By Kevin D. Orabone, P.G., Vice President
Published in Real Estate New Jersey, September 2007

Historically, the cleanup of properties contaminated with polychlorinated biphenyls (PCBs) in New Jersey was strictly governed by the New Jersey Department of Environmental Protection (NJDEP) under the Spill Compensation and Control Act (Spill Act) and the United States Environmental Protection Agency (EPA) under the Toxic Substances Control Act (TSCA).  Previously, the NJDEP and EPA applied a standard of 50 parts per million (ppm) as the maximum allowable, post-cleanup concentration of PCBs to be allowed to remain in place.  Subsequent to the June 29, 1998 implementation of the TSCA Mega Rule (40 CFR Part 761), both agencies may now allow concentrations of PCBs up to 100 ppm and higher to remain in place for cleanups involving historic spills of these compounds.  Historic spills are considered those where cleanup has not already occurred in accordance with the TSCA PCBs Spill Cleanup Policy, which has tight timeframes (typically 24 to 48 hours) from the time of a spill for its response actions.

Historic PCBs spills are typically the type encountered during brownfields redevelopment.  Thus, from a cleanup standpoint, redevelopers may be allowed to leave concentrations of PCBs up to 100 ppm or higher in place, resulting in substantial cost savings during the cleanup process.  Under the Mega Rule, the concentration of PCBs that can be left in place is based on the duration of a party’s occupancy within the contaminated area and the concentration at which PCBs are found, rather than the concentration of the original source (spilled) material.  This is so because the source is usually unknown.  There are exceptions which preclude use of the self-implementation Mega Rule’s cleanup option such as PCB contamination of surface or ground waters, sediments in marine and fresh water ecosystems, sewers or sewage treatment systems, private or public drinking sources or distribution systems, grazing lands, or vegetable gardens.  Most brownfields sites do not have these impacts.

Under the Mega Rule, the EPA expanded the use of its PCBs Spill Cleanup Policy to moderate-sized sites with historic PCBs contamination.  EPA provides three options for the cleanup and disposal of PCB remediation waste under the expansion: (1) self-implementing disposal (without EPA approval); (2) performance-based disposal (using pre-approved methods or facilities); and (3) risk-based disposal (alternatives to self-implementing or performance-based, which are approved on a case-by-case basis).  Under the self-implementing option chosen by most brownfields developers, EPA defines five types of PCB remediation waste.  One of the five different waste types is bulk PCB remediation waste which includes PCB-contaminated soil.  Bulk PCB remediation waste has cleanup standards based on time of occupancy of the area where the contaminant is located.  Assuming no personal protective gear is worn, high occupancy areas allow parties to be present 16.8 hours per week, on average, and low occupancy areas allow 6.7 hours per week, on average.

The typical post-cleanup PCBs concentrations allowed within these PCB contaminated areas by EPA and the NJDEP are up to 10 ppm for high occupancy areas (e.g. with buildings) and from 25 to 100 ppm in low occupancy areas (e.g. parking lots, recreational amenities or landscaped areas).  Both agencies require implementation of institutional and engineering controls (i. e., a deed notice and a cap or liner) when leaving behind PCBs in soils at these concentrations.  Therefore, Remedial Action Workplans (RAWs) prepared for sites involving historic PCBs spills cleanups must include detailed site plans illustrating the locations of planned structures and information for the types of institutional and engineering controls planned in order to expedite NJDEP approval.

Cleanups proposing to leave greater than 100 ppm PCBs in the ground will require both NJDEP approval and a risk-based disposal approval from the EPA Regional Administrator.  Such scenarios usually involve lengthy approval processes, which do not fit well within the tight timeframes of a typical brownfields redevelopment project.  In these cases, excavation and off-site disposal may be the only practical means to achieving reasonable case closure times.  In most cases involving PCBs at concentrations greater than 500 ppm, one must remove all materials greater than 500 ppm, or containerize these materials in a landfill-type enclosure on site in a low occupancy area.  Most developers chose not to leave these levels in more for marketing and property value concerns.

The presence of PCBs can cause a stigma at a property, so most developers want them removed to improve the marketability of the site as their presence will be reflected in the recorded title documents.  Removal and off-site disposal may not be practical at sites where the quantity of soil contaminated with PCBs at levels greater than 50 ppm is large.  The typical cost range for transportation and disposal of these soils ranges from $180 to $220 per ton, thereby making off-site disposal a cost prohibitive venture.  Thus, despite the restrictions associated with the Mega Rule’s self-implementing disposal option, its use during a PCBs cleanup can provide brownfields redevelopers with a cost effective solution to remediating PCBs-contaminated properties in New Jersey.