Discretion of a NJ Licensed Site Remediation Professional (LSRP): A Blessing or a Curse?
There are many competent and knowledgeable LSRPs who can assist with completing an investigation and clean-up of a contaminated property – but often the timing of the LSRP’s certification that progress has been made, is critical to a proposed project or sale of a property. In these instances, strategy is involved, and an environmental lawyer should be consulted early in the process. Here’s an example.
This month the NJDEP released a Policy Statement interpreting the statutory provision in the Site Remediation Reform Act, N.J.S.A. 58:10C-1, 27a(3) which requires a “remedial investigation (RI) of the entire contaminated site” to be completed before 5/7/14.
This requirement applies to all properties concerning which contamination has been reported to the NJDEP, and an LSRP has been retained to supervise an investigation.
The NJDEP’S interpretive statement leaves it to the LSRP in his/her “professional judgment” to conclude that an RI is complete when there is sufficient information to know (1) the nature and extent of contamination on and off-site, (2) who/what may be impacted by the contamination, and (3) whether additional delineation of the contamination is necessary to select an appropriate remedy.
You’re right if you think that two LSRPs, based upon the same set of facts, could reach different conclusions on these issues.
So what should be your concerns as an owner or prospective purchaser of a contaminated site?
1. Before hiring an LSRP, also retain a knowledgeable environmental lawyer to interview the LSRP in relation to the known or suspected contaminant concerns at your site to determine how the LSRP would proactively go about deciding when a remedial investigation is complete.
2. If you already have retained an LSRP, and are in a hurry to acquire and develop or to sell your site, interview your LSRP to determine what steps he proposes to take to assure the investigation is completed (hopefully with a remedy selected) on or before the statutory deadline (5/7/14).
3. Do you want to involve the DEP in direct oversight of your case? If you are delayed in starting a project pending the determination of an LSRP retained by another party (over whom you have no control)– e.g., if operations are on more than one site are sources of commingled groundwater contamination under your site, the Site Remediation Act (referenced above) outlines circumstances when you can get the DEP to direct completion of an investigation prior to the 5/7/14 deadline.
4. If you await the determination of another party’s LSRP to issue its reports and certifications, do you limit your options to challenge that LRSP’s finding and conclusions (or will you have to request and await the DEP’s audit/review of the LSRP’s report)?
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