On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register. The effective date is January 4th, 2016 / expiration date is January 4th, 2023. As part of this series we'll take a brief look at some of the changes, and also take a look at the public comments / questions and Board responses...and try to "simplify" what they mean.
N.J.A.C. 7:26I-6.10 Responsibility to Report a Discharge
60. COMMENT: The commenter questions whether N.J.A.C. 7:26I-6.10(a) requires an LSRP to report an unrelated discharge on an off-site property that he or she discovers while delineating a plume originating on-site. For example, if the contaminated site the LSRP is remediating has a BTEX plume, but an offsite well placed by the LSRP indicates VOC contamination, should the LSRP report it? (18)
RESPONSE: Pursuant to N.J.A.C. 7:26I-6.10(a), an LSRP has an obligation to report a previously unreported discharge when the LSRP obtains specific knowledge that a discharge has occurred on a contaminated site for which he or she is responsible. "Contaminated site" is defined by the Technical Requirements for Site Remediation as "all portions of environmental media and any location where contamination is emanating, or which has emanated there from, that contain one or more contaminants at a concentration above any remediation standard or screening criterion." See N.J.A.C. 7:26E-1.8. A contaminated site does not stop at the property boundary. The commenter presumes that because a monitoring well is not within the property boundary, it is not on the contaminated site, and, therefore, the LSRP is not responsible for it. That does not comport with the definition of "contaminated site" quoted above. The Board expects an LSRP to report any discharges on a contaminated site that were not previously reported.
What does that really mean? Again, to simplify the matter...if contamination is detected in an "off-site" monitoring well it must be reported. That's the easy explanation as to what must be done. The difficult explanation is with the off-site property owner that had no idea they had (or expected to have) a groundwater contamination issue. Now they are potentially a Responsible Party, if the contamination at their property is unrelated to the contamination at their neighbor's property. To avoid surprises later, it is highly recommended that proper communication / discussions take place well in advance, and that access agreements are agreed upon prior to installing any off-site monitoring wells and collecting any samples. Retaining a skilled environmental attorney would also be beneficial, as off-site contamination matters (and the finger-pointing) often times get muddled in regulation and litigation, and ultimately stall out site and/or remedial investigations, thus complicating matters even further.
Stay tuned for future posts as we'll dissect and try to simplify more items on the NJDEP SRPLB Rule Adoptions.
We hope that you find these posts informative, and relatively useful, and your feedback is always welcom. For further information regarding environmental investigations and/or environmental business practices, please don't hesitate to contact us at tfrancis@cardinaLSRP.com or www.cardinalLSRP.com.