Pending New Jersey Legislature Establish Licensed Site Professional Program

May 12, 2009
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John Scagnelli covers the entire environmental law fieldBy John M. Scagnelli | New Jersey State Senator Bob Smith and Assemblyman John F. McKeon have introduced S-1897/A-2962 which establish a licensed site professional program in the New Jersey Department of Environmental Protection (NJDEP) and make important changes to NJDEP’s Site Remediation Programs. The changes to NJDEP’s programs made by S-1897/A-2962 significantly change the way of doing business with NJDEP and deserve attention.

NJDEP Licensed Site Professional Program

Licensed Site Professionals (LSPs) once licensed by NJDEP, will certify that remediation at contaminated sites has been performed in conformance with NJDEP’s technical requirements. Until the LSP program can get off the ground1, LSPs will be issued interim licenses by NJDEP based on experience2. The following are key components of the NJDEP LSP Program:

    • Criteria are established for a Tier 1 to Tier 4 ranking system for contaminated sites.


    • NJDEP will select the remedy for Tier 1 sites, review and approve all documents submitted for Tier 2 sites, and review screening documents, certifications, and checklists for Tier 3 and Tier 4 sites. NJDEP can audit remediations at Tier 3 and Tier 4 sites.


    • Most documents relating to the remediation of Tier 1 to Tier 4 sites must be signed and certified by an LSP, or by a certified subsurface evaluator3. Responsible parties who employ persons not LSPs for remediation projects are subject to penalties.


    • NJDEP can issue interim LSP licenses which will remain effective until 180 days after NJDEP’s adoption of rules establishing permanent LSP requirements.


    • NJDEP will issue certificates of authorization to firms providing remediation services and no firm can provide licensed site professional services in the state without the authorization.


  • A code of professional conduct for LSPs and subsurface evaluators will be established with provisions for license suspension and revocation.

Changes to NJDEP’s Site Remediation Programs

    • NJDEP will impose a 5% surcharge on the actual cost of a limited restricted use or restricted use remedial actions with the surcharges deposited in a new Remediation Guarantee Fund created in NJDEP. Moneys in the Fund will be used by NJDEP to pay for remediation where the person fails to conduct or properly conduct the remediation.


    • NJDEP will establish mandatory time frames for the conduct of remediations at contaminated sites.


    • Any person voluntarily conducting remediation at a contaminated site (NJDEP’s MOA Program) must establish and maintain a remediation funding source in the amount of the estimated cost of remediation.


    • Person(s) responsible for conducting remediation at the site of an unregulated heating oil tank, a childcare facility, an educational facility, or at Tier 4 sites are not required to establish a remediation funding source.


  • Upon submission of a remedial action workplan which proposes implementing a limited restricted use or restricted use remedial action, the person responsible for performing the remediation must annually estimate the costs of remediation for 20 years after the approval of the remedial action workplan, including costs of operation, monitoring and maintenance of the remedial action and include those costs in the remediation funding source.

This Scarinci Hollenbeck Client Alert has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.

1LSP requirements include the passing of an examination and meeting standards of training, experience, professional conduct, education, financial responsibility, and continuing professional requirements.

2Interim LSP standards will require candidates to meet certain educational requirements, have ten years of continuous full time employment in the field, have a minimum of 5000 hours of experience over the past five years of work on contaminated sites within New Jersey and possess certain professional certifications.

3“Certified subsurface evaluator” means a person certified to perform services at the site of an underground storage tank or an unregulated heating oil tank.