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.  This is the third part of this series where we continue to look at some of the changes, and look at the public comments / questions and Board responses...and try to "simplify" what they mean.  For this post, we’ll take a brief look at the responsibilities (of a Licensed Site Remediation Professional-LSRP) to report an Immediate Environmental Concern (IEC), as discussed in the General Comments section of the Adoption Document: 

N.J.A.C. 7:26I-6.9 Responsibility to Report an Immediate Environmental Concern

60. COMMENT: The commenter is concerned with the duty to report a discharge by an LSRP that is not retained as the LSRP for a site or area of concern. The commenter opines that an LSRP who is not so retained should not be obligated to act upon information that he or she learns, because he or she would not have all of the necessary information to make any informed regulatory decisions for a potentially complex regulatory action or property transaction. The commenter requests that the Board clarify this issue. (7)

RESPONSE: The commenter asks for clarification of an LSRP's duty of disclosure when the LSRP "comes across information but is not retained as the LSRP for the site [or] area of concern." If an LSRP that is not responsible for a site or area of concern identifies a previously unreported condition that the LSRP considers to be an immediate environmental concern, the LSRP shall immediately advise the person responsible for conducting the remediation and immediately notify the Department, pursuant to N.J.A.C. 7:26I-6.9. The Board considers it of utmost importance that the LSRP report the existence of the immediate environmental concern in order to protect public health and safety and the environment. It is not necessary for the LSRP to have information to make informed regulatory decisions prior to making such a report. In the case of a contaminated site or area of concern for which the LSRP is responsible, if the LSRP obtains specific knowledge that a previously unreported discharge has occurred on the contaminated site or area of concern, the LSRP shall immediately notify the person responsible for conducting the remediation, the Department, and any other LSRP working on the site, pursuant to N.J.A.C. 7:26I-6.10.

What does that really mean?  Again, to simplify the matter...an LSRP must report previously unreported discharges for sites for which they are responsible.  Contractually, an LSRP and their client (Person Responsible for Conducting the Remediation) can establish the terms if such an instance arises and make the call to the NJDEP Hotline (1-877-WARNDEP); however, the challenge occurs when the LSRP has not yet been retained or contracted.  For those instances the LSRP still has an obligation to report the IEC in order to protect public health and safety and the environment, regardless of retention or any contractual arrangement(s).  Unfortunately, with that reporting requirement, there is also an increased chance that you could lose a potential client in the process if not handled appropriately.

As outlined in our previous posts; it is highly recommended that proper communication / discussions take place well in advance, so that if there is a potential reporting requirement and/or IEC, it can be addressed in accordance with N.J.A.C 7:26I-6.10.  This is the easiest way to avoid complicating matters, and potentially retain what may be a great client that is looking to “do the right thing.”  Conversely, if the individual or organization is adamant and does not want to report anything, it may be in the best interest of the LSRP (or any environmental consultant for that matter) to not conduct business with them.  Although this would likely impact the financial aspects of the LSRP’s business, it would preserve professional credibility, and also be in line with N.J.A.C. 7:26I-6.14-Responsibility to Disassociate from Unscrupulous Persons. 

Stay tuned for future posts as we’ll continue to dissect and try to simplify more items on the new NJDEP SRPLB Rule Adoptions.

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding LSRP services, and/or environmental business practices, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.