LSRP Program Update: Proposed Regulations of the LSRP Licensing Board Issued by the NJDEP

Environmental Law Alert

February 20, 2015

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In January 2015, the New Jersey Department of Environmental Protection (NJDEP) published the New Jersey Site Remediation Professional Licensing Board’s (Board) proposed regulations. Written comments to the proposed regulations are due by March 6, 2015.

The proposed regulations (i) codify some existing requirements of the Licensed Site Remediation Professional’s (LSRP) Code of Conduct, (ii) set forth the administrative procedures for LSRP audits and processing of complaints against LSRPs, and (iii) address the responsibilities of successor LSRPs with respect to their predecessor’s work and determinations. To date, LSRPs have been guided by the Site Remediation and Reform Act, N.J.S.A. 58:10C-1 et seq. (SRRA), its regulations - the Technical Requirements for Site Remediation, N.J.A.C. 7:26E-1 et seq., and the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C-1 et seq., and the LSRP Code of Conduct. The proposed regulations enhance the existing framework and outline the LSRP licensing process, eligibility requirements, professional responsibilities, and potential penalties for noncompliance with SRRA and other NJDEP regulations.

Professional Responsibility. The proposed regulations seek to emphasize that the LSRP’s primary mission is to protect public health, safety, and the environment. In pursuit of this goal, the proposed regulations contain some provisions that could cause unease among LSRPs and their clients. For example, proposed rule N.J.A.C. 7:26I-6.11 provides that if a LSRP learns that a client has decided to deviate from the remedial action workplan, the LSRP is obligated to inform the NJDEP and the client in writing. This provision highlights the LSRP’s dual role, balanced between its obligations to the NJDEP and to its client, the person responsible for conducting the remediation. Another potentially problematic provision is proposed N.J.A.C. 7:26I-6.7, which provides that a successor LSRP will have to undertake great diligence, potentially at the expense of its client, to rely on any work completed by another site remediation professional.

LSRP Oversight. The proposed regulations indicate an intention by NJDEP to keep a watchful eye on the LSRP program. Proposed rule N.J.A.C. 7:26I-5.3 outlines the audit process which will be used by the NJDEP to comply with the 10% audit requirement found in N.J.S.A. 58:10C-24. The proposed rule provides that a determination by the Audit Committee that further investigation is required will initiate review by the complaint review team, which could result in disciplinary action pursuant to proposed N.J.A.C. 7:26I-7. In addition to the audits, proposed rule 7:26I-7.3 articulates a process for the submission and evaluation of formal complaints from “any person.”

LSRP Reporting Obligations. The proposed regulations require that if an LSRP obtains “specific knowledge” that a previously unreported discharge occurred on a contaminated site for which he or she is responsible, the LSRP shall notify the responsible person, the NJDEP, and any other LSRP that is working on the site. The rule does not make a distinction between a LSRP of record and a LSRP working for the responsible person in another professional capacity. In fact, the regulation recasts that distinction by providing that “an LSRP is considered to be responsible for a contaminated site if he or she has been hired by a person responsible for conducting the remediation at that site.” The proposed regulation further indicates that it does not apply to a LSRP hired by a client that does not own the site, who performs a preliminary assessment or site investigation for the purpose of conducting all appropriate inquiry under the Spill Act or who has not discharged a hazardous substance at the site or is in any way responsible for a discharge of a hazardous substance at the site.

For more information about the proposed regulations or to discuss related issues concerning the LSRP program, please contact David Schneider, D.J. Camerson, Karen Murphy, Keith McManus, Katherine Riopel, or Katie Gannon.