states
that “Remediation options for the impact to ground water pathway
include the development of an alternative remediation standard (ARS)
for soil that is protective of the ground water, or treatment or
removal of contaminated soil. Containment with engineering controls
may be approved as part of a ground water/soil remedial action when
removal or treatment is deemed to be technically
impractical.”[emphasis added] Unfortunately, the proposed rule
doesn’t define technical impracticality.
From a strictly technical standpoint, it is unclear if any site
could qualify for relief and be allowed to rely upon engineering
controls in lieu of excavation or treatment for soil that exceeds
the impact-to-groundwater SCC. Note that the regulation states
technically impractical – not cost prohibitive. This is an important
distinction as in the past the NJDEP has allowed engineering or
institutional controls (non-permanent remedies) in lieu of permanent
remedies (such as excavation or treatment) if cost of the permanent
remedy was substantially more than the cost for the non-permanent
remedy.
The immediate impact likely will be felt in Brownfield Development.
Engineering and institutional controls are instrumental in making
blighted properties financially viable for development in depressed
areas. For example, buildings in blighted areas usually require
demolition to make way for new construction. If soil exceeds the
impact-to-groundwater SCC, demolition may make it “technically
practical” to excavate or treat the underlying soil rather than
capping it – rendering the development project no longer financially
viable. It will be important for the NJDEP to work with the State of
New Jersey Office of SmartGrowth to resolve this potentially
deal-breaking issue to keep the redevelopment of New Jersey’s urban
areas on track; otherwise, real estate developers will put a stop to
future development until a “test case” works its way through the
system.
On the bright side, the regulations do allow development of
alternative remediation standards (ARS) for the
impact-to-groundwater pathway. This is a concept that the NJDEP has
been reluctant to embrace in the past and with which it has little
experience. It has yet to be seen how the ARS provision of the rule
will be applied from a practical standpoint.
With all of this being said, NJDEP Commissioner Lisa Jackson, at a
recent trade organization meeting, hinted that the final rule may
not include the impact-to-groundwater SCC. The reason for this
potential exclusion is unclear and no additional confirmation has
been forthcoming in recent weeks. Will it happen? What does this
mean? Will both the numeric and narrative standards be omitted?
Clear indications have not been forthcoming from the NJDEP but given
their track record, it is very likely the NJDEP will refer to the
impact-to-groundwater SCC for “guidance” – much like the 1992 and
1999 SCC. Perhaps the impact-to-groundwater SCC will be around for
yet another birthday.
For more information, contact Tom Buggey at
(856) 423-8800.
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