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May 5, 2020

CSG Law Alert: NJDEP Proposes Amendments to Existing Remediation Standards

On April 6, 2020, the New Jersey Department of Environmental Protection (“NJDEP”) proposed substantial changes to the Remediation Standards at N.J.A.C. 7:26D, promulgated under the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq. (“Brownfield Act”). The proposal seeks to amend the existing Remediation Standards in a number of ways, many of which have potential for significant impacts on ongoing and future remediation in the state. The following is a brief discussion of some, but not all, of the changes that NJDEP proposes.

To begin with, NJDEP’s proposed amendments would update the default minimum remediation standards for various media and exposure pathways. For ground water and surface water, the existing Ground Water Quality Standards and Surface Water Quality Standards remain in effect. However, the proposed rule would mark a sea change in how NJDEP conceptualizes soil remediation standards. Currently, the Remediation Standards provide for combined health-based standards for ingestion-dermal and inhalation pathways. Under the proposed rules, the Remediation Standards would, instead, provide distinct health-based standards for each pathway, separating the ingestion-dermal standard from the inhalation standard. While not part of the proposed rulemaking, NJDEP is amending its existing technical guidance documents to reflect these changes. We will be on the lookout for those documents as they come available.

Importantly, the proposed amendments would also include impact to ground water soil remediation standards. Under the current iteration of the rules, NJDEP establishes such standards on a case-by-base basis. The proposed rulemaking would create codified remediation standards “for soil and soil leachate for the migration to ground water pathway, based upon migration of contaminants to ground water and subsequent human ingestion of ground water.” Also of significance is NJDEP’s proposed remediation standard for indoor air. Currently, the rules do not provide standards for remediating indoor air based on vapor intrusion.

Note that under the Brownfield Act, NJDEP may require ongoing remediations with an approved remedial action work plan (“RAWP”) to comply with newly promulgated standards where those standards are more stringent than the standards under which the RAWP was approved. As such, individuals, property owners, and developers with ongoing remediation would benefit from monitoring the progress of these proposed amendments, as they have the potential for significant impacts, even for sites that are well underway.

Since publishing notice of the proposed rule, NJDEP has extended the public comment deadline from June 5, 2020 to August 5, 2020, based on the needs of the State’s COVID-19 response. 

The text of NJDEP’s proposed alterations to the Remediation Standards can be found here.