NJDEP Finalizes Major Revisions to Remediation Standards

The New Jersey Department of Environmental Protection (NJDEP) finalized several major revisions to its statutory remediation standards rules (N.J.A.C. 7-26D) on May 17, 2021. The proposed revisions were published on April 6, 2020 and were open for public comment until August 5, 2020.

Ballard Spahr is collaborating with Roux Associates to provide a summary of technical aspects of these new rules. This summary can be found here. Apart from technical aspects of the rules, the finalized remediation standards have several practical implications for businesses buying, owning, operating, or remediating properties in New Jersey.

1. Closed Sites

The most notable revision is that the new rules provide, in certain circumstances, a requirement to reassess and possibly implement additional cleanup measures at previously remediated properties. Pursuant to the Brownfield and Contaminated Site Remediation Act (N.J.S.A. 58:10B-13e) an Order of Magnitude evaluation must be conducted at Sites that currently hold a Remedial Action Permit where certain constituents are present—such as copper, cobalt, and ethylbenzene. However, under N.J.S.A. 58:10B-13e, NJDEP cannot enforce the use of new remediation standards at closed sites unless (1) the new standard is more stringent by an order of magnitude than the remediation standard used in the final remediation at the site; and (2) the difference between the new remediation standard and the level or concentration of a contaminant at the site differs by an order of magnitude or more. For purposes of the new rules, “Order of Magnitude” means the revised standard is 10 times more stringent than the previous remediation standard. For example, the 2021 soil to groundwater standard is 910 mg/kg, compared to the 2013 standard of 11,000 mg/kg.

Note, the Order of Magnitude changes to the remediation standards are not subject to the phase-in period outlined by the rule. Sites that currently hold a Remedial Action Permit are subject to re-assessment for these compounds. Additionally, if a Site was issued an unrestricted use final remediation document (i.e., the Site is closed) but is subject to a new trigger, Order of Magnitude changes to the standards must be re-evaluated. Triggers may include required compliance with the Industrial Site Recovery Act or biennial certification for sites with engineering and/or institutional controls. This provision is particularly impactful because it could require sites that have been closed for years, if not decades, to be reevaluated.

2. Pre-Remediation or Current Remediation

For sites that are being evaluated for remediation, such as properties in the due diligence phase, the finalized rules will affect the content of preliminary assessments. With these revisions, the rules require Licensed Site Remediation Professionals (LSRP) to evaluate ingestion-dermal and inhalation pathways separately, though the new rules do not impose any additional risk-based remediation standards. So in practice, LSRPs will be required to include additional analysis, but the options for meeting remediation standards should not change. This additional analysis will likely increase the cost of preparing a preliminary assessment. However, the cost of the actual remediation should not significantly increase unless the contaminant of concern at the Site is subject to an Order of Magnitude change in Remediation Standard.

3. Looking Forward

Many of the changes promulgated by NJDEP appear to require additional analysis, but in practice, could result in no changes to the selected remedial standard although the new rules increase the availability of remedial flexibility. For example, the new rules require LSRPs to screen ingestion and inhalation pathways, but still require remediation to the most stringent standard. The analysis of exposure pathways is a critical component of risk-based remediation, which New Jersey has not, and still does not support as a remediation strategy. Further, the finalized rules add definitions for “residential” and “non-residential” facilities, but in practice, these definitions have no significant effect on which remediation standards must be attained.

Unlike Pennsylvania, which employs risk-based remediation standards where appropriate, New Jersey typically requires remediation to attain the most stringent standards for the selected use (residential or non-residential) regardless of the property’s actual use or actual potential exposure pathways. The notable exception to this is New Jersey’s use of Alternative Remediation Standards (“ARS”). In the new remediation standards, NJDEP expanded the applicability of ARS, which allows for some consideration of risk in determining final remediation strategies such as engineering controls (such as capping, slurry walls, or containment). The new rules expand the type of methods that can be used to calculate ARS, as described by Roux in the link below. The expanded applicability of ARS is important because sites using ARS to show conditions are not required to employ engineering controls, and therefore do not require the financial assurances that accompany those controls. Thus, the expansion of ARS may save entities significant costs by greatly decreasing the long term costs.

Roux discusses the technical implications of NJDEP’s adoption of the new rule for businesses buying, owning, operating, or remediating properties in New Jersey in their update here.

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