Earlier this summer, DEP finally adopted new soil cleanup standards. The Remediation Standards Rule gathers in one place the new cleanup standards for soil, along with the standards for groundwater and surface water that have been in place for some time. Despite inclusion in the initial proposal, DEP decided to delete from the June 2, 2008 adoption its proposed Impact to Groundwater (IGW) criteria for soils. Pending DEP’s future adoption of IGW criteria, a decision on the applicable IGW standards will be applied on a case-by-case basis.

In an effort to help the regulated community understand the IGW issues, along with the rule adoption, DEP prepared a June 2008 guidance document titled “Introduction to Site-Specific Impact to Ground Water Soil Remediation Standards” (IGW Guidance). In the IGW Guidance, DEP identifies several acceptable methods for developing site-specific IGW standards, including use of USEPA’s soil-water partition equation, the synthetic precipitation leaching procedure and certain modeling techniques. In its IGW Guidance DEP acknowledges that site specific conditions, such as the immobility of contaminants and observed groundwater conditions, should help determine remedial decisions. A real possibility exists, however, that DEP Case Managers may attempt to apply the previously proposed IGW values in their case-by-case reviews, and this could be very problematic. Should a Case Manager try to rely on the previously proposed IGW values, they should be referred to the IGW Guidance.

The new cleanup standards allow for the use of the former Soil Cleanup Criteria (SCC) (often less stringent than the new soil standards) after June 2, 2008, under certain circumstances:

  •  a Remedial Action Work Plan (RAWP) or a Remedial Action Report (RAR) is submitted to NJDEP prior to December 2, 2008;
  •  the RAWP or RAR is in compliance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E (Tech Regs); and
  •  the SCC for the site are not greater by an order of magnitude or more than the new soil cleanup standards (new soil cleanup standards were revised by an order of magnitude for 13 contaminants, including naphthalene, chloroform, 1,1-Dichloroethane and 1,2-Dichloroethane).

Unfortunately, a significant problem may occur in trying to determine whether a RAWP or RAR is in compliance with the Tech Regs. As New Jersey environmental practitioners know, the Tech Regs requirements are subject to various interpretations. DEP recently posted “Phase In Period Guidance” on its website to help resolve this dilemma. A RAWP or RAR will be deemed in compliance with the Tech Regs under any of the following circumstances:

  •  DEP approves the RAWP or RAR;
  •  DEP issues a Notice of Deficiency and the remediating party rectifies all of the deficiencies to DEP’s satisfaction within the specified timeframe; or
  •  the remedial action is conducted within the timeframe specified in the RAWP.

If the DEP ultimately issues a Notice of Violation, the ability to utilize any lower SCCs in effect prior to June 2, 2008 will be lost. On the other hand, an approved RAWP or RAR will resolve any potential issue about compliance with the Tech Regs and lock in the ability to use any lower SCCs in effect prior to June 2, 2008. If at all possible, a remediating party needs to work with DEP and obtain a written approval of its RAWP or RAR prior to December 2, 2008.