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.