State High Court to Hear Appeal of Ground Water Cleanup Standards

State High Court to Hear Appeal of Ground Water Cleanup Standards
COMMERCE Magazine, 2007

The Supreme Court of New Jersey recently agreed to hear industry's long-standing challenge to the cleanup standards for ground water adopted by the New Jersey Department of Environmental Protection ("DEP"). Earlier this year, the Appellate Division of the Superior Court upheld DEP's 2003 promulgation of cleanup standards that apply strict, numeric drinking water standards to the remediation of all contaminated sites, including where ground water is neither currently nor planned to be used for potable purposes. In re Adoption of N.J.A.C. 7:26E-1.13, 377 N.J. Super. 78 (App. Div. 2005).

The origin of the appeal is the investigation conducted pursuant to the Industrial Site Recovery Act, N.J.S.A. 13:1k-6 et seq. ("ISRA") of the former Federal Pacific Electric Company ("FPE") plant. This "brownfield" is located in a highly industrialized area of Newark and is covered by manufacturing buildings and parking lots. No one is exposed to historic contamination discovered in the ground, no one drinks or uses the ground water and no "receptors" are affected by the ground water contaminant plume. During its ISRA investigation, FPE developed cleanup standards for ground water based on these site-specific factors and on a risk assessment prepared pursuant to federal Environmental Protection Agency ("EPA") guidance.

For many years, DEP informally used as cleanup standards the drinking water standards developed in the 1980s by the New Jersey Drinking Water Quality Institute. See N.J.A.C. 7:9-6 ("GWQS"). DEP rejected FPE's site-specific standards that varied from the GWQS and, in 2000, the Appellate Division determined in response to FPE's challenge to the agency's rejection that the agency's use of the GWQS as cleanup standards violated the State Administrative Procedure Act. Federal Pac. Elec. Co. v. N.J. Dep't of Envtl. Prot., 334 N.J. Super 323 (App. Div. 2000).

In response, DEP adopted in 2003 the very same GWQS as cleanup standards, notwithstanding the hundreds of public comments advocating use of risk-based standards. FPE, joined by the New Jersey Chamber of Commerce, argued in the Appellate Division that use of the GWQS as cleanup standards is contrary to the Brownfields and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq., because the GWQS do not take into account site-specific factors and risk or the scientific principles required by the Act. Industry, professional and environmental groups filed "friend of the court" briefs on both sides of the issue.

The Appellate Division found that the challengers advanced "plausible arguments." Yet, in light of DEP's environmental expertise and the technical subject matter, the Court upheld the validity of the cleanup standards in deference to the agency. FPE and the Chamber of Commerce believe that the decision gives undue deference to DEP, lacks critical analysis of the Brownfields Act and is the result of other legal errors. The Supreme Court could hear the appeal before the end of the year.

Industry has long argued that DEP should allow use of site-specific, risk-based cleanup standards for ground water. Despite advances in remediation technology, achieving drinking water standards remains extremely expensive because of the difficulty in removing the "last molecule" of contamination. Use of site-specific, risk-based cleanup standards is a scientifically sound and cost-effective method of ground water remediation that, properly performed, protects public health and the environment.

The EPA and other industrial states, such as Illinois and Massachusetts, recognize use of risk-based standards as an appropriate approach to clean up and redevelop contaminated sites. Of special significance to our own densely populated state, use of site-specific standards also is consistent with "smart growth"; "greenfields" can be spared if brownfields located near existing infrastructure are cleaned up and redeveloped.

Despite the specific requirements of the Brownfields Act and the benefits of risk-based standards, DEP rejects this approach in favor of strict, numeric drinking water standards applied at virtually every site. This practice needlessly discourages cleanup and redevelopment of brownfields in New Jersey, particularly in those areas where no one drinks, or in the future will drink, the ground water. In the upcoming appeal, the Supreme Court of New Jersey will have the opportunity to consider this important public issue. A successful challenge to DEP's ground water cleanup standards could have a profound affect on the cleanup and redevelopment of contaminated sites across the state.