New Jersey LSRP Board Proposes Its First Set of Rules
The New Jersey Licensed Site Remediation Professional (LSRP) Board proposed its first set of rules on January 5, 2015. A public hearing will be held February 17, 2015 and comments on the proposed rules are due March 6, 2015.
With few exceptions, since 2012 and going forward, anyone (individual or entity) conducting environmental remediation in New Jersey must have retained a LSRP to oversee the work. LSRPs are private consultants who qualify to take and pass an examination by the LSRP Board and who maintain their license in good standing. LSRPs have authority to review and approve remediation. Remediation, also called cleanup, is broadly defined and includes investigation. Penalties for not using a LSRP when required are up to $10,000 for the first violation and $20,000 for each subsequent violation. Each day can be a separate violation.
The LSRP program is considered by some to be a model for other jurisdictions to follow in order to remediate sites more effectively and efficiently. The LSRP Board was created by the Site Remediation Reform Act (SRRA) of 2009 and has functioned to date without its own set of administrative rules.
Examples of possible issues in the proposed rules:
- Prospective purchasers conducting due diligence do not need to retain a LSRP. However, it has not been clarified that an owner conducting due diligence of its own property does not have to retain a LSRP, nor that lenders conducting due diligence for mortgages do not have to use a LSRP.
- The proposed rules provide that LSRPs must respond to public information requests including providing documents, but it does not provide for who would pay the LSRP to perform these activities.
- The rules provide that the LSRP must retain all records for extended periods of time (e.g., 10 years after last working on the case). The proposal does not address who will pay for records storage and maintenance, nor the fact that most LSRPs do not own the documents - their clients or employers own them.
- The proposal allows anyone to file complaints to the Board. The Department is not excluded and in fact has done so already. The proposal, and the Department’s practice to date in filing complaints, does not account for the conflict presented by the Office of Attorney General representing the Department as Complainant and the Board at the same time. Also the Department has no rules setting forth criteria for Department complaints, and without such rules ad hoc Department complaints are arbitrary and capricious.
- The proposal provides that terminating a LSRP’s contract can be deemed retaliatory action, which is prohibited by the SRRA. This may be an undue restriction on a LSRP’s freedom to contract, including provisions that the client and/or LSRP can terminate for any reason or no reason. Further, the retaliatory action provisions are directed to a LSRP’s clients, over whom the LSRP Board has no jurisdiction because the Board can only regulate LSRPs.