ecological evaluation response to comments by s5v7DeB

VIEWS: 13 PAGES: 23

									                                  NJDEP TECHNICAL GUIDANCE
                                   Draft Document Review Form
                   COMMITTEE: Ecological Investigation Technical Guidance Committee
                   DOCUMENT: Ecological Evaluation Guidance


                   START of Comment Period: Tuesday, April 19, 2011
                   END of Comment Period: Tuesday, May 31, 2011




    Page   Chapter Section Subsection                                       COMMENTS                                                                              RESPONSE
                                          Table of Contents, There are Box #s 7-1 to 7-3. in the List of Figures. It would
     3
1                                         be preferable to change these to Figure #s so as to be consistent.
                                          It is preferable if Figure #s are sequential e.g.. 1, 2, 3, ... in the main document   All figures have been relabeled as figures with figure number corresponding to
                                          than each section having its own number since sections are related and figures         section number and location within the section.
     3
                                          are referred to from later sections to earlier sections of the document. For e.g..
                                          Page 21, Section 5.3.1, last line refers to Figure 3-1 on Page 10 in Section 3.
2
                                          Identifying ERAGS as a document that must be complied with, in the context of
                                                                                                                                 In accordance with N.J.S.A. 58:10B-12, NJDEP is required to follow USEPA
                                          LSRP, and the placement of this statement up front, puts too much emphasis
                                                                                                                                 guidance. The use of USEPA’s Ecological Risk Assessment Guidance for
                                          on the ERAGS document. It implies that all EEs must be conducted as a
                                                                                                                                 Superfund, Process for Designing and Conducting Ecological Risk
                                          Superfund ERA. However, it seems the use of ERAGS is not required for all
                              Executive                                                                                          Assessments, EPA 540-R-97-006, Office of Solid Waste and Emergency
     6                                    sites regardless of complexity and it’s use is certainly not warranted (and is
                              Summary                                                                                            Response, Washington, DC (ERAGS - USEPA, 1997a) is not a stipulation that
                                          unnecessarily complex) for many SRP sites where an EE is required. This
                                                                                                                                 a complex ERA is warranted for every site, instead the intent is to suggest an
                                          should be clear in the document otherwise ERAGS could easily be
                                                                                                                                 iterative process from a basic screening level approach (EE) to a full ERA if
                                          misinterpreted by users, NJDEP reviewers and/or others as a default
                                                                                                                                 needed.
3                                         requirement for all sites.
                                                                                                                                 As stated in the document, the investigator may be any remediating party or
                                          Per the SRRA and ARRCS the LSRP may rely on another LSRP. Please
                              Executive                                                                                          person who uses this guidance to remediate a contaminated site on behalf of a
     6                                    qualify if the intent here is a “qualified investigator” who is also an LSRP, or
                              Summary                                                                                            remediating party. This may include an LSRP or any subcontractor to the
                                          reference “pursuant to SRRA/ARRCS”.
4                                                                                                                                LSRP.
                                          Concerned that throughout this document there does not seem to be enough
                                                                                                                                 As referenced in Section 3.0 (3), Section 5.0, Section 5.2.3, Section 5.3.1,
                              Executive   emphasis on the historic nature of site conditions and the need to investigate
     6                                                                                                                           Section 5.3.2.2, Section 6.1.1, Section 6.2.2.1, and Section 6.3, investigation of
                              Summary     same with respect to ecological risk. Any way to reinforce that it's not just what
                                                                                                                                 past discharges and impacts is required.
                                          one sees at a site today as having the potential to be problematic?
5
                                          Global comment #2: the EE procedures laid out in Section 5.0 provide very
                                                                                                                                 Section 5.0 outlines the requirements of the Technical Requirements for Site
                              Executive   useful guidance, however the level of detail/effort/completeness is apropos of
     6                                                                                                                           Remediation (N.J.A.C. 7:26E-3.11). These are the steps currently required to
                              Summary     the Remedial Investigation phase, not the Site Investigation phase as indicated
                                                                                                                                 be preformed in the Site Investigation by N.J.A.C. 7:26E-3.11.
6                                         in Section 5.1.
                                          Executive Summary: change "must" to "should" throughout. First paragraph:
                              Executive
     6                                    replace "…the investigator … must be able to comply with appropriate guidance
                              Summary                                                                                            The use of "must" and "should" has been reviewed by the Deputy Attorney
                                          ..." with " the investigator… should use appropriate guidance ...".
7                                                                                                                                General and changes were made to the text as appropriate. Whenever an
                                                                                                                                 action is required by statute or regulation, the term "must" is used and the
                   Intende
                                                                                                                                 proper citation is made. Whenever an action is not required directly by statute
                   d Use of
                                                                                                                                 or regulation, the term "should" is used, even if scientific process necessitates
                   Guidanc                This is guidance, not an enforcement document. Text revisions suggested to
     9       3                                                                                                                   the action. The investigator is required to be qualified, thus the language is
                       e                  eliminate strict requirements from regulations and statutes.
                                                                                                                                 appropriate as written.
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8
                                    Executive Summary: last sentence page 6: as worded, indicates DEP
                                                                                                                             NJDEP staff are available for consultation upon request as a service to the
                                    consultations will assist the LSRP/investigator in compliance with technical
                                                                                                                             LSRP/investigator, this is not a requirement. The consultations will help in
                        Executive   guidance in addition to SRP rules. this is contrary to the SRRA/LSRP program
     6                                                                                                                       compliance with both the rules and the technical guidance as required by
                        Summary     concept of the use of professional judgment to evaluate relevant and
                                                                                                                             SRRA. Deviation from the guidance will require the LSRP to supply rationale for
                                    appropriate guidance documents for guiding work. Reword to decouple
                                                                                                                             not following the guidance.
 9                                  "compliance" with SRP rules from the judicious use of guidance.
                                    This section indicates that "….deviation from guidance must be documented
                                    and adequately supported with data or other information." Since this is a                In accordance with SRRA - C.58:10C-14 c(3), the LSRP shall apply any
     7   1      0
                                    guidance document, deviations should not be required to be supported with                available and appropriate technical guidelines concerning site remediation as
10                                  data and other information.                                                              issued by the department. Therefore, in accordance with N.J.A.C. 7:26E-1.7,
                                    Second paragraph: delete " … deviation from guidance …". Guidance should                 deviation from the guidance will require the LSRP to supply rationale for not
     7   1                          be drawn upon by the LSRP/investigator as appropriate, not doggedly adhered              following the guidance.
11                                  to as a mandate.
                                    Indicates the need for the use of "other information" in relation to the justification
                                                                                                                             The LSRP will be required to supply scientific and technical rationale to support
     7   1                          of a variance. Is there any measure of validity or description of what "other
                                                                                                                             a variance from N.J.A.C. 7:26E.
                                    information" means? Do we mean scientific information? Anecdotal?
12
             Intende
             d Use of
                                                                                                                             Changes to N.J.A.C. 7:26E-1.19, 3.11 and 4.7 are anticipated in the next
             Guidanc                Are changes to the TRSR anticipated or necessary to be consistent with this
     8   1                                                                                                                   iteration of the Technical Requirements for Site Remediation. Once adopted,
                 e                  guidance?
                                                                                                                             the guidance document will likely also require modification.
             Docume
                nt
13
             Intende
             d Use of
             Guidanc                Should also include references to SRRA and ARRCS that expand the LSRPs
     8   1                                                                                                                   References to SRRA and ARRCS have been added to the Executive Summary.
                 e                  use of BPJ and guidance beyond the current TRSR.
             Docume
                nt
14
             Intende
                                    Is it the intent of the NJDEP to have the EEG supersede existing DEP guidance -
             d Use of
                                    “Guidance for Conduction Sediment Quality Evaluation 1998” and Site
             Guidanc                                                                                                         As stated in Section 1.0 Intended Use of Guidance Document, "This guidance
     8   1                          Remediation News? Consider including the names and references of the
                 e                                                                                                           supersedes all previous NJDEP guidance issued on this topic."
                                    documents and noting a phase-in/phase-out period for projects that are
             Docume
                                    underway.
                nt
15
                                                                                                                             This document does not, and is not intended to, address the physical
                                    Need to emphasize that remediation goals should be based on background not
                                                                                                                             destruction of an ESNR. If contamination is responsible for destroying a habitat,
     8   2                          current conditions. This applies to figure 3-1 as well, ENSR formerly present
                                                                                                                             then the evaluation will be required as stated in Section 3.0 Document Overview
                                    should be represented.
16                                                                                                                           and other pertinent sections of the document.
                                    "EEs must be conducted by a person (replace with investigator) experienced in
                                    the use of techniques and methodologies for conducting ERAs (N.J.A.C. 7:26E-             This section references N.J.A.C. 7:26E-3.11, which uses the same language as
     8   2                          3.11)." Since the EE's are a critical piece of information that includes                 in the text of the document, and references USEPA guidance. The language in
                                    professional judgment, some criteria listing minimum credentials, training and           the guidance document will remain.
17                                  experience should be set.
                                                                                                                             The LSRP is responsible for certifying that the EE was conducted properly,
                                    "(3) have the EE reviewed and accepted by an LSRP." If an EE was not                     therefore, it is the LSRP's responsibility to accept or reject the EE. The
                                    performed by someone experienced in ERA’s should the LSRP immediately                    guidance document references the ESCs and standards in the most recent
     8   2                          reject the findings of the EE? How about historic EE’s utilizing previous soil           version of the NJDEP Ecological Screening Criteria Table, available at
                                    remediation standards or earlier versions of the ecological screening criteria that      http://www.nj.gov/dep/srp/guidance/ecoscreening/. It is the LSRP's
                                    are not as stringent as those put forth in this guidance?                                responsibility to ensure that the appropriate ESC were used in the EE and the
18                                                                                                                           conclusions of the EE are protective of ecological receptors.
                                    This statement is confusing in that it indicates an EE must be performed within          The regulatory timeframe is one year (N.J.A.C. 7:26C-3.2) and the mandatory
     8   3      0                   both one year from the initiation of remediation (N.J.A.C. 7:26C-3.2) and two            timeframe is two years (N.J.A.C. 7:26C-3.3). An extension may be requested
19                                  years from the initiation of remediation (N.J.A.C. 7:26C-3.3).                           for the regulatory timeframe, but not the mandatory timeframe.
                                    "2.) the presence of Contaminants of Potential Ecological Concern (COPEC) at          The soil remediation standards are human health based standards, and are not
                                    the site or area of concern (AOC) and in the ESNRs (e.g., contaminants with           ecologically based. The soil remediation standards are not, and have never
                                    concentrations in excess of aquatic Surface Water Quality Standards (SWQS)            been, considered appropriate to evaluate potential impact on ecological
     8    3
                                    or ecological screening criteria (ESC)". Not the soil remediation standards? and      receptors. Soil contaminants must be compared to the ESC for soils for
                                    if the ecological screening criteria, these are not standards and have not been       determination of COPECs. Section 7.0 Determination of Ecological Risk-Based
                                    properly promulgated.                                                                 Remediation Goals explains how to develop remediation goals for ESNRs.
20
                                                                                                                          Quality Assurance/Quality Control measures are required per N.J.A.C. 7:26E-2.
                                                                                                                          Therefore, this sentence has been modified as follows to include the regulatory
                                    First paragraph, last sentence: change "… and requirements for data quality           citation: "Guidance is also provided for the derivation of site-specific ecological
     8    3                         assurance and quality control …" to " … and recommended quality                       risk-based remediation goals, determination of Risk Management Decisions
                                    assurance/quality control procedures ".                                               (RMD), preparation of the EE and ERA reports, management of special
                                                                                                                          circumstances, and implementation of required data quality assurance and
                                                                                                                          quality control (QA/QC) measures as per N.J.A.C. 7:26E-2."
21
                                    Please explain how the "presence of a(n) ....historic" migration pathway is likely    In accordance with N.J.A.C. 7:26E-3.1(b), as part of the due diligence for a site,
     8    3                (3)
22                                  to be detected in the course of a site investigation.                                 historic maps, aerial photographs and other information are to be reviewed.
                                                                                                                          These historical documents often reveal the presence of ditches, swales,
                                                                                                                          streams, etc., that are no longer present, or the absence of such features as
                                    It does not seem appropriate to spend significant resources to identify potential     berms, dams, etc. that are now present. These items are examples of historic
     20   5      2          3       chemical migration pathways that are inconsistent with and/or cannot be               migration pathways. These documents also often reveal direct emplacement of
                                    corroborated by site (or other) records.                                              material into ESNRs. As per 5.2.3, the sampling plan design should account for
                                                                                                                          potential contaminant migration, such as at legacy sites lacking evidence or
23                                                                                                                        records.
                                    Statement indicates "Remediation to an RMD goal will require NJDEP review
                                    and concurrence." This statement is contrary to the role of an LSRP to review
     9    3      0
                                    and accept the EE and ERA. An LSRP should have the authority to review
24                                  RMD goals.                                                                            Pursuant to N.J.S.A. 58:10B-12 and N.J.A.C. 7:26E-4.7(b), ecological risk
                                                                                                                          based remediation goals or RMDs require NJDEP review and concurrence.
                                    All technical submittals under SRRA/LSRP process are subject to NJDEP
                                                                                                                          Text modified.
                                    review and, if the Department doesn’t concur, may be cause to redo/resubmit.
     9    3
                                    The statement "Remediation to an RMD goal will require NJDEP review and
                                    concurrence" should be deleted.
25
                                                                                                                          The reference to the ESC is made both prior to and following the statement
                                                                                                                          regarding the SRS. Sections 6.4.4, 7.0, 9.0 and 9.1 are all referenced in the
                                    Section references when the human health criteria are not appropriate. It             text immediately preceding and following this statement. These sections
     9    3      0                  should also state when the criteria are appropriate, and direct the investigator to   provide guidance regarding ESC, Ecological Risk-Based Remediation Goals,
                                    the relevant state regulations and guidance documents.                                Risk Management Decisions and SRS. It is not the role of the Ecological
                                                                                                                          Evaluation Technical Guidance Document to determine when SRS are
26                                                                                                                        appropriate.
                                    The documents states that the use of Soil Remediation Standards (SRS) are
                                                                                                                          If the upland area meets the definition of an ESNR or is potentially acting as a
                                    not appropriate when evaluating [upland] ESNRs. However, from a policy
                                                                                                                          migration pathway to an ESNR, then the contaminant levels in the upland soils
     9    3      3                  perspective, if the concentrations of all potential COPECs in the soils from an
                                                                                                                          must be compared to the appropriate ESC. SRS are not necessarily protective
                                    upland site are less than the Residential SRS, are additional risk-based
                                                                                                                          of ecological receptors. Refer to Section 9.1 for further detail.
27                                  evaluations of potential impacts to upland biota necessary?
28   9    3   3rd para   1st line   Refers to Figure 1 below. Page 10 provides Figure 3-1.                                The reference has been corrected to Figure 3-1.
              Intende                                                                                                     As stated in the second paragraph of this section, COPECs are defined as
              d Use of                                                                                                    "contaminants with concentrations in excess of aquatic Surface Water Quality
                                    The process to develop the list of site-related COCs (i.e., from SRS) and
              Guidanc                                                                                                     Standards (SWQS) or ecological screening criteria (ESC)" and the fifth
     9    3                         COPECs (from list of COCs) should be clarified. Also, clarify that the ESCs are
                  e                                                                                                       paragraph explains the difference between ESC, calculated ecological risk-
                                    for screening and evaluation, but the point of compliance is in the ESNR.
              Docume                                                                                                      based remediation goals, and RMD goals, while providing references to
                 nt                                                                                                       appropriate sections of the document for each.
29
              Intende
              d Use of
                                    Exact time frames should be omitted and given general reference only because          The timeframes cited are correct for this guidance document. If the timeframes
              Guidanc
     9    3                         they change with regulation revisions, and these are not exactly correct (e.g.,       are changed in the regulations, then revisions will be made to the guidance
                  e
                                    only apply to certain programs).                                                      documents.
              Docume
30               nt
              Intende               Consider adding delineation and migration evaluation RI components to
                                                                                                                              As per 5.3.3.1, if contaminants are found above the ESC, then delineation must
              d Use of              guidance. Suggest adding some discussion re Eco RI pursuant to N.J.A.C
                                                                                                                              be performed in accordance with N.J.A.C. 7:26E-4.1(a). Groundwater
              Guidanc               7:26E-4.5 and need for ground water delineation to evaluate potential GW
     9    3                                                                                                                   delineation requirements are included in the PA/SI/RI Technical Guidance
                  e                 migration pathway. Topic to discuss include data needs and methods for
                                                                                                                              Document. Migrations paths are addressed in 5.2.3; other topics are addressed
              Docume                determination of mass/area relationships; distribution of COPECs; assessment
                                                                                                                              in the PA/SI/RI - Soils Technical Guidance document.
                 nt                 of significant migration paths; trend analysis, etc.
31
                                    Suggested Text revision (see tracked change in doc and addition inserted here
              Intende               and in text): "Conversely, identification of site-related COPECs is based on
              d Use of              the ESC. However, remediation to the ESCs and/or Ecological Remediation                   243 Comments were received in the proper excel format as required by the
              Guidanc               Goals in areas that are not identified as an ESNR is generally not appropriate            LSRPA and NJDEP. These comments were all considered and changes made
     9    3
                  e                 because they are ecological health-based and assume ecological exposure in                to the document as appropriate. Given the cumbersome nature of reviewing
              Docume                an ESNR setting. Ecological exposure to contaminated media within an area                 this many comments in track changes format is not reasonable, comments
                 nt                 that does not contain ESNRs would not be expected to be the same as                       made in track changes were not considered for review.
32                                  exposure in an ESNR."
33   12   4      0                  See various minor comments and suggestions in tracked text comments.
                                    Somewhere it would be advisable to indicate that where remediation is not
                                    performed due to the potential of cleanup activities to destroy additional habitat,
                                    there is the potential to affect the level of natural resource injuries and in turn the
                                    damages associated with said decision. It does make sense to not dewater a
                                                                                                                              This document does not, and is not intended to, address natural resource injury
     9    3              overview   wetland to remove volatiles in the ground water, but this solution does give rise
                                                                                                                              or damages.
                                    to an extend period of injury (extended volatile presence in the aquifer) which
                                    can affect the amount of natural resource damages associated with a
                                    discharge. This comment is presented here as this discussion relates to
                                    weighing the costs and benefits of a remedial decision.
34
                                    Last paragraph the phrase "higher numeric level" is used. This is confusing and           The term "higher numeric value" is appropriate and it is the consensus of the
     9    3              overview
                                    should be revised to "less stringent" because that is what is really meant.               committee that the text will remain unchanged.
35
                                                                                                                              This is a four part questions: 1) it is not appropriate for a no further action when
                                                                                                                              contaminants exceed ESC or ESC do not exist for the contaminants, 2)
                                    "If site contaminant levels are less than or equal to the ESC for all samples,            contaminants without ESC are contaminants detected that do not have
                                    then no further ecological evaluation may be appropriate ; however, if any of the         corresponding values on the ESC table for the appropriate media, 3) as stated
                                    site contaminants are above the ESC, then further evaluation will be required             in Section 5.4, if the NJDEP ESC Table does not contain ESC for a
                                    (Section 5.5). Contaminants without ESCs must be evaluated in the risk-                   contaminant, then the investigator should propose an alternate ESC based on
     9    3
                                    assessment process." When wouldn't it be appropriate for no further ecological            peer reviewed literature or developed for the site, 4) NJDEP does not develop
                                    evaluation? Contaminants without ESCs? Can a citation for developing                      or promulgate standards for ecological receptors as per N.J.S.A. 58:10B-12.
                                    standards be included? Can and should an ESC be developed if the NJDEP                    The ESC are screening values referenced from peer-reviewed studies or
                                    was unable or unwilling to develop a standard?                                            developed for specific contaminants. Sections 7.0 and 9.0 provide guidance for
                                                                                                                              developing ecological risk-based remediation goals and making risk
36                                                                                                                            management decisions.
                                                                                                                              If no ESC exist or are proposed/developed, then the contaminants must be
                                    end of middle paragraph, "contaminants without ESCs must be evaluated in the
     9    3                                                                                                                   carried through to the ERA to be evaluated or discussed in the uncertainty
                                    risk-assessment process" i.e., they are regarded as COPECs? Please clarify.
37                                                                                                                            section.
                                    The overview of the EE/ERA process suggests that there are no options                     As per ERAGS (USEPA, 1997) Step 3, refinement of preliminary contaminants
                                    between the conservative screen of data to ESCs and the requirement to                    of ecological concern, fate and transport information, etc. is included in the
                                    conduct "rigorous site-specific biological tests," although Chapter 9 suggests            EE/ERA process. As per 6.4.9, while AVS/SEM is a potentially useful tool for
                                    that such options (e.g., Equilibrium Partitioning Sediment Benchmark [ESB]                interpreting results of sediment toxicity tests, it should not be used as a stand-
     9    3                         calculations for PAHs [USEPA 2003], acid-volatile sulfide - simultaneously                alone line of evidence for evaluating risk until laboratory methods have been
                                    extracted metals [AVS-SEM]) may be used. It is recommended that the                       standardized to allow consistent interlaboratory reproducibility. While an EE is
                                    guidance explicitly allow for refined, site-specific screening options, such as           intended to be a conservative estimate of the potential for an ecological risk to
                                    those discussed in Chapter 9, prior to requiring "rigorous site-specific biological       be present, a site-specific ERA should only be as complex as warranted by the
38                                  tests" to add flexibility to the process.                                                 site.
              Intende
                                                                                                                              In Figure 3-1, the EE ends after the third box, which reads "Complete Ecological
              d Use of
                                                                                                                              Evaluation as per 7:26E-3.11. Currently the Tech Regs require contaminant
              Guidanc               Figure 3.1 - The Preliminary EE vs. Complete EE is unclear and is not
     10   3                                                                                                                   migration pathway during the site investigation. This evaluation is being moved
                  e                 consistent with the TRSR.
                                                                                                                              to the remedial investigation phase. This change will be reflected in the next
              Docume
                                                                                                                              reproposal of the Tech Regs.
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39
                                  There are many definitions here that are found in other places in regulation and
                                  statute. Where ever there is a definition found in statute or regulation, , the
                                  citation should be referenced, the definition should not be repeated
                                  ("Contamination" is cited correctly) If for the purposes of this document, the
                                  meaning is DIFFERENT from the regulatory/statutory meaning then a definition
     10   4         definitions
                                  is necessary and it would be appropriate to note that there is a difference and
                                                                                                                       Where definitions are taken from statutes, regulations or other guidance
                                  why. This document needs to remain contemporary with statutory and
                                                                                                                       documents, those document are now cited at the end of the definition. All
                                  regulatory definitions. Examples: "contaminated site" ; "area of concern";
                                                                                                                       definitions used in all guidance documents went through a 'clearing house' for
                                  "environmental medium"; "historic fill material" etc. Also definitions should not
                                                                                                                       consistency.
                                  be repeated as part of the narratives in sections (ex. freshwater page 31)
40
                                  Definitions should be checked and made consistent with other referenced
                                  source regulations including the TRSR, Spill Act Rules 7:1E, Remediation
     12   4   0                   Standards, ARRCS, etc. All definitions should cite the source regulation. Adding
                                  a note indicating that should the regulations change, the regulatory definition is
41                                automatically adopted by reference in this guidance.
                                  Community assessment def should say "the evaluation of ecological community          Through examples given in the definition, it is clear that the community refers to
                                  structure". Congener def should say "means any or all of the 75 isomers".            an ecological community. The definition of congener was changed to reflect the
     11   4   0                   Congener def is limited to chlorine attached to biphenyls. Is there a reason         fact that not all structures referenced are biphenyl. For the purpose of this
                                  other halogenated organics (e.g., PBDE, perfluorinated compounds) have been          document, only the chlorinated congeners targeted via routine laboratory
42                                omitted from the definition?                                                         methods are discussed.
                                  Define "Data Management Plan" and add information on a data management
                                                                                                                       This is a two part comment: 1) Data Management Plan is out of the scope of
     12   4   0                   plan to the data quality section of the document. Contaminated site def should
                                                                                                                       this document, 2) Contaminated Site is defined as per N.J.A.C. 7:26E-1.8.
43                                say "any applicable screening concentrations".
44   12   4   0.0                 "Dredge materials" should be "Dredged material".                                     Dredge material has been changed to dredged material as appropriate.
                                   regarding dredge materials: the intertidal zone is not considered subaqueous
                                                                                                                       Sediment has been replaced with media to be more encompassing. Any
                                  yet this too can be dredged. Dredge materials are more than sediments, it can
     12   4   0     definitions                                                                                        material removed below the mean high water line is dredged material, any
                                  be crushed rock, pure organic materials such as trees etc. these items can be
                                                                                                                       material removed above the mean high water line is excavated material.
45                                dredged up….
                                  Existing data from SRP site files should be acceptable if available for evaluating   Where relevant data can be obtained from SRP files, these data may be used
     12   4   0
46                                off-site contribution.                                                               where appropriate, relevant and valid.
                                  Added notes and definition in text; Bioaccumulation, bioavailability,
     12   4   0                                                                                                        Definitions have been added.
47                                biomagnification terms used in document need careful definitions.
                                  The definition of "contaminant migration pathway" should include historical and      The definition is the potential conduit. This concept is applicable for both current
     12   4   0     definitions
48                                along with the potential conduit….                                                   and historic occurrences. See response to Comment 5 above.
                                                                                                                       The definition is the conceptual projection of possible source-to-pathway-to-
                                  "ecological conceptual site model should include an historic perspective in order
     12   4   0     definitions                                                                                        receptor scenarios for the COPECs identified at a site. The development of the
                                  to capture all source to pathway receptor scenarios
49                                                                                                                     ECSM should take into account both current and historic conditions.
                                                                                                                       Ecological evaluation is the process. This concept is applicable for both current
     12   4   0     definitions   ecological evaluation should include historical contaminant migration pathways
50                                                                                                                     and historic occurrences. See response to Comment 5 above.
                                                                                                                       Conservation is one action that would be required; however, other actions may
                                  Endangered species definition should say "requires conservation action to avoid
     13   4   0                                                                                                        also be needed. Therefore, adding conservation would unnecessarily restrict
                                  extinction"
51                                                                                                                     the definition.
                                  "Endangered Species" - such species should also be officially "listed" by the        Endangered species are listed. Lists are available from the Natural Heritage
     13   4   0
52                                NJDEP.                                                                               Program.
              0                     "Epibenthic" - remove the phrase "but hidden by leaves and organic detritus".      Definition modified.
53   13   4
                                  "Fecundity..." suggest losing the "in great numbers" phrase. Fecundity is a
     13   4   0                                                                                                        Definition modified.
54                                measure of reproductive capacity.
55   13   4         definitions   Delete “structures” as an environmental medium.
                                  Please define "structures" and explain how "structures" should be evaluated as       Environmental medium is defined as per N.J.A.C. 7:26E-1.8.
     13   4
56                                an environmental medium in the EE and ERA processes.
                                  "Mixing Zone" - revise to read " … upstream and downstream of a site …" Also,
              0
57   14   4                       add a definition for a mixing zone in a non-tidal water body.
     16   4   0                   Mixing zones are not limited to tidal water bodies. Suggested change in text.
58


                                                                                                                       For the purpose of this guidance document, mixing zone refers only to tidally
                                                                                                                       influenced rivers and streams where contaminants may be transported
                                                                                                                       upstream of a contaminated site. The definition was written for this guidance
                                                                                                                       document and was not taken from N.J.A.C. 7:9B
                                Suggested added definition: “Mixing zones ” means areas of surface waters
                                (including the hyporheic zone) established for a site where initial mixing,
                                                                                                                         For the purpose of this guidance document, mixing zone refers only to tidally
                                dispersion, or dissipation of site-related contaminants occur at or near the
                                                                                                                         influenced rivers and streams where contaminants may be transported
     16   4   0                 discharge area. Regulatory mixing zones may be established for applicable                upstream of a contaminated site. The definition was written for this guidance
                                criteria.     Comment: Definition in N.J.A.C 7:9B is limited to waste water              document and was not taken from N.J.A.C. 7:9B
                                effluent due to context of regulation; this suggested version allows for non-point
59                              source evaluation, which is more typical of EE.
                                The intent of this definition Tidal Mixing Zone is unclear. Is it intended to
                                address mixing only in the upstream area? Is it really about mixing or is it about
     16   4   0
                                identifying the area within the influence of the potential site impact? If the latter,
60                              maybe this should be re-titled “Tidal migration zone”.
61   15   4   0                 Parthenogenic def should say "of a female"                                               Typographical error corrected in text.
62   15   4   0                 Add definition of ground water and cite regulation reference.                            Ground water definition has been added to the text per N.J.A.C. 7:26E-1.8.
                                Added in text: “Hyporheic zone” means the region of sediments beneath and
     15   4   0                 alongside a stream bed (benthos), where there is mixing of shallow ground                This term is not used in the document.
63                              water and surface water .
                                Definition should be for "Sediment pore water" not "sediment pore water
     16   4   0                                                                                                          Definition modified.
64                              sample"
                                                                                                                         Contaminated site is defined as per N.J.A.C. 7:26E-1.8, wetland definition was
     16   4   0                 Need definitions for "site" and "wetland"
65                                                                                                                       added as per 40 CFR 230.3.
                                The definition of Technical Impracticability (TI) must be tied to the definition that
                                will be part of the TI guidance. This definition should not appear to be a stand
                                alone definition TI. Reference to the TI guidance and its definition of TI must
                                supersede any definition here, a caveat should be added to that effect. The
                                current definition from the TI committee is: "Technical Impracticability: A
                                condition where remediation to the applicable NJDEP standards are not
                                feasible from an engineering perspective if: current engineering methods
     16   4   0   definitions   and best available technologies designed to meet the applicable                          The definition was taken from the Technical Impracticability guidance document.
                                standards cannot be reasonably implemented; or the remedial
                                alternatives) is unlikely to be protective of human health and the
                                environment over the long-term. TI determinations can be applied to an
                                entire site or a portion thereof." Who makes/reviews approves these
                                decisions and in what specific instances these determinations are
                                appropriate. (tie to TI guidance) There should also be a statement that
66                              such determinations should be rare.
                                "Threatened Species" - such species should also be officially "listed" by the            Threatened species are listed. Lists are available from the Natural Heritage
     17   4   0
67                              NJDEP.                                                                                   Program.
                                This section is inconsistent with the TRSR and should be omitted; the TRSR
                                has no other version of a BEE and does not provide for anything less to comply
     19   5   1                                                                                                          N.J.A.C. 7:26E-1.19 states that "as part of the receptor evaluation the person
                                with Section 1.19. Thus, compliance with the TRSR Section 1.19 is satisfied by
                                                                                                                         responsible for conducting the remediation shall conduct a baseline ecological
68                              conducting a BEE per 3.11.
                                                                                                                         evaluation pursuant to N.J.A.C. 7:26E-3.11, in order to determine whether a
                                The level of supporting documentation required for submittal of the Receptor
                                                                                                                         remedial investigation of ecological receptors is required pursuant to N.J.A.C.
                                Evaluation Form pursuant to N.J.A.C. 7:26E-1.19 is unclear, especially as it may
     17   5   1                                                                                                          7:26E-4.7". Therefore, this section of the document is correct as written.
                                differ from the level of documentation required in the next section (Section 5.2 of
69                              the guidance).
                                                                                                                         Agreed. This sentence has been modified as follows: "Under N.J.A.C. 7:26E-
                                                                                                                         3.11, the Baseline Ecological Evaluation (BEE) is conducted to verify the
                                                                                                                         presence of ESNRs and COPECs (above ESCs at the AOC or ESNR), and to
                                First sentence: the most recent version of the Technical Requirements for Site
                                                                                                                         initiate investigation for the presence of contaminant migration pathways.
     18   5   2                 Remediation at 7:26E-3.11 still refers to a "Baseline Ecological Evaluation",
                                                                                                                         Because the term BEE will be changed to Ecological Evaluation (EE) in the
                                therefore it is not a historical reference as indicated here.
                                                                                                                         proposed revised Technical Rules N.J.A.C.7:26E, the term EE will be used
                                                                                                                         heretofore in this document.
70
                                                                                                                         The text did not state that the EE was quantitative; however, the text was
     18   5   2                 An EE is qualitative, not quantitative
71                                                                                                                       modified to avoid any confusion.
                      ESNRs are more than habitats, they can be individuals, populations, etc.
                      Please see attached comments concerning the use of information sources
                      to identify ESNRs. (too long to put here - these comments are from the
                      programs that are "in charge" of these sources".) These databases do not            Environmentally Sensitive Natural Resource is defined as per N.J.A.C. 7:26E-
     18   5   2   1
                      address all ESNRs, ESNRs must be identified pursuant to their definition            1.8.
                      meaning all areas defined at N.J.A.C 7:1E1.8 (a), ground water and areas and
                      /resources that are protected or managed .... ESNRs exist that are not
72                    identified in just these data bases/layers stated.
                      Section 5.2.1 of draft EE guidance references NJDEP i-Map as a resource to be
                      used in identifying the presence of ESNRs during the EE. NJDEP GeoWeb
                                                                                                          i-Map NJ DEP is active and offers the same information. Text has been
     18   5   2   1   was established as the replacement database search tool in September 2010.
                                                                                                          modified.
                      This resource should be used in lieu of the NJDEP i-Map, as this former search
73                    tool utilizes outdated database information.
                      We recommend that the guidance provide an area-based exclusion for small
                      sites (e.g., <1,000 square feet) as well as more specific guidance on whether a
     18   5   2   1
                      man-made feature such as a drainage swale or retention basin be considered
                      an ENSR. Definitions in this guidance should be consistent with the regulations.
74
                                                                                                          Any feature, regardless of size or whether it is natural or man-made, is an
                      Man-made ditches, waste lagoons, and impoundments should not be
                                                                                                          ESNR if it meets the definition of an ESNR. Therefore, no exclusions are made.
     18   5   2   1   considered as potential ESNRs. Man-made structures are not natural
                                                                                                          A person qualified to perform the ecological evaluation is capable of making the
75                    resources.
                                                                                                          determination of whether a feature meets the definition of an ESNR.
                      Evaluation of man-made features for determination of ESNR function is
                      subjective and open to wide interpretation/opinion. Consider adding discussion
     19   5   2   1   to clarify context, including evaluation at a population or community level;
                      associated with T&E spp.; associated with a larger ESA complex vs. isolated in
76                    industrial area, etc.
                                                                                                          A functional assessment can potentially help determine what appropriate
                                                                                                          receptor endpoints may be present. Additionally, there are times in an
                      The concept of completing a functional assessment of a wetland does not seem        ecological risk assessment where the investigator may wish to evaluate the
                      appropriate as part of an ecological evaluation or ecological risk assessment. It   overall health of a wetland, which is generally performed through a functional
     18   5   2   1
                      is not clear as to how the data generated from this type of assessment is           assessment. The language in the document does not require the functional
                      applied and ultimately useful when determining risk related to a site.              assessment to be conducted, it simply states that one may be appropriate on a
                                                                                                          site-specific basis. The final decision regarding the use of the functional
77                                                                                                        assessment is made by the LSRP.
                                                                                                          It is not always possible to conduct the survey during prime growing season
                      If the survey should be conducted during prime growing season, that that
                                                                                                          (e.g. project schedule requirements), therefore, "if possible" is appropriate.
     19   5   2   1   should be a clear requirement. "if possible" should be removed. The appropriate
                                                                                                          There are still characteristics that can be assessed outside of the prime growing
                      data should be collected at the appropriate time.
78                                                                                                        season.
                      The habitat/vegetative community survey should be done by an ecologist or           As stated in 2.0 Purpose, "EEs must be conducted by a person experienced in
                      field biologist, not an "investigator" . One cannot assume that an "investigator"   the use of techniques and methodologies for conducting ERAs (N.J.A.C. 7:26E-
     19   5   2   1
                      will have the expertise needed to do a proper evaluation and the language           3.11)". Therefore, the person conducting the habitat/vegetative community
                      should be clear as each task is discussed, who should perform what....              survey must be qualified.
79
                      Ecological Screening Criteria (ESC) are not promulgated standards and are
                      generally used as screening values to assess the need for further study in an
                                                                                                          This is a two part comment: 1) The text has been modified in 5.5 b.iii. To more
                      ecological evaluation. While SRIN does not want the ESC to be applied as
                                                                                                          clearly state "In lieu of performing an ERA, the person responsible for
                      defacto remediation standards, the guidance should clearly recognize that
                                                                                                          conducting remediation may choose to remediate to the higher of the ESC or
                      remediating parties can use the ESC as site-specific ecological remediation
                                                                                                          background, particularly when the exceedence constitutes a hot spot (Section
     19   5   2   2   goals in lieu of proceeding through the ecological risk assessment process.
                                                                                                          6.4.4 and Figure 3-1)". 2) This document provides guidance on conducting EEs
                                                                                                          and ERAs for the LSRP. The document has been devised with the idea that
                      Further, the guidance should allow the investigator to apply professional
                                                                                                          professional judgment, within the context of standard practice, will be followed.
                      judgment regarding whether or not to exclude constituents in lieu of conducting
                                                                                                          The LSRP should provide rationale for exclusion of any contaminants.
                      further ecological investigation and/or developing site-specific ESC for cases
                      where ESC are not available.
80
81   20   5   2   1   See comment on executive summary.                                                   Comments on Executive Summary have been addressed.
                      Added revised text: "A qualitative survey of dominant plant species should be
                      conducted during the prime growing season if possible (May to September) to
                      assess indicators of stressed vegetation, such as stunted growth, chlorosis,
                      brown or drying leaf tips, barren soil. (Absence of stressed vegetation does not
                      mean absence of contamination or impact.) In some cases it may be necessary
                      to identify the dominant plant species for each vegetative stratum (e.g., canopy,    The section includes all of this information as written. The section remains
     20   5   2   1
                      shrub, vine, and herbaceous layer). This can be performed using available            unchanged.
                      standard procedures by an The ecologist must investigator be familiar with
                      state and federal guidance and literature references for plant community
                      assessment, such as the Federal Manual for Identifying and Delineating
                      Jurisdictional Wetlands (Federal Interagency Committee for Wetland
82                    Delineation, 1989)."
83   20   5   2   1   Suggested text revision related to need for more rigorous vegetation survey.
                      The occurrence of TICs should not send the investigators on a hunt for the
                      chemical. TICs by nature are non-specific chemicals where there may be no
     20   5   2   2
                      actual identification. Unless a chemicals is specifically identified (and
84                    associated) with site operations it should not be a concern.
                      How does the NJDEP recommend evaluating tentatively identified compounds
                      (TICs) that cannot be identified beyond their chemical class or may potentially
     20   5   2   2   represent more than one compound (e.g., "aromatic hydrocarbons", "unknown
                      alkane")? It is recommended to include an option for evaluating TICs
85                    qualitatively.
                      "At a minimum, those contaminants that exceed the ESC or standards or do not
                      have an ESC should be considered COPEC s. If data from ESNRs are less
                      than screening criteria, and no tentatively identified compounds (TIC) without
                      screening criteria are present, then further ecological investigation is not
     20   5   2   2   required. If data from ESNRs exceed screening criteria, or TICs without
                      screening criteria are present , further ecological investigation is required." If
                      they do not have an ESC criteria, how can they be COPECS? TICs cannot be
                      risk assessed, since they are not positively identified numbers or concentrations    TICs must be addressed pursuant to N.J.A.C. 7:26E-2.1(e). Text has been
                      in the analysis. Delete the language on TICs.                                        modified to further explain management of TICs.
86
                      The occurrence of TICs should not send the investigators on a hunt for the
                      chemical. TICs by nature are non-specific chemicals where there may be no
     20   5   2   2
                      actual identification. Unless a chemicals is specifically identified (and
87                    associated) with site operations it should not be a concern.
                      Define “further ecological investigation” for constituents such as TICs lacking
                      ESC. If a detected constituent does not have an ESC, and no ESC can be
                      developed due to lack of adequate ecotoxicity data, then it is unlikely that any
                      common ERA tool currently available will be able to adequately address
     20   5   2   2   ecological effects related to this constituent. We recommend that constituents
                      lacking ESC are evaluated with respect to frequency of detection, concentration,
                      background concentration, etc. to make a determination of the likelihood of its
                      posing significant ecological harm, and that this evaluation be included in a
88                    qualitative uncertainty analysis.
                      Provide guidance for TICs in different media. Note this is no small issue -
     21   5   2   2   currently the NJDEP is not clear on how to deal with TICs in soil for SRP cases
89                    and guidance has been absent.

                      We recommend that the COPEC selection process first take into consideration
                      factors such as low frequency of detection, laboratory blank contamination, and,     The standard ecological process is to first identify which, if any, contaminants
     20   5   2   2   perhaps more importantly, consideration of site concentrations relative to           exceed ESC, then determine which of these should be dismissed based on
                      background levels of contaminants PRIOR to comparison to ESCs. This COPEC            background, frequency of detection, etc.
                      screening process should be added in to Figure 3-1.
90
                       Define how analytical results are compared to ESC, and what constitutes an
                                                                                                           All individual sample results that exceed an ESC should be identified; however,
                      exceedance. Must all detected concentrations be below ESC, or is comparison
     20   5   2   2                                                                                        based on background, frequency of detection, etc., some COPECs may be
                      to statistics (e.g., mean, upper confidence limit, percentile) allowed in the
                                                                                                           dismissed.
91                    screening? (Also see comment on Section 5.4 below).
                                                                                                                  If using ProUCL, then follow USEPA protocol; however, ProUCL requires a
                             Re: MDLs. Note that EPA currently does not recommend simple substitution
                                                                                                                  minimum number of samples and generally during the SI there is not enough
      20   5   2       2     methods for censored results. See:
                                                                                                                  sample data to use ProUCL. In these circumstances, use one half of the MDL
                             http://www.epa.gov/esd/tsc/ProUCL_v4.00.02/ProUCL_v4.0_Tech_Guide.pdf)
 92                                                                                                               when calculating an average.
                             The online link provided for Ecoscreening levels does not take you directly to
      20   5   2       2     ecoscreening levels table. It takes you to SRP web site. It is preferable to go      This link has been corrected.
 93                          directly to the ecoscreening levels table.
                             Achieved analytical detection limits (not MDLs) should be less than the ESC. To
                                                                                                                  Agreed. MDL is replaced by "analytical detection limit" where appropriate in
                             be conservative at this screening level to determine COPEC, when evaluating
      20   5   2       2                                                                                          5.2.2.
                             nondetected concentrations the achieved detection limits should be compared
 94                          to the ESC.
                             This section is missing discussion of a few key items that are always present at
                             most sites:
                             Existing Data – legacy data, data quality of older data, missing lab reports (ie,
                                                                                                                  The document has been devised with the idea that professional judgment,
                             missing MDLs for data that were submitted and even approved by the NJDEP in
                                                                                                                  within the context of standard practice, will be followed. The LSRP has the
                             the past.
                                                                                                                  latitude within the context of standard practice and professional judgment to
                             ND Analytes with no ESC – The TCL/TAL and PPL are extensive and include
                                                                                                                  manage data use. Further, this comment has three parts: 1) Existing data
                             numerous constituents that are not detected at many sites. They often get
                                                                                                                  should be treated the same as data collected for the SI. Existing data for
                             reported as part of the standard list of analytes and result in pages of “ND” with
      21   5   2   2                                                                                              dynamic media such as sediment in a moving water body should be evaluated
                             associated MDLs. Many of these constituents also have no ESC in the
                                                                                                                  in a historical context. The LSRP is responsible for ensuring the accuracy and
                             literature and it seems they should not drive further EE.
                                                                                                                  usability of data. 2) If all data results for an analyte are ND and have a low
                             Marginal Exceedances of Conservative ESCs – marginal excursions above low
                                                                                                                  MDL, then the analyte does not have to be further evaluated. 3) ESCs with low
                             ESCs at low detection frequencies should not drive further EE.
                                                                                                                  detection frequencies and background levels are covered in other sections of
                             Background Data and Information- Consider adding some discussion of
                                                                                                                  the document (5.3.4 and 5.5).
                             background data here in the context of existing data (or insert a reference to
                             later discussion of background data collection and add text there.)
 95
                             Guidance should be added to address further evaluation or screening of               Text in Section 5.4 has been modified to further explain management of
      21   5   2       2
 96                          contaminants that have no ESC in literature.                                         contaminants without ESC.
                                                                                                                  The LSRP has the responsibility to certify everything that is included in any
                             Assuring MDLs are met is not always practical especially when the investigator
                                                                                                                  report submitted, therefore, use of old data or anything that was 'outside of their
      21   5   2       2     is reviewing old or existing data that was generated prior to or outside of their
                                                                                                                  control' should be approached with caution. The LSRP is responsible for
                             control.
 97                                                                                                               ensuring the accuracy and usability of data.
                                                                                                                  A person qualified to conduct an ecological evaluation should be able to
      21   5   2       3     Second paragraph. Provide for biological sheens.
 98                                                                                                               distinguish between a product sheen and a biological sheen.
                             The text summarizing the TRSR requirement at 7:26E-3.11regarding migration
                                                                                                                  The text is accurate; track changes were not reviewed (see response to
      21   5   2       3     pathways overstates the referenced TRSR requirement. See suggested text
                                                                                                                  Comment 31, above).
 99                          revision.
100   21   5   3             9th line. The online link provided for the manual does not open.                     Link corrected.
                             The collection of samples should be related to the presence of contaminants in
                                                                                                                  The SI begins with on-site investigation and comparison to ESC. If off-site
                             any media, where the contaminants are associated with discharges from the
                                                                                                                  investigation is warranted, the LSRP must make that determination. The
                             site/facility. The trigger should not be "on-site media". Perhaps migration of the
      21   5   3       1                                                                                          definition of a contaminated site per the N.J.A.C. 7:26E-1.8 includes any area
                             contamination is historical, and presents a pathway not associated with the
                                                                                                                  where the contamination may have migrated. Also refer to response to
                             physical location of the original discharge. How is the term "on-site" meant to be
                                                                                                                  Comment 5.
101                          used here?
                             First sentence, suggest rearranging to read, "When contaminants are found in
                                                                                                                  Contaminants in excess of ESC in on-site media trigger the need to sample
      21   5   3       1     excess of the ESC in on-site media and ESNRS that are on, adjacent to....." as
                                                                                                                  migration pathways and/or ESNRs. The wording in the document is correct.
102                          the excess is applicable both to the site media and the ESNRs.
103   22   5   3             See various suggested text revisions tracked in attached document.                   See Response to Comment 32.
                             (4) is awkward, suggest rewording e.g., "If there is an existing discharge to
      22   5   3       1     surface water or a wetland, of groundwater originating on site and containing        Text modified.
104                          contamination of the applicable SWQS or ESC, whichever is more stringent"
      22   5   3   1 (2)     Should add "adjacent to or with gradient toward the AOC"                             Reading 5.3.1(2) in context with the entire sentence, this is already addressed.
105
                                                                                                                  Delineation is required per standard practice. The revised N.J.A.C. 7:26E will
                             N.J.A.C. 7:26E-4.1(a) requires the delineation of media to remediation
      26   5   3       3.1                                                                                        be modified to require delineation to the ESC. The text has been modified and
                             standards, not ESCs.
106                                                                                                               will reference the revised tech regs once promulgated.
                         Revise to read " … to avoid the loss of fine-grained sediments and porewater."
                         In addition, the locations where samples will be collected should consider other
                         potential "off site" sources of contaminants (stormwater outfalls, industrial
      23   5   3   2     discharges, etc.). Finally, the minimum number of sediment samples to be
                         collected specified in the various subsections of this section may not be
                         sufficient to characterize contamination at the site - the areal extent of the site
                         should be considered when determining the required sampling frequency.
107
                         Minimum sampling requirements as noted in this section for specified
                         natural resources negates the intent of the New Jersey LSRP Program.                  The text will remain as written. The document gives the LSRP the flexibility to
                         Minimum sampling frequencies establish an expectation by                              determine how many samples are required based on the aerial extent of the
                                                                                                               site. At a minimum, the sample frequencies in the guidance document are
                         reviewers/auditors, and limit the ability of the investigator to apply
                                                                                                               considered appropriate from a technical standpoint. It is noted that the sample
                         professional judgment. Deviation from these recommendations could be                  minimums are suggested and not required.
                         perceived as the investigator being incomplete in their evaluation. In
      23   5   3   2.2   addition to being a cornerstone expectation of the Site Remediation
                         Reform Act, the application of professional judgment by the investigator
                         is fundamental to the ecological evaluation process due to the particular
                         features (e.g., size, location, receptors, and contaminants) of the
                         individual sites. Therefore, discussions in the guidance regarding
                         recommended sampling should not include details regarding minimum
108                      sampling requirements.
                         Should be aware that if discharges occur in areas of aquifer outcropping, the
      23   5   3   2.1                                                                                         This is covered under potential migration pathway.
109                      effects may not be local at all.
                         5.3.2.2 IB. 2nd para, 7th line. Refers to Figure 1 but Figure 5-1 is shown at the
      24   5   3   2                                                                                           Text modified.
110                      bottom of the page.
                          Recommend using “upstream” and “downstream” instead of “upgradient” and
      25   5   3   2.2                                                                                         Text modified.
111                      “downgradient” when referring to flowing water areas.
                         III. B. suggest a simpler term than "topographically downgradient" to describe a
      25   5   3   2.2   sample to be taken a short distance from the discharge, in the direction of           Language is correct as written.
112                      expected discharge movement.
                         In general, it seems premature to be referring to contaminants as COPECs in
                         the document that is ultimately geared at determining whether and what
                                                                                                               This is a four part question: 1) The term COPEC is contaminant of potential
                         contaminants will become COPECs for the ERA; the use of the term COPECs is
                                                                                                               ecological concern and the use of this terminology is appropriate. 2) Per
                         inconsistent throughout the document. Suggest referring to them as
                                                                                                               N.J.A.C. 7:26E-3.7, groundwater investigation is required to be initiated during
                         contaminants throughout the section of the guidance document addressing the
                                                                                                               the SI. Therefore, if groundwater data is available and indicates a potential
                         EE (formerly BEE). Second to that, it is not clear how a subsurface discharge or
                                                                                                               groundwater migration pathway may be present, the document provides
      26   5   3   3.1   groundwater migration pathway will have been identified at this stage in the
                                                                                                               guidance on how the data should be evaluated. 3) Figure 3-1 depicts the
                         evaluation. Perhaps an earlier section of the guidance can be more explicit
                                                                                                               ecological investigation process. The document allows some flexibility as to
                         about at what stage the data gathering for this evaluation is expected to take
                                                                                                               when in the remedial process particular aspect of the investigation may take
                         place? Perhaps Figure 3.1 could have a sidebar indicating the progression of
                                                                                                               place. 4) Within the context of the document, it is up to the LSRP to determine
                         the SI/RI along one edge? This is important as the costs of data collection are
                                                                                                               how and when sampling occurs.
                         very high and most RPs prefer to avoid both excessive/exhaustive sampling,
                         and repeated mobilizations for sampling.
113
                         The sampling procedure requires the collection of only surface (0 to 6 inch and
                         6 to 12 inch depths) sediment samples. Collection and analysis of samples
                         down to only 12 inches may not fully characterize sediment contamination at a
                                                                                                               Delineation within the media is required (see last sentence of section); however,
                         site. In addition, "clean" sediments may have been deposited on top of
      26   5   3   3.1                                                                                         at this stage of the investigation the focus is on the potential for exposure to
                         historically-deposited "contaminated" sediments. Therefore, sediment core
                                                                                                               receptors. The text has been modified to clarify sample requirements.
                         samples should be collected, evaluated for sediment stratification (visual
                         characteristics, grain size, etc.), and distinct sediment layers homogenized or
                         segregated (as appropriate) and analyzed. Also, see Section 6.2.2.1-II-A-1.
114
                         (1) when contaminants are potentially present because of a seep or surface
                         discharge, samples should consist of a discharge sample and a grab..." In             As per 5.3, the NJDEP Field Sampling Procedures Manual should be used for
      26   5   3   3.2
                         addition to the wording change suggested above, it would be useful to include a       sample collection procedures.
115                      discussion of how seep samples are to be collected
                       The determination and use of "background" contamination levels in the EE must
                       be handled with the utmost care, particularly in urban/industrialized regions
                       where multiple contaminant sources may exist (see Section 6.4.3). A
      26   5   3   4   "background" COPEC concentration greater than its ESC should not be taken
                       to mean that risks to an ESNR from the site/discharge of concern are not an
                                                                                                            Comment noted. The LSRP is responsible to determine the additive
                       issue, even if the COPEC concentration in the ESNR is also greater than its
                                                                                                            contribution of a site-related contaminant above background.
116                    ESC.
                       This section indicates if contamination is expected upgradient, the areas should
                       be sampled. While sampling should be considered, there could be potential
      27   5   3   4
                       issues with the investigator obtaining access or issues with the investigator
117                    sampling another party's contamination.
                       This section should provide guidance on what to do with respect to the
                       establishment of background rather than providing a discussion regarding the         The guidance document allows the LSRP flexibility in determining appropriate
      26   5   3   4
                       difficulty of background investigations. See G. Schlosser's comments of              background conditions.
118                    5/4/2011 to Hamill and Nicholas
                       Last paragraph, disagree that all other potential sources of contamination
                                                                                                            Background only includes natural or diffuse anthropogenic pollution, not off-site
                       should be eliminated from background sampling, as the nature of
                                                                                                            discharges. If off-site discharges are extending onto the site, then the person
                       contaminants/contamination from other sources can help to distinguish among
      27   5   3   4                                                                                        responsible for conducting an investigation of that off-site discharge will be
                       potential sources (gradient) and clarify the degree of contribution from the site.
                                                                                                            responsible for addressing that source; however, that source should not be
                       This does not preclude omitting DATA from obvious/identified sources from
                                                                                                            included in background sample collection.
119                    background concentration assessment.
                                                                                                            Where relevant data can be obtained from SRP files, these data may be used
                       Background sampling not always required, e.g., where existing background data
      28   5   3   4                                                                                        where appropriate, relevant and valid. The LSRP is responsible for ensuring the
                       are available. Include discussion of existing data from site and off-site files.
120                                                                                                         accuracy and usability of data.
                       Ecological Screening Criteria (ESC) are not promulgated standards and are
                       generally used as screening values to assess the need for further study in an
                                                                                                            This is a two part comment: 1) The text has been modified in 5.5 b.iii. To more
                       ecological evaluation. While SRIN does not want the ESC to be applied as
                                                                                                            clearly state "In lieu of performing an ERA, the person responsible for
                       defacto remediation standards, the guidance should clearly recognize that
                                                                                                            conducting remediation may choose to remediate to the higher of the ESC or
                       remediating parties can use the ESC as site-specific ecological remediation
                                                                                                            background, particularly when the exceedence constitutes a hot spot (Section
      27   5   4       goals in lieu of proceeding through the ecological risk assessment process.
                                                                                                            6.4.4 and Figure 3-1)". 2) This document provides guidance on conducting EEs
                                                                                                            and ERAs for the LSRP. The document has been devised with the idea that
                       Further, the guidance should allow the investigator to apply professional
                                                                                                            professional judgment, within the context of standard practice, will be followed.
                       judgment regarding whether or not to exclude constituents in lieu of conducting
                                                                                                            The LSRP should provide rationale for exclusion of any contaminants.
                       further ecological investigation and/or developing site-specific ESC for cases
                       where ESC are not available.
121
                       The development of ESCs for each compound for which values are unavailable
                       in the literature is an excessive and onerous requirement for the EE phase of        Provisions for screening out potential COPECs based on frequency of
                       assessment. If a compound is likely not site-related, not detected (at sufficient    detection, background, etc. are already in the document (Section 5.2.2). A
      27   5   4       reporting limits) and/or detected at a low frequency, a qualitative evaluation       literature search is standard practice and is not considered to be "excessive or
                       should be appropriate to eliminate these compounds as COPECs. For                    onerous." If an appropriate ESC cannot be found or derived, the contaminant
                       example, the USEPA uses a guideline of 5 percent detection as a requirement          can be addressed in the uncertainty section of the ERA.
122                    for screening in chemicals of potential concern.
                       In the comparison of site data to ESC, define which metric(s) is/are used to
                       conclude whether there is an exceedance that would warrant further ecological        The text has been modified to state that all individual sample results that exceed
      28   5   4       evaluation. Must all detected concentrations be below ESC, or is comparison to       an ESC should be identified; however, based on background, frequency of
                       statistics (e.g., mean, upper confidence limit, percentile) allowed in the           detection, etc., some COPECs may be dismissed.
123                    screening? (Also see comment on Section 5.4 below).
                        We recommend that the background evaluation be conducted prior to
                       comparison of ESCs, to rule out contaminants that are not site related or at
                       levels consistent with background and therefore not warranting further               The standard ecological process is to first identify which, if any, contaminants
                       evaluation or remediation. Furthermore, ESCs do not measure “total site risk”        exceed ESC, then determine which of these should be dismissed based on
                       but instead may only be used as one tool/line of evidence to determine if there      background, frequency of detection, etc. This section of the document
      28   5   4
                       is potential for risk and if further evaluation is warranted. Lastly, as per the     addresses the completion of the EE with the goal being to identify the potential
                       regulations and as described in the Executive Summary to this document, the          for adverse ecological impacts to exist, which therefore warrants the need for
                       focus of the EE and ERA is to assess the incremental risk to ecological              either further ecological evaluation or remediation.
                       receptors posed by “contaminated sites,” which should be exclusive of
124                    background (natural or anthropogenic) risks.
                                                                                                                        Pursuant to N.J.S.A. 58:10B-12, remediation goals for the protection of the
                                                                                                                        environment must be developed on a case-by-case basis in accordance with
                                  The Ecological Screening Criteria are not promulgated standards. It is                USEPA guidance. The purpose for the ESCs are for screening potential
      28   5   4
                                  necessary that the NJDEP move expeditiously to promulgate the ESCs.                   contaminants. Ecologically-based remediation standards are derived at the end
                                                                                                                        of the ERA. NJDEP will post ESCs; however, NJDEP has no intention to
125                                                                                                                     promulgate ESCs at this time.
                                                                                                                        The process of the EE is to screen contaminants for potential impact. After
                                  This section indicates contaminants may not be excluded until EE conclusions
                                                                                                                        screening has highlighted certain contaminants, the process then eliminates
                                  are presented. Discussion on why contaminates are included or excluded
      28   5   4                                                                                                        contaminants based on various factors such as background, frequency, etc.
                                  should not be left to the conclusion of a report, but included in the analysis
                                                                                                                        Once this process is complete, then in the conclusions of the report COPECs
                                  section.
126                                                                                                                     can be eliminated.
                                  Groundwater. We suggest that a default dilution factor, dependent on distance         The objective of this document is to screen for potential contaminants. If
                                  of groundwater from the nearest downgradient surface water body, be applied           groundwater modeling was conducted for the site, this modeling may be used.
      28   5   4           1
                                  to groundwater concentrations prior to comparison with ESC/SWQS, or that the          A surface water and/or pore water sample will be the best determination of
                                  screening criteria be adjusted for comparison to groundwater concentrations.          whether an impact has occurred.
127
      28   5   4          1-4     These portions seem self-explanatory and could be simplified into a brief table.      Comment noted.
128
                                  refers to the ESC table. The sources of these ESCs are not readily identifiable.      This comment does not pertain to this guidance document; however, footnotes
      28   5   4           2      For example, the basis/reference for several of the sediment “Severe Effects          in the table have provide all references since the table was first compiled in
129                               Level” (SEL) concentrations is not provided. …                                        2008.
                                  The Delaware River Basin Commission (DRBC) Stream Quality Objectives for
                                                                                                                        DRBC Stream Quality Objectives should be used for streams and rivers where
                                  Toxic Pollutants (i.e. water quality criteria) are different than the NJ WQS for
      28   5   4           2                                                                                            the DRBC has jurisdiction. The DRBC Stream Quality Objectives are
                                  some contaminants. Which of these ESC should be used in surface waters over
                                                                                                                        incorporated into N.J.A.C. 7:9B by reference.
130                               which DRBC has authority?
                                  The draft guidance dictates that the most current version of the NJDEP
                                  Ecological Screening Criteria (ESC) and Surface Water Quality Standards
                                  (SWQS) govern as the primary screening values to be used in EEs; however,             As pursuant to Section 5.4, if an ESC is not available, the investigator may
                                  where ESCs or SWQS are not available, these values shall be considered                determine an appropriate ESC through a literature search, or identification of an
      28   5   4          2.I.A
                                  COPECs and ESC values shall be developed or proposed" The guidance                    appropriate surrogate. If an appropriate ESC cannot be found or derived, the
                                  should provide for the use of surrogates if it makes sense for chemicals that did     contaminant can be addressed in the uncertainty section of the ERA.
                                  not have a value, and if the surrogate was below the standard it should not be
131                               considered a COPEC.
                                                                                                                        The text has been modified in 5.5 b.iii. To more clearly state "In lieu of
                                  Add a note stating that in some cases, ESCs may be adopted as site-specific
                                                                                                                        performing an ERA, the person responsible for conducting remediation may
      29   5   4                  ecological remediation goals or standards in lieu of developing remedial goals
                                                                                                                        choose to remediate to the higher of the ESC or background, particularly when
                                  and/or standards via a formal ERA.
                                                                                                                        the exceedence constitutes a hot spot (Section 6.4.4 and Figure 3-1)".
132
                                  This subsection includes multiple statements instructing the development of
                                  ESCs if none exists for several scenarios. However, this note is absent prior to
                                  this section for comparison of data to ESCs in other media. Also, consider            Section 5.4 has been clarified regarding alternate and non-available ESC. A
      30   5   4           2      adding a general limitation statement to clarify that development of an ESC           complete discussion of the development of ESCs is not in the scope of this
                                  where none is available is not always warranted (e.g., minor, infrequent              document.
                                  exceedences of conservative ESCs), especially for the EE phase (vs. the ERA
133                               phase). Other scenarios may apply to this limitation as well.
                                  Wetlands. The distinction of wetland soil and sediment in a wetland setting is
                                  confusing here. Perhaps some additional clarity could be provided in the
                                  definition of “sediment.” Furthermore, we recommend you specify that
      30   5   4           3
                                  seasonally saturated/inundated soils within a wetland should be compared to           As part of professions judgment, the LSRP can provide rationale for comparison
                                  both soil and sediment ESC, unless technical justification is provided specifying     to ESCs for only one medium. Text will remain as written.
134                               why site conditions warrant otherwise.
                                  end of first paragraph, " for the remainder of the year; therefore, both the more
      30   5   4           3
135                               conservative of the sediment and or soil ESC would apply."
                                  De minimis quantities must be defined more accurately. De minimis should be
                                  recognized as very small quantities of extremely toxic substances. As written         "Hot Spots" are explained in 6.4.4. If the area does not have the characteristics
      31   5   5                  there is the potential that such hazardous substances would to be discounted,         of a hot spot, then de minimis may be considered. A rationale will be required to
                                  ignored. Further, if a claim of de minimis quantity is made, it should be a trigger   be submitted with the determination of de minimis.
136                (b)i           for a closer review.
                                                                                                                      This section provides guidance to the LSRP on the completion of the EE report.
                                                                                                                      The use of "must" and "should" has been reviewed by the Deputy Attorney
                               The investigator should use professional judgment on what is in the report, and        General and changes were made to the text as appropriate. Whenever an
      31   5   5               this section should only suggest information that may be useful in the report.         action is required by statute or regulation, the term "must" is used and the
                               "Must" is not warranted in this section.                                               proper citation is made. Whenever an action is not required directly by statute
                                                                                                                      or regulation, the term "should" is used, even if scientific process necessitates
137                                                                                                                   the action.
                               (a), there are measurements mentioned here that are not specified to be
                               measured in the sampling section. These should be mentioned earlier to cue
                               the investigator that they must be taken. In addition, the pH of the media
                               sampled must be measured in the field within a short time of sample collection
      31   5   5                                                                                                      Text modified in Section 5.3.3 to refer to Section 5.5.
                               as laboratory pH measurements taken after storage will not accurately reflect
                               field conditions. Should the same information applicable to surface water in iii be
                               required of groundwater samples? Are there any specific reporting requirements
138                            for upland samples?
139   31   5   5    5(a)ii     Achieved detection limits should be reported for all sample data.                      Text modified.
                               Historic fill is prevalent at many sites. Ecological investigations of historic fill
                               sites will be onerous to facility operators and should not be required of parties
                               who were not responsible for the placement of fill at their sites. As it stands,
                               historic fill is required to be addressed as part of the remediating party’s
      31   5   5                                                                                                      See Section 6.4.8 of the document.
                               remedial approach for human health at a site. Incorporation of ecologically-
                               based remediation goals is unlikely to alter the final remedy. Accordingly, the
                               time and expense associated with ecological evaluations for historic fill is
140                            unwarranted.
                                                                                                                      This document notes that the completion of an EE an/or an ERA must be
                               The EE report requires a number of items for which the usage and interpretation
                                                                                                                      conducted by a person qualified to perform the ecological evaluation. Such an
      31   5   5               are unclear (e.g., 95 UCLs). Please provide examples of how these additional
                                                                                                                      individual would understand the basic use and interpretation of these terms as
                               components may be used to interpret potential risk to ecological receptors.
141                                                                                                                   they are standard in the ecological evaluation process.
                               additional ecological sampling collection should occur to determine whether a
      32   5   5     (b)ii                                                                                            Please refer to Response to Comment 5.
142                            contaminant migration pathway is or ever was completed to an ENSR.
                                                                                                                      The LSRP is responsible for certifying that the EE was conducted properly,
                               Include and exception from MDL requirement for legacy data. Also, see
      32   5   5                                                                                                      therefore, it is the LSRP's responsibility to ensure the accuracy and usability of
                               suggested text revisions.
143                                                                                                                   all data.
                               Suggested added text: "Presumptive remedies that reduce or eliminate risk              Unless the remediation is conducted to the ESCs or background, an ERA is
      32   5   5   5.5(b)iii   (e.g., surface cover added over fill as a capping system) may be considered for        essential to determine the remediation goals. Any capping used in an ESNR
                               remedial action that is protective of ESNRs in lieu of conducting an ERA."             may be subject to DLUR approval and permitting.
144
                                                                                                                      The document provides the LSRP with a general overview of the ERAGS
                               If there already is an ERAGS guidance document why is the ERA process
                                                                                                                      process and provides guidance on topics for which ERAGS is mute. It
      32   6                   guidance repeated here as a major portion of the document? Does this
                                                                                                                      streamlines and supplements, but does not supersede the ERAGS document.
                               document supersede the ERAGS?
145                                                                                                                   Text remains as written.
                               First paragraph, first sentence indicates that if the EE indicates that add'l
                               evaluation is warranted an ERA is required. The last paragraph in the previous         The statement in Section 6.0 is for performing an ERA. This assumes that an
      32   6   0               section (5.5(b)ii, Pgs 31 & 32) indicates that the add'l evaluation can occur via      EE addendum, if completed, was already part of the EE and conclusions
                               an EE Addendum or ERA. These statements appear contradictory, please                   indicated that an ERA was required.
146                            clarify.
147   33   6   1   step 3      conceptual site model should include historic components…                              See Response to Comment 5.
                               Assessment endpoints and measurement endpoints should reflect actual
                               conditions in the vicinity of the site. In particular, these endpoints should be
                               limited to selecting receptors that are demonstrated to be indigenous to the
                               habitat found at and in close proximity to the site and should reflect the feeding
                               guilds most susceptible to the major contaminant drivers at the site based on          The LSRP has flexibility in deciding upon the most appropriate site-specific
                               reasonable potential for exposure to media impacted from the site. The                 assessment endpoints. A species may have been extirpated from the site and
      34   6   1     1.1
                               investigator should be allowed to limit receptor selection to species that best        should be included, or a receptor may not be found in the area, but may be
                               represent the most susceptible feeding guilds rather than evaluating all potential     used as a sensitive surrogate for a specific contaminant.
                               feeding guilds, giving that the following factors are considered in the selection
                               process: 1) type of impacted media, 2) mechanisms of ecological effect
                               associated with the contaminants of concern at the site and 3) the size of the
                               site relative to the receptor home range and feeding area.
148
                         first bullet: the use of the term "stressors" implies that non-contaminant sources
                         of stress such as habitat alteration will be assessed. Exposure to such stressors     Stressor as noted in this bullet refers to chemical stressors and their potential to
                         is not quantifiable to the extent that contaminant exposure is, so additional         move in the environment, not necessarily habitat alterations. Pursuant to
      35   6   1   1.1   guidance on identifying and quantifying non-contaminant stressors is needed           ERAGS Section 1.3, the focus of the EE and ERA is on chemical stressors
                         (here or elsewhere in the document). In the paragraph below the bullets,              discharged from contaminated sites. Text remains as written in the bullet. The
                         suggest the first sentence should read "The tools....are as varied as vary among      first sentence of the paragraph following the bullets has been modified.
149                      the media...."
                         Figure 6.1 title should be much more explicit that the figure provided is an
                         example. The figure is not specifically aligned to include all of the elements that   The title of the figure has been modified to clarify that the figure as shown
                         might be considered in an ERA and includes some assessment endpoints that             provides an example sediment and soil scenario and does not suggest that all
      35   6   1   1.1
                         might not be considered at certain sites. It also uses terms that are not included    of the endpoints as noted are required under each of the illustrated scenarios
                         in the definitions (and need not be, as long as this is an example and not a          depending on site conditions.
150                      reference table).
                                                                                                               The text references the Conceptual Site Model (CSM) Guidance Document and
                         Please provide a reference for the ECSM Guidance document (location,                  states that the ECSM is part of the overall conceptual site model. The CSM
      37   6   1   1.2   document number, state code, as applicable). The term "ecological ECSM" is            Guidance Document will be available with all other LSRP guidance documents
                         repetitive....                                                                        on the SRP website. The term "ecological ECSM" was not used. No text
151                                                                                                            modifications are required.
                                                                                                               This figure is from USEPA Region 5 and intended to be a simple, non site-
                         Figure 6-2 is not adequately descriptive of the mechanisms and pathways that
                                                                                                               specific example of a graphic ECSM; as stated in the text, a graphic ECSM
                         contribute to exposure; it is unlikely NJDEP would accept such a figure in an
                                                                                                               should be updated as needed and supported by brief and concise text and
      38   6   1   1.2   ERA unless there was significant text also describing it. Similar figures with more
                                                                                                               would contain the level of detail appropriate for the site at a given phase of the
                         explicit descriptions of the sources, pathways and mechanisms have been
                                                                                                               investigation. An in-text citation and reference for the figure will be added to the
                         developed and could be substituted for this one.
152                                                                                                            document.
                         At complex sites, analysis of gut contents or stable isotopes to better define the    As part of the planning stage for the ERA and the development of the ECSM, it
      39   6   1   3.1   food web may be helpful in identifying exposure routes and directing the              is up to the investigator to determine the appropriate exposure routes using the
                         appropriate model inputs for primary food items.                                      tools commensurate for the complexity of the site. No language change is
153                                                                                                            necessary.
                         The comparison of COPEC concentrations in abiotic media to alternative                Consistent with this guidance, where contaminant concentrations in abiotic
                         toxicological benchmarks can be included in the EE. If this line of evidence and      media are below ESC, which include alternate ESC with supporting rationale,
      39   6   1   3
                         supporting site-specific information do not indicate a potential for risk, then       the potential for adverse ecological effects is considered minimal and further
154                      additional lines of evidence should not be necessary.                                 ecological evaluation may not be necessary.
                         Dermal contact is listed as a potential exposure pathway, but generally
      40   6   1   3.1   negligible, and for consistency, dermal contact should be removed from the            This bullet was removed as noted.
155                      bulleted list.
                         6th para, lines 4,5,6. Online links for the references should be provided if
      40   6   1   3.1                                                                                         Links were added.
156                      possible.

                         last paragraph, "when food chain modeling is conducted as part of the EE...." as
                         described in previous sections the EE consists of determining if there is the         As stated in the text, use of food chain models in the EE is consistent with
                         presence of a receptor, a pathway to the receptor, and a concentration of a           ERAGs and may be used to refine the EE. Since the investigator must be
                         contaminant above a regulatory or other reference value. There is no discussion       experienced in the use of ecological risk assessment techniques and
      41   6   1   3.1                                                                                         methodologies in USEPA guidance (N.J.A.C. 7:26E-3.11), ERAGS should be
                         in the sections addressing the EE incorporating the use of food chain modeling;
                         hence reference to such modeling here is inconsistent and misplaced. Please           followed. Section 6.1.3.1 states "Depending on site-specific circumstances, it
                         be concise about where food chain modeling using an FI of 1.0 (or an AUF or           may be appropriate to calculate a dose using both an FI of one and a less
                         SUF of 1.0) would be used in the course of an ERA.                                    conservative FI to bound the range of potential ecological risk," professional
157                                                                                                            judgment should be used. ERAGS provides guidance on the use of
                         Paragraph describing Fractional Intake (FI) indicates that exposure/dose              FI/AUF/SUF including conservative application during the screening-level
                         modeling using conservative input parameters can occur in the EE. The utility of      ecological risk assessment. Text clarifying the use of food chain modeling in
      41   6   1   3.1
                         including exposure modeling in the EE is not currently, and should be,                the EE has been added to Section 5.2.
158                      discussed in Section 5.2 describing the components of the EE.
                         5th line. The equation provided uses the parameter IR but definition for CR has
      41   6   1   3.1                                                                                         CR has been changed to IR and reference ingestion rate
159                      been provided on the same page in the middle of the page.
                         first paragraph, it is not clear what is meant by the statement that
                         bioaccumulation in waterfowl and shorebirds are generally addressed as part of
      42   6   1   3.1   a terrestrial assessment. It would appear not to be entirely true as the              Text has been modified.
                         assessment often incorporates potential accumulation from fish or other aquatic
                         biota that comprise a significant portion of the birds' diets.
160
                         First new paragraph on Pg 42 - the recommendation to collect co-located media            Tissue chemical residue studies should be designed for the purpose of
                         chemistry data with plant/prey tissue data requires clarification. This approach         determining dose-response relationships, as per ERAGS. 4.2.1 and Appendix
                         may be applicable for plants and infaunal invertebrates that spend much of their         B. Prey species with limited home/foraging ranges are preferable and should be
                         life in a very small area proximate to the media sample location, however,               sampled over the area believed to contain the concentration range of COPECs.
      43   6   1   3.1   mobile invertebrates and small mammals/birds (prey) are exposed to                       Professional judgment should be used to determine the exposure area from site
                         contaminants over a much wider area and the correlation of contaminant                   characterization data overlain with home/foraging range information. Statistical
                         concentrations at the point of capture is not meaningful. Use of a statistical           analysis, such as variogram analysis, may be appropriate. Note that ERAGS
                         measure of a comprehensive media dataset representative of the exposure                  uses small mammals as an example of receptors with small home ranges. No
161                      area may be more appropriate.                                                            language change is necessary.

                                                                                                                  It is not appropriate to make a blanket recommendation regarding the
                                                                                                                  bioaccumulative nature of contaminants based on contaminant class. A
                                                                                                                  contaminant's octanol-water partition coefficient (Kow), metabolism by
                                                                                                                  organisms, and site-specific bioavailability conditions affect bioaccumulation.
                                                                                                                  Prey species should be chemically analyzed for site-specific COPECs.
                                                                                                                  Following examination of these data, professional judgment should be used to
                         The draft guidance remains silent on what classes of constituents are
                                                                                                                  determine if COPECs have bioaccumulated to levels that should be evaluated
                         recommended for incorporation into the upper trophic level food chain modeling.
      43   6   1   3.1                                                                                            via food chain models. Comparison with reference data and dietary screening
                         Generally, only bioaccumulative compounds are modeling into upper trophic
                                                                                                                  benchmarks, expressed as concentrations, may be helpful (e.g., Sample, B.E.,
                         level receptors.
                                                                                                                  Opresko, D. M., and Suter, G.W. II. 1996. Toxicological benchmarks for
                                                                                                                  Wildlife: 1996 Revision. ES/ER/TM-86/R3. U. S. Department of Energy, Oak
                                                                                                                  Ridge National Laboratory. Available at
                                                                                                                  www.esd.ornl.gov/programs/ecorisk/reports). A reference to Bioaccumulation
                                                                                                                  Testing and Interpretation for the Purpose of Sediment Quality Assessment
                                                                                                                  Status and Needs (USEPA, 2000), has been added to 6.1.3.2 Bioaccumulation.
162
                         The definition of bioavailability is conceptually problematic in the literature in
                         general; this definition is insufficient because it is unclear (item 1 is cryptic) and   The description of "bioavailability" is intended to be general and is appropriate
                         does not give context. There are better references available. Bioavailability            for the purpose of the section; the reference is cited. It is not intended that this
      43   6   1   3.2
                         should be clarified to include abiotic partitioning (physico-geochemical) aspects        section provide a formal definition for "bioavailability." Modification to the text is
                         (e.g., solubility, sorption), habitat media exposure and biotic (biochemical)            not required.
                         aspects (e.g., exposure routes, tissue uptake, target organ translocation).
163
                         The EE (and the applied ESC) considers only toxicity when evaluating potential
                         COPECs for further risk assessment work (i.e. an ERA). However,
                         bioaccumulation can be problematic for some potential COPECs at                          This issue has been addressed since 2008 in footnote 1 in the table of
                         concentrations less than those that result in toxicity. Thus, the EE may                 Ecological Screening Criteria and since 1998 in the former guidance entitled
      43   6   1   3.2
                         "eliminate" a COPEC from further consideration/need for in an ERA that would             Guidance for Sediment Quality Evaluations, November, 1998. The text has
                         not have a toxic effect, but could have a bioaccumulative effect. It may be useful       been modified in Section 5.4.
                         to develop a list of the COPECs where this may occur in the various types of
164                      ESNRs.
                         First sentence, the BSAF and BAF are the ratios of the concentrations in tissues
                         of the receptors to the concentration in sediment or soil, not the reverse as
      44   6   1   3.2   stated here. Later in that paragraph the statements regarding normalization to           Text has been modified.
                         TOC and lipid content are true only for some contaminants (not including
165                      metals).
                                                                                                                  The section is clear in its intent to address tissue residue analysis in field-
                         second paragraph, the language does not make it clear here that what is
                                                                                                                  collected prey species associated with the assessment endpoint, not the use of
                         intended is clean organisms will be transplanted to the field or laboratory
                                                                                                                  transplanted commercially-obtained organisms in laboratory or field
                         exposure systems rather than tissue samples collected from organisms already
      44   6   1   3.2                                                                                            bioaccumulation studies that is stated in this comment. Text has been modified
                         in the site media. This explanation and distinction is needed going forward to
                                                                                                                  to indicate that the bioaccumulation studies described in this section are
                         differentiate the bioaccumulation study description that follows it from the effort
                                                                                                                  intended to be conducted with commercial test species and emplaced in the
                         of sampling existing biota from the system
166                                                                                                               laboratory or field.
                         "Prerequisites for Bioaccumulation Studies" - field sampling of the site should be
                         conducted to verify the results of the laboratory toxicity tests that large
      44   6   1   3.2                                                                                            Text has been modified.
                         populations of test organisms (or their surrogates) are not, in fact, present at the
167                      site.
                         third paragraph last couple of sentences, the observation is made that different
                         species may accumulate contaminants at different rates and thus different
                                                                                                              The text does not state there is a conflict with using different species for different
                         species with differing salinity tolerance may not be comparable. If a specific,
                                                                                                              areas for a bioaccumulation study, if needed; the text simply states "Issues with
                         complex site is driving the need for site-specific BSAF determination, then
                                                                                                              acclimating a single species or using more than one species should be
      45   6   1   3.2   customizing the experiment to site conditions is appropriate. The BSAF data
                                                                                                              considered during study design." Modification to the text was not required.
                         would be used to establish exposure estimates for specific areas having
                         disparate salinity conditions, to determine risks within those areas. I see no
                         conflict with using different species for different areas if each of those species
168                      don't tolerate the full range of site conditions.

                                                                                                              This is a four-part comment. (1) Polychaete was corrected to oligochaete. (2)
                                                                                                              The selection of appropriate test organisms needs to be made on a case by
                         Tissue Mass Requirements - please note that Lumbriculus sp is an oligochaete
                                                                                                              case basis. (3) The repetitive text has been corrected. (4) The portion of
                         rather than a polychaete. Some additional discussion of considerations in the
                                                                                                              plant to be assayed needs to be determined on a case by case basis. For
                         use of mollusks for freshwater bioaccumulation studies could be useful here.
                                                                                                              example, if data are to be used for dietary exposure modeling, arrow arum fruit
      46   6   1   3.2   The first sentence of the next paragraph repeats the first sentence of this
                                                                                                              is a preferred food of wood ducks, and all portions of aquatic plants (e.g., roots,
                         paragraph. The point regarding plant tissue needs to be made more strongly --
                                                                                                              basal portions, stems, leaves) and basal portions of phragmites can be
                         and consideration needs to be made as to what part of the plant should be
                                                                                                              consumed by muskrats. Also, roots and leaves of aquatic plants can be
                         assayed (whole or parts) depending on what is edible/eaten by receptors.
                                                                                                              consumed by benthic omnivorous fish, such as common carp, catfish, white
                                                                                                              perch, etc. Text has been modified.
169
                         Please list the nutrients that should be analyzed in conjunction with the plant      The soil nutrients are listed under Physicochemical Data Needs in 6.1.3.2,
      47   6   1   3.2
170                      bioaccumulation studies                                                              above. Modification to the text was not required.
                         analytical labs -- should stress that the same lab should conduct both the media
                         and the tissue analysis; although a bigger field of capable labs can handle the      Requirements for laboratories performing analyses are contained in N.J.A.C.
      48   6   1   3.2   soil and sediment, the comparison will be most reliable (especially for PCB, PAH     7:26E-2.1. The LSRP is responsible for ensuring data are accurate and
                         and other organics) if the same laboratory is used for both tissue and               useable. Modification to the text was not required.
171                      soil/sediment.
                         In determining whether "greater weight" is applied to information: are the 7
                                                                                                              The seven (7) criteria are not listed in a particular order. Lines of evidence for
                         criteria listed in any particular order? If you have 3 "greater weight" conditions
      49   6   1   3.4                                                                                        each assessment endpoint need to be evaluated on a site-specific basis.
                         does that matter - is temporal more "weighty" than special etc…? Should there
                                                                                                              Modification to the text was not required.
172                      be instruction here?
                         bullet Data Quantity suggest wording "...those studies that have an adequate
      50   6   1   3.4                                                                                        Text has been modified.
173                      amount of data..."

                         regarding contaminants detected which do not have a corresponding surface
                         water quality standard, the implication seems to be that the investigator/RP
                         must pursue development of a water quality criterion for the contaminants;
                         however, establishment of WQC and WQS are regulatory processes that are
                         not typically undertaken by RPs at specific sites and an evaluation of whether
      51   6   2   1.1   the contaminant actually causes toxicity at the site, or developing a small set of   Clarification to the text has been provided.
                         reference values for sensitive species using the aquatic toxicity test methods,
                         would be adequate. Please re-focus this discussion to toxicity test methods
                         rather than WQC/WQS or describe a condition under which an investigator or
                         RP would choose to pursue development of a criterion or standard for a
                         contaminant not yet considered a criteria pollutant.
174
      51   6   2   1.1   6th para, 3rd line. The online link provided does not open.                          This link has been corrected.
175

                                                                                                              The term "surface water" habitat assessments will be retained, since, as
                                                                                                              explained in the text, "for the purposes of surface water, habitat is considered to
      51   6   2   1.2   Suggest this should be "Aquatic" habitat assessment
                                                                                                              be both aquatic and riparian because this is the habitat that most directly
                                                                                                              influences the aquatic community." Modification to the text was not required.
176
                                                                                                                        The use of "must" and "should" has been reviewed by the Deputy Attorney
                                                                                                                        General and changes were made to the text as appropriate. Whenever an
                                                                                                                        action is required by statute or regulation, the term "must" is used and the
                                 If the appropriate time to sample is June thru octa, then the word "should" must
      54   6   2      1.3                                                                                               proper citation is made. Whenever an action is not required directly by statute
                                 be changed to shall or must .
                                                                                                                        or regulation, the term "should" is used, even if scientific process necessitates
                                                                                                                        the action. The investigator is required to be qualified, thus the language is
177                                                                                                                     appropriate as written.
                                 The document should note that other methods of fish collection may be suitable
      54   6   2      1.3                                                                                               Text has been modified.
                                 depending on habitat (e.g., gill nets, minnow traps, etc.)
178
                                                                                                                        The committee has chosen to follow the lead of the USEPA Region 2 Biological
                                 first paragraph. Please explain why it is considered paramount to analyze
                                                                                                                        Technical Assistance Group (BTAG), which recommends the analysis of
                                 individual fish, when exposure of a receptor will not be to a single fish. Many
                                                                                                                        individual fish rather than composite samples in ERAs. Compositing is
                                 larger fish are more mobile and experience both offsite and onsite exposure,
                                                                                                                        recommended only when necessary to achieve the minimum tissue mass for
                                 which makes tying the tissue levels to exposure at a specific site or sampling
                                                                                                                        chemical analysis (e.g., for small forage fish), because compositing can
      54   6   2      1.3        location questionable. Smaller forage fish and young of year in the same size
                                                                                                                        inappropriately "smooth" exposure point concentrations, e.g., eliminating
                                 range have smaller home ranges so that body burdens of contaminants are
                                                                                                                        extremes and exceptions, and would not allow for evaluation of variation and/ or
                                 more easily attributed to exposure within a given area. Though smaller fish also
                                                                                                                        gradients in fish contaminant concentrations or the use of maximum values, if
                                 tend to be younger fish and may have slightly lower body burdens, they are also
                                                                                                                        appropriate, in food chain modeling. Modification to the text was not required.
                                 important components of some receptor diets.
179
                                 Twitching, gasping, whirling, and convulsions may be the result of electrofishing
      55   6   2      1.3        versus being related to contamination. Therefore the anomaly observations are          Modification to the text was not required.
                                 only pertinent if not seen at the reference or background location.
180
                                 last paragraph, it appears the point of this paragraph is that labs conducting         Section 6.2.1.4 was corrected to state that laboratories conducting surface
                                 surface water toxicity tests for an ERA are not required to be state-certified?        water toxicity tests are required via N.J.A.C. 7:26E-2.1-1.i to be certified for
      56   6   2      1.4
                                 Please state this more succinctly. Also include a statement here regarding             "Category WPP08 Toxicity Testing" under N.J.A.C. 7:18. NELAP accreditation
                                 NELAP accreditation for aquatic toxicity testing                                       is addressed in N.J.A.C. 7:18.
181
                                                                                                                        The objectives of acute and chronic toxicity tests for surface water and sediment
                                 Toxicity tests. Specify guidance recommendations on NJ preference for chronic
      56   6   2   1.4 and 2.5                                                                                          are addressed in Appendices C and D, respectively. Modification to the text
                                 toxicity tests.
                                                                                                                        was not required.
182
                                 When collecting and transporting sediments, it is also important to maintain
                                 sample integrity so as not to change the characteristics of the sediment (for
      59   6   2      2.1 A      example, oxidation-reduction status). In addition, porewater should not be             Modification to the text was not required.
                                 segregated from the sediment when it is analyzed or used for
183                              toxicity/bioaccumulation tests.
                                 The discussion of Reference Area Sampling and determination of background
                                 concentrations of COPECs should indicate that in some cases large regional
                                                                                                                        It is the responsibility of the investigator, based on professional judgment, to
                                 sediment datasets are available (e.g., CARP data in the Newark Bay area) that
      60   6   2      2.1                                                                                               ascertain the appropriate sources of data to support the development of
                                 can provide an additional line of evidence supporting determination of regional
                                                                                                                        background data. Text in Section 5.3.4 has been modified to clarify this.
                                 inputs to the site. While these data are not appropriate to use as the sole source
                                 for evaluating background conditions, they may be informative in some cases.
184
                                 first paragraph refers to "test" sediments versus background and reference
      60   6   2     2.1 B                                                                                              “Test” sediments has been changed to “site” sediments.
185                              area. Do you mean "site" samples? 2 incidents

                                                                                                                        Sediments are routinely evaluated via an integrated approach, referred to as the
                                 last paragraph on page it would seem that if the sediment in urban waterways           "Sediment Quality Triad" approach. Sediment chemistry, sediment toxicity, and
                                 containing multiple sources of contamination does not support a good                   community assessments are evaluated simultaneously and results interpreted
      61   6   2      2.2
                                 macroinvertebrate community, it also will not provide a good result in toxicity        via a weight of evidence approach. There is empirical evidence from
                                 tests. Please address.                                                                 NJDEP/SRP case histories that sediment from a location with an impaired
                                                                                                                        benthic community does not necessarily display acute or chronic toxicity.
186
                                 it would probably be useful, in conjunction with the statement regarding the lack      Requirements for laboratories performing analyses are contained in N.J.A.C.
      64   6   2      2.5        of a national program to certify labs doing sediment toxicity tests, to include that   7:26E-2.1. The LSRP is responsible for ensuring data are accurate and
187                              the NJDEP also does not have a program.                                                useable. Text not modified.
                                Elutriate samples are usually formed by mixing sediment with site (not
      65   6   2      2.6                                                                                             Text modified.
                                laboratory) water.
188
                                This section discusses distinguishing Site-related contamination versus
                                                                                                                      The comparison of site-related vs. background data is addressed in 5.4. Text
      66   6   2   3.1 (III.)   background contamination. It should be stated explicitly that only contamination
                                                                                                                      not modified.
                                above background or non-site related contamination needs to be addressed.
189
                                                                                                                      No other State regulation addresses background in relation to this document.
                                background: is there any other regulation that addresses background and if so         Additional guidance for establishing background is in section 5.3.4, which
      66   6   2   3.1 (III.)   the more comprehensive method of establishment should be used.                        includes citations for four USEPA documents, and in the NJDEP/Stakeholder
                                Background for soils is discussed at 7:26E-3.10                                       Historic Fill and Diffuse Anthropogenic Pollutants Technical Guidance. Text not
190                                                                                                                   modified.
                                The terms "density", "diversity", dominance", and "frequency" can be defined          Density, diversity, dominance and frequency are general terms describing these
      68   6   2      3.2       and quantified in ecological studies in various ways. Therefore, omit the             habitat parameters. Their use in this document is consistent with general
                                sentences "Density is the … Frequency is the … within a given area."                  practice. Text not modified.
191
                                The guidance directs the investigator to EPA guidance and literature for              Chapter 6 is not a repetition of EPA guidance. This guidance was prepared with
                                sampling methods, etc. One could suggest that for all aspects of the ERA rather       that document as a basis, but presents a more streamlined approach to
      70   6   2     3.4        than repeating within Chapter 6 which is mostly repetitive of the EPA guidance.       address the large number of listed contaminated sites in NJ. Important
                                Important highlights of emerging literature, and state-specific approaches could      highlights of emerging literature, and state-specific approaches are the subject
192                             be covered without the repetition.                                                    of 6.4 Special Circumstances. Text not modified.
                                Section indicates the ERA should be a "concise report". The information               The word "concise" means "to the point," which is appropriate to an ecological
      71   6   3
193                             requested for the report will not necessarily result in a "concise report".           report. Text not modified.
                                It is unclear whether the approaches discussed in this section apply to the EE
                                phase or ERA phase of assessment. Specifically, it is unclear whether refined
                                screening approaches that incorporate site-specific factors (e.g., Equilibrium
                                                                                                                      It is the intention to have these sections augment the ERA; however, as
                                Partitioning Sediment Benchmark [ESB] calculations for PAHs [USEPA 2003],
                                                                                                                      appropriate the subsections are referenced in the EE sections of the document.
      72   6   4                or AVS-SEM evaluations) should be included in the EE or the ERA. It would be
                                                                                                                      The person using the document may use information in these subsections as
                                most efficient for these refined screening approaches to be optional
                                                                                                                      appropriate during the EE. Text not modified.
                                components of the EE, or could be included as EE addenda. If this is
                                acceptable, please add references to these approaches in the EE portion of the
194                             document (Chapter 5).
                                Second paragraph omits the definition of a wetland to include presence of hydric      Hydric soils are addressed in the 4th paragraph of this section. Text not
      72   6   4       1
195                             soils.                                                                                modified.
                                The discussion of wetlands should also include coastal wetlands and the NJ
      72   6   4       1                                                                                              Text modified.
196                             Coastal Zone Management Rules.
                                with respect to decision making, the issue of natural resource injury duration
                                and the damages that may accrue must also be a consideration for a                    This document does not, and is not intended to, address natural resource injury
      73   6   4       1
                                responsible party. example: the cost of leaving a persistent injury in a wetland      or damages.
197                             vs. remediation and reestablishment of a wetland.
                                Paragraph 5 re: functional assessment, references to these methods should be
      73   6   4       1
198                             added (e.g., Bartoldus, C. 1999)
                                5th paragraph, Wetland Evaluation Technique and Hydrogeomorphic evaluation
                                                                                                                      Text modified.
                                need references, at least. Where will the investigator find these? Up to this point
      73   6   4       1
                                in this section this is the only information presented after the definition of
                                wetlands that is not redundant to earlier sections of the document
199
                                                                                                                      Professional judgment during the SI/RI phases is needed to identify areas of the
                                                                                                                      site or ESNR that may require expedited attention, such as where contaminants
                                the term hot spot is too subjective and so is the subsequent explanation of what
                                                                                                                      are highly elevated relative to background or ESC. Since there is no regulatory
                                a hot spot means. IF there is no set definition of a hot spot, its meaning needs
      75   6   4       4                                                                                              definition of "hot spot", this guidance was provided to enable the investigator to
                                to be related to a concentration/ value or toxicity level in order declare
                                                                                                                      judge whether concentrations are present at levels requiring special
                                something a "hot spot".
                                                                                                                      consideration. Additional USEPA guidance is referenced in 6.4.4. Text not
200                                                                                                                   modified.
                                3rd para,3rd line. Refers to Figure 1 but Figure 6-4 is shown on Page 77 and is
      76   6   4       5        also listed on Page 3 in the Table of Contents. Figure numbers need to be             Text modified.
201                             consistent.
                                                                                                                   The committee has chosen to follow USEPA Region 2 Biological Technical
                       It is recommended that all samples be analyzed for PCB congeners (even                      Assistance Group (BTAG) policy, which generally recommends PCB congener
                       during an EE). Use of Aroclor data is problematical, particularly when evaluating           analysis on a subset of samples, in recognition of the increased cost of
      78   6   4   6
                       total PCB concentrations. In addition, achieved analytical detection limits for             congeners vs. Aroclors. However, professional judgment should be used to
                       PCB Aroclors are almost always greater than applicable ESC.                                 increase the percent of samples receiving congener analysis, e.g., for ecological
                                                                                                                   risk assessments at known PCB sites or where source attribution is needed.
202
                                                                                                                   The committee assumes the commenter intends "property boundary," not "site
                       I think it is important to note that while an RP is required to investigate historic fill   boundary," since the latter implies the extent of contamination. The
                       per 7:26E–3.12 & 4.6, they are not required by the tech regs to delineate,                  NJDEP/Stakeholder Historic Fill and Diffuse Anthropogenic Pollutants Technical
      80   6   4   8
                       remediate, or otherwise address historic fill (either the fill itself or groundwater        Guidance provides details for the investigation of historic fill during the PA/SI/RI,
                       impacted by the fill) beyond the site boundary .                                            including guidance on investigation boundaries; this information is not repeated
203                                                                                                                herein. Text not modified.
                       Historic fill is prevalent at many sites. Ecological investigations of historic fill
                       sites will be onerous to facility operators and should not be required of parties           Pursuant to N.J.A.C. 7:26-3.12, historic fill must be investigated, and pursuant to
                       who were not responsible for the placement of fill at their sites. As it stands,            N.J.A.C. 7:26E-3.11, the site must be evaluated for the co-occurrence of
                       historic fill is required to be addressed as part of the remediating party’s                COPECs and ESNRs. If historic fill-related COPECs are detected in ESNRS
      80   6   4   8
                       remedial approach for human health at a site. Incorporation of ecologically-                within the property boundary, the area must be addressed to ensure the
                       based remediation goals is unlikely to alter the final remedy. Accordingly, the             protection of ecological receptors; a remedial approach taken for the protection
                       time and expense associated with ecological evaluations for historic fill is                of human health may or may not be protective of ecological receptors.
204                    unwarranted.
                       last paragraph note that recently an additional study was published in ET&C
                       detailing another study that addresses interlaboratory variation, somewhat
      81   6   4   9
                       refuting the first and also authored by Hammerschmidt. Please review and
205                    incorporate http://onlinelibrary.wiley.com/doi/10.1002/etc.506/abstract
                       Brumbaugh et al (2011) published a follow-up article to the Hammerschmidt and               The section has been updated to include this reference. It is the committee's
                       Burton (2010) article cited in this section. Brumbaugh et al (2011) evaluated               position that, while the AVS/SEM metric may be useful for interpreting sediment
                       interlaboratory variation of SEM-AVS results when performed within "structured              toxicity test results, remedial decisions that allow sediments with elevated
                       analytical guidelines," and concluded that AVS and thus SEM-AVS,                            metals to remain in place based on this test is not advisable, since flood events,
                       measurements can be reproducible among laboratories, when they are                          excavation, etc., can cause sediment disturbance and volatile sulfide oxidation,
      82   6   4   9
                       provided with specific guidance for conducting sample preparation, analysis and             potentially resulting in the release of a “slug” of metals to the environment.
                       quality control measures, indicating that the method itself, and the USEPA
                       screening procedures, are not inherently irreproducible. Therefore, AVS-SEM
                       should still be considered as a key line of evidence with appropriate sample
                       preparation, analysis and quality control procedures.
206
                       3rd para, 9th line. Box should be replaced by Figure in the text and also in the
      82   7   0       Figure. There is also a reference to Box 4-2. Its location in the document is not           Text modified.
207                    clear.
                                                                                                                   The exclusion of remedial goal determination for surface water is not an
                        Surface water is not included as a medium in the development of remediation                omission. It is the sources of surface water contamination, not surface water
                       goals. Is this an omission? If not, clarify whether the target remediation goals for        itself, that are remediated. Many contaminants have NJSWQS, which are
      82   7   0
                       soil and sediment achieve SWQS or other site-specific surface water                         promulgated standards and, if exceedences are site related, the LSRP is
                       remediation goals.                                                                          responsible to ensure the standards are achieved via remediation of
208                                                                                                                groundwater, sediment, or soil, as appropriate.
                       Suggested text addition: "However, as noted above in Section 5, ESCs may                    The use of ESC as remediation goals are addressed in sections 3 and 6.4.4.
      84   7   0       be adopted as surrogate ecological risk-based remediation goals, where                      The purpose of this section is to provide guidance on the development of
                       appropriate."                                                                               remediation goals based on site-specific risk. Text not modified.
209
                       1st para, 9th line. Refers to Box 7-2 in the text and also in the Figure. Box
      83   7   1                                                                                                   Text modified.
210                    should be replaced by Figure.
                       2nd para, 7th line. Refers to Box 7-3 in the text and also in the Figure. Box
      84   7   2   1                                                                                               Text modified.
211                    should be replaced by Figure.
                       It is not clear why the first sentence makes reference to "existing" policies of the
      86   9   0                                                                                                   Agreed. This phrase has been removed.
212                    NJDEP. Is this to infer that policies will be changing?
                    It is unclear how the requirement for review and approval of cleanup based on
                    Risk Management Decisions (RMD), which essentially incorporate a cost-benefit
                    analysis, coincides with the privatized LSRP paradigm. A cost-benefit analysis
                    should be performed as part of the feasibility study prior to selection and                RMDs may be needed when site-specific remediation goals cannot be met,
                    implementation of a final remedy to address site contamination. There should               such as if technically impracticable. Pursuant to N.J.S.A. 58:10B-12 and
      86   9    0
                    be clear performance standards that the LSRP is obligated to meet, and                     N.J.A.C. 7:26E-4.7(b), ecological risk based remediation goals or RMDs require
                    compliance with such standards could be evaluated as part of audits performed              NJDEP review and concurrence.
                    by the NJDEP. It is inconsistent with the Act and the regulations that NJDEP is
                    required to review and approve clean-ups for ecological receptors when they
                    are not required to for clean-ups that don't involve ecological receptors.
213
                    with respect to decision making, the issue of natural resource injury duration
                    and the damages that may accrue must also be a consideration for a                         This document does not, and is not intended to, address natural resource injury
      86   9    0
                    responsible party. example: the cost of leaving a persistent injury in a wetland           or damages.
214                 vs. remediation and reestablishment of a wetland
                    See Comment #22. The various types of ESNRs are listed in N.J.A.C. 7:1E-
                    1.8(a), and also include sites in the Pinelands and groundwater. At upland
                    locations (and potentially wetlands), the statements in this section would be
                    valid when the site-specific ecological risk-based remediation goals or RMD
                    result in COPEC concentrations that are less than the Residential Soil
                    Remediation Standards (further assuming that groundwater has not been
                                                                                                               Text in 9.1 has been clarified to provide better text structure and examples of
                    impacted). However, this may not be the case for all RMDs. In addition, it is
      87   9    1                                                                                              when deed notices may not be required, however, the LSRP should determine
                    stated that "Human exposure to media in ESNRs is generally limited" - this may
                                                                                                               the need for a deed notice on a site-specific basis.
                    or may not be true, depending on the media involved and site-specific
                    conditions. Depending on the type and location of an ESNR, the COPECs, and
                    potential COPEC migration pathways, the use of a deed notice and (especially)
                    engineering controls may be appropriate. It may be useful to develop a table
                    which, for each type of ESNR, general guidance is provided that identifies when
                    a deed notice and/or engineering controls are typically required.
215
                    Consider adding a note about Ecological DERs required for mitigation areas
      88   9    1   pursuant to LURP permit rules that often apply to remediation activities                   Agreed. A reference to N.J.A.C. 7:7A-15.14 has been added.
216                 completed in wetlands and riparian areas.
                    QA/QC should include a data management plan that details the storage,
                    access, processing, and interpretation of the data gathered in the course of the           Data management is outside of the scope of this guidance document. The
                    ERA. The absence of a process to control such data handling results in many                LSRP is responsible for ensuring accuracy and usability of data and reports
                    errors of transcription, calculation, and interpretation once the data have been           free of errors of transcription, calculation, and interpretation. As stated in this
      89   10   0
                    validated upon submission by the analyzing laboratory. Reports of the data are             section, the primary guidance on general QA/QA measures, QAPP preparation,
                    frequently incorrect due to a lack of a QA process to ensure that the report               DQO determination, data validation protocol, and data usability assessments is
                    accurately reflects the data and that all the data calculations (including                 the NJDEP/Stakeholder Quality Assurance/Quality Control Technical Guidance.
217                 modeling) are correct.
                    All analytical procedures must be conducted by a laboratory certified by the
                    Department to conduct that procedure pursuant to the Regulations Governing                 Comment noted. Laboratory certification requirements are promulgated in
      89   10   0
                    the Certification of Laboratories and Environmental Measurements (N.J.A.C.                 N.J.A.C. 7:18 and incorporated into N.J.A.C. 7:26E-2.
                    7:18) or the National Environmental Laboratory Accreditation Program (NELAP).
218
                                                                                                               Electronic data submission (EDS) is outside of the scope of this guidance
                    QA/QC of Electronic data submissions (EDS) is a serious legacy and on-going
                                                                                                               document. The LSRP is responsible for ensuring accuracy of electronic data.
                    problem for the NJDEP and LSRPs. It makes little sense to spend so much on
                                                                                                               As stated in this section, the primary guidance on general QA/QA measures,
      91   10   0   QA/QC and prepare/submit poor quality EDS. Therefore a note about QA/QC
                                                                                                               QAPP preparation, DQO determination, data validation protocol, and data
                    and EDS should be included to complete the QA/QC discussion, especially in
                                                                                                               usability assessments is the NJDEP/Stakeholder Quality Assurance/Quality
                    light of the EDS requirements of the TRSR.
219                                                                                                            Control Technical Guidance .
                                                                                                               Third party data validation is not required via N.J.A.C.7:26E regulations. The
                                                                                                               LSRP is responsible for ensuring accuracy and usability of all data reported to
                    Data validation is a term of art that carries connotation; Add a note to confirm
                                                                                                               NJDEP. As stated in this section, the primary guidance on general QA/QA
      91   10   0   that it is not the intent of this guidance to require full third party validation of all
                                                                                                               measures, QAPP preparation, DQO determination, data validation protocol, and
                    chemical data; which is not required per the TRSR.
                                                                                                               data usability assessments is the NJDEP/Stakeholder Quality
220                                                                                                            Assurance/Quality Control Technical Guidance.
                                                                                                                                  The original habitat forms can be found in the Rapid Bioassessment Protocol
                Appendi                    Habitat survey forms, letters are not legible. In the print version of the table,      Guidance Document (USEPA 1999b). The investigator is referred to that
       103
                  xA                       size of the fonts are very small.                                                      document for more legible copies. More legible copies have been added to the
221                                                                                                                               document.
                Appendi                    Clarify if this is for sediment only, or if soils included; saturated or unsaturated   Appendix F pertains to sediments only; the title and introductory paragraph of
       123
                  xF                       regime? Also, add ground water monitoring wells, temporary wells.                      Appendix F has been clarified.
222
                Appendi        1st para,   Refers to Table 1 but Table 3.3.6-1 is provided on Page 130. Table numbers
       130                                                                                                                        Text modified.
223               xI            4th line   need to be consistent.
                Appendi        1st para,   Refers to Box 1 but Box 3.3.6-1 is shown on Page 131. Box should be replaced
       131                                                                                                                        Text modified.
224               xI            5th line   by Figure. The numbers should be consistent.
                                                                                                                                  As per Appendix I, in the ecological evaluation (EE), the TEQ approach may be
                                                                                                                                  used to initially characterize, screen, and present data and to help prioritize
                                                                                                                                  areas of concern by applying TEFs to abiotic media (soil, sediment, surface
                                                                                                                                  water). This approach is used by USEPA Region II BTAG and this guidance is
                                           The application of the TEQ process (application of TEFs to abiotic media, and
                                                                                                                                  consistent with Van den Berg, 1998 (p. 776): "TEQ values can be used as
                                           use of mammalian TEFs in lieu of available fish/avian TEFs) is inconsistent with
                                                                                                                                  relative measures between abiotic samples, e.g., sediment and soil, to prioritize
       131       App I                     recent USEPA guidance (USEPA. 2008. Framework for Application of the
                                                                                                                                  remedial actions." When conducting an ERA, abiotic matrix concentrations
                                           Toxicit Equivalence Methodology for Polychlorinated Dioxins, Furans and
                                                                                                                                  (untransformed by TEFs) of dioxin-like compounds will be linked to appropriate
                                           Biphenyls in Ecological Risk Assessment. EPA 100/R-08/004 June 2008. )
                                                                                                                                  biological foodchains, receptors, exposures and measurement / assessment
                                                                                                                                  endpoints in order to demonstrate TEQ risk at the biological receptor level. The
                                                                                                                                  document has been revised to use avian TEFs consistent with USFWS/NJFO
                                                                                                                                  recommendations.
225
                                                                                                                                  Section 5.3 states "The surface water, sediment, or soil sampling plan must be
                                                                                                                                  a component of the SI or RI Work Plan, and must be prepared pursuant to
                                           Throughout the sections concerning the investigations there are many
                                                                                                                                  N.J.A.C. 7:26E and the NJDEP Field Sampling Procedures Manual (FSPM)
                                           paragraphs concerning sampling, sampling plans etc. showing "how to do it.
                                                                                                                                  (NJDEP, August 2005 or most recent version at
                                           Recommend that the Field Sampling Procedures Manual be referenced in
        ??        ??      ??      ??                                                                                              http://www.nj.gov/dep/srp/guidance/fspm/). Site-specific details regarding the
                                           these areas and where the protocol is DIFFERENT from the manual, then a
                                                                                                                                  study objectives, data quality objectives (DQO), sampling methodology,
                                           narrative discussion be provided. The guidance for sampling needs to be
                                                                                                                                  location, and depth of samples must be specified, as well as field and laboratory
                                           consistent unless unique.
                                                                                                                                  quality assurance and quality control (QA/QC) procedures (N.J.A.C. 7:26E). "
226                                                                                                                               Text not modified.
                                                                                                                                  This is two-part comment. (1) The purpose of contaminant screening in the EE
                                           General. The document should provide an explicit process for determining               is to apply conservative ESC to all contaminants present at the site, such that
                                           COPECs at a site. Currently, the guidance recommends screening analytical              total site risk is initially characterize and a conclusion for negligible ecological
                                           results against ESCs and, later in the process, evaluating site data with respect      risk and no further action could be supported if appropriate. Culling of
                                           to background or reference data. (See comment on Section 5.2.2, below). We             contaminants for any reason, including comparison with background
                                           would recommend that comparison to background/reference be performed as                contaminant levels, should be conducted as a refinement step, after the EE to
      General     3
                                           part of the COPEC selection process such that the EE and, potentially, ERA,            help focus the ERA; the investigator is responsible to determine the additive
                                           focus only on site-related chemicals and risk. Further, as described in more           contribution of contaminants from the site above background levels.
                                           detail below, the guidance should provide size dependent/de minimis exclusions         Consideration of background assumes that background contaminant levels
                                           for evaluation. These additional considerations should be added to the flow            have been properly determined. (2) Because of their nature, size dependent or
                                           diagram of the EE/ERA process (Figure 3-1).                                            de minimis exclusions should be made on a case by case basis by the
227                                                                                                                               investigator.
      General     NA      NA     NA        General: Overall a very good, helpful and necessary guidance document.                 comment noted - Thank you.
228
                                                                                                                                  243 Comments were received in the proper Excel format as required by the
                                           General: Comments are included in the original document with tracked changes
                                                                                                                                  LSRPA and NJDEP. These comments were all considered and changes made
                                           as an attachment to this Comment Form; the more significant holistic comments
      General     NA      NA     NA                                                                                               to the document as appropriate. Given the chaotic nature of reviewing this
                                           are listed in this form and suggested textual changes are included in the
                                                                                                                                  many comments in track changes format is not reasonable, comments made in
                                           attached draft document.
229                                                                                                                               track changes were not considered for review.
                                           One primary goal of the TRSR revisions is to move “how-to” details into
                                           guidance and keep enforceable requirements in regulation, in part to allow for         The use of "must" and "should" has been reviewed by the Deputy Attorney
                                           LSRP best professional judgment and flexibility. The use of the term “must” so         General and changes were made to the text as appropriate. Whenever an
                                           frequently and for items that are clearly guidance, subjective, not always             action is required by statute or regulation, the term "must" is used and the
      General     NA      NA     NA        appropriate and not regulatory requirements, may contradict the NJDEP's                proper citation is made. Whenever an action is not required directly by statute
                                           overall intent of guidance. Consider revising the word "must" to "should"              or regulation, the term "should" is used, even if scientific process necessitates
                                           throughout the document where appropriate to be consistent with regulations            the action. The investigator is required to be qualified, thus the language is
                                           and allow for BPJ. Noted changes and comments are addressed in draft edits             appropriate as written.
230                                        (attached).
                                                                                                                     In accordance with N.J.S.A. 58:10B-12, NJDEP is required to follow USEPA
                                                                                                                     guidance. The use of USEPA’s Ecological Risk Assessment Guidance for
                               Consider adding a disclaimer statement that USEPA guidance is referenced but
                                                                                                                     Superfund, Process for Designing and Conducting Ecological Risk
                               not adopted by reference and is not intended to be required fully for all sites.
                                                                                                                     Assessments, EPA 540-R-97-006, Office of Solid Waste and Emergency
      General   NA   NA   NA   Most of the USEPA guidance is developed for addressing sites on the NPL,
                                                                                                                     Response, Washington, DC (ERAGS - USEPA, 1997a) is not a stipulation that
                               which are generally more complex than many of the sites that will be subject to
                                                                                                                     a complex ERA is warranted for every site, instead the intent is to suggest an
                               New Jersey’s SRP requirements.
                                                                                                                     iterative process from a basic screening level approach (EE) to a full ERA if
231                                                                                                                  needed.
                               Consider adding a section on updates to the EE that addresses past EE                 The current ESCs are purposefully conservative to minimize chances of
                               determinations relative to changes to ESCs; perhaps options for an order of           concluding that there is not risk if in fact there is risk. The ESC table is updated
                               magnitude analysis and/or determination by the LSRP that existing conditions          continuously as new criteria become available. At this time, the committee
      General   NA   NA   NA
                               assuming prior concentrations remain protective of human health and the               believes it is generally not necessary to reopen an EE if the ESC change after
                               environment (consistent with the current OMA in the TRSR) would be                    the issuance of a NFA or RAO, unless previously unknown site information
232                            appropriate for EEs that have received an NFA or RAO.                                 becomes available.
                               Consider adding some discussion of existing data and legacy data, including
                                                                                                                     The LSRP has the responsibility to certify everything that is included in any
                               past NJDEP approved data, quality issues, limitations (no MDLs) and data from
                                                                                                                     report submitted, therefore, use of old data or anything that was 'outside of their
      General   NA   NA   NA   SRP site files should be acceptable if available for evaluating off-site
                                                                                                                     control' should be approached with caution. The LSRP is responsible for
                               contribution. LSRPs are faced with these issues often and inclusion of this topic
                                                                                                                     ensuring accuracy and usability of all data reported to NJDEP.
233                            as guidance is warranted.
                               A well written document following USEPA principles. Allows flexibility and
      General                  presents practicality and demonstrates understanding of the ERA process with          comment noted - Thank you.
234                            realities and pitfalls.
                               Good use of the screening process, shows a real pragmatic thought process
      General                                                                                                        comment noted - Thank you.
235                            and understanding of reality.
                                                                                                                     In accordance with N.J.S.A. 58:10B-12, NJDEP is required to follow USEPA
                                                                                                                     guidance. The use of USEPA’s Ecological Risk Assessment Guidance for
                                                                                                                     Superfund, Process for Designing and Conducting Ecological Risk
                                                                                                                     Assessments, EPA 540-R-97-006, Office of Solid Waste and Emergency
                               Would recommend a discussion of the reality of embarking past the screening
                                                                                                                     Response, Washington, DC (ERAGS - USEPA, 1997a) is not a stipulation that
                               phase in the 8 step ERA process for small sites. Retail sites are a probable
                                                                                                                     a complex ERA is warranted for every site, instead the intent is to suggest an
      General                  area for invoking ERA. It makes no sense to go into 8 step ERA process with
                                                                                                                     iterative process from a basic screening level approach (EE) to a full ERA if
                               costly field program is a remediation strategy can be invoked over the study to
                                                                                                                     needed. As per Section 3 and Figure 3-1, evaluation beyond the EE
                               alleviate a need for detailed assessment.
                                                                                                                     (screening) phase would not be required for sites where low/no potential for
                                                                                                                     ecological risk exists or where remediation to background or the ESC is
                                                                                                                     selected. The EE/ERA is an interactive process and the investigator is
236                                                                                                                  responsible to determine whether a full ERA is needed. Text not modified.
                               Recommend a site assessment example listing a map, receptors, COPECS,
                               conceptual site model, etc. This would provide examples of what could be done
      General                                                                                                        This request is outside of the realm of this guidance document.
                               on the BEE part of this a 1st level. The detailed ERA is later and more
237                            complicated
                               Provide a mechanism and general procedure to develop an Ecological
                                                                                                                     Guidance for developing ESC is found in several publications. Use of these
      General                  Screening Criteria for a COPEC (like we did for toluene, ethylbenzene and
                                                                                                                     procedures is the LSRP's decision based on best professional judgment.
238                            xylene).
                               It would be helpful to provide online links to the various citations, EPA
      General                                                                                                        Where available, links to documents are provided in the reference sections.
239                            references, etc. in the main body of the document.
                               Global comment: the guidance is generally well crafted and very
                               comprehensive. However, it is replete with admonitions - the investigator
                               "must" or is "required" to do this or that (there are at least 29 "musts" in the EE
                                                                                                                     The use of "must" and "should" has been reviewed by the Deputy Attorney
                               Section alone, with 11 on page 31) - which are inconsistent with the intent of
      General                                                                                                        General and changes were made to the text as appropriate. Whenever an
                               SRRA and the LSRP program concept of empowering the LSRP to draw from
                                                                                                                     action is required by statute or regulation, the term "must" is used and the
                               appropriate, relevant guidance as he/she sees fit based on professional
                                                                                                                     proper citation is made. Whenever an action is not required directly by statute
                               judgment, not because a guidance document insists he/she "must" do any
                                                                                                                     or regulation, the term "should" is used, even if scientific process necessitates
240                            particular thing.
                                                                                                                     the action. The investigator is required to be qualified, thus the language is
                               The word "should" is not defined in the document. "Should" is a suggested way         appropriate as written.
      General                  to go about something, and is not a requirement. Language in the document,
                               such as "must", needs to be removed, since this is a guidance document.
241
                               Document is titled "Ecological Evaluation Guidance", but the document also
       Title
                               focuses on the ERM and ecological risk-based remediation goals. The title
       Page
                               should be changed or the content should be limited to the ecological evaluation.      The term "Ecological Evaluation" in this context encompasses both the EE and
242
                                                                                                                     ERA.
                                                                                           The term "Ecological Evaluation" in this context encompasses both the EE and
                                                                                           ERA.
              For accuracy and completeness, the title should include "Ecologic Risk
      Title
              Assessment" after "Ecological Evaluation" and before "Guidance", since the
      Page
243           ERA Section makes up roughly 2/3rds of the document

								
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