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DEP Proposes Changes to Remediation Standards
May 1, 2020
DEP Proposes Changes to Remediation Standards

Under the Brownfield and Contaminated Site Remediation Act, N.J.S.A 58:10B-1 et seq. (the “Brownfield Act”), the New Jersey Department of Environmental Protection (“DEP”) is required to promulgate remediation standards applicable to the cleanup of contaminated sites. On April 6, 2020, DEP proposed significant changes to its existing remediation standards, codified at N.J.A.C. 7:26D.

Included among the proposed changes are separate soil remediation standards for the ingestion-dermal and inhalation exposure pathways. Currently, there is a single direct contact soil remediation standard, depending on residential or non-residential exposures, that is typically the more stringent of the ingestion-dermal human health-based criterion or the inhalation health-based criterion.

DEP is also proposing: (1) new soil remediation standards for the migration to groundwater exposure pathway, to replace the existing site-specific impact to groundwater soil standards; and (2) new soil leachate standards for the migration to groundwater exposure pathway. The last group of new standards proposed by DEP are indoor air standards for the vapor intrusion exposure pathway. No changes are proposed in relation to the ground water or surface water remediation standards.

It is important to note that a handful of standards, including ethylbenzene (a common gasoline constituent), will become more stringent by an order of magnitude, if adopted. As a general matter, the Brownfield Act precludes DEP from requiring remediation under a new standard if a Remedial Action Work Plan has been approved, or if a No Further Action Letter or Response Action Outcome has been issued, unless the standard becomes more stringent by an order of magnitude. In all other cases, DEP has allowed and proposes to continue allowing a six-month phase-in period for the new standards. Thus, if a Remedial Action Work Plan or Remedial Action Report is submitted to DEP less than 6 months after the effective date of the proposed rules, the old (current) standards will apply.

The actual impacts to sites undergoing remediation or that have been closed out will vary on a case-by-case basis. Persons actively conducting remediation should assess potential impacts to their sites due the proposed changes, and be cognizant of remediation timeframes in the event any additional action will be required. As of the date of this alert, DEP is accepting public comments on the proposed rule amendments through June 5, 2020.

Contact Parker McCay's Environmental Department with any questions.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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