What is Technical Impracticability for Site Remediation?
Speaker:
Jorge Berkowitz, Ph.D., LSRP, Private Consultant with over 40 years of environmental consulting experience.
Moderator:
Phil Brilliant, CHMM, LSRP- founder of Brilliant Environmental Services, LLC. Phil is a Board Member/LSRP of the NJ Site Remediation Professional Licensing Board.
When “Clean Up” Hits the Wall: What LSRPs Need To Know About Technical Impracticability (TI)
“TI is never Plan A—only the last, data-driven option when every other remedial door has slammed shut.”
— Dr. Jorge Berkowitz, Ph.D., LSRP
On our latest CPES Hot-Topic webinar, two of New Jersey’s most seasoned Licensed Site Remediation Professionals—Dr. Jorge Berkowitz and Phil Brilliant—unpacked one of the least understood (and rarely approved) tools in the Site Remediation toolbox: Technical Impracticability (TI) determinations for groundwater cleanups.
Below is a field-ready recap for consultants, LSRPs, attorneys, and responsible parties who may be wondering when—if ever—TI makes sense, what the New Jersey Department of Environmental Protection (NJDEP) expects, and why the upfront price tag is only the beginning of the commitment.
1. TI: A Definition—and a Warning
- What it is: A TI determination allows contamination that exceeds NJDEP standards to remain in place only when the remediator proves that no currently available technology can achieve the standard and that continued cleanup would be futile or cause unacceptable collateral damage.
- What it is not: A shortcut to closure. TI requires a remedial action permit (RAP), engineering/ institutional controls, biennial certifications, five-year technology reviews, and potentially decades of monitoring.
“You’re asking NJDEP to let you walk away from the numeric standard. They’ll demand rock-solid evidence—and they hold the veto pen.”
—Phil Brilliant, CHMM, LSRP
2. Why So Few TI Approvals?
The NJDEP TI guidance hasn’t been updated since 2013—a clue to its infrequent use. Dr. Berkowitz offered three realities that keep most teams from pursuing TI:
- Regulatory Time Frames Don’t Stop – Mandatory and regulatory clocks keep ticking while a TI petition winds through review.
- High Burden of Proof – NJDEP wants to see failed remedies, exhaustive pilot tests, and clear demonstration that receptors are (and will remain) protected.
- Cost & Complexity – Multiple lines of evidence, sophisticated modeling, and repeat technical consultations quickly outpace the price of many active remedies.
3. Core Elements of a Persuasive TI Case
| Element | What NJDEP Looks For | Practical Tips |
|---|---|---|
| Multiple Lines of Evidence | Geology, hydrogeology, contaminant chemistry, degradation potential, cost models | Build your argument on data, not narratives. EPA’s RPO & NJDEP cost tools are your friends. |
| Conceptual Site Model (CSM) | Visual synthesis of plume behavior, sources, pathways, and receptors | A clear CSM shortens NJDEP review and frames your case for “technical futility.” |
| Containment & Monitoring Plan | Engineering controls, sentinel wells, O&M, contingency triggers | Biennial certifications must prove the plume isn’t expanding or exposing new receptors. |
| Five-Year Technology Review | Commitment to reassess emerging technologies | Plan—and budget—for these look-backs before you file the petition. |
| Stakeholder Communication | Municipalities, sensitive uses, public notice | Early transparency reduces community pushback when “cleanup” looks like “do nothing.” |
4. When TI Might Make Sense
- Infrastructure Barriers – Highways, rail corridors, runways, or utility corridors that preclude aggressive excavation or in-situ treatment.
- Recalcitrant Contaminants – Long-chain dioxins, dense NAPL trapped in low-K clays, or broad arsenic plumes derived from natural wetlands chemistry.
- Unacceptable Secondary Impacts – Remedy would cause greater ecological or human-health harm than leaving contamination in place (e.g., large-scale wetland destruction).
5. Key Takeaways for Practitioners
- Exhaust the Obvious First – Pump-and-treat failures, ISCO misfires, and natural attenuation studies provide the evidence TI needs.
- Engage NJDEP Early – Schedule technical consultations before you draft a formal petition; surprises kill TI requests.
- Expect Ongoing Oversight – RAP fees, financial assurance, biennial certifications, and potential re-openers are part of the TI “mortgage.”
- Update Your CSM Relentlessly – Plume migration or a new sensitive receptor can unravel an approved TI.
- Communicate Cost Realities – Clients must understand that a TI path is typically more expensive upfront and carries a longer compliance tail than many conventional remedies.
6. The Guidance Is Changing
Members of the NJDEP workgroup confirmed during the session that TI guidance is finally being revised. Expected focus areas include clearer soil-related TI language, integration with remedial action permit rules, and streamlined cost-evaluation tools. Now is the time to sharpen your TI literacy.
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