Establishing Professional Judgment Using NJDEP Guidance Documents Presented for: Commerce and Industry Association of New Jersey Environmental Business Council Spring Conference April 4, 2014 Michael J. Speck, LSRP Paulus, Sokolowski & Sartor (PS&S) [email protected] Presentation Overview Definition and Development of NJDEP’s Technical Guidance How NJDEP Site Remediation Rules Apply to Guidance Establishing Best Professional Judgment Technical Guidance The NJDEP’s Technical Requirements for Site Remediation, N.J.A.C. 7:26E defines “Technical Guidance”: “The various guidelines that the Department publishes, after stakeholder input, that reflect the generally accepted technical practices necessary to meet the statutory and regulatory requirements applicable to the remediation of a contaminated site.” Technical Guidance documents can be found on the Department’s website: www.nj.gov/dep/srp/srra/guidance Guidance Development Guidance is developed through a Stakeholder process and required under SRRA, where NJDEP Site Remediation Staff and outside Stakeholders meet to: Develop Technical Guidance Documents Reviewed by NJDEP SRP and Stakeholders, with a “Fatal Flaw” review by NJDEPs Steering Committee to ensure synchronicity with SRP rules Develop training Use of Guidance Documents as Related to NJDEP SRP Rules Technical Requirements for Site Remediation, N.J.A.C. 7:26E (TRSR), date last amended May 7, 2012 Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C (ARRCS) date last amended – July 1, 2013 Site Remediation Reform Act, N.J.S.A. 58:10C-1 et. seq (SRRA) Phase-in period for implementation – May 7, 2012 TRSR General remediation requirements state that available and appropriate technical guidance concerning site remediation as issued by the Department shall apply, but deviation from guidance is acceptable, as long as a written rationale is provided. (7:26E-1.5) General reporting requirements include listing of all rationales for deviation from technical guidance pursuant to ARRCS. (7:26E-1.6) ARRCS Shall conduct remediation by applying any available and appropriate technical guidance concerning site remediation as issued by the Department. When there is no specific technical guidance issued by the Department or in the judgment of a Licensed Site Remediation Professional (LSRP) the guidance issued by the Department is inappropriate or unnecessary, the LSRP may use the following additional guidance: Any relevant guidance from the U.S. Environmental Protection Agency or other states; and Any other relevant, applicable, and appropriate methods and practices to ensure the protection of the public health and the environment. (7:26C-1.2(a)3) Failure to provide written rationale for deviation from technical guidance = NM $20,000 (7:26C-9.5) SRRA SRRA requires LSRPs to use professional judgment to apply to technical requirements and guidance documents. LSRP Code of Conduct = “shall exercise professional judgment” to remediate contaminated sites. “Exercising professional judgment is an inherent and essential part of site remediation.” “The intent of SRRA is to allow LSRPs to make decisions regarding remediation of a site using their professional judgment”. 44 NJR 1339(b) - May 7, 2012 Rules Vs. Guidance Although technical guidance documents are not rules and are not enforceable, they are Departmentally approved and scientifically based approaches to achieving compliance. Prescriptive requirements have been moved from rules to guidance = allows the use of professional judgment. Separate requirements for varying from a rule and a guidance document. Straight from NJDEP Guidance “In applying technical guidance, the Department recognizes that professional judgment may result in a range of interpretations on the application of the guidance to site conditions”. Principles of Professional Judgment Collect and analyze knowledge Assessment of applicable technical guidance Make a professional judgment Document the judgment Process for Making a Professional Judgment Consider and assess alternatives Consult with experts and prepare your technical decisions Ensure that conclusions are ethical and in-line with the code of conduct Pre-clearance where appropriate and possible (technical consultation) NJDEP Guidance Alternatives Environmental Protection Agency (www.epa.gov) American Society for Testing and Materials (www.astm.org) Contaminated Site Clean-Up Information (www.clu-in.org) Interstate Technology & Regulatory Council (www.itrcweb.org) Federal Remediation Technologies Roundtable (www.frtr.gov) “Guide to Guidance” First and Foremost = Immediate Environmental Concerns Plan and Execution = Conceptual Site Model and Attainment/Compliance ___________________________________________ Discuss your decisions with experts Know and understand the LSRP Code of Conduct Example of Guidance/Professional Judgment - PH1/PA identifies an AOC at surface grade; - Site Investigation was performed in accordance with NJDEP guidance documents; - Soil sampling identifies < Residential SRS but > Default IGWSSL Although the direct contact pathway was determined to be in compliance, the Impact to Groundwater pathway required further assessment: 1) Alternative assessment = Synthetic Precipitation Leaching Procedure. 2) Experts identified that the maximum leachate concentration was 1:20 ratio. 3) Statistical modeling coupled with multiple lines of evidence (depth to groundwater, known fate and transport of contaminants, soil lithology, etc.) showed that SPLP was unnecessary. Closing Thoughts “If you judge, investigate” Seneca “Good Judgment comes from experience, and a lot of that comes from bad judgment” Will Rogers “A hasty judgment is a first step to recantation” Publilius Syrus Questions?
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