NJ DEPARTMENT OF ENVIRONMENTAL PROTECTION
SITE REMEDIATION AND WASTE MANAGEMENT PROGRAM

Notice of Rule Proposal

N.J.A.C. 7:26D, Remediation Standards

Public Notice

Take notice that the NJ Department of Environmental Protection (DEP) is proposing new rules, repeals, and amendments to N.J.A.C. 7:26D, Remediation Standards.  A statement of the substance of the proposal follows:
 
 
The Brownfield and Contaminated Site Remediation Act (Brownfield Act), N.J.S.A. 58:10B-1 et seq., requires the DEP to develop remediation standards to be protective of the public health, safety, and the environment.  Such standards are to be applied to contaminated sites throughout the State.  Consequently, persons responsible for the remediation of contaminated sites are affected by these rules.  The DEP proposes to amend the Remediation Standards, N.J.A.C. 7:26D, to ensure that they remain protective of human health.   
The existing rules contain remediation standards for the following media and exposure pathways. 

The proposed amended rules contain remediation standards for the following media and exposure pathways. 

The proposed rules continue to use the Ground Water Quality Standards and the Surface Water Quality Standards for the remediation standards for ground water and surface water.  The soil remediation standards for migration to ground water, which under the existing rules are established on a site-specific basis using DEP guidance, are proposed to be codified.  The existing soil remediation standards that are based on direct (human) contact are divided in the proposed rules into standards for the ingestion-dermal exposure pathway and the inhalation exposure pathway.  Both the existing rules and the proposed rules provide for residential and nonresidential soil remediation standards, although the proposed rules use a different basis for determining whether the residential or nonresidential standard applies.  Under the existing rules, residential or nonresidential depends on the amount of time (per hour, day, year) that a person is exposed to soil contamination at the site.  Under the proposed rules, the standard is based solely on the use of the property.   
Proposed remediation standards for soil leachate and indoor air are new. 
The proposed remediation standards are based upon toxicity factors, exposure assumptions, chemical factors, and physical factors.  Some of the soil remediation standards are more stringent than the existing rules, and some are less stringent.  Further, the DEP added remediation standards for several contaminants that are not identified in the existing rules, and the DEP is not proposing remediation standards for several contaminants for which the existing rules provide standards.  For this latter category, the DEP determined that a remediation standard could no longer be justified.  The proposed soil remediation standards for some contaminants are proposed to be more stringent by a factor of ten or more.  This will have an impact on some remediations that are otherwise closed, as discussed in the Fiscal Impact section below. 
Both the existing and proposed rules provide for interim remediation standards for contaminants for which there are no codified standards.  Both the existing and proposed rules also allow the person responsible for conducting the remediation to request an alternative remediation standard for a specific area of concern.  The DEP proposes to expand the availability of interim remediation standards to soil leachate, ground water, and indoor air (there is no authority to use interim remediation standards for surface water).  The proposed rules expand the use of alternate remediation standards to soil leachate and indoor air (there is no authority to use alternative remediation standards for ground water and surface water).  As in the existing rules, the proposed rules allow the DEP to update soil remediation standards by published notice where there is a change in the toxicity factor on which the codified standard is based.  The proposed rules provide for updates to soil, soil leachate, ground water, and indoor air (not surface water). 
 
The proposal is scheduled to be published in the New Jersey Register dated April 6, 2020.  A copy of the proposal is available from the DEP website athttp://www.nj.gov/dep/rules/notices.html; official repository libraries; and LexisNexis free public access to the New Jersey Register, www.lexisnexis.com/njoal.
The Department anticipates holding a public hearing on the proposal.  The date and time of the hearing will depend on circumstances surrounding the COVID-19 public health emergency.  If the Department holds a hearing, the public comment period will be extended until after the hearing.
Further information on a public hearing, if one is held, will be posted on the Department’s website at www.nj.gov/dep/rules/notices.html at least 15 days prior to the date of the hearing.  Notice will also be sent to those who have subscribed to the Department’s rulemaking listserv.  To subscribe, go to www.nj.gov/dep/rules/subscribe.html.