Appellants, Federal Pacific Electric Company and the New Jersey State Chamber of Commerce, argue that the regulation violates the Brownfield Act by its insistence on a level of remediation intended to make ground water under contaminated brownfield sites eventually safe to drink. More specifically, they claim that the DEP violated the Brownfield Act by applying pre-existing ground water standards for potable water to remediation of industrial sites under ISRA, instead of promulgating new, less stringent, site-specific standards.
I. The Brownfield Act, which was enacted in 1997, directed the department to
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. N.J.S.A. 58:10B-12(a) (emphasis added).
Appellants’ case is primarily based on that subsection and on the following subsection (b), which directs the DEP in its development of minimum remediation standards. In the next subsection, the Brownfield Act states that 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 … [New Jersey] ‘Water Pollution Control Act’. … ” N.J.S.A. 58:10B-12(c)(2).
In developing those standards the Legislature also instructed the DEP to “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.” N.J.S.A. 58:10B-12(d). For soil remediation of human carcinogens, it set the minimum standard as one that would cause no more than “an additional cancer risk of one in one million[,]” N.J.S.A. 58:10B-12(d)(1), which was the same standard previously set for drinking water in the Safe Drinking Water Act, N.J.S.A. 58:12A-13(b). Until adoption of the standards, the DEP was to apply remediation standards “ on a case-by-case basis. … ” N.J.S.A. 58:10B-12(a).
The regulation at issue establishes numeric and narrative ground water remediation standards. It describes the numeric standards in this manner:
i. The Ground Water Quality Standards, N.J.A.C. 7:9-6, Appendix, Tables 1 and 2;
ii. The standards resulting from application of the procedures in N.J.A.C. 7:9-6.7(c)2 through 6, for the derivation of a new criterion where a specific contaminant is not listed in N.J.A.C. 7:9-6, Appendix, Table 1; and
iii. The standards resulting from application of the procedures in N.J.A.C. 7:9-6.7(c)3 for the derivation of a new criterion when the Department determines that current scientific information indicates that a specifically listed numeric criterion is no longer appropriate. The Department will post criteria developed pursuant to (b)(1)ii and iii above on the Department’s website. … N.J.A.C. 7:26E-1.13(b)(1).
