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NJ DEPARTMENT of ENVIRONMENTAL PROTECTION
SITE REMEDIATION PROFESSIONAL LICENSING BOARD
Notice of Rule Proposal
N.J.A.C. 7:26I, Regulations of the New Jersey Site Remediation Professional Licensing Board
PUBLIC NOTICE
Take notice that the NJ Site Remediation Professional Licensing Board is proposing new rules, repeals, and amendments to N.J.A.C. 7:26I, Regulations of the New Jersey Site Remediation Professional Licensing Board. A statement of the substance of the proposal follows:
The Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 et seq., established the Board to oversee the licensing and performance of site remediation professionals. The Board promulgated the regulations of the New Jersey Site Remediation Professional Licensing Board (Board Rules) to govern the licensing and conduct of Licensed Site Remediation Professionals (LSRPs).
Amendments to the SRRA were adopted on August 23, 2019. In light of the amendments to the SRRA, the Board reviewed the existing Board Rules at N.J.A.C. 7:26I for consistency with the amendments. As a result of its review, the Board is proposing to amend the existing Board Rules to be consistent with the amendments to the SRRA. In addition, as the Board Rules were promulgated in January 2016, the Board has identified certain errors and inconsistencies in the existing Board Rules, as well as certain provisions that are not completely clear in intention or meaning, and certain references to Department procedures that need to be modified. The Board is also proposing amendments to correct the identified errors and inconsistencies, clarify the identified provisions, and modify the identified procedures.
The notice of proposal Summary below discusses the proposed amended rule text. In addition to the proposed rule changes discussed below, the Board proposes the following general amendments throughout existing N.J.A.C. 7:26I:
Adding “guidance,” where necessary, to reflect the Board’s authority to enforce the obligation of LSRPs to apply available and appropriate guidance;
Removing “technical” before “guidance” wherever it occurs, to clarify that the LSRP must apply all available and appropriate guidance, whether technical, administrative, or some other category of guidance;
Adding “independent professional” before “judgment” to provide consistent use of the term “independent professional judgment";
Changing the method for submitting notification of LSRP retention or dismissal to the Department from the use of forms available on the Department's website to “through the Department portal” to reflect the Department’s current practice;
Updating the name and mailing address of the Board to the current name and address; and
Typographic, grammatical, and punctuation amendments to correct errors and clarify existing rule text.
N.J.A.C. 7:26I-1 General Provisions
N.J.A.C. 7:26I-1 sets forth the general provisions of the Board Rules including the purpose and scope of the chapter, definitions, liberal construction, and severability.
The Board proposes to amend existing N.J.A.C. 7:26I-1.3 by revising the definition of “alternative verifiable learning format” to conform with current Board policy on the format of continuing education, which narrows the definition of “alternative verifiable learning format.” The proposed amendments broaden the definition of live format continuing education programs to include programs that are viewed simultaneously with their presentation from a remote location. The Board also proposes defining the term “retained” to conform with amendments to the SRRA, which added the definition of this term.
N.J.A.C. 7:26I-2 Licensure
N.J.A.C. 7:26I-2 establishes the licensing program for site remediation professionals. In order to obtain an LSRP license, an individual must submit an application that demonstrates that he or she meets the eligibility requirements set forth in this subchapter. The Board will review and decide whether the applicant meets the eligibility requirements based on the application submitted pursuant to this subchapter. Any applicant who the Board determines has met the eligibility requirements may sit for the LSRP examination, which is administered by the Board. A passing score on the LSRP examination is required for the applicant to be issued a license. A license is issued for a term of three years and must be renewed by the LSRP every three years.
The Board proposes to amend existing N.J.A.C. 7:26I-2, as follows:
Change the heading at N.J.A.C. 7:26I-2.3 to “License required to perform remediation” to more accurately reflect the contents of this section;
Add proposed new N.J.A.C. 7:26I-2.3(b) to conform with the amendments to the SRRA and clarify that a person who is not an LSRP shall not perform remediation;
Add proposed new N.J.A.C. 7:26I-2.3(c) to conform with amendments to the SRRA and clarify that an LSRP shall not facilitate a non-LSRP remediating a site, unless an LSRP is overseeing the non-LSRP, and that an LSRP shall not remediate a site unless retained as the LSRP or working with a retained LSRP;
Amend N.J.A.C. 7:26I-2.4(a) to conform with amendments to the SRRA at N.J.S.A. 58:10C-7.d, which clarify the qualifications for an LSRP license and disqualify a person from eligibility for licensure if they have been convicted of or plead guilty to a crime that would qualify the person for registration pursuant to section 2 at P.L. 1994, c. 133 (N.J.S.A. 2C:7-2) or any other crime involving moral turpitude, or have had their professional license or professional certification revoked or surrendered in response to a disciplinary investigation in the previous 10 years. “Immediately” is changed to “within the five years” to also conform with amendments to the SRRA at N.J.S.A. 58:10C-7.d. Additionally, the work “administrative” is added to “technical requirements for site remediation” to accurately describe the scope of the Board-approved course and the words “three years” are changed to “36 months” and “date of” is added to “submission of the application” to provide more precise directions;
(e) Amend N.J.A.C. 7:26I-2.5(a) to correct directions for submission of an application for the LSRP license;
(f) Amend N.J.A.C. 7:26I-2.11(b) to conform with amendments to the SRRA at N.J.S.A. 58:10C-7.d, which clarify the qualifications for an LSRP license and disqualify a person from eligibility for licensure if they have been convicted of or plead guilty to a crime that would qualify the person for registration pursuant to section 2 at P.L. 1994, c. 133 (N.J.S.A. 2C:7-2) or any other crime involving moral turpitude, or have had their professional license or professional certification revoked or surrendered in response to a disciplinary investigation in the previous 10 years;
(g) Add proposed new N.J.A.C. 7:26I-2.11(i)2 to add directions for submission of an application for LSRP license renewal;
(h) Delete N.J.A.C. 7:26I-2.11(j) to remove the statement that “a pending hearing on the denial of a license renewal shall not extend the original expiration date of the license,” which is not in compliance with N.J.S.A. 52:14B-1 et seq.;
(i) Amend N.J.A.C. 7:26I-2.12(a) to remove the statement that an LSRP’s license shall expire “ninety days after the LSRP’s receipt of the Board’s annual license fee invoice, if the LSRP fails to pay the annual license fee within that 90-day period,” which is not in compliance with N.J.S.A. 52:14B-1 et seq.;
(j) Add proposed new N.J.A.C. 7:26I-2.12(b) to provide an option for an LSRP to surrender his or her license prior to the expiration date;
(k) Amend recodified N.J.A.C. 7:26I-2.12(d)2 to clarify the requirements for an LSRP to maintain and preserve data, documents, records, and information when a license is expired;
(l) Amend N.J.A.C. 7:26I-2.13(f)3 to clarify the requirements for an LSRP to maintain and preserve data, documents, records, and information when a license is suspended;
(m) Amend N.J.A.C. 7:26I-2.14(f)3 to clarify the requirements for an LSRP to maintain and preserve data, documents, records, and information when a license is revoked; and
(n) Amend N.J.A.C. 7:26I-2.15(a)6 to clarify the requirements for an LSRP to maintain and preserve data, documents, records, and information when a license is inactivated.
N.J.A.C. 7:26I-3 Fees
The SRRA, at N.J.S.A. 58:10C-5.g, empowers the Board to establish and collect fees for examination, licenses, renewals, or any other services required for the licensing of site remediation professionals. N.J.A.C. 7:26I-3 establishes fees to support the Board’s activities to administer services required for the licensing and oversight of site remediation professionals. All fees are calculated based on the Board’s average costs to perform the tasks associated with the fee (for example, the Board’s average costs to conduct the review of licensure applications).
The Board proposes to delete existing N.J.A.C. 7:26I-3.3(a)2, 3.4(a)2, and 3.5(b) to remove references to the fee amounts beginning in calendar year 2015. The Board proposes to delete existing N.J.A.C. 7:26I-3.5(f) to remove the statement that “an LSRP’s license shall immediately expire 90 days after the LSRP’s receipt of the Board’s annual license fee invoice if the LSRP fails to pay the annual license fee within that 90-day period,” which is not in compliance with N.J.S.A. 52:14B-1 et seq.
N.J.A.C. 7:26I-4 Continuing Education
N.J.A.C. 7:26I-4 establishes the continuing education requirements each LSRP must meet in order to ensure that he or she is informed of advances in scientific and technical aspects of site remediation, is current with State rules, and understands his or her professional and ethical responsibilities. An LSRP is required to earn 36 Continuing Education Credits (CECs) during the term of his or her license. The Board originally allocated these CECs between scientific and technical education, regulatory education, and ethical education, and required each LSRP to earn a specified number of CECs in each category during the three-year license term.
Continuing education providers must apply to the Board for CEC approval for each continuing education program. The Board reviews the application and determines the number and types of CECs to be awarded to each continuing education program based on criteria specified in the Board Rules.
The Board proposes to amend N.J.A.C. 7:26I-4 as follows:
(a) Add proposed new N.J.A.C. 7:26I-4.3(a) to add an additional category of education; specifically, “individual professional development of LSRPs,” which would provide for training that would advance the ability of an LSRP to provide service to clients, including training in project management, communication both written and verbal, use of databases, and preparation of technical components of proposals and scopes of work;
(b) Amend recodified N.J.A.C. 7:26I-4.3(b) to clarify that nine of the 36 required continuing education credits may be distributed amongst any one or more of the categories of ethics education, regulatory education, scientific and technical education, and individual professional development of LSRPs;
(c) Amend recodified N.J.A.C. 7:26I-4.3(e) to include a cross-reference to N.J.A.C. 7:26I-4.5;.
(d) Amend designation of N.J.A.C. 7:26I-4.3(a) to (b), N.J.A.C. 7:26I-4.3(b) to (c), 4.3(c) to (d), and 4.3(d) to (e) to account for the addition of new N.J.A.C. 7:26I-4.3(a);
(e) Add proposed new N.J.A.C. 7:26I-4.3(f) to limit to 18, the number of CECs that may be earned through credits that are verified by affidavit of the attendee;
(f) Add proposed new N.J.A.C. 7:26I-4.4(a)4iv to include reference to “individual professional development of LSRPs”;
(g) Add proposed new N.J.A.C. 7:26I-4.4(b)4 to establish the requirements for approval of a continuing education program for individual professional development credit;
(h) Amend existing N.J.A.C. 7:26I-4.4(c) to set forth the time period within which an application for approval of continuing education credit for a continuing education program must be submitted to the Board;
(i) Add proposed new N.J.A.C. 7:26I-4.4(c)12 to add to the application for approval of continuing education credits provision for an LSRP to verify attendance through an affidavit for a large format conference; and
(j) Add proposed new N.J.A.C. 7:26I-4.5(a) to list the type of activities that an LSRP may request for continuing education credit.
N.J.A.C. 7:26I-5 Audit Procedures
N.J.A.C. 7:26I-5 sets forth the requirement for the Board to randomly audit the submissions and conduct of an LSRP as a means to oversee the quality and integrity of the work and performance of the LSRP. The Board must calculate the number of LSRPs to be audited each year, which shall be equal to at least 10 percent of the total number of LSRPs in that year. The Board selects, randomly, the names of LSRPs to be audited. The purpose of the audit is to ensure that the LSRP has complied with the SRRA and the Board Rules, and the LSRP has not knowingly made any false statement, representation, or certification in any documents or information submitted to the Board or the Department.
The Board proposes to amend N.J.A.C. 7:26I-5 by amending existing N.J.A.C. 7:26I-5.5(f) to clarify the procedure to be followed when the outcome of an audit is a referral to the Professional Conduct Committee that the LSRP be further investigated.
N.J.A.C. 7:26I-6 Rules of Professional Conduct
N.J.A.C. 7:26I-6 establishes the rules of professional conduct that an individual shall follow in the performance of professional services as an LSRP. The guiding principle is that, at all times, in the performance of professional services, an LSRP’s highest priority shall be the protection of public health and safety and the environment.
The Board proposes the following amendments at N.J.A.C. 7:26I-6:
(a) Amend existing N.J.A.C. 7:26I-6.3(a) to add “the rules adopted by the Board pursuant to section 6 at P.L. 2009, c. 60 (N.J.S.A. 58:10C-6)” at proposed new N.J.A.C. 7:26I-6.3(a)6 in order to clarify that LSRPs are expected to know and apply the Board Rules;
(b) Amend existing N.J.A.C. 7:26I-6.3(c) to add “independent professional” before “judgment” and to add “scientific, technical, or other” before “rationale” to clarify these terms;
(c) Add proposed new N.J.A.C. 7:26I-6.3(f) to state that an LSRP shall not provide underground storage tank services for an underground storage tank system regulated pursuant to N.J.S.A. 58:10A-21 et seq., or an unregulated heating oil tank system unless the LSRP is authorized in accordance with N.J.A.C. 7:14B-13 and 16;
(d) Amend existing N.J.A.C. 7:26I-6.7 to add “or LSRP relying upon work performed by others” to the section heading;
(e) Amend existing N.J.A.C. 7:26I-6.8(a) to clarify how an LSRP shall apply independent professional judgment and demonstrate that independent professional judgment was applied;
(f) Amend existing N.J.A.C. 7:26I-6.9 to conform with the amendments to the SRRA at N.J.S.A. 58:10C-16.1 that eliminate the necessity to conduct remediation of a condition that the LSRP identifies to be an immediate environmental concern in a building that is not occupied and will be demolished and the reporting requirements thereof;
(g) Amend existing N.J.A.C. 7:26I-6.10 to conform with the amendments to the SRRA at N.J.S.A. 58:10C-16.k that specify that an LSRP retained to perform remediation at a site or any portion of a site who obtains specific knowledge that a previously unreported discharge, other than of historic fill, has occurred at any location on the site, must report the discharge to the person responsible for conducting the remediation of the discharge, the Department, and any other LSRP that is working on the contaminated site of the discharge;
(h) Amend existing N.J.A.C. 7:26I-6.16 by changing “LSRP” to “site remediation professional, licensed or not,” to clarify that an LSRP is responsible for violations committed by a site remediation professional that he or she supervises or whose work he or she reviews whether or not the site remediation professional is licensed and to add “or should know” to clarify the standard of knowledge concerning a violation;
(i) Amend existing N.J.A.C. 7:26I-6.18(b) to clarify that an LSRP shall inform a client of timeframes for each site for which he or she has been retained;
(j) Amend existing N.J.A.C. 7:26I-6.21(a) to add “proposal” to “description of qualifications, experience, or ability to provide services” in which any LSRP shall not misrepresent or omit facts;
(k) Amend existing N.J.A.C. 7:26I-6.24(a) to conform with amendments to the SRRA at N.J.S.A. 58:10C-16.h prohibiting an LSRP from certifying a document submitted to the Department unless the LSRP makes a good faith and reasonable effort to determine that the information in the submission is true, accurate, and complete;
(l) Add proposed new N.J.A.C. 7:26I-6.24(d) to conform with amendments to the SRRA at N.J.S.A. 58:10C-16.h prohibiting an LSRP from knowingly making “any false statement, representation, or certification in any document or information submitted to the Board or the Department”;
(m) Amend existing N.J.A.C. 7:26I-6.27(a) to conform with amendments to the SRRA at N.J.S.A. 58:10C-20 to clarify that, for each contaminated site for which the LSRP has been retained, they shall maintain and preserve all data, documents, records, and information concerning the remediation that the LSRP has managed, supervised, or performed, and concerning the work performed by other persons, that the LSRP has reviewed and evaluated or relied upon, and to include the date that the LSRP completes his or her obligations with respect to any remedial action permit to clarify the length of time that an LSRP shall maintain the data, documents, records, and information; and
(n) Add proposed new N.J.A.C. 7:26I-6.27(c) to add the responsibility of the LSRP to submit an electronic copy of the data, documents, records, and information specified at N.J.A.C. 7:26I-6.27(a) to the Department at the time the response action outcome is submitted to the Department.
N.J.A.C. 7:26I-7 Disciplinary Proceedings
N.J.A.C. 7:26I-7 establishes the procedures for disciplinary proceedings including the filing of complaints, investigation of complaints by the Board, actions the Board may take relative to complaints and violations, and hearing requirements. Any person may file a complaint with the Board. N.J.A.C. 7:26I-7 describes the Board’s authority to investigate the complaint and to render a decision with respect to the complaint. Once a decision is made, the Board will publish information regarding the complaint on the Board website. Upon a finding of violation, the Board may take any one or more of several actions, up to and including, suspension and revocation of the LSRP’s license, issuing civil penalties, and petitioning the Attorney General to bring a criminal action.
Upon the Board’s determination to issue an administrative order, suspend or revoke a license or impose another sanction, or assess a civil administrative penalty, the Board will provide the violator with notice regarding the decision, as well as information regarding the opportunity and procedures to request a hearing.
The Board proposes to amend N.J.A.C. 7:26I-7 by amending N.J.A.C. 7:26I-7.5(h) to remove the direction to the Complaint Review Team to recommend a disciplinary action and to add N.J.A.C. 7:26I-7.7(a)7 to add “issue a letter of warning or admonition” to the list of the Board’s actions in response to a violation. The Board also proposes changing the heading of N.J.A.C. 7:26I-7.8 to add “and other sanctions” to license suspension and revocation to recognize that the Board can impose sanctions other than suspension and revocation, and adding, at N.J.A.C. 7:26I-7.8(a)5, a cross-reference to N.J.A.C. 7:26I-6.27.
N.J.A.C. 7:26I-8 Adjudicatory Proceedings
In accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., N.J.A.C. 7:26I-8 provides for adjudicatory hearing requests in response to the denial of an individual’s application for an LSRP license renewal, the issuance of an administrative order, the determination that an LSRP’s license shall be suspended or revoked, or another sanction shall be imposed, or the assessment of a civil administrative penalty.
The Board proposes only minor wording amendments at N.J.A.C. 7:26I-8.
N.J.A.C. 7:26I-9 Prohibition Against Retaliatory Action
N.J.A.C. 7:26I-9 prohibits retaliatory action against an LSRP for certain actions that he or she may take in order to fulfill his or her duties and responsibilities. Likewise, an LSRP may not take retaliatory action against any person who brings a complaint about the LSRP to the Board or who cooperates with the Board during the conduct of an audit or an investigation of the LSRP.
The Board is proposing only minor wording amendments at N.J.A.C. 7:26I-9.
The proposal is scheduled to be published in the New Jersey Register dated November 7, 2022. A copy of the proposal is available from the DEP website at http://www.nj.gov/dep/rules/proposals/proposal-20221107b.pdf; the Board’s website at www.nj.gov/lsrpboard; official repository libraries; and LexisNexis free public access to the New Jersey Register at http://www.lexisnexis.com/hottopics/njoal/. A public hearing concerning this notice of proposal will be held on Tuesday, December 20, 2022, at 4:00 P.M.
The hearing will be conducted virtually through the Department of Environmental Protection’s (Department) video conferencing software (Microsoft Teams). A link to the virtual public hearing will be provided on the website of the New Jersey Site Remediation Professional Licensing Board (Board) (www.nj.gov/lsrpboard). The hearing will remain open until all testimony has been heard.
If you are interested in providing oral testimony at the virtual public hearing, please email the New Jersey Site Remediation Professional Licensing Board (Board) at srplboardcontact@dep.nj.gov no later than 12:00 P.M. on Friday, December 16, 2022, with your contact information (name, organization, telephone number, and email address). You must provide a valid email address so the New Jersey Site Remediation Professional Licensing Board can send you an email confirming receipt of your interest to testify orally at the hearing and provide you with a separate option for a telephone call-in line if you do not have access to a computer that can connect to Microsoft Teams. Please note that the New Jersey Site Remediation Professional Licensing Board will take oral testimony at the hearing by alphabetical order of the testifying person’s last name, and that this hearing will be recorded. Written comments will be accepted through January 6, 2023.
The New Jersey Site Remediation Professional Licensing Board encourages electronic submittal of comments to srplboardrulecomments@dep.nj.gov. In the alternative, comments may be submitted on paper to:
Dana Haymes, Esq.
Regulatory Officer
New Jersey Site Remediation Professional Licensing Board
c/o Office of Enforcement Policy
PO Box 420, Mail Code 401-06
401 East State Street, 6th Floor – East Wing
Trenton, NJ 08625-0420
This notice of proposal may be viewed or downloaded from the Department’s website at https://www.nj.gov/dep/rules/notices/20221107a.html and the Board’s website at www.nj.gov/lsrpboard.
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