Establishing Professional Judgment Using NJDEP Guidance

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?