Scope. NJDEP has not proposed all the changes it debated with industry over the last 18 months. In volume of words changed, except for the ground water and surface water standards section, NJDEP has changed far less than the regulated community feared or expected. However, more is coming. This re-proposal should be considered round 1 of at least 2 (there will be at least one more set of technical changes) but maybe as many as 4 (new legislation, related revisions, court appeal, subsequent changes) over the next several years. With the change in administrations NJDEP can be expected to focus on more protective remediations. Enforcement is likely to increase substantially.

Groundwater. In response to the procedural defect found by a court in the prior attempt to adopt groundwater standards, see Federal Pacific Electric, Co. v. NJDEP, 334 N.J.Super. 323 (App. Div. 2000), NJDEP has proposed to use those same ground water and surface water standards (planning goals) as remediation standards (essentially incorporating the prior adoption by reference). Proposed N.J.A.C. 7:26-1.13. This approach will be attacked philosophically, legally and technically. When NJDEP ignores those attacks and comments, as seems highly likely, there will be an appeal, if only by Federal Pacific Electric. However, it is not clear whether the proposal, adoption, comments or a successful attack will change NJDEP remediation processes in fact. NJDEP has not adopted soils standards for almost two decades, yet their overall approach has remained essentially the same for the last decade.

The numeric standards are the same as they have been. The formulae and risk calculations supporting them are the same as they were five or so years ago. There may be technical basses for challenging the standards, assumptions and formulae. If not challenged, NJDEP will adopt them "as is." Those adversely affected by the standards, particularly in the absence of actual drinking water use, should propose and support the specific criteria, assumptions and formulae they believe are appropriate. A key question, however, is how these criteria, assumptions and formulae should change based on actual receptors and use (see below).

The proposed water remediation standards are not limited to the existing numeric criteria. In addition the proposal imposes narrative groundwater and surface water standards. Proposed N.J.A.C. 7:26E-1.13(b)1iii. Even if a remediating party meets the numeric criteria, theoretically NJDEP can require more work if the remediating party fails to meet the narrative criteria. Certainly if the numeric criteria are not met, the narrative criteria will then be used to deny relief from the numeric, through variances, site specific numbers, aquifer reclassifications, use of controls and the like. The standards are also fairly amorphous and susceptible of a wide range of interpretative issues. Specific narrative standards are: in the Pinelands, the appropriate standard is "non-detect;" the avoidance of threats to human health from pathways to the ground surface, structures or air; antidegradation policies; removal, treatment, or containment of free and residual product; potential human and environmental exposures to contaminants; ambient water quality; groundwater uses, actual and projected. There are others. See also N.J.A.C. 7:9-6.2 and 6.7.

Surface Water. NJDEP discusses the import of surface water standards very little. NJDEP's surface water approach is analogous to its groundwater approach. The approach may prove problematic to sites near surface water receptors, particularly as ecological issues emerge from the hiatus of the past many years. For example, if surface water is a receptor and contaminated groundwater exceeds standards and travels to surface water but does not cause any exceedance of surface water standards (except only in the intellectual instantaneous sense), how will NJDEP hereafter address surface water investigations and remediations?

NRD. While natural resource damages are no longer a part of site remediation due to a statutory change this past summer, claims for NRD can still be otherwise asserted, and the investigation process may still provide the evidence NJDEP needs to make its case.

Risk Assessment/Receptors. NJDEP disallows the use of risk assessments as a method for avoiding the requirements of numeric and narrative criteria in groundwater and surface water remediations. In essence, even if no one uses, or plans to use, or is presently adversely affected by contaminants in, water at or from a site, and therefore presumably actual risk assessment methods and science could show the absence of risks in excess of the statutory one-in-a-million cancer risk, NJDEP will not alter its approach in assessing what standard applies to those waters. As a matter of policy, NJDEP proposes that those waters are receptors, are all potentially usable, and have been injured, without regard to such science. NJDEP has inserted several regulatory provisions supporting and articulating its recent pronouncements that groundwater is itself a receptor. Similarly, as expected, surface water is now a receptor itself. In this view, contamination in these receptors must be addressed without regard to the existence of other more traditional receptors (such as those who drink groundwater, or adjacent wetlands). This logic and related principles include that: remediation standards must protect receptors; risk to receptors is unrelated to actual use; NJDEP is required to improve water quality (static conditions are unacceptable); and those who do not obtain unconditional no further action letters (e.g. because water quality at and from their site now meets all applicable standards) remain liable to police and sample water quality and uses forever. Collectively, these principles impede simple application of numeric criteria and concepts of natural remediation and institutional and engineering controls in favor of ever more stringent requirements imposed on polluters.

Well Searches. NJDEP will now require collection of well search information earlier in the investigation, as part of the Site Investigation stage of site work, rather than the later remedial investigation stage. If well searches show actual use within a radius of the contamination, the remediating party must notify potentially affected persons and NJDEP within 30 days and conduct follow-up work, including sampling of potable wells. The circle of work can expand as long as contamination is found. The direction of actual groundwater flow appears to be irrelevant in NJDEP's view. Liability and defenses appear irrelevant. The existence of background or regional conditions appear irrelevant. This change seems to have little relevance to mature sites (because likely they have done most of this work already). But it has greater significance to buyers, lenders and developers (and thus sellers) because in order to qualify for a defense against Spill Act liability, if they can, they must do a PA/SI as the minimum requirement. N.J.A.C. 7:26E-3.7(e)3i & N.J.A.C. 7:26E-4.4(h)3v. Such changes raise issues for some older sites of how the new requirements will be applied to those sites still enmeshed in NJDEP's process.

Engineering/Institutional Controls. NJDEP has added a new Subchapter 8 to address engineering and institutional controls. The language of deed notice is new, but is not negotiable. A variance cannot be sought or obtained. This is consistent with NJDEP's current approach, but can pose difficulties in certain settings. Simply put, NJDEP wants to address technical issues, but not legal or business issues.

Here and elsewhere, NJDEP imposes on the remediating party the obligation to police compliance with controls and groundwater classification exception areas ("CEAs").

NJDEP acknowledges no responsibility to do so itself, even though it controls the planning and permitting processes that could reduce the risk of improper changes. This occurs as a matter of ongoing requirements imposed on the responsible party, such as conduct of periodic inspections, filing of biennial certifications, and the threat of joint and several liability of past, present and future owners and operators, together with the remediating party, and persons responsible for the discharges, all under the Spill Act.

There are serious questions as to the retroactive effect and application of these requirements to closed sites (sites with no further action letters), sites that have recorded declarations of environmental restriction or deed notices, and sites that have received approvals for proposed forms of deed notices from NJDEP or site owners. NJDEP's position appears to be that these requirements fully apply. Yet, the nature of many of the changes creates a number of potential conflicts between the original remediating party and the current owner and operator. Litigation is certain to result.

There are expanded notification requirements when deed notices are to be used. Copies of deed notices and biennial reports go to various government officials (e.g. municipal) and utilities and all those with interests in the real estate, and all owners must sign the deed notice. While the language is unclear, this may include all partners in a partnership, mortgagees, and easement holders. Monitoring and maintenance requirements applicable to controls are set forth at N.J.A.C. 7:26E-8.4. They will pose significant problems at some sites.

NJDEP now must be notified in advance of all disturbances of areas restricted by deed notices, even those disturbances that can occur without NJDEP approval (e.g. because they can be restored quickly). Reports of such disturbances are required to the hot line before and after the project, and by filing a report. In some cases the disturber must seek an MOA and RAWP approval in advance (it is not clear when). This change will create a number of problems.

For a site that is subject to a deed notice there needs to be prior notice to NJDEP of sales or transfers of interests in the site.

NJDEP is now much more concerned with the consistency of remedial strategies with existing and future zoning. Apparently NJDEP intends to provide municipalities the power to interfere with, or veto, past or planned remediations by changing zoning. Over the long term changes in zoning and site features (such as detention basins) may result in the remediating party accruing new and ongoing study, investigation and reporting obligations, onsite and offsite.

As part of biennial reporting, there needs to be an assessment of how the law has changed the protections afforded by the controls and a title search to confirm that recorded deed notices remain of record. Biennial reporting requirements include a special focus on CEAs, particularly where there are changes in plans for groundwater use or physical changes in the area of the CEA that may affect groundwater (detention basins). Apparently, if there is a new possibility of contaminated groundwater reaching the surface, new work is required (e.g. sampling, and if necessary, remediation).

Grandfathering. NJDEP proposes a similar transition/grandfathering structure (against the effects of the changed rules on existing and closed cases, if work is done within 6 months after a plan approved before the effective date) as it has before. N.J.A.C. 7:26E-1.3(c)2. Note however that the legal wording creates the possibility for reopening resolved issues in still pending matters.