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NJDEP to Allow Capping as Remedial Option for VOCs with Groundwater Pathways

At the end of August, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance that allows volatile organic compounds (“VOCs”) released to groundwater to be left in place under certain circumstances; the change could provide considerable cost savings for parties responsible for such releases.  NJDEP’s new guidance will permit capping to be considered as a remedial option for sites with VOC risks or impacts to groundwater.  See Capping of Volatile Contaminants for the Impact to Ground Water Pathway.  The new policy supplements guidance issued in 2014, which allowed for capping of inorganic and semi-volatile organic contaminants under certain circumstances, but had not included VOCs, such as certain gasoline constituents, acetone, benzene, toluene, TCE, PCE, xylenes, and others.  See Capping of Inorganic and Semi-Volatile Contaminants for the Impact to Ground Water Pathway.  VOCs are often found in subsurface contamination at gasoline service stations, dry cleaners, and manufacturing facilities. 

The new guidance sets certain requirements and restrictions for capping.  For example, free and residual product must be removed to the extent practicable; low permeability caps must be used, such as concrete or clay, to prevent infiltration from precipitation and runoff; and the site must undergo a specified period of vapor monitoring to ensure that the cap is sufficiently protective of groundwater.  Sites that are approved for capping will have a restricted use, requiring a deed notice under N.J.A.C. 7:26C.  Sites will also be required to obtain a Remedial Action Permit for long-term maintenance of the cap until the Impact to Ground Water Soil Screening Levels and/or site-specific Impact to Ground Water Soil Remediation Standards are met. 

NJDEP’s new policy has the potential to reduce costs for remediation of sites with VOC contamination, and sites currently undergoing remediation for VOCs should be reassessed to consider whether capping is an appropriate remedy.  Parties responsible for remediating sites with VOCs should check with legal counsel or a licensed site remediation professional to determine whether and how NJDEP’s new guidance may apply to their sites.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 255

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About this Author

Nicole B. Weinstein Insurance Recovery & Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Nicole B. Weinstein helps clients minimize and eliminate liability for contaminated sites in litigation, and to recover insurance proceeds across industries.

Nicole's practice focuses on insurance recovery and environmental litigation. She excels at identifying avenues of defense and coverage, and in distilling complicated issues into understandable terms.

Nicole has been interested in environmental matters for as long as she can remember, and has always enjoyed thinking through complex challenges. She planned to become an environmental lawyer as a student, and after...

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Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its operations. The favorable result that Dan and his team achieved allowed the client to avoid losing millions of dollars’ worth of production.

In a toxic tort case involving an alleged international conspiracy, Dan led a successful briefing effort that resulted in early dismissal of all claims against his clients, saving them from protracted litigation and protecting their reputation.

While focusing his practice on litigation, Dan also provides practical and actionable advice designed to minimize environmental risk and potential liabilities. 

An active member of various bar associations, Dan is a past chair of the American Bar Association’s Environmental Litigation and Toxic Torts Committee, and currently co-chairs the New York State Bar Association Environment Section’s Toxic Torts Committee. Dan has also served as a member of the firm’s Management Committee.

Before joining Beveridge & Diamond, Dan clerked for The Honorable Carlos R. Moreno, U.S. District Judge for the Central District of California. Prior to attending law school, Dan served as editor-in-chief of the environmental news service Greenwire.

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Megan R. Brillault Environmental Litigation Attorney Beveridge & Diamond New York, NY
Associate

Megan Brillault represents individuals, trade associations and businesses, including Fortune 500 companies, in complex civil and criminal environmental and toxic tort litigation, including class and mass actions.

Versed in the complexities of e-discovery, Megan helps clients implement cost-effective and fast-paced litigation solutions for all phases of discovery through post-trial proceedings. She also promotes diversity and inclusion within the firm and the legal community, working with the Leadership Council on Legal Diversity and various women's organizations.

A...

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