After over a year since its creation, the nature of New Jersey’s Licensed Site Remediation Professional (LSRP) is still unclear. The program, signed into law in May 2009, removes the responsibility for oversight of clean-ups of contaminated sites from the New Jersey Department of Environmental Protection (NJDEP) to a cadre of licensed privately paid professionals. NJDEP will retain direct oversight of more complex sites and will resume direct oversight of LSRP sites under certain circumstances. It will take some time for the kinks in the program to be worked out. Depending on who you speak to, the view of what the LSRP is differs.
When the idea was first proposed, the environmental groups were convinced that the LSRP would be the proverbial “fox in the henhouse.” The concern was based on the fact that the LSRP is selected and paid by the responsible party - the polluter - in the view of these groups. The LSRP decides what needs to be done, how to do it, how much money will be needed to assure the clean-up and when the clean-up is finished. The final “sign off,” the Response Action Outcome (“RAO”) is issued by the LSRP. The RAO gives the responsible party a covenant not to sue by the NJDEP with respect to the property which was remediated.
In December of 2009, Jeff Tittel, Executive Director of New Jersey Sierra Club complained, “The LSRP program is much worse than the fox guarding the henhouse. It’s the fox building the henhouse and certifying that it’s safe.”
NJDEP would like the LSRP to be a deputized case manager, an environmental watchdog. NJDEP needed the program because of the extensive backlog of cases and timelines of cleanup running into years. NJDEP simply did not have the manpower to handle all of the cases. Under the program, the LSRP is not free to do what s/he pleases. A remediation of a site in the LSRP program is subject to mandatory deadlines, which recently had to be extended and the LSRP must adhere to detailed technical regulations, use presumptive remedies and follow any available and appropriate technical guidelines issued by the department. The work and the RAO are subject to audit by NJDEP for three years. The LSRP’s highest priority in his or her professional performance is the protection of public health and safety and the environment. In NJDEP’s view, apparently, the LSRP should be the environment’s loyal and dutiful guard dog.
To ensure that the highest priority is respected, the LSRP will be licensed by a professional board that has extensive authority over the LSRP, including issuing standards for professional conduct, investigating complaints, imposing discipline and maintaining lists of LSRP’s in good standing and suspended professionals. The board may revoke licenses and impose civil penalties and petition the attorney general to bring a criminal action against an LSRP.
The responsible party has a different perspective. In the past, an environmental consultant was a knowledgeable and trusted advisor. Their role included acting as the responsible party’s advocate in the face of what often seemed like excessive sampling demands and overly expensive remedies required by NJDEP. Under the LSRP program, this relationship has changed significantly. LSRP’s highest priority is not service to the client, but protection of public health and the environment. The statute imposes a duty on the LSRP to report any action or decision of the client that results in a deviation from the remedial action workplan or other report, a duty to report any discharge he sees on a site he is responsible for, and a duty to report an immediate environmental concern even for sites s/he is not responsible for. All information and documents reviewed and relied on in connection with the remediation must be disclosed to NJDEP. Moreover, the LSRP has a responsibility to make a good faith and reasonable effort to to obtain relevant facts, data, reports and other information in possession of the owner or otherwise available. Although the statue provides for protecting “confidential information” designated so in writing by the client, it is unclear whether the reporting requirement would trump that confidence. Among the responsible party group, there is a concern that the role prescribed for the LSRP by the statute and regulations is that of the rat.
And what of the LSRP’s perspective? In the face of the statutory requirements, licensing and prescriptive tech regulations, as well as scrutiny from NJDEP and a licensing board, the LSRP also finds himself on the front lines of liability. In the past, all remediation decisions had to be approved by NJDEP. If something went wrong down the line, as long as the consultant had done the work correctly, an error in where sampling took place or a remedy failure, wasn’t the consultant’s fault….the decision had been NJDEP’s. That “shield” is no longer there. All of the relevant decisions will now be made by the LSRP. Moreover, unlike other professionals, the LSRP does not have the protection of the affidavit of merit. Little wonder some of the LSRPs worry that they will end up as scapegoats, with everyone blaming them.
Only time will tell what the ultimate role of the LSRP will be. And since the use of an LSRP will be mandatory for most remediations in N.J. on or after May 7, 2012, that time is coming soon.
Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.