The New Jersey Department of Environmental Protection (NJDEP) published new proposed site remediation regulations on July 17, 2017, with a 60-day comment period. In the proposed regulations (still pending adoption), a majority of which addresses certain “heating oil tank systems” under a new chapter, N.J.A.C. 7:26F, Heating Oil Tank System Remediation Rules, the NJDEP appears to veer slightly away from its one-size-fits-all approach toward site remediation with a shallow dive into a limited scenario risk-based model implemented by environmental agencies in many other states. The NJDEP has also proposed amendments to existing regulations that are not the focus of this commentary.

The New Jersey Brownfield and Contaminated Site Remediation Act (the “Brownfield Act”) allows for soil to remain in the subsurface at concentrations above the New Jersey Residential Direct Contact Soil Remediation Standards (RDCSRS) so long as an engineering control (cap) and institutional control (deed notice) are established for the site. However, the newly proposed regulations (specifically, N.J.A.C. 7:26F-1.5) deviate from the Brownfield Act by allowing two alternative remediation approaches for residual petroleum heating oil (but only consisting of Nos. 2, 4 and 6 fuel oil, and kerosene) contamination in soil remaining under a residential building. The NJDEP is proposing to not require a remediating party to record a deed notice or to apply for a soil remedial action permit for certain residential properties that have residual soil contamination at concentrations above the RDCSRS caused by a “heating oil tank system.” The heating oil tank systems under the proposed regulations include “unregulated heating oil tank systems,” “residential” aboveground heating oil tank systems, and “small aboveground non-residential heating oil tank systems,” as defined at proposed N.J.A.C. 7:26F-1.5.

NJDEP has deviated from the “all spills must be treated equally” concept by proposing a “small quantity exception” in N.J.A.C. 7:26F-3.7(b)3. Under this small quantity exception, an owner of a heating oil tank system would be allowed to leave less than 15 cubic yards of contaminated soil under a residential building on the residential property where the discharge occurred, with neither a deed notice nor a soil remedial action permit. The small quantity exception is only available when: a) the contamination has not migrated off-site, b) excavation or treatment of the contaminated soil is impeded or is otherwise impracticable, c) impacts to receptors are mitigated, d) the groundwater is not contaminated above applicable standards, and e) the residual contamination does not and will not pose a threat to the public health and safety and the environment. Under this proposed exception, NJDEP has acknowledged that small quantities of petroleum-contaminated soil located in inaccessible areas at residential properties pose a minimal risk, such that further restrictions are not necessary. The Department accepted that the building slab or basement floor would act as a protective cap, albeit an undocumented engineering control or cap.

A second deviation from the “all spills must be treated equally” concept concerns a proposed special form of deed notice for those same residential properties with soil contamination (at amounts exceeding 15 cubic yards) being inaccessible under a “residential building,” a paved area or a capped easement. A “residential building” is defined as a single or multi-family dwelling, nursing home, trailer, condominium, boarding house, apartment house, or other structure used primarily as a dwelling. The NJDEP refers to this special form of deed notice as a HOTS (heating oil tank systems) deed notice. The HOTS deed notice is not the same as the existing Model Deed Notice included in Appendix B of the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS).

Historically, a remediating party leaving behind concentrations of contaminants in soil above the RDCSRS was required to record a deed notice with the exact language of the Appendix B Model Deed Notice. Here, NJDEP is creating a scaled down Model Deed Notice that does not require the remediating party to obtain a soil remedial action permit, pay annual fees or file biennial certifications with NJDEP based on the justification that the remediation of a discharge from a heating oil tank system is “fairly straightforward.” Moreover, perhaps to satisfy some of the concerns of the environmental groups, the proposed regulation says that the Department will track the site conditions for the property subject to the HOTS deed noticed site.

Another significant deviation from NJDEP's historically dogmatic approach to spills in the newly proposed regulations concerns surface discharges of heating oil in an amount less than 100 gallons that does not reach surface water or ground water. If such a minor spill of heating oil occurs, NJDEP's proposed regulation (N.J.A.C. 7:26F-1.2(b)) allows the owner to remediate the discharge under the oversight of the municipality rather than the NJDEP. Clearly, NJDEP is following the lead of its federal counterpart (USEPA) to focus on the more problematic and costly sites.

Perhaps the NJDEP may be more willing to consider cost and common sense with remediation approaches in the future. Are these proposed regulations a sign of things to come from NJDEP, or will the new administration put the kibosh on this line of thinking? Stay tuned.

Beneduce is a member of Norris, McLaughlin & Marcus in Bridgewater. He focuses his practice on all facets of environmental law, including compliance, regulation and litigation.