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 fourth part of the blog 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 Professional Competency (of a Licensed Site Remediation Professional-LSRP) and deviation from technical guidance, as discussed in the General Comments section of the Adoption Document: 

N.J.A.C. 7:26I-6.3 Professional Competency

47. COMMENT: The commenters state that proposed N.J.A.C. 7:26I-6.3(c) requires an LSRP to explain why Department technical guidance is "inappropriate or unnecessary" if not used. The SRRA does not authorize this requirement and thus it exceeds the Board's authority. This section should be modified to remove the requirement that an LSRP provide a written rationale concerning why the technical guidance issued by the Department is inappropriate or unnecessary, and instead require the LSRP to explain the rationale for use and provide adequate justification to document that the decisions made remain protective of public health and safety and the environment. (8 and 17)

RESPONSE: The Board disagrees that it exceeded its authority including this requirement in its proposed new rules. The Legislature included a requirement for the LSRP to set forth the justification for using either U.S. EPA guidance or other relevant, applicable, and appropriate methods and practices, and the Board has reflected that requirement in its proposed new rules. Furthermore, there is nothing in the SRRA that supports the commenters' contention that while the Legislature took pains to specifically identify certain requirements that ensure the protection of the public health and safety and the environment, that it intended to have an LSRP simply ignore them without comment or justification. Consequently, the proposed new rules require that the LSRP include in the appropriate report a written rationale that explains why the technical guidance issued by the Department is inappropriate or unnecessary to meet the remediation requirements and which justifies the use of the guidance or methods that were utilized. This requirement is in sync with the Technical Requirements for Site Remediation (N.J.A.C. 7:26E-1 et seq.) and the Administrative Requirements for Site Remediation (N.J.A.C. 7:26C-1 et seq.). (see N.J.A.C. 7:26E-1.5, which requires that "any person conducting remediation pursuant to this chapter shall apply, pursuant to N.J.A.C. 7:26C-1.2(a)3, any available and appropriate technical guidance concerning site remediation as issued by the Department, or shall provide a written rationale and justification for any deviation from guidance.") Therefore, the Board declines to revise the proposed new rules as the commenters suggest.

What does that really mean?  Again, to simplify the matter...an LSRP is required to justify why there was a deviation from applicable NJDEP guidance when conducting an investigation, remediation, etc.  Most practitioners in New Jersey conduct themselves with the utmost integrity and honesty, and keep protection of human health, safety, and the environment there top priority; however, there are over twenty (20) technical guidance documents in New Jersey and the NJDEP Field Sampling Procedures Manual is over five-hundred pages (500)…so the odds of deviating from guidance are pretty high…and really not quite as simple as one would hope or expect.  Similarly, from a business perspective, if one were to follow every detail in every “guidance,” the potential costs for an otherwise routine project could be significant…and potentially cause a prospective client to search for less expensive options. 

Fortunately, technical guidance is (on most occasions) relatively easy to abide by, with deviations generally minor and easy to (technically) justify.  Professional judgement and experience(s) will always vary between individuals, and there is more than enough information available outside of New Jersey to support a remedial decision that deviates from guidance including technical documents from the EPA, ITRC, and ASTM (to name a few), all of which should become part of an LSRP’s toolbox.  More importantly, the easiest way to avoid having a remedial phase report scrutinized, or even having your Response Action Outcome (RAO) potentially rescinded, is to simply “explain” the reason for the deviation in your submission(s) and provide the appropriate technical document to back it up.  Generally the time requirement is minimal, and would save you from a lot of headaches later on…and save you or client a lot of money.   

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.