DES weighs changes to contaminated site rules

Before readoption, amendments to regulations are being heard

New Hampshire Department of Environmental Service regulations governing the investigation, long-term cleanup and management of contaminated sites were set to expire on Feb. 1. And while the existing rules remain in effect during the rulemaking process, the agency is proposing to amend various sections of its contaminated site management regulations before readoption.

The amendments will affect responsible parties that are strictly liable or that voluntarily clean up sites where discharges of regulated contaminants, including oil, have occurred.

Among the administrative clarifications and updates to the rules, the amendments contain some substantive modifications to the table of ambient groundwater quality standards for a number of chemicals. The proposal includes the addition of two new compounds to the list, the reduction in the minimum standard required for three existing compounds and an increase in the standard for one compound.

Additionally, modifications to the table of soil remediation standards provide for the increase of allowable concentration for five compounds, the reduction in allowable concentration for six compounds and the deletion of eight existing compounds from the list.

DES’ proposed readoption also includes revisions to the procedures for obtaining waivers from portions of the contaminated site management regulations.

Currently, the regulations provide that an owner or responsible party (RP) may request a waiver of specific rules contained in the regulations, unless the waiver would constitute a waiver of any statutory requirement.

The proposed revisions require a non-owner RP requesting a waiver to seek concurrence from the property owner and other RPs prior to the issuance or denial by the DES – thereby allowing any non-concurring party to object to the issuance of the waiver, where the waiver is ultimately granted.

An additional noteworthy modification includes changes to the time period allotted for filing for a renewal application of an existing groundwater management permit.

Currently, a permittee must apply for renewal of the permit at least 90 days before it expires in order for the permittee to continue to operate. DES’ amendment would require the application be submitted no more than 90 days prior to the expiration. Thus, the application would need to be filed within the 90 days prior to the expiration of the permit, and no earlier.

These proposed modifications can be found on the DES website or in the Nov. 14, 2014, New Hampshire Rulemaking Register.

Brownfields changes

The DES is also proposing to amend certain sections of the state brownfields program. The brownfields regulations set forth the application process for coverage under the state brownfields covenant program and establish the procedures for voluntary cleanup of contaminated properties.

Like the contaminated site management regulations, the existing brownfields rules will continue in effect during the readoption process. Those affected by the proposed rules include those who voluntarily assume responsibility for the investigation and cleanup of contaminated properties.

The rules are proposed to be readopted and include mostly administrative amendments, such as the relocation of statutory definitions to the appendices so rulemaking will not be required if they change, the clarification of existing requirements, and the incorporation of the application forms by reference.

Like the proposed contaminated site management regulations, the proposed amendments to the Brownfields Program can be found on the DES website or in the Nov. 14, 2014, New Hampshire Rulemaking Register.

Lynn J. Preston is of counsel to the law firm of Sheehan Phinney Bass + Green, and Robert Lucic is a shareholder in the firm. Both specialize in environmental law.