16 Apr Addressing Ambiguity in NJDEP’s EPH Residual/Free Product Limit
ESA recently identified an apparent discrepancy in NJDEP’s published Protocol for Addressing Extractable Petroleum Hydrocarbons. The discrepancy involves a fine but significant distinction, as ESA discovered when one of our clients received a Notice of Deficiency (NOD) from the NJDEP for EPH concentrations that met (not exceeded) their residual product/free product limit. The NOD states that our client is required to remediate the property to bring it into compliance with the Protocol, but the Protocol itself requires modification for clarity before a determination can be made as to the legitimacy of the request. More on that to follow.
Outlining the Problem
NJDEP’s EPH Protocol provides a step-by-step process to address concentrations of EPH in soil. In Step 7 of the Protocol for addressing Category 1 discharges and Step 5 for addressing Category 2 discharges, environmental professionals are instructed to “Determine whether any measured EPH concentration is greater than the residual product/free product limit. EPH cannot exceed the residual product/free product limit.” This appears to be an unambiguous and explicit rule.
The ambiguity begins in Step 7A, which states that, if “All measured EPH concentrations are less than” the residual/free product limit, then remediation is complete. Continuing on, Step 7B states “If any measured EPH concentration is greater than” the residual/free product limit, then additional remediation is required “to achieve the limit.” And to further cloud the issue, Appendix 1 of the Protocol indicates that the Product Determination is “equal to or greater than” the residual/free product limit. Thus, we have conflicting rules within Step 7 of Category 1 (and Step 5 of Category 2) of what constitutes a breach of NJDEP’s EPH Protocol; is the correct interpretation an exceedance of the stated limit? Or a level equal to or greater than the limit? In the case of our client, their soil samples tested out at the exact EPH limit and, thus, clarifying the Protocol is crucial.
Finding Clarity
ESA contacted the NJDEP Bureau of Remedial Action Permitting on behalf of our client and, upon review of the Protocol document, NJDEP’s representative agreed that the terminology created an unresolvable ambiguity. They have presented the issue to their technical support group within the department. At the time of this writing, we have not yet received a response.
ESA has provided environmental consulting services in New Jersey for more than 29 years. Standard industry practice has always dictated that contaminant concentrations in sampled media must exceed a stated standard to warrant remedial investigation or action. Conversely, when contaminant concentrations are less than or equal to the standard, no further action is warranted. While the EPH Protocol states that this is a residual/free product limit, not a standard, the inconsistencies still require clarity.
To expedite resolution for our client, ESA also contacted the laboratory responsible for testing our client’s soil samples to determine the precision in reporting the EPH concentrations. By industry standards, laboratories are only required to report to two significant digits, as was done on the EPH samples in question. ESA asked the laboratory to reevaluate the data and report the analytical results to five significant digits. As a result, the revised EPH concentrations were actually below the residual/free product limit, thus negating the effect of NJDEP’s EPH Protocol ambiguity. ESA has submitted a response with our findings to NJDEP, and we are now anticipating NJDEP’s approval of the requested Remedial Action Permit.
This article illustrates just one example of ESA’s unfailing client advocacy. “We pledge always to advocate on behalf of our clients’ best interests in deference to our own by minimizing or eliminating unnecessary work when doing so does not violate the institutional regulations that govern ESA’s procedures.”
In the meantime, we await a response to our request for clarity in the EPH Protocol from NJDEP and will update this article upon receipt.
UPDATE:
The NJDEP completed a Component Review – In a Memorandum from the NJDEP dated April 26, 2018, the NJDEP Bureau of Environmental Evaluation & Risk Assessment (BEERA) provided the following clarification:
BEERA Evaluation and Comments
Clarification of the 17,000 mg/kg product determination criterion: Because waste oil is a Category 2 EPH petroleum product, the 17,000 mg/kg criterion is the applicable product determination criterion. Remediation is complete for residual product/free product when all measured concentrations of Category 2 EPH are less than or equal to 17,000 mg/kg. This is separate from exceedances of the calculated sample-specific EPH soil remediation criteria.