By Robert P. Blauvelt, P.G., C.H.M.M.
Senior Vice President
Published in Real Estate New Jersey
January/February 2009

 There has been much hopeful buzz in the NJ-based trade press regarding DEP’s tentative movement towards a Licensed Site Professional (LSP) program.  If enacted, the LSP presumably will have limited, carefully bracketed authority to issue a No Further Action letter/opinion or similar closure “approval” for a site where a release has occurred and has been properly investigated and remediated.  Some percentage of the closure opinions or findings will be audited by DEP and not all sites would qualify for closure by an LSP.  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.

However, advocates for a NJ-based LSP program are overlooking the fact that what makes the CT, MA, OH and other state programs work is not the LSP, but the enabling regulations under which they operate. For example, in Massachusetts, the MCP (Massachusetts Contingency Plan) provides a flexible, risk-based regulatory framework that allows the responsible party (RP) and LSP a variety of approaches to site cleanup, depending upon the end use of the property. The RP can elect to comply with pre-determined numerical standards for soil contaminants or develop alternative values based on likely site exposure pathways. In certain parts of Ohio, ground water does not need to be investigated if it is not being used as a drinking water source and the contaminants are not present as a separate phase and pose no vapor intrusion threat.  These examples illustrate a flexible regulatory approach; but more importantly, the underlying programmatic requirements are a reflection of a collaborative and open dialogue (some would even say culture) between regulatory case managers and LSPs. This collaboration is based on what is effective and practical for a site, yet still protective of public health and the environment.  No such mutually supportive attitude or culture exists in NJ.

NJDEP has determined that current or amended soil and ground water quality standards are absolute and they only very, very infrequently approve site specific, risk-based alternatives. The Technical Requirements for Site Remediation (the Tech Regs. - N.J.A.C. 7:26E) carefully define methodologies that must be followed when investigating or remediating a site, but are so prescriptive that they effectively prevent the NJDEP’s case managers from exercising any professional judgment with regards to delineation or cleanup issues.  The Grace Period Rules now have codified and provided financial reinforcement for a regulatory tradition that strictly enforces the Tech Regs and cleanup standards, whether or not any public health or environmental advantage results and often at the expense of real economic growth or societal benefit for a community or neighborhood.

While a valid first step, the call for an LSP program is symptomatic of 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 regulated community must begin to find a way to establish the development of a partnering, forward-thinking attitude; one whose goal is true environmental protection balanced against the benefits of economic growth.  Without these changes, the LSP program is in danger of becoming another component of the failed New Jersey environmental command and control system that frustrates all of those involved in it.

Mr. Blauvelt is with EWMA’s Headquarters Office in Parsippany, NJ.  He is responsible for the safe technical and financial performance of EWMA’s site assessments and is a Licensed Site Professional in Massachusetts and a Licensed Environmental Professional in Connecticut.  For additional information or to discuss your concerns please contact Mr. Blauvelt at 800-969-3159 ext. 168 or Bob.Blauvelt@ewma.com.