On September 22, 2000, Riker Danzig's Environmental Group won a significant challenge to NJDEP's groundwater remediation standards that is likely to be widely applicable to parties throughout the State currently undertaking or facing site remediation. In the Appellate Division's decision, the court invalidated NJDEP's use of the Groundwater Quality Standards ("GWQS"),codified at N.J.A.C. 7:9-6.1 to -6.11, as standards for remediation of groundwater.
The events leading to this challenge by our client, Federal Pacific Electric Co. ("FPE"), began in 1997, when NJDEP disapproved the groundwater component of FPE's remedial action workplan for its former manufacturing site in the Ironbound section of Newark. FPE proposed a groundwater remedial goal for tricholoroethene ("TCE") of 50 parts per million ("ppm"). The workplan demonstrated that the site-specific remedial goal of 50 ppm was appropriate in light of the fact that (a) the goal was derived by integrating the findings of scientific studies, risk and exposure assessments, and information on site-specific conditions, and (b) the agency had not adopted remediation standards as mandated by the legislation amending New Jersey's Environmental Clean-Up Responsibiliy Act ("S. 1070"). NJDEP, however, rejected FPE's remedial goal in favor of the considerably more demanding criterion contained in the GWQS of one part per billion (1 ppb) for TCE.
FPE subsequently challenged NJDEP's use of the GWQS as remediation standards on two fronts. First, we argued that the agency's use of the GWQS violated the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B et seq., because NJDEP had failed to provide proper notice that, upon readoption, the GWQS would serve as remediation standards pursuant to S. 1070. Second, FPE argued that use of the GWQS as remediation standards violated S. 1070's legislative purpose and express mandate to adopt minimum remediation standards that considered certain specifically enumerated factors.
The court agreed that NJDEP had violated the APA and ruled that the agency had either to promulgate valid standards for the remediation of groundwater or to determine appropriate remediation standards on a case-by-case basis. Because the court determined that NJDEP's use of the GWQS as remediation standards was invalid for procedural reasons, it chose not to address the argument that such use violated S. 1070's purpose and mandates.
The decision should have broad effect in New Jersey, requiring adoption of groundwater remediation standards and, in the interim, consideration of site-specific factors in determining appropriate remedial standards.
The anticipated rule promulgation that will result from the court's decision offers companies and individuals the opportunity to be heard on the issue of what remediation standards ought to be promulgated that truly conform with the mandate of the legislature. As well, companies may seek to apply the legislative factors on a case-by-case basis to ongoing remediation projects. Federal Pacific Electric Co. v. New Jersey Department of Environmental Protection, A-518-98T2 (App. Div. Sept. 22, 2000).
