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NJDEP Adopts Remediation Standards
June 2, 2008
On June 2, 2008, the NJDEP adopted new Remediation Standards (N.J.A.C. 7:9D) to implement the provisions of the Brownfield and Contaminated Site Remediation Act (N.J.S.A. 58:10B-12).  The Remediation Standards establish the minimum standards for the remediation of contaminated soil, groundwater, and/or surface water.  The NJDEP also readopted the Technical Requirements for Site Remediation with amendments including the New Remediation Standards. 

Under the NJDEP’s Remediation Standards, minimum residential direct contact and non-residential direct contact soil remediation standards have been established to replace the previous Soil Cleanup Criteria, dated May 12, 1999.  In a change from the proposed rules, the NJDEP did not adopt the minimum impact to ground water soil remediation standards in the new Remediation Standards.  According to the NJDEP, the impact to groundwater will be developed on a site-by-site basis with a new guidance manuals being issued.  With regards to the groundwater and surface water standards, the NJDEP is applying the standards from those rules that have previously been adopted under N.J.A.C. 7:9C and N.J.A.C. 7:9B, respectively.

The new Remediation Standards could have far reaching implications depending on the site and contaminants of concern.  The NJDEP will institute a six month grace period for the implementation of the Remediation Standards.  The cut-off date for the grace period is December 2, 2008.  After that date, a contaminated site must have an approved remedial action workplan or remedial action report and the change in standard for the contaminants of concern from the old soil cleanup criteria to the new Remediation Standard cannot be an order of magnitude or more.  Furthermore, owners of any sites previously remediated with institutional controls (Deed Notices) will be required to compare the concentrations of contaminants of concern left in place in the soil with the new Remediation Standards in their next biennial certification.  If there is a change in standard from the old soil cleanup criteria to the new Remediation Standard that is an order of magnitude or more, then the owner must evaluate the protectiveness of human health and the environment and if necessary, remediate additional areas. 

The following are some notable changes to the Remediation Standards:

  • Several of the residential standards for semivolatile organic compounds have changed such as decreases for benzo(a)pyrene; benzo(a)anthracene and benzo(b)flouranthene.  The most notable are orders of magnitude or more changes in anthracene from 100,000 mg/kg to 17,000 mg/kg and naphthalene from 230 mg/kg to 6 mg/kg.   
  • There are no changes of an order of magnitude or more for metals except for thallium which changed from 1,000 mg/kg to 5 mg/kg.    There have been several increases in the standards for metals such as antimony, beryillium, copper, cadmium, mercury, nickel, silver and zinc.  The Remediation Standards have decreased for selenium and vanadium.
  • There are semivolatile compounds (acenaphthylene; benzo(g,h,i)perylene and phenanthrene)  and metals (cobalt and manganese) where the non-residential standards are higher than the residential standards due to the assumptions used to calculate the standards by the NJDEP.  In these instances, the non-residential standards assume inhalation exposure due to dust generated by truck traffic on a non-residential site as opposed to an ingestion exposure on a residential site. 
  • There have been several changes to volatile organic compounds such as decreases in the residential standards for benzene, TCE, PCE and vinyl chloride and increases in the ethylbenzene, toluene and xylenes residential standards.  Formerly, the impact to groundwater soil cleanup criteria for volatile organic compounds was the lowest of the criteria for soil and used to establish remediation goals.  The NJDEP will now establish site specific impact to groundwater soil standards on a case by case basis.  Marathon cautions establishing remediation objectives using the new Remediation Standards for volatile organic compounds without considering potential impacts to groundwater.  The NJDEP is in the process of releasing guidance documents for the establishment of impact to groundwater standards.
  • There are several minor changes to the residential standards for contaminants typically associated with agricultural sites such as a change in the arsenic standard from 20 milligrams per kilogram (“mg/kg”) to 19 mg/kg; and a change in the dieldrin standard from 0.042 mg/kg to 0.040 mg/kg.  There are other changes to organochlorine pesticides; however, none are an order of magnitude or more, with some actually being increased (toxaphene from 0.1 mg/kg to 0.6 mg/kg).
The new rules can be found at  http://www.nj.gov/dep/srp/regs/rs/rs_rule.pdf.  For more information on the new Remediation Standards, please contact Bob Carter of our Swedesboro office at Bob.carter@marathonconsultants.com or (856) 241-9705.

NJDEP Adopts Updated Landscape Project Mapping (Versions 2.1 and 3.0)
May 19, 2008
The NJDEP uses the Landscape Project mapping to identify critical wildlife habitat in accordance with land use regulations, including the Freshwater Wetlands Protection Act Rules (N.J.A.C. 7:7A), Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), and Rules on Coastal Zone Management (N.J.A.C. 7:7E).  The Landscape Project mapping is one resource used by the NJDEP to establish wetland resource value classifications (wetland buffers).

Recently released versions of the Landscape Project (Versions 2.1 and 3.0) (May 2008) involve several changes to critical habitat mapping that was previously used by the NJDEP under Version 2.0, which may affect (positively or negatively) projects.

The NJDEP Landscape Project is a landscape-level approach to the conservation of imperiled (threatened and endangered) wildlife species in New Jersey. Through geographic information system (GIS) technology, the Landscape Project maps depict critical wildlife habitat throughout the state based on the integration of species location data, land-use/land-cover, and species life history information (Niles et al. 2008).

For additional information, please contact Don Brickner in our Swedesboro office.

Source: Niles, L.J., M. Valent, P. Winkler and P. Woerner. 2008. New Jersey’s Landscape Project, Version 2.1. New Jersey Department of Environmental Protection, Division of Fish and Wildlife, Endangered and Nongame Species Program.

PROPOSED AMENDMENTS TO THE NEW JERSEY FRESHWATER WETLAND PROTECTION ACT RULES AND REGULATIONS
November 15, 2007
The Public Comment Period for the proposed amendments to the New Jersey Freshwater Wetland Protection Act which was set to close on November 2, 2007 will be extended by the New Jersey Department of Environmental Protection (NJDEP) until January 2, 2008.

There are going to be significant changes to the Freshwater Wetlands Protection Act that will result in less flexibility and predictability in developing sites and increased costs in preparing and obtaining Wetland Permits. Some of the significant changes include the following:

Municipalities would have the authority to require a Letter of Interpretation (LOI) from the builder/developer, while under the current rules; such action is preempted by the Freshwater Wetlands Protection Act. Since preemption is stipulated in the Freshwater Wetlands Protection Act, this rule proposal would require legislative action. This requirement would result in delays in the site plan/subdivision process since a municipality could defer the review of the application until the LOI is obtained from the NJDEP.

Wetland encroachments covered under a General Permit (GP) are to be minimized to the maximum extent practicable and an alternatives analysis will be required for certain GPs. This requirement, in essence, would treat each GP as an Individual Permit, thereby resulting in a much stricter set of criteria being applied by the NJDEP in their review of General Permit applications. This requirement would remove the predictability that is needed by the builder/developer to determine potential development intensity.

There are going to be restrictions on the usage of GPs. If the wetland fill under a GP Permit application exceeds 0.5 acres, it cannot be combined with other GPs to achieve the maximum one acre fill that is permitted under the GP Program. The activity will then have to be reviewed and approved as an IP. This will reduce the flexibility of developing a site as well as the degree of predictability since a more difficult review criteria must be satisfied in order for the Permit to be issued. GP10A and 10B for road crossings can not be combined for the same property and therefore would require an IP. Also, wetland mitigation will be required for road crossings.

The GP for underground utility lines is going to be modified such that the area of wetland disturbance will be reduced from 1 acre to 0.5 acre. This will result in the need to obtain an IP for activities that otherwise have been deemed by the legislature to have minimal impact upon wetlands.

The GP for non-tributary wetlands (isolated wetlands) is going to be modified to require mitigation for all fills under this GP. This will result in significantly greater costs in the development of sites by as much as $400,000 per acre. The GP will also not be issued until the mitigation proposal is approved by the NJDEP.

The GP for outfalls and intake structures will require mitigation which will add cost and time in obtaining these approvals.

There are changes to the rules pertaining to transition areas. If an approved Transition Area Waiver (TAW) is not implemented within 5 years of authorization by the NJDEP, then the TAW will expire and a new TAW will be required. This rule proposal is complicated by the fact that all TAWs must have a conservation easement filed with the County Clerk’s Office immediately upon approval of your application and therefore an encumbrance of the site will still exist beyond the 5 year permit authorization.

All GPs will require that a title search be performed for the property from June 30, 1989 to the present to show the ownership interest. This will result in increased costs and delays.

Wetland applications will be required to have historic, archaeological and architectural surveys performed for all applications that have a high probability for historic and archaeological resources. This will add significant time and costs to the preparation of Wetland Permit applications. Also, how will the applicant know whether a site has a high probability for such resources until after the application is submitted? This section of the rules will also require that no building or structure over the age of 50 years be demolished prior to receiving Wetland Permits.

A copy of this rule proposal can be viewed at http://www.nj.gov/dep/rules/notices.html.

United States Army Corps of Engineers reissues existing Nationwide General Permit Conditions

The U.S. Army Corps of Engineers (Corps) is reissuing all existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also issuing six new NWPs, two new general conditions, and 13 new definitions. The effective date for the new and reissued NWPs will be March 19, 2007. These NWPs will expire on March 18, 2012. The NWPs will protect the aquatic environment and the public interest while effectively authorizing activities that have minimal individual and cumulative adverse effects on the aquatic environment. The NWPs and general conditions will become effective on March 19, 2007.
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