SRPLB Rule Adoption Review- Volume V: Responsibilities of Successor LSRPs

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 fifth part of this 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 the responsibilities of a “Successor” Licensed Site Remediation Professional (LSRP), as discussed in the General Comments section of the Adoption Document: 

N.J.A.C. 7:26I-6.7 Responsibility of Successor LSRP

52. COMMENT: The commenters opine that the Board requires a successor LSRP to question and potentially "redo" the work of a previous LSRP in N.J.A.C. 7:26I-6.7. This will result in duplication of prior work and potentially greatly increase the costs of a remediation. The Board should revise the proposed new rules to reflect that a new LSRP may utilize his or her professional judgment to determine if any deficiencies in work previously done by another LSRP are valid environmental concerns that will impact the effectiveness of the remediation to protect public health and safety and the environment. A new LSRP should only "redo" previous work when there is a legitimate and justifiable environmental concern. (8, 9, and 17).

RESPONSE: The Board agrees with the commenters that a successor LSRP should have discretion to determine when work completed by a previous site remediation professional may be relied on. However, the Board believes the commenters are incorrect that N.J.A.C. 7:26I-6.7 requires a successor LSRP to "redo" or duplicate the work of a previous LSRP. N.J.A.C. 7:26I-6.7(a) specifically provides that a successor LSRP may complete any phase of remediation based on the work of another LSRP, provided that the successor LSRP abides by the requirements of paragraphs (a) 1, 2, and 3. A successor LSRP is responsible for correcting deficiencies in documents submitted by previous site remediation professionals, including deficiencies identified by the Department or the LSRP himself or herself. It is incumbent upon the LSRP to use his or her professional judgment to identify deficiencies not identified by the Department in documents that warrant correction. Although correcting a deficiency may indeed require additional work and expenditure of additional funds, such measures may be necessary to protect public health and safety and the environment. However, the Board recognizes that there may be deficiencies that are not "material" to the remediation, and that the LSRP is in the best position to evaluate deficiencies and whether or not they are material, and thus warrant correcting. Therefore, the Board will add "material" before "deficiencies" in N.J.A.C. 7:26I-6.7(b).

The Board notes that N.J.A.C. 7:26I-6.7(c) includes the term "material" in referring to "facts, data, or other information concerning any phase of the remediation for which a report was submitted to the Department." The term "material" indicates that the LSRP should evaluate the facts, data, and other information and decide if they are significant or relevant or important to "any phase of the remediation." The Board disagrees that only those facts, data, and other information that are so important that failure to disclose them will impact the effectiveness of the remediation to protect public health and safety and the environment warrant notification. However, the LSRP does have the discretion to use his or her professional judgment to decide if the facts, data, and other information are material and, thus, to decide if they warrant notification. Therefore, the Board declines to make any additional revisions to the proposed new rules as the commenter suggests

What does that really mean?  Again, to simplify the matter...an LSRP is required to correct all “material” deficiencies in prior submittals by site remediation professionals.  These could be reports by LSRPs or non-LSRPs.  The key factor here is the use of “Professional Judgment,” which will vary between individuals, and was discussed in our prior blog topic “LSRPs & Professional Judgment.” In the environmental consulting world, professional judgment will dictate how much “supportive” information, or lines of evidence, are necessary to render a decision.  However, does that mean you need to re-create or re-do the prior work of the previous consultant?  Of course not…but you should be prepared to carefully review all available documents, and it is highly recommended that a NJDEP file review be conducted.  Once done, the LSRP can use all of the facts to make a sound decision, and ultimately determine what can be relied on. 

The easiest way to avoid complicating matters, is to complete this first step (which would take a financial and time commitment from the PRCR), and not rush back into the field to start collecting more, and more data (soil, groundwater, etc.) Oftentimes, there is plenty of information already available…you just need to find it.  Conversely, if there are significant gaps in prior reports (or even questionable decisions by regulators from years past) it may be in the best interest of the LSRP to open up their tool box, and be prepared to conduct supplemental field activities.

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. 

How Much and How Long Will it Take: Volume III-Phase II ESA’s

As a continuation of our discussion on Phase I Environmental Site Assessments (Phase 1’s), we’ll take a brief look at the next step, or Phase II Environmental Site Assessments (Phase II’s).  As always, there is plenty of research, data, and guidance on this topic but the objective of this series is to simplify the discussion, and provide some essential recommendations).  

Phase I’s are often the due diligence starting point for a broad range of properties both inside and outside of New Jersey and are generally conducted to o enable a party to satisfy one the CERCLA landowner liability protections.  Phase I’s also follow a more standardized approach, and essentially mean the same to property owners, insurers, lenders, etc.; however, the same cannot be said for Phase II’s.  When initially established in 1997, the ASTM standard (E1903-97) linked “follow-up” investigations to a Phase I.  Over time, and through numerous discussions & iterations, a new ASTM standard was established for Phase II’s (E1903-11) which allowed practitioners and users to “tailor” the approach to their specific goals and objectives.  

As any practitioner can attest to, it is rare that any two (2) sites are alike and standardizing an approach was neither practical, or in most cases, cost-effective, but what about differences in professional judgment? We looked at this topic in a previous post “LSRPs & Professional Judgment,” and there are similarities when conducting Phase II’s, as the variable nature in professional judgment will dictate how much will it cost and how long a Phase II will it take.  Prior to starting any Phase II, the key points / questions to consider include:  

·       Who is the “User” and what is their risk tolerance? 

·       What are the goals and objectives of your client (“User”)?

·    What prior site information is available (e.g. Phase I ESA) and what is its quality? (Note: relying on a poorly            conducted Phase I by another consultant / investigator is never recommended!)

Any practitioner can look at a recent Phase I (and the twenty [20] or so Recognized Environmental Conditions [RECs] that may have been identified) and recommend a subsurface investigation including soil borings and sampling, or groundwater sampling.  Seasoned professionals will answer the above questions first, and through mutual agreement with the User, define an appropriate scope of work, and on many occasions reduce the cost and duration of a Phase II investigation. Those individuals or corporations that are more risk-averse may want all the bells and whistles, which is fine, as that generally correlates with an increased level of confidence for any given site, but it’s not always necessary.  Many Users are willing to accept manageable liabilities or risks, but unwilling to accept others (e.g. PCB or Chlorinated Solvent contamination).  As a result, it is imperative for the investigator to understand this in advance of conducting a Phase II investigation.

These limited scope investigations that only take between 1-day and 1-week can be quite beneficial to the User, provided they meet the objectives of the Phase II and the results obtained are usable and/or consistent with expectations.  Conversely, an unfocused (and poorly conducted) investigation that investigates every REC, takes over 4 weeks, and costs upwards of $50,00, may not provide the information that your client (or User) was looking to obtain…which gets you back to the topic of “quality over quantity,” and stresses the importance of effective communication.   

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

LSRPs & Professional Judgment

There are over 600 Licensed Site Remediation Professionals (LSRPs) in New Jersey, and expect the professional judgment of each to cover the whole gamut of environmental (remediation) interpretations and/or recommendations.  The New Jersey Department of Environmental Protection (NJDEP) recognized this several years ago; however, numerous technical guidance documents are available to site practitioners that, when used in conjunction with regulatory requirements, should allow LSRPs to use their professional judgment and close remedial cases quicker than has been done in the past.  To date, the process has been relatively successful and will only continue to improve in the future, but be wary of the varying degrees of professional judgment by LSRPs.  As with any profession, experience affects judgment, so don't hesitate to properly vet an LSRP before retaining them.  Understanding their level of professional competency and comfort levels with rendering specific environmental decisions will ultimately impact the success (or failure) of a project.

For further information regarding the LSRP program, or how we can help you navigate through the NJDEP regulatory process, please don't hesitate to contact us.  tfrancis@cardinallsrp.com

Thomas Francis, LSRP, LEED AP+