Environmental Site Remediation
LSRP vs. Environmental Consultant –
Issues to Consider When Making the Decision
The material provided herein is for informational purposes
only and is not intended as legal advice or counsel.
Please help yourself to food
and drinks
Please let us know if the room
temperature is too hot or cold
Bathrooms are located past the
reception desk on the right
Please turn OFF your cell
phones
Please complete and return
surveys at the end of the
seminar
2
Overview of the Site Remediation
Reform Act (“SRRA”)/Licensed Site
Remediation Professional (“LSRP”)
Program and Deadlines For
Compliance
Presented by: Martha Donovan
Reason for Enactment of Site
Remediation Reform Act, Which
Created the LSRP Program
4
What Did MA and CT Do in Order to
Address Their Remediation Case
Backlog Through Licensed Site
Remediation Professionals?
5
What is a Licensed Site Remediation
Professional in New Jersey?
6
The Somewhat “Bumpy”
Transition in New Jersey
7
N.J.S.A. 58:10b-1.3 - Remediation of
Discharge of Hazardous Substance;
Requirements
8
What About the Old Cases/Those PreExisting 11/4/09, Do We Need to
Obtain an LSRP?
9
Deadlines
Yes, NJDEP Really Means It
10
Other Important SRRA/LSRP
Issues
11
Changes in Legal Liabilities
Under the LSRP Prgoram
Presented by: Martha Donovan
From the “Responsible Party”
Perspective
13
Same Issue From the
Consultant’s Perspective
14
From the Client’s Perspective
15
From the LSRP’s and Consulting
Firm’s Perspective
16
From the Responsible Party’s
Perspective
17
From the Consultant (LSRP)
Point of View
18
From the Client’s Point of View
19
From the Consultant (LSRP)
Point of View
20
You Get the Point?
21
Liability Issues to Fret About
(Both Responsible Parties and LSRPs)
22
Immediate Environmental
Concerns
Presented by: Jeff Casaletto
IEC Citations
• Site Remediation Reform Act – N.J.S.A. 58:10C-2
(definition); N.J.S.A. 58:10C-16j (LSRP duty to report)
• Technical Requirements for Site Remediation – N.J.A.C.
7:26E-1.4 (reporting); N.J.A.C. 7:26E-1.8 (definition)*;
N.J.A.C. 7:26E-1.14 (response actions and regulatory
timeframes)*
• Administrative Requirements for the Remediation of
Contaminated Sites – N.J.A.C. 7:26C-3.3(a)2 (mandatory
timeframe)*
• IEC Guidance – Currently in draft form* [Not to be
confused with Vapor Concern Guidance]
24
IEC Definition
A discharge that:
1. Contaminates potable wells at or above applicable
standards
2. Results in indoor air levels above screening levels
in Department's Vapor Intrusion Guidance*
3. Creates a toxic or harmful atmosphere in an
occupied or confined space
4. Could result in an acute human health exposure, as
further described in the Department's IEC
Guidance
5. The catchall – any other condition that poses an
immediate threat to the environment or to the
public health and safety as further described in the
Department IEC Guidance
25
IEC Issues
• LSRP reporting requirement
• Regulation by guidance*
• NJDEP oversight despite LSRP
• Tight timeframes – immediate, 5-day*, 60-day*, 120day, 270-day*
• Mandatory timeframe* – March 1, 2011 or one year
from the date IEC required to be reported
• Grace Period – all non-minor violations - $20,000
26
The Consultant’s View
Philip I. Brilliant, CHMM, LSRP
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
27
1.
2.
3.
LSRP Obligation
LSRP as Advisor/Consultant – Outcome
Success as an LSRP – the Profession!
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
28





Extension of Mandatory Timeframes from 1
year to 2 years – except LNAPL;
Exercise “enforcement discretion” on
regulatory timeframes;
Change the definition of an VI IEC from
exceedance of Indoor Air Screening Levels to
Rapid Action Levels. “Enforcement discretion”
for tweeners.
PA for ISRA and SI for UST; and
Initial Receptor Evaluation Requirement –
submit what you have by November 26, 2010.
BRILLIANT ENVIRONMENTAL
SERVICES
29

When is an LSRP required?
 Anyone initiating remediation after November 4, 2009 needs an
LSRP
 Initiating remediation includes: 1) new discharge; 2) new
triggering event under ISRA; 3) new PA, SI, RI, RAW, RAR
which creates a new case; 4) case with existing NFA is
reopened; 5) new person taking over remediation; 6) new deed
notice or declaration of environmental restriction
 Not a “new case” if you pass two prong test:
 Reported the original discharge/discovery of contamination
as required by law, AND
 Have continuously remediated the site since then.
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
30
Overriding Concern of LSRP is Public Health, Safety
and Environment
 Notification Requirements to NJDEP
 Retention/Termination
 Discharge at site where LSRP is responsible
 Immediate Environmental Concern
 Client action or decision resulting in deviation from
RAWP
 Material differences from prior reports

BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
31
Temporary LSRPs – 406
 New Cases Using LSRPs – 414
 Cases Opting In – 522 (Shell, LNA, CFI)*
 RAO’s submitted – 17


As of September 8, 2010
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
32
Responsible Party to the NJDEP
 LSRP to the Board

The Board has not yet been established but will consist of
13 members

 NJDEP Commissioner and State Geologist
 11 public members, including 6 LSRPs, 3 from Statewide
environmental organizations, 1 from a business organization
and 1 from academic community
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
33
LSRPs have notification obligations independent of
contracts
 Immediate Environmental Concerns – obligation
to report by LSRP
 Due Diligence

Obligation to report where contamination discovered at
sites for which LSRP is responsible

BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
34
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
35
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
36
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
37
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
38
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
39
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
40
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
41
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
42
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
43
Area of Concern vs. Entire Site
 NJDEP issues NFAs; LSRPs issue RAOs
 RAOs receive the same liability protections afforded NFAs including
Covenant Not to Sue
 Invalidation/Overturning:
 NFAs
 Information not accurate or complete
 NJDEP can invalidate an NFA at anytime
 RAOs
 NJDEP must find that remedy is not protective
 Can be audited up to three years after submission and

invalidated/reopened
Obligation to submit entire file with RAO, including contracts, proposals,
except for confidential documents

BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
44
No contamination or 1 AOC (soil only) and
historic fill = $450
 2-10 AOCs, includes all UST sites, except
unregulated = $900
 11-20 AOCs, includes Landfills = $5,000
 >20 AOCs = $9,500
 Contaminated Media Additive = $1,400/media
 Example UST case with gw impact =
$2,300/year

BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
45








Professional Judgment
Clear, Accurate and Precise Contracts
Open dialogue and discussion with client
Fast response to NJDEP inspections
Respect the fight that brought the LSRP
Program to New Jersey
Reduction of Known Contaminated Sites
Individual Reputation, not Company!
Fast Acting and Fair Board
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
46
For more information:
http://www.nj.gov/dep/srp/srra/
Philip I. Brilliant, CHMM, LSRP
Brilliant Environmental Services
(732) 818-3380 x 110
brilliant@brilliantlewis.com
BRILLIANT ENVIRONMENTAL SERVICES
888-901-2537
47
Increased Legal Liability
of LSRPs
N.J. Site Remediation Reform Act =
Increased Responsibility/Liability of LSRPs
Presented by: Charles Miller
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1. Professional Judgment Risks
a. No more DEP approval of LSRP work
before remediation work begins
Example #1: NFA issued by NJDEP
vs.
RAO issued by LSRP
-Possible re-opener
49
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1. Professional Judgment Risks
a. No more DEP approval of LSRP work before
remediation work begins
Example #2: NJDEP decides financial assurance
vs.
LSRP decides financial assurances
- Excessive/Inadequate?
- Errors in judgment impact on amount
50
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1. Professional Judgment Risks
a. No more DEP approval of LSRP work
before remediation work begins.
Example #3: NJDEP decides interpretations of
regs vs. LSRP decides interpretations of regs
- Wrong Interpretation
51
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1. Professional Judgment Risks
2. Documentation Risks
A. Record-keeping
- SRRA places responsibility on LSRP to
gather and maintain all records
52
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1. Professional Judgment Risks
2. Documentation Risks
A. Record-keeping
B. Document submission
- SRRA places responsibility on LSRP to submit all retained
documents when RAOs are issued- and DEP then posts
those documents
- Privilege issues?
53
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1. Professional Judgment Risks
2. Documentation Risks
3. Conflict of Interest Risks
A. Due-Diligence Documents
B. Privileged Documents
C. IEC/reluctant client
54
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1.
2.
3.
4.
Professional Judgment Risks
Documentation Risks
Conflict of Interest Risks
Time-Element Risks
- LSRP now controls the clock
55
Increased Legal Liability
of LSRPs
Areas of Potential New Risk
1.
2.
3.
4.
5.
Professional Judgment Risks
Documentation Risks
Conflict of Interest Risks
Time-Element Risks
Risk of Reliance by Third-parties
- Third-party relies on LSRP’s RAO
56
Increased Legal Liability
of LSRPs
1. Update documentation (proposals and
contracts) to take into account added risks
A. Provision noting services will be in accordance
with SRRA
B. Provision setting out LSRP’s obligation to
maintain and preserve documents
C. Provision setting out LSRP’s obligation to
submit documents
D. Provision setting out LSRP’s obligation to notify
NJDEP under certain circumstances
E. Disclosure that failure to perform these
obligations may result in fines/penalties
57
Increased Legal Liability
of LSRPs
1. Update documentation (proposals and
contracts) to take into account added risks.
F. Disclaimer of liability for client’s failure to:
-Perform SRRA obligations
-Fund remediation
-Disclose relevant information
-Follow LSRP’s recommended actions
58
Increased Legal Liability
of LSRPs
1. Update documentation (proposals and
contracts) to take into account added
risks
G. Disclaimer noting that issuance of RAO
by LSRP is not a guarantee or warranty
that the site is free of contamination, that
the remediation complies with all legal
requirements, or that it will be accepted
by the NJDEP
59
Increased Legal Liability
of LSRPs
1. Update documentation (proposals and
contracts) to take into account added
risks
H. Disclaimer noting that LSRP is not
responsible for additional requirements
imposed by NJDEP after review/audit,
except to extent they arise out of LSRP’s
negligence
60
Increased Legal Liability
of LSRPs
1. Update documentation (proposals and
contracts) to take into account added
risks
I. Clearly set out responsibilities and
obligations of LSRP and project owner
61
Increased Legal Liability
of LSRPs
1. Update documentation (proposals and
contracts) to take into account added
risks
2. Review and update internal
procedures, particularly as to
document gathering and retention
3. Review insurance coverage
62
What is Environmental
Insurance?
Meredith Marcus
Frenkel Environmental
212-488-0230
mmarcus@frenkel.com
Should I Be Concerned?
Now What Do I Do?
How Do I Protect Myself and/or My
Company?
Possible RAO Reopeners – First 3 Years
 NJDEP required to provide additional review of at least 10% of
all documents submitted annually by the LSRP
 Board required to audit annually the submissions and conduct of
at least 10% of the LSRPs
 DEP may provide additional review of any document submitted if:
 Any deficiencies, errors or omissions will result in the inability to
determine if the remediation is protective of the public health safety
or the environment
 The remediation will not be protective of the public health, safety or
the environment
 DEP can invalidate an RAO if the remedial action is not
protective of public health, safety or the environment
Possible Reopeners – After 3 Years
 Same as was present with a No Further Action
Determination:
 Undiscovered contamination is found at the site
 Reason to believe there is contamination (e.g., neighboring
property)
 New cleanup standards
 Failure to comply with conditions of the RAO
Policy Options
 3-year Policy to coincide with 3-year Auditing Period
 Policy during remediation (to cover unknown
conditions)
 Include both remediation period and after RAO (5-10
years)
Environmental Impairment Liability (EIL)
Pollution Legal Liability (PLL)
Owners and Operators – must have insurable interest
First Party: Cleanup for Owners and Operators for
conditions on, at or under your site
Third Party: Bodily Injury, Property Damage and
Cleanup caused by pollution conditions that
emanated from your site
Legal Defense Costs
What It Covers
Unknown Pre-Existing Conditions
 Pre-Existing – Existed PRIOR to policy effective date
 Unknown – insured not aware of condition (buried surprises)
Excluded – Known Pre-Existing Conditions
 Upon Receipt of (RAO) – policy endorsed to
cover regulatory reopeners 
Discovery of New Conditions from New Operations
 New – introduced or released AFTER policy effective date
Coverage Enhancements
 Business Interruption





Loss of Rents
Relocation Costs
Loan Interest
Development Delay
Other Soft Costs
 Property Diminution (based on reduction of FMV)
 Natural Resource Damages (many standard now)
 Contractual Liability
 Non-Owned Disposal Sites (NODs)
 Transportation of Waste (Contingent)
The Policy
Claims Made
Often Multi-Year Terms (3, 5, 10)
Limits $1 million - $50 million
Minimum Premium Starting at $5,000
Duty to Defend
Defense Costs Included in Limits
Multiple Locations
Retroactive Dates (extends pre-existing)
Minimum Earned Premium (25-100%)
Reinstatement of Aggregate for multi-year optional
Contractors Pollution Liability Policy
 Third-party bodily injury and property damage
including:
 Cleanup for pollution conditions caused by the contractor
(new condition)
 Cleanup for existing conditions exacerbated by the
contractor
 Often packaged with general and professional liability
policies
Professional Liability – Is My LSRP Covered?
 Sample Insuring Agreement.
 “We will pay on behalf of the insured, all loss that the insured
is obligated to pay as a result of claims first made against the
insured and reported to the Insurance Company during the
policy period or extended reporting period arising out of
professional services rendered on or after the retroactive date”
 Who is an Insured under Coverage D (E&O)
a. Named Insured listed on the declarations page
b. Any partner, officer, director, stockholder, or employee of the
Named Insured but only while rendering prof. services on behalf
of the Named Insured
c. Heirs, executives, administrators, etc…
Professional Liability – What’s Covered?
 Insurance procured by your LSRP to cover losses caused by their
professional recommendations
 Losses are usually “monetary” in nature as opposed to “bodily injury” or
“property damage”
 Water intrusion due to improper design or abatement - $4.2MM
 Project delays due to negligent engineer - $3.1MM
 Cost overrun due to a consultants error - $1.4MM
 Must be caused by a “negligent” act, error or omission
 Must occur after Retroactive Date
 Defense Costs - even if your firm is not ultimately liable, defense costs can
be substantial.
Professional Liability – What’s Excluded?
 Intentional and Dishonest Acts
 “Known or Should Have Known”
 Contractual Liability (assumed liability)
 Fines and Penalties
 Warrantees and Guarantees
 Faulty Workmanship
Examples – Violations Likely Not Covered
•
April 2008, a private party filed a complaint with the Board alleging that
the LSP had failed to follow state regulations while working in 2007 on a
contaminated site. The complaint alleged that the LSP excavated
contaminated soil and conducted dewatering without previously filing a
plan of this work with the DEP. The Complaint also alleged that the LSP
failed to obtain a federal permit for discharge of treated groundwater to a
storm drain that discharged to a river.
•
The LSP failed to address an open IRA condition in a Phase II submittal
regarding Site A when the LSP knew or should have known that required
IRA activities (namely indoor air sampling at an adjacent residence)
needed to be completed.
•
In the Phase II submittal for Site A, failing to identify the residents in the
adjacent residence as potential human receptors or to discuss vapor
migration as a potential human exposure pathway to the adjacent
residence.
Questions & Answers Session
Thank you for coming!