CSG Law Alert: Two Site-Wide LSRPs on the Same Site? What Could Go Wrong?

With the adoption of the Site Remediation Reform Act in 2009, the Licensed Site Remediation Professional (LSRP) program was born. LSRPs essentially step into the proverbial shoes of the NJDEP and conduct remedial activities that they consider necessary to achieve regulatory compliance, documented by the LSRP’s issuance of a Response Action Outcome (RAO). LSRPs can issue RAOs on a site-wide area of concern (AOC) and media-specific basis. Although certain oversight guardrails exist in the form of New Jersey’s Site Remediation Professional Licensing Board which has the authority to investigate complaints against an LSRP, as well as the NJDEP’s three-year audit period after an RAO is issued, the basic premise of the program is that an LSRP independently utilizes his or her professional judgment in making each remedial decision and determination.

As the LSRP program evolved, it is no longer particularly unusual to have multiple LSRPs responsible for discrete AOCs located on the same site. The rationale being that since an RAO can be issued for individual AOCs within the same site (e.g., a drum storage area and underground storage tank), in theory, there is no crossover between them, thereby maintaining each LSRPs independence to address their specific AOC as they see fit. For that reason, it was always assumed that two LSRPs could not be retained for the same site on a site-wide basis. To use an analogy, it would be the equivalent of having two judges oversee the same trial – what happens if there are conflicting rulings on the same issue?

However, that assumption was recently turned on its head for a site in the City of Linden that is believed to be first of its kind where, with the NJDEP’s and Deputy Attorney General’s (DAG’s) explicit approval, two LSRPs have been retained for the same site on a site-wide basis. The LSRPs were retained by two distinct entities, the first by the former property owner and the second by the current property owner.  When asked how the NJDEP and DAG reached their determination, their collective response was that they ultimately concluded that there was nothing in the applicable statutes or associated regulations which expressly precluded it; and, with respect to the conflict created by two LSRPs disagreeing on a course of remediation for the same site, the response was simply that the NJDEP will cross that bridge when they get to it.

The factual underpinnings of this situation relegate it to a likely one-off, where the prior property owner is allegedly in violation of an Administrative Consent Owner and, from the NJDEP’s perspective, there was no indication that its LSRP was planning on moving forward with any remedial activities. Therefore, the NJDEP turned to the current owner for compliance, who in turn requested that it be permitted to retain its own LSRP. It is nonetheless noteworthy for the simple fact that what was once thought to be impermissible, is not only permissible, but was endorsed by the regulators.

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