Lenders and site property owners have an ongoing concern regarding LSRP discharge reporting responsibilities during the performance of Phase I due diligence. Proposed new rules may alleviate some of these concerns.
The Site Remediation Professional Licensing Board is proposing new rules N.J.A.C. 7:26I (January 5, 2015) to implement the Site Remediation Reform Act (SRRA). Under N.J.A.C. 7:26I-6.10(c) the responsibility to report a discharge does not apply to an LSRP who has been hired by a person other than site owner or responsible party. This suggests that if an LSRP is hired by a lending institution or prospective buyer to perform an assessment or site investigation of a property for the purpose of conducting all appropriate inquiry, the LSRP would NOT be a required to report identified discharges.
This would not apply if the conditions identified meet the definition of Immediate Environmental Concern (IEC). IEC conditions generally involve contaminated potable water sources, vapor intrusion scenarios above published rapid action levels and direct contact conditions involving acute health effect levels.
A copy of section 7:26I-6.10 is provided here:
7:26I -6.10 Responsibility to report a discharge
(a) If an LSRP obtains specific knowledge that a previously unreported discharge, other than of historic fill, has occurred on a contaminated site for which he or she is responsible, the LSRP shall:
1. Immediately notify the person responsible for conducting the remediation of the discharge and of that person’s duty to notify the Department of the discharge;
2. Immediately notify the Department of the discharge by calling the Department’s telephone hotline at 1-877-WARNDEP; and
3. Immediately notify any other LSRP that is working on the contaminated site of the discharge.
(b) An LSRP is considered to be responsible for a contaminated site if he or she has been hired by a person responsible for conducting the remediation at that site.
(c) The provisions of this section shall not apply to an LSRP who has been hired by any person who:
1. Does not own the contaminated site;
2. Conducts a preliminary assessment or site investigation of the contaminated site for the purpose of conducting all appropriate inquiry into the previous ownership and uses of the property as provided in N.J.S.A. 58:10-23.11g; and
3. Has not discharged a hazardous substance at the site or is not in any way responsible for a hazardous substance discharged at the site pursuant to N.J.S.A. 58:10-.11g.