The New Jersey Department of Environmental Protection ("NJDEP") recently amended and revised the Technical Requirements for Site Remediation. The revised Technical Regulations will take effect 60 days after their publication in the New Jersey Register, which is expected to occur during May. After the anticipated July effective date, anyone who is addressing a contaminated property in New Jersey must comply with these new regulations. Only those parties whose work plans are submitted before the effective date and whose work will be completed within six months of work plan approval will be exempt from complying with the new rules. This article highlights some of the significant changes found in the revised Technical Requirements.
New Requirements for Some Contamination
The revised Technical Regulations add new notification and NJDEP oversight requirements for contamin-ation that constitutes an "immediate environmental concern," which is defined as contamination that poses an acute threat to human health or a direct threat to a potable water supply. Once the existence of such conditions is identified, the responsible person immediately must notify the NJDEP and stabilize the conditions under NJDEP oversight. In addition, if the responsible party intends to implement an interim response action to address the immediate environmental concern, NJDEP and the relevant municipal clerk(s) must be notified.
Preliminary Assessments
With respect to preliminary assessments, the revised Technical Regulations require a person to evaluate areas of concern for which a "no further action" letter previously was issued to determine whether no further action remains appropriate. Generally, no further action is required, even though contamination concentrations exceed the current remediation standards, if: (i) contaminant concentrations exceed the current remediation standards by less than an order of magnitude; (ii) engineering and institutional controls previously implemented remain effective; or (iii) site-specific criteria previously were used and the factors and assumptions underlying the site-specific criteria remain valid.
Site Investigations
During a site investigation, the revised Technical Regulations add flexibility in the required sampling, clarify some requirements for certain areas of concern, including building interiors, surface water, ecological evaluations and historic fill, and establish procedures for proving the existence of background contamination that does not have to be remediated. The revised Technical Requirements add flexibility to field work by allowing a person to make a verbal or written request that NJDEP modify the sampling requirements when access for the required investigation is impracticable because of physical obstructions or safety hazards. Follow-up written confirmation of the modifications must be provided by the responsible person.
Among the contamination sources for which site investigation requirements are further defined are: (i) contaminants that have the potential to migrate in either direction between a building interior and the environment; (ii) groundwater where soil contamination exists within 2,000 feet of a public supply well or has a water solubility above 100 milligrams per liter and insufficient silt or clay between the contamination and the groundwater; (iii) potential discharges to a surface water body on or adjacent to the site; and (iv) potential impacts on environmentally sensitive areas or by contaminants of ecological concern. Site investigation of historic fill, on the other hand, can be avoided by assuming that the contamination of such fill exceeds the relevant unrestricted use standards.
Historic Fill
Finally, further investigation of soil and groundwater contamination during the remedial investigation can be avoided by establishing that the contamination is the result of background conditions rather than on-site operations, according to the new regulations.
The most significant changes to remedial investigations under the revised Technical Requirements concern historic fill and the reduced characterization that must be completed for soil contamination when institutional controls will be used. First, delineation of historic fill pursuant to the revised Technical Regulations requires at least four borings or test pits per acre of fill within the fill material (with a minimum of four per site) and at least four borings or test pits located equidistantly around the perimeter of the fill.
There are additional requirements for sites: (i) entirely covered with historic fill; (ii) whose fill may not be entirely historic or may contain other areas of concern; and (iii) where the groundwater impacts from historic fill must be investigated (i.e., in potable groundwater use areas). Second, when the property owner agrees to place a deed notice on the property that appropriately restricts its use, the person responsible for conducting the remediation can delineate the horizontal and vertical limits of the soil contamination to the lower of the applicable restricted use standard or the applicable ground-water impact soil cleanup criteria. In contrast, the prior Technical Regulation mandated that contaminated soil be delineated to unrestricted use standards regardless of the intended use of the property.
Remedial Action Selection and Report
The revisions concerning the remedial action selection and report concentrate largely on the preference for permanent soil remedies and the conditions for using non-permanent soil remedies. Generally, to use a non-permanent remedy for soil con-tamination involving both engineering and institutional controls, the lowest cost permanent remedy must be at least twice the cost of the proposed non-permanent remedy. A different cost comparison test must be satisfied to use a non-permanent remedy involving institutional controls only. Moreover, the current and future uses of the site must be consistent with the engineering and institutional controls, access to the site must be limited by those controls, the owner must agree in writing to the use of a non-permanent remedy, which shall be protective of human health and the environment, and off-site migration pathways shall be mitigated or eliminated.
A remedial action selection report is required for all non-permanent remedial actions, except those that: (i) concern soil only; (ii) will achieve restricted use standards in less than five years; and (iii) do not require engineering controls. If a remedial action will take longer than five years to complete or will address groundwater, surface water, sediment or ecological impacts, a remedial action selection report is required.
Remedial Actions
Finally, the new regulations also implement changes to the remedial actions themselves. Non-permanent remedies must be re-evaluated every five years, or at a frequency determined by NJDEP, to assure the continued physical integrity of the engineering controls and adequacy of the institutional controls. Free and residual product must be treated and removed when practicable, or contained when removal is impracticable, because natural remediation of such phases will not be allowed. Where natural atten-uation is appropriate, a classification exception area must be designated to cover the horizontal and vertical extent of the contaminant plume for as long as the plume is expected to exceed the groundwater quality standards. Numerous reporting requirements must be satisfied when proposing the establishment of a classification exception area. If approved by NJDEP, the classification exception area will persist until the responsible party documents that the contamination has decreased below the applicable groundwater quality standards.
Summary
The revised Technical Regulations largely utilize concepts mandated by the State Legislature when it enacted the Industrial Site Recovery Act, and consequently most of the provisions are unsurprising. As a result, the primary significance of these new regulations arises from their breadth, in that they will affect all contaminated properties that will be addressed in New Jersey, rather than from any particular changes that they make.
