Site Remediation Reform Act: How will SRRA Affect my Relationship With or Use of Environmental Consultants?

September 24th, 2009 | Posted by: Christopher DeGrezia 0| comments:

Site Remediation Reform Act 3Currently, the majority of persons that have responsibility for remediating contaminated sites engage one or more independent environmental consultants to perform the actual remediation work and to provide technical advice and support when dealing with the New Jersey Department of Environmental Protection (NJDEP).  Now, pursuant to SRRA, “persons responsible for conducting remediation” (PRCR) (i.e., the client) are required to hire a Licensed Site Remediation Professional (LSRP) (i.e., the client’s environmental consultant) to oversee and approve the remediation.  Already, some environmental consulting firms are working on having their employees licensed as LSRPs and soon some PRCRs may discover that environmental consultants they currently employ have become LSRPs.  A newly constituted Site Remediation Professional Licensing Board (Board) will regulate the conduct of LSRPs and insure their compliance with the many provisions of SRRA intended to guide or govern LSRPs’ decision-making.  The new LSRP program raises several issues concerning how the relationship between PRCRs and the environmental consultants they hire will look going forward: 

  • how best to protect the interests of PRCRs in their communications with LSRPs;
  • whether to devote additional in-house resources to overseeing remediation projects and the work of the LSRP;
  • how to manage client and consultant expectations for identifying remedial issues, documenting choices, and resolving disagreements;
  • whether to hire an independent consultant to oversee or conduct remediation work; and
  • how to navigate between LSRPs and independent consultants.

SRRA does not address these important issues and it is unlikely that the Board will provide any insight.  Indeed, it is likely that additional relationship questions will arise as the Board and NJDEP move to implement SRRA.  Prior to SRRA, the most important role of a company’s environmental consultant was as an advocate for the PRCR with the NJDEP.  Under SRRA, however, this may no longer be the case.  SRRA makes it clear that an LSRP must hold protection of public health and safety and the environment as its highest priority. Accordingly, to ensure an LSRP fulfills this obligation, SRRA:

  1. obliges LSRPs to notify NJDEP regarding discharges, environmental concerns, deviations by the PRCR from the remedial action workplan and subsequently discovered inaccuracies in remediation reports;
  2. sets forth a hierarchy of remediation requirements to which an LSRP must adhere in meeting its obligation to its clients, NJDEP and public health, safety and environment;
  3. contains strict requirements regarding compensation and financial interests of LSRPs in sites; and
  4. seeks to enforce these obligations through increasingly severe sanctions that include the loss of an LSRP’s license as well as steep penalties.

The overarching obligation to public health, safety and environment, the constraints imposed on LSRP and PRCR decision making, combined with the threat that an LSRP could lose its license and face other penalties, all create tension with respect to the traditional client-consultant relationship.  And, of course, it is the client that pays the bills.  As a result, the loyalty of an LSRP may be split between its client and the State of New Jersey.

Although SRRA provides some protections for an LSRP’s clients (e.g., prohibitions against revealing confidential information, prohibitions on making misrepresentations and requirements for LSRPs to advise clients of any assumptions, limitations and/or qualifications underlying their communications with the client), because an LSRP is obligated to the state and the public interest, the relationship between PRCRs and their LSRPs will be different from the relationships with environmental consultants to which PRCRs are now accustomed.  One of the most obvious changes will involve issues regarding the flow of information between PRCRs and an LSRP.  To protect confidentiality, PRCRs will need to control their information flow about sites and, to the extent possible, carefully construct contracts that make clear expectations for dealing with confidential information.  The typical contracts that have been used for years with environmental consultants likely will not be appropriate and new contracts will need to be developed.

In addition, where PRCRs have traditionally depended on their environmental consultants’ counsel and advocacy in dealing with NJDEP regarding technical issues, such as remedial objectives and alternatives, the same may no longer be true when it comes to LSRPs because an LSRP’s loyalty is not solely to the client.  Further, under SRRA, a PRCR is no longer able to assume authority for final decision making subject to ultimate NJDEP approval, because the statutory obligations of an LSRP mandate that it assume a certain level of that control over decision making based on the LSRP’s professional judgment.  What will happen when there are disputes between LSRPs and PRCRs is now uncharted territory.

A number of tactics and strategies might be employed to address these concerns.  PRCRs and LSRPs might work together to develop a process for decision making that will require PRCR involvement and transparency to ensure that all parties are comfortable with particular remedial decisions before they get reduced to writing.  While SRRA will require more expansive documentation by LSRPs in decision making, there is a difference between documenting a decision for purposes of supporting it and documenting the decision-making steps to reveal the process utilized to reach the ultimate decision.  Perhaps concepts of peer review can be incorporated into contract dispute resolution provisions.  In addition, PRCRs might consider the use of a second environmental consultant to either silently shadow and evaluate the LSRP’s work or to actively participate in performing the remediation work and/or other aspects of the remediation (although cost and size of the project will clearly be issues, as will considerations regarding the use of consultants and LSRPs from the same firm). [Footnote 1]  Similarly, increased in-house oversight could be appropriate.  In any event, existing contracts or those typically employed for the retention of environmental consultants are likely to be out-moded and will need to be re-evaluated or redrafted in light of this new statutory regime.

Until such time that the Board issues the required professional standards for LSRPs and the program gets underway, exactly how the LSRP program ultimately will affect the relationships between PRCRs and environmental consultants remains to be seen.  Nonetheless, SRRA, as enacted, already has far-reaching implications and new ways of thinking will be needed to adapt to the LSRP’s brave new world.

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  1. This practice of hiring an independent environmental consultant in addition to the LSRP is common in Massachusetts, a state employing a similar program to New Jersey’s LSRP program.

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