NJDEP Seeks Further Flexibility For Cleanup Standards

April 6, 2017Articles Law360

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In 1993, the New Jersey Department of Environmental Protection (NJDEP) issued a regulation designed to grant itself permission to avoid the legal due process requirements that every regulatory agency in New Jersey is required to satisfy before imposing or changing obligations on New Jersey businesses and communities. Now, through a proposed rule for which public comment closes on June 2, 2017, NJDEP seeks to make it’s shortcut around the Administrative Procedure Act (APA) protections even shorter.

This is bad public policy — due process protections like public notice, public comment, and social and economic evaluations of any new rule or rule change are fundamental requirements of New Jersey and United States law. They protect communities and businesses alike from arbitrary, "black box" actions by regulators, who, regardless of their intentions, are constantly buffeted by political pressure and private agendas. No business or citizen should be required to go to the courts to seek relief from a legal requirement or protection that was arbitrarily imposed or changed, or even lifted, without due process of law. Note that NJDEP, like all other state agencies, already has authority under the APA to issue necessary rules on an emergency basis. It just cannot do so unilaterally.

The current proposal is in the context of NJDEP setting new, or changing existing, cleanup standards for New Jersey groundwater.

NJDEP claims that its existing shortcut rule allows it to issue immediately effective “interim specific groundwater quality criteria” by simply posting them to its website. That existing rule expressly requires that NJDEP use a specific, generally accepted, equation to calculate the criteria and to replace the interim criteria “as soon as reasonably possible by rule.” N.J.A.C. 7:9C-1.7(c)(2) and (4). However, “as soon as reasonably possible” has proven meaningless — several interim criteria are still enforced by the state and have not been replaced through APA-compliant rulemaking though NJDEP issued them in 2005 or 2008. N.J.A.C. 7:9C – Interim Ground Water Quality Criteria Table.

These interim-specific groundwater quality criteria, promulgated under the Water Pollution Control Act, are significant. This is so because by another expedient in NJDEP’s rules, NJDEP purports to convert any such groundwater quality criteria, including interim criteria, into immediately enforceable minimum remediation standards for groundwater under other important New Jersey environmental laws, including the Industrial Site Recovery Act, the Spill Act, and the Brownfield and Contaminated Site Remediation Act. N.J.A.C 7:26D-1.4(a) and 2.2.

As NJDEP itself recently explained to licensed site remediation professionals struggling to comply with interim criteria it posted to its website on the eve of Thanksgiving 2015:

Pursuant to the Remediation Standards, N.J.A.C. 7:26D-2.2(a)1, interim groundwater quality standards are also groundwater remediation standards. For all of the listed contaminants, the use of the new groundwater remediation standards became effective immediately upon posting to the Department website. The department posted these remediation standards on its website on Nov. 25, 2015. Site Remediation & Waste Management Program, Implementation of Nov. 25, 2015 Interim Ground Water Quality Standards, NJDEP, ver. March 8, 2016. (Emphasis in original.)

In other words, through its interim specific shortcut rule, NJDEP sincerely believes it has created for itself a mechanism to very broadly impose or change cleanup standards without:

  • Any obligation to provide the public with notice or the opportunity to comment on the proposal,
  • Any social and economic impact analysis, and
  • Any of the other due process protections required by the New Jersey Administrative Procedure Act.

NJDEP now seeks to allow itself even more “flexibility” to impose cleanup standards without compliance with the Administrative Procedure Act.

On April 3, 2017, NJDEP issued a proposed revision to its interim specific rule that would, among other things, eliminate the requirement that NJDEP follow the traditional, generally accepted scientific approach for calculating water cleanup standards that is embodied in the equation that NJDEP is required to follow by the express language of its own existing rule. See the proposed rule at 49 N.J.R. 596(a), page 4 and 12. It is no accident that NJDEP proposes this change now, because an appeal is pending that points out that NJDEP failed to follow its own equation in setting one of the interim criteria in November 2015.

Free of even that equation, as well as all due process requirements, NJDEP could calculate a new, stricter or less strict standard for any substance by whatever equation the NJDEP at the time deems most appropriate, as long as it includes an explanation of why, on a case-by-case basis, it believes what it is doing is consistent with the U.S. Environmental Protection Agency guidance, generally accepted methodologies and evidence, and at least some peer-reviewed sources of information. It then could post that number to its website without any prior notice, and immediately enforce it on the regulated community or apply it is as a legally binding standard, statewide. Businesses or communities aggrieved by the change would need to immediately comply, if they can, and/or live with the immediate consequences of the change, unless and until relief were pursued and obtained in court.

The description above is not far-fetched, even under the existing rule. The example referred to above shows how disruptive this can be. On the afternoon of Nov. 25, 2015, NJDEP posted 12 new or changed interim specific groundwater quality criteria to its website without any notice to the public that it would do so. According to NJDEP’s own rules and its view of its authority, those new standards were immediately effective, and triggered legal obligations, including short-term notice requirements, wherever they were exceeded. In fact, certain affected parties who did not act to provide required notices by the end of the day on Monday, Nov. 30, could be considered in violation of the law, even though it is unlikely that most even knew of the change in law by that time.

That November 2015 action by NJDEP also included, for example, the immediate lowering of the cleanup standard for 1,4 dioxane (as well as the associated detection limit) by more than an order of magnitude, from 10 parts per billion to 0.4 ppb. The consequences were significant at many cleanups around the state, especially as many sites potentially affected by this change approached a May 7, 2016, deadline for completing remedial investigations. By March 2016, even NJDEP apparently realized that it had created an impossible situation, and it issued “guidance” on what it would consider compliance as to 1,4 dioxane with the May 7, 2016, deadline set by the Legislature. Site Remediation & Waste Management Program, Implementation of Nov. 25, 2015, Interim Ground Water Quality Standards, NJDEP, ver. March 8, 2016.

There are many ways to get involved to hold NJDEP accountable to comply with the law related to this proposed rulemaking, but there is limited time. There is a public hearing scheduled for May 5, and as noted above, public comment ends June 2, 2017. Only through concerted action now is there hope of changing NJDEP’s mind — short of litigation.

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