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In re Adoption of N.J.A.C.

April 22, 2005

IN RE ADOPTION OF N.J.A.C. 7:26E-1.13


On appeal from the adoption and amendment of regulations by the New Jersey Department of Environmental Protection.

Before Judges Coburn, S.L. Reisner and Graves.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2005

At issue is the validity of a regulation, N.J.A.C. 7:26E-1.13, adopted by the Department of Environmental Protection ("DEP" or "Department") on February 3, 2003. The regulation was intended to implement key provisions of the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 to -31 ("Brownfield Act"). To that end, it sets minimum ground water*fn1 and surface water remediation standards for the cleanup of contaminated property under all New Jersey environmental remediation laws, including the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 to -14 ("ISRA").

In the Brownfield Act, the Legislature defined "brownfields" as "urban and suburban areas formerly used for commercial and industrial purposes[,]" which "are underused or abandoned[,]" and often "contaminated with hazardous substances" that "pose a health risk to the nearby residents and a threat to the environment[.]" N.J.S.A. 58:10B-1.2. The Legislature found that brownfields "can be a blight . . . and a financial drain . . . ." Ibid. After noting that there often were "legal, financial, technical, and institutional impediments to the efficient and cost-effective cleanup of brownfield sites[,]" the Legislature declared that the State needs to ensure that the public health and safety and the environment are protected from the risks posed by contaminated sites and that strict standards coupled with a risk based and flexible regulatory system will result in more cleanups and thus the elimination of the public's exposure to these hazardous substances and the environmental degradation that contamination causes.

[Ibid. (emphasis added).]

Broadly speaking, this case turns on what the Legislature meant by the above quoted phrase "strict standards coupled with a risk based and flexible regulatory system."

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.

Their position is endorsed in amici curiae briefs submitted by the Chemistry Council of New Jersey, the New Jersey Petroleum Council, and the Technical Regulations Advisory Coalition. It is opposed by the DEP and in amici curiae briefs submitted by Edison Wetlands Association, New York/New Jersey Baykeeper, New Jersey Environmental Federation, New Jersey Work Environment Council, New Jersey Environmental Justice Alliance, and the Ironbound Community Corporation.

As both sides recognize, the validity of the regulation cannot be determined by simply comparing its language to the critical terms of the Brownfield Act. That is so in part because the regulation incorporates prior regulations by reference. It is also so because the Brownfield Act's instructions to the DEP require it to develop remediation standards by reference, in part, to unspecified data, such as "scientific evidence," and "reasonable assumptions of exposure scenarios," while "avoid[ing] the use of redundant conservative assumptions." N.J.S.A. 58:10B-12(b). In short, neither the regulation nor the statute can be understood without considering the administrative process surrounding the proposal of the regulation and without placing both in the context of "New Jersey's ongoing [legislative and administrative] efforts to clean up hazardous waste emanating from industrial sites." In re Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 445 (1992). Our review of the Brownfield Act and the regulation in that context leads us to conclude that the regulation is valid.

I. THE BROWNFIELD ACT AND THE REGULATION

The Brownfield Act, which was enacted in 1997, L. 1997, c. 278, 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, which directs the DEP, in its development of minimum remediation standards to:

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 . . . [CERCLA]*fn2 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).

[N.J.S.A. 58:10B-12(b).]

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)(internal citations and footnote omitted).

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).]

The same rule adopts the following narrative ground water remediation standards to determine how and when the numeric standards will be achieved:

i. The general groundwater quality policies in N.J.A.C. 7:9-6.2;

ii. The narrative groundwater quality criteria in N.J.A.C. 7:9-6.7;

iii. The groundwater quality antidegradation policy in N.J.A.C. 7:9-6.8;

iv. The remediation requirements in N.J.A.C. 7:26E-1 through 8 ...


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