Manko Gold Katcher & Fox
Bruce S. Katcher
June 27, 2019
While many site remediation projects are effectively handled by complying with the New Jersey Department of Environmental Protection (NJDEP) Technical Requirements for Site Remediation, the dual jurisdiction of the US Environmental Protection Agency (EPA) and NJDEP frequently comes into play when it comes to the remediation of polychlorinated biphenyl (PCB) contaminated media. Consequently, the recent update of NJDEP’s guidance document “Coordination of NJDEP and USEPA PCB Remediation Policies” should be reviewed for any New Jersey remediation involving PCBs.
According to the NJDEP announcement of the updated policy, the update was prepared by both EPA Region 2 and NJDEP’s Site Remediation and Waste Management Program. Consequently, it is not merely an NJDEP interpretation of EPA requirements, but a joint effort. A few of the more meaningful changes are described below
EPA Jurisdictional Threshold
EPA changed the wording on page 2 of the introductory section of the policy from “TSCA does not regulate PCBs at concentrations less than 1 ppm” to “USEPA typically does not require PCBs to be cleaned up to levels less than 1 ppm.” Although it is often asserted that EPA’s TSCA jurisdiction does not extend to cleanups where the levels do not exceed 1 ppm, with this change, EPA seems to be reserving some authority to pass judgement on cleanups where levels are less that level.
While there is no explanation of this change in the policy, the EPA PCB Q&A manual suggests that with reference to satisfying disposal requirements, in order to avoid requirements applicable to materials with concentrations above 1 ppm “that concentration must not be the result of dilution during remediation (i.e., by mixing clean soil during excavation).” See, e.g., EPA PCB Question and Answer Manual, Revised June 2014, p. 91. Consequently, the change in wording may at least refer to EPA’s retention of jurisdiction where dilution is responsible for a concentration below 1 ppm.
Sampling and Capping Deviations
There is a new section entitled “Hybrid Approvals”. This covers situations where the party conducting the remediation is looking for a deviation from EPA characterization or post excavation sampling regulatory requirements. See 40 CFR Part 761, Subparts N and O. It also covers availability of deviation from EPA capping requirements that differ from, but are “technically equivalent to” the EPA regulatory requirements for caps found at 40 CFR 761.61(a)(7). According to the guidance, both potential deviations will be granted or denied “in EPA’s discretion”. EPA has been issuing such approvals as a matter of practice, but it is now spelled out in the policy that they will do this. Of course, the cap will still have to meet NJDEP requirements.
There’s another new section on Compliance Averaging that makes clear that averaging is not available to meet EPA cleanup levels, as distinguished from NJDEP standards. Thus, averaging may still be used where PCBs are below the 1 ppm EPA TSCA cleanup threshold, which, as noted under #1 above, may not always be a threshold.
Use of PCB Impacted Fill as Alternative Fill
There’s a new section on Alternative Fill which points out that Alternative Fill is an NJDEP policy and that EPA does not have such a policy. Thus, when Alternative Fill is brought from off-site, it must less than or equal to 1ppm for PCB concentrations to satisfy EPA requirements.
There’s a new section on “Disposal of Building Materials Manufactured with PCBs.” This section notes that buildings constructed or renovated between “about 1950 and 1979” may contain PCBs in paint, caulk or mastic and that “these materials should be sampled to determine if PCBs are present.” It goes on to note that if concentrations exceed 50ppm, EPA considers this to be bulk product waste which must be disposed as such. The guidance does not address the issue of how adjoining building substrate materials impacted by leaching form paint, caulk or mastic may be handled. The latter is the subject of a separate October 24, 2012 EPA policy memo dealing with the Agency’s “PCB Bulk Product Waste Reinterpretation.”
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Katcher and may not reflect the opinions of Synergy Environmental, Inc., Manko Gold Katcher & Fox or either of those firms’ clients.