LSRP UPDATE: PARADIGM SHIFT IN THE SITE REMEDIATION LANDSCAPE
NAIOP New Jersey Seminar focuses on Upcoming Program Changes
NEW BRUNSWICK, N.J. – February 23, 2012 – (RealEstateRama) — New Jersey’s site remediation landscape was altered dramatically with passage of the Site Remediation Reform Act, with upcoming March and May deadlines bringing mandatory changes in the way site remediation is performed. Among them: State-approved Licensed Site Remediation Professionals (LSRPs) will replace New Jersey DEP personnel in making site remediation decisions for individual projects. The changes were explored in-depth by industry experts at NAIOP New Jersey’s “Mandatory LSRP Update and Roundtables” program at the New Jersey Law Center.
The changes were necessitated by New Jersey DEP’s backlog of cases and other issues, explained panel moderator Jorge Berkowitz of Langan Engineering & Environmental Service, himself a former DEP official. “The agency became fraught with micro-managing, disparate expertise, and a lot of suspect documents. The program broke under its own weight.”
With a huge backlog of cases, said to number 14,000, DEP “looked at Massachusetts and modeled our LSRP program after theirs,” said Berkowitz. “LSRP is here now – May 7 will mark the complete conversion. Every project will be required to have an LSRP.”
Referring to the backlog of cases, “right now, there is a finite number of LSRPs—how will that impact the flow?” asked David Roth of Greenbaum, Rowe, Smith & Davis. “There won’t be a real bind because one-third of the pending cases currently have LSRPs,” Berkowitz responded.
In any event, “DEP will still be involved,” said Roth, noting that even under the new system, LSRPs will have to file all documents for DEP approval. DEP still has oversight. There is still a staff at DEP, and they will still be involved in cases”
In the view of Andrew Robins of Sills Cummis & Gross, “it is still a paradigm shift, putting the onus on the regulated community. It is a shift in the way business is done in New Jersey.”
Addressing the topic of what to consider when retaining an LSRP “they are your environmental general contractor,” explained Richard Ericsson of Cole Schotz Meisel Forman & Leonard. “They are your own regulator—their opinion will rule. Find someone who is smart, flexible, open to new ideas, and who has the right constitution and personality.
“Environmental science is still an art,” Ericsson said. “This is a big decision, and you have to trust that person.”
“New Jersey brought change in 2009 when the legislation was enacted,” noted Sean Monaghan of Drinker Biddle & Reath. “Everyone who has a discharge of liquid or vapors is required to report and remediate it utilizing an LSRP, or be fined or put under the direct oversight of DEP. It is no longer voluntary.”
Noting the upcoming March and May deadlines for implementation and filings, “if you miss those deadlines, DEP is required to impose direct oversight and you will lose control,” Monaghan said. “You will also have to put up a cash deposit based on the estimated cost of remediation. There are additional penalties, and DEP could even require public participation.”
One issue, based on the March 1 mandatory deadline for filings: “If you bought the property on February 29, the deadline is the next day, and it very quickly becomes your problem,” Berkowitz noted.
Another issue, according to Robins: “People are asking, ‘what is DEP’s standard for overturning an LSRP’s decision?’ The criteria are in the legislation – it has to be contamination that the LSRP did not know about. We hope that DEP learns to use their discretion appropriately. The bottom line is that the LSRP does not trump DEP. At the end of the day, DEP trumps LSRP.”
“With the impending deadlines, the reality is that we’re all learning ‘on the fly,’ and that includes DEP,” Berkowitz concluded.
In the event’s concurrent roundtables, the panelists discussed “LSRP in Detail.” The topic “Insurance Solutions for Environmental Risks” was chaired by Rubin Alspector of Marsh McLennan and Greg Steinman of Synapse Services. Don Richardson of EWMA and Gordon Duus of Mandelbaum Salsburg addressed the topic, “Post Remediation Site Care.” And George Reilly of Reilly Financial Group discussed “Estate Planning, Retirement & Executive Compensation.”
Attendees at the event earned Continuing Education Units (CEUs), now required by state law for bi-annual professional re-licensing.
###
Media Contact:
Evelyn Weiss Francisco/ 201-796-7788 / evelyn (at) caryl (dot) com
