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DEPARTMENT OF ENVIRONMENTAL PROTECTION

PHIL MURPHY Site Remediation and Waste Management Program CATHERINE MCCABE

Governor Code 401-06 Commissioner
SHEILA P.O. BOX 420
Lt. Governor Trenton, New Jersey 08625-0420

Tel. 609-292-1250
Fax 609-777-1914
November 8, 2018

Angela Carpenter

Acting Director

US EPA Region 2

290 Broadway - 19th floor
New York, New York 10007-1866

Re: Interim Ground Water Standards are Applicable or Relevant and Appropriate Requirements
Dear Ms. Carpenter:

Following up on the September 20, 2018 Quarterly Meeting, this letter is to provide you with the
justi?cation for the New Jersey Department of Environmental Protection?s (Department?s)
determination that Interim Speci?c Ground Water Quality Criteria (Interim Standards),
established pursuant to Ground Water Quality Standards at N.J.A.C. are Applicable or
Relevant and Appropriate Requirements (ARARS) pursuant to 42 U.S.C. 9621 (CERCLA 121)
and the National Contingency Plan 40 CF 300 (NCP). Therefore, Interim Standards should be
accepted by the United States Environmental Protection Agency (EPA) and applicable at all
federal sites in New Jersey.

During previous informal discussions with EPA Region 2 regarding the anticipated promulgation
of Interim Standards for 1,4?dioxane, EPA suggested that because such Interim Standards
represent numbers that are ?interim,? by de?nition they are not permanent standards, and
therefore not enforceable. The Department?s position is that such Interim Standards are in fact
ARARs. The Department?s justi?cation is as follows:

1. New Jersey?s Remediation Standards at N.J.A.C. at sets the minimum
remediation standards to which ground water shall be remediated pursuant to N.J.A.C.
and Interim Standards are incorporated by reference as minimum ground
water remediation standards.

2. CERCLA 121, Cleanup Standards, states in paragraph that ?any
promulgated standard, requirement, criteria, or limitation under State environmental or
facility siting law that is more stringent than any federal and is identi?ed to
the president by the State in a timely manner, is legally applicable to the hazardous
substance or pollutant or contaminant 

New Jersey is an Equal Opportunity Employer Printed on Recycled Paper and Recyclable

 

3. The NCP at 40 CFR 300.400 further de?nes ?promulgated? as standards that ?are
of general applicability and legally enforceable.?

4. The Department?s position is buttressed by the recent court decision in Chemistry
Council ofN.J. v. New Jersey Dep't of Envtl. Prot., No. 2017 NJ. Super.
Unpub. LEXIS 3121, at *1 (N .J . Super. Dec. 19, 2017). The Court, although declaring a
certain Interim Standard invalid for failure to replace it by rulemakin within a
reasonable period (as required by the applicable regulation) pursuant to the New Jersey
Administrative Procedures Act (APA), upheld the Department?s authority to establish
Interim Standards as long as they are replaced with speci?c criteria as soon as reasonably
possible by rule. The decision therefore af?rmed that Interim Standards are applicable
under state regulation, compliant with the APA, and enforceable.

The Department believes that Interim Standards are generally applicable and legally enforceable

because they are:
1. established pursuant to regulations that govem all the ground water in the State;

2. established as interim remediation standards for all contaminated sites in the State, as
authorized by regulation, subject only to replacement with speci?c criteria of a more
permanent nature pursuant to rulemaking; and

3. consistent with the de?nition of an ARAR pursuant to federal law.

The Department respectfully requests that EPA Region 2, upon promulgation by the Department
of an Interim Standard more stringent than a Federal Standard, recognize such Interim Standard
as legally enforceable and applicable to all federal sites in New Jersey as A

  

Cc: Catherine R. McCabe, Commissioner, DEP
Shawn M. LaTourette, Esq., Deputy Commissioner for Legal Regulatory Affairs, DEP
Walter Mugdan, Deputy Regional Administrator, USEPA
John Prince, Deputy Director, Emergency and Remedial Response Division, USEPA
Kenneth J. Kloo, Director, DEP, Div. of Remediation Management
David Haymes, Director, DEP, Div. of Enforcement, Technical Financial Support
Edward Putnam, Assistant Director, DEP, Publicly Funded Response Element
Fred Mumford, Section Chief, DEP, Env. Measurements Site Assessment
Ray Papperman, DEP, Advisor to Asst. Commissioner, 
Richard F. Engel, Deputy Attorney General