By Robert P. Blauvelt, Senior Vice President
November 2009 edition of the Morris County Chamber of Commerce's monthly newspaper "The Business Edge".

One of the most far-reaching regulatory reforms ever enacted in the Garden State will go into effect on November 3, 2009.  This is when the Licensed Site Remediation Professional (LSRP) program under the Site Remediation Reform Act will allow, for the first time, highly qualified and well-vetted environmental scientists and engineers (who are not employed by the New Jersey Department of Environmental Protection (NJDEP) to assume direct responsibility for the oversight and closure of most types of environmental cleanups. 

The LSRP will have limited, carefully bracketed authority to issue a No Further Action letter/opinion (now called a Response Action Outcome, or RAO) or similar closure “approval” for a site where a release of hazardous substance has occurred and has been properly investigated and remediated.  Some percentage of the closure opinions or findings will be audited by NJDEPand not all sites will qualify for closure by an LSRP. 

Similar programs are in place in Connecticut, Massachusetts and Ohio, as well as other states, and have been successful in significantly reducing case backlogs and in spurring Brownfield redevelopment.  New jersey’s LSRP program is a positive development; however, to be similarly effective it would benefit from enhancements with respect to the underlying regulations driving remediation.

NJDEP has determined that current or future soil and ground water quality standards are absolute and only very, very infrequently do they approve site specific, risk-based alternatives.

The Technical Requirements for Site Remediation (N.J.A.C. 7:26E – also called Technical Regulations, or “Tech Regs”) meticulously define methodologies that must be followed when investigating or remediating a site, but are so prescriptive that they often prevent NJDEP’s case managers from exercising any professional judgment with regards to delineation or cleanup issues.  To avoid negative audit findings and possible disciplinary action, most remediation professionals also are likely to strictly follow Tech Reg requirements.

Remediation professionals who previously relied on their consultants to develop imaginative and aggressive remedial solutions now will need to adjust to the LSRP program’s paradigm: compliance with the Tech Regs and cleanup standards are paramount.  The interests of New Jersey (and the protection of an individual’s license) may now over shadow the interests of the client, whether or not any palpable public health or environmental advantage results. This new focus may curtail real economic growth.

While remediation professionals will be able to control the pace of the cleanup, independent of the years it sometimes took NJDEP to read and comment on a work plan or report, costs associated with implementation of a remedial program are not likely to be reduced and, in fact, may increase as remediation professionals seek to be conservative in their approaches. 

Gone are the days of submitting a work plan and buying time to wait for NJDEP to respond or trying to negotiate with a NJDEP case manager on the number of monitoring wells needed or how many soil samples are really necessary.  The remediation professional will make those decisions, and those decisions will tend to be conservative, coming down on the side of Tech Reg compliance.

While a valid and useful first step, the LSRP program will highlight the need for fundamental reforms to the underlying regulations that drive NJDEP’s cleanup process.  The Tech Regs. are excessively complex, not performance-based and too rigidly applied.  The absolute adherence to soil and ground water cleanup standards, regardless of hydrogeologic setting or potential exposure pathways, often stifles or long delays creative property re-use solutions. 

In addition, NJDEP and the regulated community must begin to find a way to establish the development of a partnering, forward-thinking attitude, one with a goal is true environmental protection balanced against the benefits of economic growth. 

Without these changes, the LSRP program is in danger of reverting to the old school environmental command and control system that frustrates all of those involved.

Robert Blauvelt is Senior Vice President at EWMA in Parsippany.  He can be reached at 800-969-3159 ext. 168, or Bob.Blauvelt@ewma.com.