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The Department of Environmental Protection (DEP) has just proposed new rules that will govern how Licensed Site Remediation Professionals (LSRPs) work, and the standards that apply to their work in the State of New Jersey. The draft regulations were published in the January 5, 2015 New Jersey Register. When adopted, they will be codified as N.J.A.C. 7:26I et al.
The LSRP program is merely five years old, but it has completely changed the way we conduct environmental cleanups in New Jersey. The program has generally been very helpful to the regulated community because it has privatized cleanups. Instead of having the State DEP review and approve all cleanups, now the private LSRPs do this. This has made the process work more efficiently; cleanups that used to take a decade to perform when DEP reviewed them can be accomplished in a more time and cost efficient manner. That has been good news for those required to pay for these cleanups and for all of us who desire to live in a cleaner New Jersey.
The draft regulations are very well drafted and are obviously the result of much thought and effort. Key terms are defined in the draft regulations, including terms that had previously lacked any formal definition.
The standards necessary to become a Licensed Site Remediation Professional are also spelled out in great detail. They are very exacting and not easy to meet. An LSRP candidate will require at least a Bachelor’s Degree in Science or Engineering, plus at least eight years of professional experience, five of which must be New Jersey experience. Five thousand hours of “professional grade” experience must be proven to have been met and the applicant must also take an approved course on DEP remediation requirements in New Jersey.
Character reviews are also required. This includes the submission of three professional references. Anyone convicted of or pleading guilty to an environmental crime or “any similar related offense,” or a crime involving fraud, theft by deception, or “a similar or related offense” or has either been denied a professional license or had one revoked, will not be given a license. This is an extremely general and broad list of preclusions— we envision many challenges and lawsuits over this list if it is approved as now proposed.
The annual LSRP audit protocol is also discussed in the draft regulations. Each year ten percent of the LSRPs will be audited, based on a radon selection, and a very strict disciplinary process is proposed for LSRPs that do not adhere to the requirements. The consequences range from administrative discipline to criminal action. A professional standard of conduct is spelled out in detail and a continuing education program is also proposed for licensed LSRPs.
Finally, there has been some controversy over the obligation of an LSRP to report environmental issues. When an LSRP is in charge of the cleanup, that obligation applies. It may not apply in other circumstances, including some environmental due diligence instances. It always applies in emergent environmental scenarios.
The draft LSRP program regulations are very well written and reflect much hard work. A public hearing is scheduled in Trenton for February 17, and everyone interested in this process should consider attending. Ultimately, we envision some changes but probably not too many. While the regulations will likely be somewhat controversial resulting in challenges of many kinds, they are a protective body of regulations that have merit and warrant all of our support.
The attorneys at Lieberman & Blecher are very familiar with environmental contamination and cleanup processes and have worked for years with LSRPs and our clients to achieve the best results. We will be following the regulations closely as they move closer to becoming finalized.