Site Remediation Reform Act: When do I Need to Hire an Licensed Site Remediation Professional?

September 21st, 2009 | Posted by: Christopher DeGrezia 0| comments:

Remediation Reform Act 2Eventually, the requirement to hire an Licensed Site Remediation Professional (LSRP) pursuant to the Site Remediation Reform Act (SRRA) will apply to virtually everyone conducting a remediation. Moreover, an LSRP cannot be a salaried employee of the person responsible for conducting remediation, so the LSRP must be someone outside the company.  The time for hiring an LSRP depends on your circumstances:

  • Do you have a “new” case where remediation was initiated after May 7, 2009?
  • Do you have an existing case where there has been NO remedial activity in more than two years?
  • Have you received a final order from NJDEP after May 7, 2009, for penalties concerning remediation or a demand for stipulated penalties under an exiting oversight document?
  • Do you have an existing case where remedial activity has been ongoing?

So that you may determine your own site remediation strategy, it is important to understand how NJDEP will approach these different circumstances and how it plans to proceed with implementation of its new remediation paradigm.

New Cases.  For new cases, compliance with SRRA and retention of an LSRP theoretically is to begin immediately.  There is a bit of a “horse before the cart” problem posed by the statute, however.  Right now, no one has been licensed as an LSRP, and the board that will license and determine the requirements for LSRPs must be populated.  For these reasons, SRRA directs NJDEP to issue temporary licenses for LSRPs.  Applications for the issuance of temporary LSRP licenses are available from NJDEP. [Footnote 1]  In addition, by November 3, 2009, NJDEP must issue Interim Rules that will define some of the substantive requirements that will guide LSRPs in their remedial decisions and activity.  These rules will be effective upon issuance for a period of 18 months without further public comment.  At that time, November 3, 2009, the LSRP program will formally commence and changes in SRRA to existing statutes such as ISRA, the Spill Act and the Brownfields Act become effective.  If you have a case where remediation was initiated after May 7, 2009, you will not be able to hire an LSRP until sometime between August 5 and November 3.  By November 3, 2009, however, you must have an LSRP on board.  In the interim, if you need to retain a consultant to work on a new ISRA case, you should be sure that the consultant will be able to transition to the role of LSRP, or you may find yourself looking for an LSRP to replace or review and approve work by your non-LSRP consultant as of November 3, 2009.

Inactive Cases.  If you have an existing case where remediation was initiated before May 7, 2009, but where there has been NO remedial activity in more than two years, NJDEP plans to treat this as a new case.  So, for example, if you signed a Memorandum of Agreement (MOA) just to perform a Remedial Investigation and completed that effort two or more years ago but did not continue with any subsequent phase of remedial work, NJDEP will consider your case to be “new” when you proceed to the next phase.  NJDEP has said that it will take into account that the work was not done because you were waiting for NJDEP approval when it reviews a case to determine whether the two years have run.

Post-SRRA Violations.  As set forth more fully below, cases where remediation was initiated prior to May 7, 2009, are not required to use an LSRP until May 7, 2012.  Likewise, there are a limited class of cases, such as certain underground storage tank remediations, where an LSRP is not required.  SRRA includes a provision, however, that enables NJDEP to require a party otherwise temporarily exempt or excluded from the LSRP requirement to retain an LSRP at NJDEP’s direction.  Those cases are limited to matters where, after May 7, 2009, NJDEP: (a) issues a final order or a penalty becomes due and payable concerning the performance of remediation; or (b) issues a demand for stipulated penalties pursuant to the provisions of an oversight document in which the person waived a right to a hearing on the penalties.  While these circumstances may arise infrequently, you should take care to avoid running afoul of existing remediation obligations because there are now implications beyond the requirement to pay a penalty. 

Existing Cases.  The class of cases where remediation was initiated prior to May 7, 2009, presents some interesting issues in the face of SRRA.  In the first instance, existing cases do not require an LSRP until May 7, 2012. At the same time, certain other provisions of SRRA, such as the need to meet mandatory remediation deadlines that will be established in the Interim Rules and thereafter, must be complied with immediately.  Click here to read more about mandatory remediation deadlines.  Likewise, the passage of time in certain cases could subject your case to direct NJDEP oversight.  Click here to read more about direct NJDEP oversight.  This phased approach of SRRA gives rise to a number of questions:

  • Can I proceed with remediation under the old methods with NJDEP review and oversight to complete my case before an LSRP is needed?
  • Should I just wait until May 7, 2012, and/or proceed at risk to implement remedial activity without an LSRP?
  • Should I hire an LSRP now and continue my remedial activity under the new program?

Anyone with an existing case will need to consider these questions and develop a remedial strategy that works best for them.

Can I proceed with remediation under the old methods with NJDEP review and oversight to complete my case before an LSRP is needed? 

Nothing in SRRA prevents NJDEP from proceeding under the old remediation paradigm during the three-year phase-in period for existing cases.  That said, practical reality will likely pose obstacles to such an approach unless your case is very near completion and you have a willing case manager.  Moreover, as discussed below, an apparent gap in the language of the statute regarding the availability of a Covenant Not to Sue (CNS) could pose another concern.

NJDEP is currently reviewing its inventory of cases to identify which will be considered priority cases under SRRA.  Generally, these will be cases with potential vapor intrusion issues or ecological impacts.  Because NJDEP’s limited resources are being so consumed by the tasks necessary to implement SRRA, case managers are not expected to be focusing their limited time on cases that do not fit into the NJDEP priority categories.  That said, NJDEP’s case review will also identify cases where a remedial action work plan (RAWP) was submitted prior to December 2, 2008 (the “grandfather” date for already-submitted RAWPs that allows utilization of the previously existing cleanup criteria rather than the currently adopted remediation standards).  NJDEP might be convinced to focus attention on cases with grandfathered RAWPs, completed RAWPs, pending remedial action reports or pending requests for No Further Action.  Cases in earlier phases of remediation likely have been pushed off the radar screen by SRRA, however.  This shift is already apparent.  NJDEP is encouraging responsible parties with existing cases to proceed “at risk” with remedial investigation work and then either to submit a remedial action work plan and implementation schedule to NJDEP for approval or preferably to hire an LSRP when those individuals become available.  Completion of even those cases in advanced stages of remediation might be doubtful under the old program unless:

  • your case manager has advised you that NJDEP will continue to provide case oversight; or
  • you can convince your case manager to provide case oversight.

One significant note of caution to keep in mind if you can convince your case manager to continue oversight to close out an existing remediation: once it issues temporary licenses to LSRPs, NJDEP is prohibited by the Legislature from issuing a CNS except as to discharges from unregulated heating oil tanks.  Any No Further Action (NFA) that NJDEP might issue will not be accompanied by a CNS, which typically provides protection against liability to parties such as a prospective purchaser, a subsequent owner or other interested party, other than the responsible party, for the conditions that were remediated.  Under SRRA, the CNS is now intended to arise by operation of law once an LSRP issues a Response Action Outcome (RAO).  Click here to read more about the new Response Action Outcome and CNS.

As written, SRRA implies that issuance of an RAO by an LSRP is a condition precedent to obtaining a CNS by operation of law.  If you complete remediation without an LSRP and receive an NFA from NJDEP after the point at which NJDEP has issued temporary LSRP licenses, and is prohibited from issuing a CNS, there is real question as to whether a CNS by operation of law will be available to you.

Should I just wait until May 7, 2012, and/or proceed at risk to implement remedial activity without an LSRP? 

Because NJDEP will have limited resources to review existing case submittals, the potential benefit of waiting to continue remedial work is that further costs will not be incurred while you wait for NJDEP’s response to a submittal.  In addition, more time may allow natural attenuation processes to take place or the development of new remediation technologies.  Of course, contamination may continue to spread during this dormant period and there is no guarantee remediation several years from now will be less expensive.

The wait-and-see approach is not without other risks as well. Regardless of when you hire an LSRP, persons conducting remediation must immediately comply with, among other provisions, mandatory remediation time frames.  Click here to read more about SRRA’s mandatory time frames here [Link to be provided soon].  Although we expect NJDEP to focus on time frames for receptor evaluations and immediate environmental concerns while phasing in schedules for other remedial activities, allowing time to pass without moving forward on remediation could put you at risk of missing a mandatory deadline.  Likewise, if you have a case that commenced more than 10 years ago and a remedial investigation (RI) is not yet complete for the site, waiting could cause you to run afoul of SRRA’s direct oversight provisions.  Click here to read more about SRRA’s direct oversight provisions.  Any case that has been under NJDEP review for more than 10 years must complete the RI for the entire site within five years (May 7, 2014).  Failure to complete the RI in five years results in mandatory direct oversight by NJDEP.  If there has been no significant progress on your case prior to May 2012, when you are required to hire an LSRP, and an LSRP can not complete the RI in the two years remaining after May 7, 2012, your case must be placed under direct oversight by NJDEP.  SRRA provides strong incentive to implement remedial activity without an LSRP or to hire one before the 2012 deadline.

Should I hire an LSRP now and continue my remedial activity under the new program? 

As noted above, NJDEP is encouraging responsible parties with existing cases to proceed “at risk” with remedial investigation work and then either to submit a remedial action work plan and implementation schedule to NJDEP for approval or preferably hire an LSRP.  Indeed, NJDEP may strongly encourage “at risk” work for cases without an LSRP. Of course, the issue with the “at-risk” work is that, historically, NJDEP always seems to find a problem with the “at-risk” work, which results in additional RI work and increased costs.  If you hire an LSRP and proceed with the work under that program, the NJDEP review will generally be limited to a checklist review (unless NJDEP audits your site, which should occur in about 20 percent of the LSRP cases), so hiring an LSRP may result in a more cost effective RI. Toward this end, NJDEP has implemented a pilot program for “early adopters” who volunteer to comply with LSRP requirements before the May 7, 2012, deadline for existing cases.  NJDEP will likely create a form for parties to opt in early.  In most cases, NJDEP expects to approve the request, although it has hinted that some undisclosed exceptions could apply.  Anyone who wants to volunteer before expiration of the three-year deadline must comply with all of the provisions applicable to new cases. [Footnote 2]  As existing cases must already meet several of the substantive requirements of SRRA, the only additional requirements would be to hire a consultant qualified as an LSRP, identify that person to NJDEP and use that person to conduct remediation without prior approval by NJDEP.

The bottom line is that there has been a sea change in the remedial oversight paradigm.  In the coming months, as NJDEP proposes new SRRA regulations and publishes LSRP guidance, you will have more information to assist you in determining when you should hire an LSRP for your remediation project.  While you may not want to be one of the first to hire an LSRP, you should evaluate your case now to determine when you should do so.

If you need assistance or have any specific questions, feel free to contact: 

 

Footnotes:

  1. NJDEP has posted LSRP applications on its website to provide potential LSRP’s with as much advance notice as possible concerning the requirements for a temporary LSRP license.
  2. Under SRRA, any person who initiates a remediation after November 3, 2009, must: 1. hire an LSRP to perform the remediation; 2. notify the Department of the name and license information of the LSRP who has been hired; 3. conduct the remediation without the prior approval of the Department, unless directed otherwise; 4. establish a remediation funding source if required by N.J.S.A. 58:10B-3; 5. pay all applicable fees and oversight costs required by the Department; 6. provide access to the contaminated site to the Department; 7. provide access to applicable remediation documents to the Department; 8. meet the mandatory time frames and expedited site specific time frames established by the Department; and 9. obtain all necessary permits. Those with existing cases must meet the requirements of 4 through 9 above. After May 7, 2012, all the requirements above must be met. (See N.J.S.A. 58:10B-1.3(b)).

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