Page 3 of the PAERAB's Spring 2011 Community Update Newsletter

Text Box: include a combination of Institutional Controls defined as administrative actions/notation in the Installation master Plan, an Annual Land Use Certification Report for all sites with RODs, and a GIS system that includes LUC areas and chemical data plus Engineering Controls defined as minor soil removals, fences, maintenance of existing soil or vegetative cover, and signage as noted above). This agreement was made solely to break a deadlock on language with the intent to move forward with agreed upon remedies.” The Army goes on to describe how the position taken by the USEPA in their October 7, 2010 is inconsistent with the previous project agreements. For the sake of clarity the bulk of the Army letter is provided below. “As you correctly pointed out in your 12 May 2010 letter to NJDEP, site specific baseline risk assessments are used to determine whether a current or potential threat to human health or the environment exists and requires remediation. However, in your 7 October 2010 letter, your conclusion that the implementation of land use controls, to ensure future land use remains industrial (which posed no unacceptable risk), would trigger the need to address ARARs (NJDEP SRS) is counter to the position that unacceptable risk drives the requirement for remedial actions. This position is also inconsistent with the agreements made at the project level. Therefore, unless the agreements made at the project level to date and reflected in the summary table provided to the USEPA and NJDEP on 3 December 2010 can be upheld, the Army will remove all language referring to the NJSRS as ARARs in future revisions to the subject

This Is The Army Take On It…. ( continued from p. 1)

documents, except in the few cases where risks are above the generally acceptable range. The Army will remove language reflecting all agreements made to remove hot spot areas, install soil covers, or maintain existing vegetative covers and propose Institutional Controls (ICs) only at these sites for which risks to human health fall within the generally accepted risk range. The basis for this position is outlined below.

Picatinny Arsenal is an NPL site that is under the authority of CERCLA, which takes a risk based approach to the selection and application of remedial actions, as noted in your 12 May 2010 letter to NJDEP. Protection of human health and the environment is a statutory requirement of CERCLA and the NCP preamble specifically discusses land use assumptions regarding the baseline risk assessment. The baseline risk assessment provides the basis for taking remedial action at an NPL site and supports the development of remedial action objectives. ‘Current land use is critical in determining whether there is a current risk associated with a Superfund site and future land use is important in estimating potential future threats. The results of the risk assessment aid in determining the degree of remediation necessary to ensure long-term protection at NPL sites’ (OSWER directive No. 9355.7-04)

Under CERCLA, remedial actions address risks to the current and reasonably anticipated future use, not to unrealistic or hypothetical uses ⁽¹⁾. (For the footnote please refer to the copy of the letter available on the PAERAB website at

http://www.paerab.us.)

Where the existing site conditions are protective of the current and reasonably anticipated future use, no remedial action or cleanup is required to alter site-specific conditions for

protection of human health and the environment. However, Institutional Controls (ICs) would be implemented to prevent the hypothetical residential use of the site. When risks and hazards at sites are within the acceptable range for the current and reasonably anticipated future use no ARAR analysis is triggered, and the promulgated NJ soil remediation standards – would be potential chemical-specific ARARs in cases where the risk is unacceptable for the current and reasonable anticipated future use – would not be identified as ARAR. Since no soils are required to be actively remediated or cleaned up in order to be protective of industrial use, there are no chemical-specific standards to be identified as ‘clean up criteria or ARAR.’

In cases where the risks or hazards are above the generally acceptable risk range, or hazard index, ARAR analysis is triggered and the risk drivers for the site are identified as chemical specific ARARs and would be addressed by an action.

To summarize the CERCLA required process at the subject sites:

1. For soils that have risk assessment results less than 1 E-4 for unrestricted use, the site conditions will be protective for an unrestricted use scenario and no action will be required under CERCLA.

2. For soils that have risk assessment results greater than 1 E-4 risk for the

current and reasonably anticipated future use, a CERCLA response action

will be taken with the NJ Soil Remediation Standards (SRS) being identified as applicable for the constituents identified as risk drivers (i.e. contributing the majority of the risk and/or hazard).

3. For soils on sites that do not pose an unacceptable risk (i.e., have a rsik lower than 1 E-4) under the current or intended future use (e.g., industrial use), but would exceed the NJ promulgated residential or non-residential standards, the Army will implement institutional controls to ensure that land-use does not change in the future to a use that would result in unacceptable risks.”

Representatives of the NJDEP and the USEPA met on March 14, 2011 to discuss the situation. At this time there has been no formal response from either agency. The PAERAB has been informed that an official response should be forthcoming soon.