On May 7th we entered a brave new world. As of that date all contaminated sites are now required to hire a Licensed Site Remediation Professional (LSRP). LSRPs were created as a result of the Site Remediation Reform Act (SRRA) that was passed in 2009. The State was moved to pass SRRA because many stakeholders thought that the process at that time was broken and that change was needed to address the 16,000 to 20,000 sites in need of remediation. What exactly is an LSRP and what does SRRA do? Following is an expansion on a presentation I gave at the New Jersey State Bar Association’s Environmental Law Section’s Environmental Law Weekend. Hopefully, this explanation can provide some answers to those questions – and more.
What is an LSRP?
According to SRRA, an LSRP is “an individual who is licensed by the board pursuant to Section 7 of P.L 2009, c. 60 (C.58:10C-7) or the department pursuant to section 12 of P.L. 2009, c. 60 (C.58:10C-12)” but that definition is not very helpful. DEP further defines an LSRP as a person who, by education, training and experience, is licensed by the State of New Jersey to oversee the remediation of contaminated sites. I like to think of them as the professionals who determine if a property is contaminated, how contaminated it is and how to clean it up and who oversees the cleanup and then declares the property clean.
According to SRRA, to be eligible to become an LSRP a candidate must meet the following standards:
- Hold a minimum of a bachelor’s degree in natural, chemical or physical science or an engineering degree in a discipline related to site remediation.
- Have eight years of full time professional experience.Have a minimum of 5,000 hours of relevant professional experience within the state
- Have not been convicted of, or pled guilty to an environmental crime, any similar or related criminal offense; or any crime involving fraud, theft by deception, forgery or any similar or related offense.
- Has not had another professional license revoked within the previous 10 years
The statute defines “full-time professional experience”as experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site. The Board further defines full time professional experience as having primary decision making responsibility.
In addition to the requirements for education, training and experience, the LSRP is guided by a code of conduct which encompasses 26 items. Most importantly –and, consequently, first on that list – is that: An LSRP’s highest priority in the performance of professional services shall be the protection of the public health and safety and the environment. Another big item is that an LSRP shall exercise independent judgment and is required to notify the client and the Department if the client deviates from the remedial action work plan. Theoretically, the LSRP’s primary job is to insure that the remediation is protective of human health and the environment.
Assuming the LSRP performs their job, when the remediation is complete they certify the property was remediated in accordance with the standards and issues a Response Action Outcome (RAO). RAOs are the functional equivalent of the No Further Action (NFA) letters that DEP issued at the end of a remediation. The Department may invalidate an RAO under certain circumstances but must do so within three years of its issuance.
Who oversees the LSRP?
SRRA not only created the LSRP but also put into place a board to oversee the LSRPs – the Site Remediation Professional Licensing Board
(SRPLB). The board consists of 13 members comprised of the following groups:
- State Geologist
- 6 LSRPs
- 3 members of environmental organizations – one of whom must also be an LSRP
- 1 Representative of the business community
- 1 Academic member
The current Board is short two members – the academic member and the environmental member who is also an LSRP.
The Board is responsible for administering the LSRP program. This includes:
- Reviewing applications to become an LSRP and approving or denying such requests.
- Administering and evaluating the licensing exam
- Issuing licenses and license renewals
- Establishing standards and requirements for continuing education
- Approving and offering continuing education classes
- Adopting and administering standards for professional conduct
- Investigating complaints
- Imposing discipline
- Providing information to the public
In order to accomplish these tasks the Board has been meeting since November 2010 and has created several committees to oversee its many obligations. Those standing committees are:
- Continuing Educations
- Professional Conduct Committee
From 2009 to May 2012, while it was waiting for the Board to be installed, the DEP administered a temporary licensure program and issued a total of 572 temporary licenses. The exams to become a permanent licensee began on May 7th. To become an LSRP a person must apply to the Board and, once the Board reviews and approves that application, the individual is then authorized to take the examination. 305 people were authorized to take the first exam on May 7, 2012. Of this 305, 278 took the test and 216 passed it. The next test date is September 24th and there will also be exams in November 2012 and January 2013. All temporary LSRPs have until January 2013 to take the exam. After the last exam any temporary LSRP who has not taken or passed the exam will lose their temporary LSRP status and cannot act as an LSRP. Any temporary LSRP who fails an exam can retake that exam up to three times before losing their temporary license. After January 2013 the exam will be given on a periodic basis to be determined by the Board. All licensees must renew their license every three years.
This committee is responsible for determining the continuing education requirements for an LSRP. It was the recommendation of the committee that an LSRP complete 36 credits of continuing education over the course of their three year licensee. Upon applying for renewal of their license an LSRPs must be demonstrate that they have obtained the following::
14 Scientific & Technical credits
3 Ethical credits
10 Regularity credits
Balance from any of the above areas
The continuing education committee also reviews course applications and issues a recommendation on whether a course should be approved to provide continuing education requirements.
The Rules committee is in the process of taking the process documents from various committees and preparing a rule for publication and eventual adoption. There are currently 4 subsections of the rule up for informal public comment on the Board’s website.
This committee is tasked with encouraging public participation in the LSRP Board and it maintains the Board’s website.
As noted above, the Board is in charge of investigating complaints against LSRPs. Any person can make a complaint. A complaint form can be found on the Board’s website. The job of investigating a complaint is assigned to the Professional Conduct Committee (PCC). The PCC is made up of five board members. When a complaint is received it is forwarded to the PCC with the name of the LSRP redacted. Neither the PCC nor a majority of the Board knows the identity of the LSRP while the complaint is being investigated and the decision rendered. The only person who knows the name of the LSRP is the Board Secretary who receives the complaints and does the redaction. The same anonymity cannot be said of the complainant. Not only does the PCC know the name of the complainant, but the LSRP being investigated is given an unredacted copy of the complaint. Under exceptional circumstances the PCC may withhold the name of the complainant, but that is anticipated to be a very rare occurrence. While the Board discourages anonymous complaints, under certain circumstances the PCC will review and investigate those complaints. Assuming the complaint is not completely without merit, the PCC sets up a Complaint Review Team.
The CRT is comprised of a Deputy Attorney General, an LSRP Board member and one of the non-LSRP board members. The CRT reviews the material provided by the complaint and can obtain additional documents and information from the DEP, complainant, the LSRP, or their parties. The CRT also may provide both the LSRP and the complainant an opportunity to submit additional information or to speak with the CRT. Once the CRT has investigated the complaint it makes a recommendation to the PCC. This recommendation identifies whether there was a violation of the code of conduct, and, if so which sections of the code of conduct were violated and what the proposed penalty should be. The PCC may accept this recommendation or send the matter back to the CRT for additional investigation. The PCC may also modify the recommendation. The PCC then takes the recommendation to the Board which considers the matter in a closed session. The Board will then vote on the matter in open session. Once the Board votes on the matter, the name of the LSRP becomes public and a summary of the matter is placed on the Board’s website. The LSRP then has 35 days to appeal the Board’s decision.
The PCC has received 7 complaints since its inception. Four of those complaints are in the process of being investigated. One of those complaints was referred to the PCC as a result of an audit. The remaining complaints were investigated and, of those, two were dismissed, one with a warning and one reprimand has been issued.
Another very important aspect of the Board is the conducting of audits. SRRA requires the Board to audit at least 10% of the LSRPs each year. Since the beginning of this year, the Audit committee has been randomly selecting 5 names each month and sending those LSRPs a questionnaire to complete and return. The number of LSRPs audited will be adjusted depending on the number of licensed LSRPs at the beginning of each year. Each month a new Audit Review Team (ART), comprised of two Board members, is selected to perform the audit. According to the draft rules the Board has been writing, the Board will audit the submissions and conduct of an LSRP to ensure that the LSRP‘s highest priority in the performance of professional services is the protection of public health and the safety of the environment. The ART reviews the completed questionnaire, and reports prepared by DEP and, based upon this review can request additional information from the LSRP and DEP. Theoretically, the ART has additional powers to obtain information. I would suggest the ART could request documents and information from third parties and could perform its own site inspection and testing if it felt it was appropriate.
Once the ART has performed its review it advises the Audit committee if the LSRP’s audit was satisfactory or not. If the audit outcome is unsatisfactory the Audit committee can refer the LSRP to the PCC for a disciplinary proceeding.
The enactment of the SRRA signaled a major shift on how remediation occurs in the State. The DEP, responsible parties; LSRPs and the public are adjusting to this new paradigm. The Board is putting into place the procedures and policies to guide everyone. Eventually these policies and procedures will be adopted as rules which the Board is writing.