P.L.2009, c. 60 made a number of changes to the State’s Site Remediation Program and also created a Licensed Site Remediation Professional (LSRP) program in New Jersey that is loosely modeled after a program created in Massachusetts.
For nearly three years, NJBIA and other interested parties discussed possible changes to the State’s Site Remediation Program. There were a number of recommendations that came out of those discussions, including the idea of creating a program where engineers and remediation professionals would be licensed by the State, held to a high standard of conduct, and would be allowed to take a remediation through to completion without having to go to the Department of Environmental Protection (DEP) for approvals every step of the way. That recommendation was successfully incorporated into this law.
—In a Nutshell—
The act establishes a program for the licensing of site remediation professionals (referred to as LSRP’s) and would make changes to the laws concerning the remediation of contaminated sites. A new Licensed Site Professional Board would ensure that those applying to be LSRP’s are qualified and would hold LSRP’s to a code of conduct. The Board would also audit a certain percentage of the LSRP’s as a quality assurance mechanism and discipline LSRP’s through fines and/or loss of license if necessary.
The DEP would review all documents submitted but would not perform in-depth analyses in most cases. The LSRP’s would be required to take a remediation from beginning to end, and issue what is now referred to as a Response Action Outcome (RAO) when the remediation is complete. The DEP has the authority to audit the RAO up to three years after its issuance.
The “No Further Action” (NFA) letter currently provided by the department when a remediation is deemed complete will be replaced by the aforementioned RAO, and the equivalency is specified in the law.
The DEP will establish timeframes for the various steps of a remediation. The responsible party (RP) must meet those timeframes or they could be put in the direct oversight category by the DEP. However, any delays caused by the department (DEP) reviewing or granting a permit, or delays in State funding for the remediation, will trigger mandatory extensions. Furthermore, the DEP may grant an extension if there is a delay in accessing the property for circumstances beyond the control of the RP such as fire, fold or strike, or other site-specific circumstances that arise. The law allows the DEP to take direct oversight of a remediation in certain circumstances. Direct oversight means that the State could select the remedy, establish site-specific mandatory timeframes, and act as an intermediary between the LSRP and the RP. In doing so, any compensation paid to the LSRP by the RP would be sent to the DEP first, and the DEP would pay the LSRP.
The DEP will establish presumptive remedies to be used on sites for residential purposes, child care facilities, or schools. The presumptive remedies can include engineering and institutional controls if the site is on historic fill. However, there is some flexibility in certain instances. Also, the construction of single family homes, schools, and child care facilities on landfills where engineering controls are required for the management of landfill gas or leachate are prohibited. Finally, the DEP will create a permit that follows the site. This is an attempt to prevent another Kiddie Kollege incident, where an old thermometer factory was converted into a daycare center and the children were exposed to mercury. It is an added safeguard that will be attached to the site.
Executive Order (EO) – On the same day he signed the bill into law, Governor Corzine issued an Executive Order in an attempt to ensure that there was adequate accountability, disclosure and transparency. The EO requires the DEP to: increase the level of auditing and review of LSRP submissions at certain sites; establish guidelines for direct oversight (within 60 days); provide annual status reports to the Governor and the Legislature; create a Web site where all submissions of documents can be displayed; issue technical assistance grants to community environmental groups to evaluate the work and remediation methods of LSRP’s; and appoint to the LSRP Board one member that is a hydrologist and one member that has expertise in public health.
Some of the requirements in the Executive Order are vague and discretion is given to the DEP to meet those requirements.
—Timeframes and Deadlines—
There are a number of timeframes and deadlines in the act. Updates are provided by the DEP on their
—Key Timeframes for Property Owners—
Any person who initiates a remediation at least 180 days after May 7, 2009, must hire an LSRP. If you initiated a remediation prior to May 7, 2009, you have three years to hire an LSRP. No later than May 7, 2012, any person conducting a remediation must hire an LSRP.
Finally, existing cases that are older than 10 years (those that pre-date May 7, 1999) must complete a Remedial Investigation for the entire site by May 7, 2014. If that timeframe isn’t met, the site can be put under direct DEP oversight. An extension was made available to sites that applied by March 7, 2014 for an additional two years.
—Key Timeframes for the DEP and for the LSRP Board—
- Under the Executive Order, the DEP is required to develop guidelines governing circumstances when it is authorized to undertake direct oversight of a remediation of a contaminated site.
- The State needs to establish a Licensed Site Professional Board, and within 18 months the Board must adopt rules (through the Administrative Procedures Act) to cover the implementation, administration and enforcement of the act. This would include: criteria for LSRP license; standards of the code of conduct; procedures for investigation of complaints concerning LSRP’s; establishment of nonmonetary penalties to be imposed on LSRP’s if necessary; that the response action outcome is consistent with current law, rules and regulations; and the overall enforcement.
- Within that same period, the DEP must adopt rules covering the submission and evaluation of plans and/or results of the various stages of a remediation, as well as the implementation of those steps.
- As soon as the Board creates the content for an exam, all potential LSRP’s will be required to take the exam.
- Effective May 7, 2012, the DEP will issue permanent licenses and revoke temporary licenses.
—Become an LSRP—
The Site Remediation Professional License is the state license conferred upon site remediation professionals that have demonstrated education and experience sufficient to qualify them to independently conduct site remediations and issue response action outcomes in compliance with applicable New Jersey statutes and regulations.
To qualify for a license each applicant must demonstrate to the Board that he or she:
- Holds a bachelor’s degree or higher in natural, chemical or physical science or an engineering degree in a discipline related to site remediation, from an accredited institution of higher education;
- Has at least eight years of full-time professional experience in the field of site remediation, of which at least five years shall have occurred in New Jersey and at least three years shall have occurred in New Jersey immediately prior to submission of the application;
- Has a minimum of 5,000 hours of relevant professional experience within New Jersey over the five years immediately prior to submission of the application that is of a professional grade and character that indicates the applicant is competent to issue a response action outcome;
- Has completed the minimum environmental health and safety education and training, provided pursuant to 29 C.F.R. Section 1910.120, no more than one year prior to submission of the application;
- Has completed a Department-approved course on the State’s rules and regulations concerning the technical requirements for site remediation no more than three years prior to submission of the application;
- Has not been convicted of, or plead guilty to, an environmental crime, any similar or relatedcriminal offense under federal or state law, or any crime involving fraud, theft by deception,forgery or any similar or related offense under federal or state law; and
- Has not had a professional license revoked by any state licensing board or any other professionallicensing agency within the previous 10 years.
—Application for the LSRP license—
To become a New Jersey Licensed Site Remediation Professional (“LSRP”), an individual must submit an application that demonstrates that he or she meets all of the eligibility requirements. Persons interested in applying to become a Licensed Site Remediation Professional (LSRP) may obtain the State of New Jersey Licensed Site Remediation Professional Licensure Application Form and the State of New Jersey Licensed Site Remediation Professional Licensure Application Form Instructions from the Site Remediation Professional Licensing Board website at Application Form and Instructions.
—Letters of Reference—
Applicants are required to have three letters of reference submitted on their behalf. The letters of reference must be from three persons with personal knowledge of the applicant’s training, experience and professional conduct, including at least one LSRP, at least one current or past employer of the applicant from any state, and a third person of the applicant’s choosing. The letters of reference must be submitted on the Letter of Reference form.
An individual whose application is approved by the Board must then take and obtain a passing score on the LSRP examination. The Board is currently administering the LSRP examination once per year. When the Board approves an application, the Board will notify the applicant that he or she is a candidate for the LSRP examination. The notification will include information concerning registration for the next scheduled LSRP examination.
The law establishes a Site Remediation Professional Licensing Board that would oversee the licensing, continuing education, and professional conduct of site remediation professionals. The Board would consist of 13 members: the Commissioner of Environmental Protection; the State geologist; six licensed site remediation professionals; three members of Statewide environmental organizations, one of whom would be a licensed site remediation professional; one member of the business community; and one member of the academic community.
There are standards for the education, training and experience to be required of a licensed site remediation professional, and the law requires the Board to develop license requirements and procedures, examinations and continuing education requirements. Until the Board is established, the DEP will issue temporary licenses. The act establishes standards for the professional conduct of licensed site remediation professionals and provisions for license suspension or revocation. Further, the act provides for penalties for violations.
For more information visit the Boards website at: www.nj.gov/lsrpboard.
—Categories of Sites—
The DEP is required to develop a ranking system for sites. There are basically three generic categories: 1) those sites that would fall under direct oversight of the DEP; 2) sites where an LSRP could take the site through the remediation process without having to get DEP approval each step of the way; and 3) underground storage tank sites.
The law requires the DEP to undertake direct oversight of a remediation when:
- the person responsible for conducting the remediation has a history of noncompliance that includes at least two enforcement actions after May 7, 2009, during any five-year period concerning a remediation;
- the person has failed to meet a mandatory timeframe or an expedited site-specific timeframe; or
- the person, prior to May 7, 2009, has failed to complete the remedial investigation of the entire contaminated site 10 years after the discovery of a discharge at the site and has failed to complete the remedial investigation of the entire contaminated site within five years after the date of enactment.
- The law authorizes the DEP to undertake direct oversight of a remediation when:
- the contamination at the site includes chromate chemical production waste;
- the department (DEP) determines that more than one environmentally sensitive natural resourcehas been damaged by contamination from the site;
- the site has contributed to sediments contaminated by polychlorinated biphenyl, mercury, arsenic, or dioxin in a surface water body; or
- the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed by the department.
For any site subject to direct oversight by the department, the law would require that:
- the department review each document submitted by a LSRP and approve or deny the submission;
- a feasibility study be performed and submitted to the department for approval;
- the department select the remedial action for the site;
- the person responsible for conducting the remediation establish a remediation trust fund in the amount of the estimated cost of the remediation;
- all disbursements of funds from the remediation trust fund receive prior approval by the department;
- all submissions prepared by the LSRP concerning the remediation be provided simultaneously to the department and the person responsible for conducting the remediation: and
- the person responsible for conducting the remediation implement a public participation plan approved by the department to solicit public comment from members of the surrounding community concerning the remediation of the site.
Question: Where can I find information on the LSRP program on the DEP Website?
Answer: Information is updated regularly by the DEP and can be found at http://www.nj.gov/dep/srp/. On this site, you will find timeline information and an updated presentation given by the department.
Question: I am a property owner and I initiated my remediation before May 7, 2009. Do I need to hire a LSRP?
Answer: If you initiated your remediation prior to May 7, 2009, you have three years from May 7, 2009, to hire a LSRP. However, any property owner who initiates a remediation after November 3, 2009 must hire a LSRP from the beginning.
Question: Who will issue covenants not to sue now that the LSRP issues the RAO?
Answer: Recipients of an RAO would be deemed, by operation of law, to have received a covenant not to sue. The department will no longer issue a covenant not to sue after the issuance of licenses to site remediation professionals.
—For More Information—
If you need additional information, please contact Sara Bluhm at 609-393-7707, ext. 9514 or via e-mail at firstname.lastname@example.org.
Updated: September 26, 2017
This information should not be construed as constituting specific legal advice. It is intended to provide general information about this subject and general compliance strategies. For specific legal advice, NJBIA strongly recommends members consult with their attorney.