New Jersey § 58:10b-12

§ 58:10b-12.

a. The Department of Environmental Protection shall adopt minimum remediation standards

for soil, groundwater, and surface water quality necessary for the remediation of

contamination of real property. The remediation standards shall be developed to ensure that the potential for harm

to public health and safety and to the environment is minimized to acceptable levels,

taking into consideration the location, the surroundings, the intended use of the

property, the potential exposure to the discharge, and the surrounding ambient conditions,

whether naturally occurring or man-made. Until the minimum remediation standards for the protection of public health and safety

as described herein are adopted, the department shall apply public health and safety

remediation standards for contamination at a site on a case-by-case basis based upon

the considerations and criteria enumerated in this section. The department may not require any person to perform an ecological evaluation of any

area of concern that consists of an underground storage tank storing heating oil for

on-site consumption in a one to four family residential building. b. In developing minimum remediation standards the department shall: (1) base the standards on generally accepted and peer reviewed scientific evidence

or methodologies; (2) base the standards upon reasonable assumptions of exposure scenarios as to amounts

of contaminants to which humans or other receptors will be exposed, when and where

those exposures will occur, and the amount of that exposure; (3) avoid the use of redundant conservative assumptions. The department shall avoid the use of redundant conservative assumptions by the

use of parameters that provide an adequate margin of safety and which avoid the use

of unrealistic conservative exposure parameters and which guidelines make use of the

guidance and regulations for exposure assessment developed by the United States Environmental

Protection Agency pursuant to the “Comprehensive Environmental Response, Compensation,

and Liability Act of 1980,” 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable; (4) where feasible, establish the remediation standards as numeric or narrative standards

setting forth acceptable levels or concentrations for particular contaminants; and (5) consider and utilize, in the absence of other standards used or developed by the

Department of Environmental Protection and the United States Environmental Protection

Agency, the toxicity factors, slope factors for carcinogens and reference doses for

non-carcinogens from the United States Environmental Protection Agency's Integrated

Risk Information System (IRIS). c. (1) The department shall develop residential and nonresidential soil remediation

standards that are protective of public health and safety. For contaminants that are mobile and transportable to groundwater or surface water,

the residential and nonresidential soil remediation standards shall be protective

of groundwater and surface water. Residential soil remediation standards shall be set at levels or concentrations

of contamination for real property based upon the use of that property for residential

or similar uses and which will allow the unrestricted use of that property without

the need of engineering devices or any institutional controls and without exceeding

a health risk standard greater than that provided in subsection d. of this section. Nonresidential soil remediation standards shall be set at levels or concentrations

of contaminants that recognize the lower likelihood of exposure to contamination on

property that will not be used for residential or similar uses, which will allow for

the unrestricted use of that property for nonresidential purposes, and that can be

met without the need of engineering controls. Whenever real property is remediated to a nonresidential soil remediation standard,

except as otherwise provided in paragraph (3) of subsection g. of this section, the

department shall require, pursuant to section 36 of P.L.1993, c. 139 ( C.58:10B-13 ), that the use of the property be restricted to nonresidential or other uses compatible

with the extent of the contamination of the soil and that access to that site be restricted

in a manner compatible with the allowable use of that property. (2) The department may develop differential remediation standards for surface water

or groundwater that take into account the current, planned, or potential use of that

water in accordance with the “Clean Water Act” ( 33 U.S.C. s.1251 et seq. ) and the “Water Pollution Control Act,” P.L.1977, c. 74 ( C.58:10A-1 et seq. ). d. The department shall develop minimum remediation standards for soil, groundwater,

and surface water intended to be protective of public health and safety taking into

account the provisions of this section. In developing these minimum health risk remediation standards the department shall

identify the hazards posed by a contaminant to determine whether exposure to that

contaminant can cause an increase in the incidence of an adverse health effect and

whether the adverse health effect may occur in humans. The department shall set minimum soil remediation health risk standards for both

residential and nonresidential uses that: (1) for human carcinogens, as categorized by the United States Environmental Protection

Agency, will result in an additional cancer risk of one in one million; (2) for noncarcinogens, will limit the Hazard Index for any given effect to a value

not exceeding one. The health risk standards established in this subsection are for any particular contaminant

and not for the cumulative effects of more than one contaminant at a site. e. Remediation standards and other remediation requirements established pursuant to

this section and regulations adopted pursuant thereto shall apply to remediation activities

required pursuant to the “Spill Compensation and Control Act,” P.L.1976, c. 141 ( C.58:10-23.11 et seq. ), the “Water Pollution Control Act,” P.L.1977, c. 74 ( C.58:10A-1 et seq. ), P.L.1986, c. 102 ( C.58:10A-21 et seq. ), the “Industrial Site Recovery Act,” P.L.1983, c. 330 ( C.13:1K-6 et al.), the “Solid Waste Management Act,” P.L.1970, c. 39 ( C.13:1E-1 et seq. ), the “Comprehensive Regulated Medical Waste Management Act,” sections 1 through

25 of P.L.1989, c. 34 ( C.13:1E-48.1 et seq. ), the “Major Hazardous Waste Facilities Siting Act,” P.L.1981, c. 279 ( C.13:1E-49 et seq. ), the “Sanitary Landfill Facility Closure and Contingency Fund Act,” P.L.1981, c.

306 ( C.13:1E-100 et seq. ), the “Regional Low-Level Radioactive Waste Disposal Facility Siting Act,” P.L.1987,

c. 333 ( C.13:1E-177 et seq. ), or any other law or regulation by which the State may compel a person to perform

remediation activities on contaminated property. However, nothing in this subsection shall be construed to limit the authority of

the department to establish discharge limits for pollutants or to prescribe penalties

for violations of those limits pursuant to P.L.1977, c. 74 ( C.58:10A-1 et seq. ), or to require the complete removal of nonhazardous solid waste pursuant to law. f. (1) A person performing a remediation of contaminated real property, in lieu of

using the established minimum soil remediation standard for either residential use

or nonresidential use adopted by the department pursuant to subsection c. of this

section, may submit to the department a request to use an alternative residential

use or nonresidential use soil remediation standard. The use of an alternative soil remediation standard shall be based upon site specific

factors which may include (1) physical site characteristics which may vary from those

used by the department in the development of the soil remediation standards adopted

pursuant to this section; or (2) a site specific risk assessment. If a person performing a remediation requests to use an alternative soil remediation

standard based upon a site specific risk assessment, that person shall demonstrate

to the department that the requested deviation from the risk assessment protocol used

by the department in the development of soil remediation standards pursuant to this

section is consistent with the guidance and regulations for exposure assessment developed

by the United States Environmental Protection Agency pursuant to the “Comprehensive

Environmental Response, Compensation, and Liability Act of 1980,” 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable. A site specific risk assessment may consider exposure scenarios and assumptions

that take into account the form of the contaminant present, natural biodegradation,

fate and transport of the contaminant, available toxicological data that are based

upon generally accepted and peer reviewed scientific evidence or methodologies, and

physical characteristics of the site, including, but not limited to, climatic conditions

and topographic conditions. Nothing in this subsection shall be construed to authorize the use of an alternative

soil remediation standard in those instances where an engineering control is the appropriate

remedial action, as determined by the department, to prevent exposure to contamination. Upon a determination by the department that the requested alternative remediation

standard satisfies the department's regulations, is protective of public health and

safety, as established in subsection d. of this section, and is protective of the

environment pursuant to subsection a. of this section, the alternative residential

use or nonresidential use soil remediation standard shall be approved by the department. The burden to demonstrate that the requested alternative remediation standard is

protective rests with the person requesting the alternative standard and the department

may require the submission of any documentation as the department determines to be

necessary in order for the person to meet that burden. (2) The department may, upon its own initiative, require an alternative remediation

standard for a particular contaminant for a specific real property site, in lieu of

using the established minimum residential use or nonresidential use soil remediation

standard adopted by the department for a particular contaminant pursuant to this section. The department may require an alternative remediation standard pursuant to this

paragraph upon a determination by the department, based on the weight of the scientific

evidence, that due to specific physical site characteristics of the subject real property,

including, but not limited to, its proximity to surface water, the use of the adopted

residential use or nonresidential use soil remediation standards would not be protective,

or would be unnecessarily overprotective, of public health or safety or of the environment,

as appropriate. g. The development, selection, and implementation of any remediation standard or remedial

action shall ensure that it is protective of public health, safety, and the environment,

as applicable, as provided in this section. In determining the appropriate remediation standard or remedial action that shall

occur at a site, the department and any person performing the remediation, shall base

the decision on the following factors: (1) Unrestricted use remedial actions, limited restricted use remedial actions and

restricted use remedial actions shall be allowed except that unrestricted use remedial

actions and limited restricted use remedial actions shall be preferred over restricted

use remedial actions. For any remediation initiated one year after the date of enactment of P.L.2009, c. 60 ( C.58:10C-1 et al.), the department shall require the use of an unrestricted use remedial action,

or a presumptive remedy or an alternative remedy as provided in paragraph (10) of

this subsection, at a site or area of concern where new construction is proposed for

residential purposes, for use as a child care center licensed pursuant to P.L.1983,

c. 492 ( C.30:5B-1 et seq. ), or as a public school or private school as defined in N.J.S.18A:1-1 , as a charter school established pursuant to P.L.1995, c. 426 ( C.18A:36A-1 et seq. ), or where there will be a change in the use of the site to residential, child care,

or public school, private school, or charter school purposes or another purpose that

involves use by a sensitive population. For any remediation initiated on or after the date of enactment of P.L.2009, c. 60 ( C.58:10C-1 et al.), the department may require the use of an unrestricted use remedial action

or a presumptive remedy as provided in guidelines adopted pursuant to paragraph (10)

of this subsection for a site or area of concern that is to be used for residential,

child care, or public school, private school, or charter school purposes or another

purpose that involves use by a sensitive population. Except as provided in this subsection, and section 27 of P.L.2009, c. 60 ( C.58:10C-27 ), the department, however, may not disapprove the use of a restricted use remedial

action or a limited restricted use remedial action so long as the selected remedial

action meets the health risk standard established in subsection d. of this section,

and where, as applicable, is protective of the environment. Except as provided in this subsection and section 27 of P.L.2009, c. 60 ( C.58:10C-27 ), the choice of the remedial action to be implemented shall be made by the person

responsible for conducting the remediation in accordance with regulations adopted

by the department and that choice of the remedial action shall be approved by the

department if all the criteria for remedial action selection enumerated in this section,

as applicable, are met. Except as provided in section 27 of P.L.2009, c. 60 ( C.58:10C-27 ), the department may not require a person to compare or investigate any alternative

remedial action as part of its review of the selected remedial action. The department may disapprove the selection of a remedial action for a site on which

the proposed remedial action will render the property unusable for future redevelopment

or for recreational use; (2) Contamination may, upon the department's approval, be left onsite at levels or

concentrations that exceed the minimum soil remediation standards for residential

use if the implementation of institutional or engineering controls at that site will

result in the protection of public health, safety and the environment at the health

risk standard established in subsection d. of this section, if the requirements established

in subsections a., b., c. and d. of section 36 of P.L.1993, c. 139 ( C.58:10B-13 ), and paragraphs (1) and (10) of this subsection, are met. The department may also require the treatment or removal of contaminated material

that would pose an acute health or safety hazard in the event of failure of an engineering

control; (3) Real property on which there is soil that has not been remediated to the residential

soil remediation standards, or real property on which the soil, groundwater, or surface

water has been remediated to meet the required health risk standard by the use of

engineering or institutional controls, may be developed or used for residential purposes,

or for any other similar purpose, if (a) all areas of that real property at which

a person may come into contact with soil are remediated to meet the residential soil

remediation standards, (b) it is clearly demonstrated that for all areas of the real

property, other than those described in subparagraph (a) above, engineering and institutional

controls can be implemented and maintained on the real property sufficient to meet

the health risk standard as established in subsection d. of this section, and (c)

a presumptive remedy established and approved by the department pursuant to paragraph

(10) of this subsection, or an alternative remedy approved by the department pursuant

to paragraph (10) of this subsection, has been approved, as provided in paragraphs

(1) and (10) of this subsection; (4) Remediation shall not be required beyond the regional natural background levels

for any particular contaminant. The department shall develop regulations that set forth a process to identify background

levels of contaminants for a particular region. For the purpose of this paragraph “ regional natural background levels ” means the concentration of a contaminant consistently present in the environment

of the region of the site and which has not been influenced by localized human activities; (5) Remediation shall not be required of the owner or operator of real property for

contamination coming onto the site from another property owned and operated by another

person, unless the owner or operator is the person who is liable for cleanup and removal

costs pursuant to P.L.1976, c. 141 ( C.58:10-23.11 et seq. ); (6) Groundwater that is contaminated shall not be required to be remediated to a level

or concentration for any particular contaminant lower than the level or concentration

that is migrating onto the property from another property owned and operated by another

person; (7) The technical performance, effectiveness and reliability of the proposed remedial

action in attaining and maintaining compliance with applicable remediation standards

and required health risk standards shall be considered. In reviewing a proposed remedial action, the department or the licensed site remediation

professional shall also consider the ability of the owner or operator to implement

the proposed remedial action within a reasonable time frame without jeopardizing public

health, safety or the environment; (8) The use of a remedial action for soil contamination that is determined by the

department to be effective in its guidance document created pursuant to section 38

of P.L.1993, c. 139 ( C.58:10B-14 ), is presumed to be an appropriate remedial action if it is to be implemented on

a site in the manner described by the department in the guidance document and applicable

regulations and if all of the conditions for remedy selection provided for in this

section are met. The burden to prove compliance with the criteria in the guidance document is with

the person responsible for conducting the remediation; (9) (Deleted by amendment, P.L.1997, c. 278 ); (10) The department shall, by rule or regulation, establish presumptive remedies,

use of which shall be required on any site or area of concern to be used for residential

purposes, as a child care center licensed pursuant to P.L.1983, c. 492 ( C.30:5B-1 et seq. ), as a public school or private school as defined in N.J.S.18A:1-1 , or as a charter school established pursuant to P.L.1995, c. 426 ( C.18A:36A-1 et seq. ). The department may also issue guidelines that provide for presumptive remedies that

may be required as provided in paragraph (1) of this subsection, on a site to be used

for residential purposes, as a child care center, or as a public school, private school

or charter school. The presumptive remedies shall be based on the historic use of the property, the

nature and extent of the contamination at the site, the future use of the site and

any other factors deemed relevant by the department. The department may include the use of engineering and institutional controls in

the presumptive remedies authorized pursuant to this subsection. If the person responsible for conducting the remediation demonstrates to the department

that the use of an unrestricted use remedial action or a presumptive remedy is impractical

due to conditions at the site, or that an alternative remedy would be equally protective

over time as a presumptive remedy, then an alternative remedy for the site that is

protective of the public health and safety may be proposed for review and approval

by the department; (11) The department may authorize a person conducting a remediation to divide a contaminated

site into one or more areas of concern. For each area of concern, a different remedial action may be selected provided the

requirements of this subsection are met and the remedial action selected is consistent

with the future use of the property; and (12) The construction of single family residences, public schools, private schools,

or charter schools, or child care centers shall be prohibited on a landfill that undergoes

a remediation if engineering controls are required for the management of landfill

gas or leachate. The burden to demonstrate that a remedial action is protective of public health, safety

and the environment, as applicable, and has been selected in conformance with the

provisions of this subsection is with the person responsible for conducting the remediation. The department may require the person responsible for conducting the remediation to

supply the information required pursuant to this subsection as is necessary for the

department to make a determination. h. (1) The department shall adopt regulations which establish a procedure for a person

to demonstrate that a particular parcel of land contains large quantities of historical

fill material. Upon a determination by the department that large quantities of historic fill material

exist on that parcel of land, there is a rebuttable presumption that the department

shall not require any person to remove or treat the fill material in order to comply

with applicable health risk or environmental standards. In these areas the department shall establish by regulation the requirement for

engineering or institutional controls that are designed to prevent exposure of these

contaminants to humans, that allow for the continued use of the property, that are

less costly than removal or treatment, which maintain the health risk standards as

established in subsection d. of this section, and, as applicable, are protective of

the environment. The department may rebut the presumption only upon a finding by the preponderance

of the evidence that the use of engineering or institutional controls would not be

effective in protecting public health, safety, and the environment. The department may not adopt any rule or regulation that has the effect of shifting

the burden of rebutting the presumption. For the purposes of this paragraph “ historic fill material ” means generally large volumes of non-indigenous material, no matter what date they

were emplaced on the site, used to raise the topographic elevation of a site, which

were contaminated prior to emplacement and are in no way connected with the operations

at the location of emplacement and which include, but are not limited to, construction

debris, dredge spoils, incinerator residue, demolition debris, fly ash, and non-hazardous

solid waste. Historic fill material shall not include any material which is substantially chromate

chemical production waste or any other chemical production waste or waste from processing

of metal or mineral ores, residues, slags or tailings. (2) The department shall develop recommendations for remedial actions in large areas

of historic industrial contamination. These recommendations shall be designed to meet the health risk standards established

in subsection d. of this section, and to be protective of the environment and shall

take into account the industrial history of these sites, the extent of the contamination

that may exist, the costs of remedial actions, the economic impacts of these policies,

and the anticipated uses of these properties. The department shall issue a report to the Senate Environment Committee and to the

Assembly Environment and Solid Waste Committee, or their successors, explaining these

recommendations and making any recommendations for legislative or regulatory action. (3) The department may not, as a condition of allowing the use of a nonresidential

use soil remediation standard, or the use of institutional or engineering controls,

require the owner of that real property, except as provided in section 36 of P.L.1993, c. 139 ( C.58:10B-13 ), to restrict the use of that property through the filing of a deed easement, covenant,

or condition. i. The department may not require a remedial action workplan to be prepared or implemented

or engineering or institutional controls to be imposed upon any real property unless

sampling performed at that real property demonstrates the existence of contamination

above the applicable remediation standards. j. Upon the approval by the department or by a licensed site remediation professional

of a remedial action workplan, or similar plan that describes the extent of contamination

at a site and the remedial action to be implemented to address that contamination,

the department may not subsequently require a change to that workplan or similar plan

in order to compel a different remediation standard due to the fact that the established

remediation standards have changed; however, the department may compel a different

remediation standard if the difference between the new remediation standard and the

remediation standard approved in the workplan or other plan differs by an order of

magnitude. The limitation to the department's authority to change a workplan or similar plan

pursuant to this subsection shall only apply if the workplan or similar plan is being

implemented in a reasonable timeframe, as may be indicated in the approved remedial

action workplan or similar plan. k. Notwithstanding any other provisions of this section, all remediation standards

and remedial actions that involve real property located in the Pinelands area shall

be consistent with the provisions of the “Pinelands Protection Act,” P.L.1979, c.

111 ( C.13:18A-1 et seq. ), any rules and regulations promulgated pursuant thereto, and with section 502 of

the “National Parks and Recreation Act of 1978,” 16 U.S.C. s.471i ; and all remediation standards and remedial actions that involve real property located

in the Highlands preservation area shall be consistent with the provisions of the

“Highlands Water Protection and Planning Act,” P.L.2004, c. 120 ( C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan adopted

pursuant thereto. l . Upon the adoption of a remediation standard for a particular contaminant in soil,

groundwater, or surface water pursuant to this section, the department may amend that

remediation standard only upon a finding that a new standard is necessary to maintain

the health risk standards established in subsection d. of section 35 of P.L.1993, c. 139 ( C.58:10B-12 ) or to protect the environment, as applicable. The department may not amend a public health based soil remediation standard to

a level that would result in a health risk standard more protective than that provided

for in subsection d. of section 35 of P.L.1993, c. 139 ( C.58:10B-12 ). m. Nothing in P.L.1993, c. 139 shall be construed to restrict or in any way diminish the public participation which

is otherwise provided under the provisions of the “Spill Compensation and Control

Act,” P.L.1976, c. 141 ( C.58:10-23.11 et seq. ). n. Notwithstanding any provision of subsection a. of section 36 of P.L.1993, c. 139 ( C.58:10B-13 ) to the contrary, the department may not require a person intending to implement

a remedial action at an underground storage tank facility storing heating oil for

on-site consumption at a one to four family residential dwelling to provide advance

notice to a municipality prior to implementing that remedial action. o . A person who has remediated a site pursuant to the provisions of this section, who

was liable for the cleanup and removal costs of that discharge pursuant to the provisions

of paragraph (1) of subsection c. of section 8 of P.L.1976, c. 141 ( C.58:10-23.11g ), and who remains liable for the discharge on that site due to a possibility that

a remediation standard may change, undiscovered contamination may be found, or because

an engineering control was used to remediate the discharge, shall maintain with the

department a current address at which that person may be contacted in the event additional

remediation needs to be performed at the site. The requirement to maintain the current address shall be made part of the conditions

of the permit issued pursuant to section 19 of P.L.2009, c. 60 ( C.58:10C-19 ) and the final remediation document.