Moderator: Dr. Jorge Berkowitz, LSRP
Panelists:
- Rodger Ferguson, Jr., LSRP, President, Penn Jersey Consulting
- Neil R. Rivers, LSRP, Senior Associate/VP, Langan Engineering
- Andrew Robins, Esq., Chair, Environmental Practice Group, Sills, Cummis, & Gross, PC
- Joanne Vos, Esq., Maraziti Falcon, LLP
Independent Professional Judgment at a Crossroads: What DEP, LSRPs and Redevelopers Need to Know
Highlights from CPES’ March 2, 2023 Hot-Topic panel
On March 2 CPES convened a no-holds-barred round-table on the steady erosion of “Independent Professional Judgment” (IPJ) inside New Jersey’s Licensed Site Remediation Professional (LSRP) program. Moderated by Dr Jorge Berkowitz, the panel featured veteran practitioners Joanne Vos (Falcon Engineering), Rodger Ferguson (PennJersey Environmental), Andy Robins (Saul Ewing Arnstein & Lehr) and Neil Rivers (Langan), with special insights from former Site Remediation Program director Irene Kropp.
Below is a concise recap of the key messages, flash-points and action ideas that emerged.
1. Why IPJ Matters—and Why It’s Slipping
- Original intent (2009-2012). Under the Site Remediation Reform Act (SRRA) the LSRP, not DEP, directs day-to-day technical decisions. DEP focuses on broad oversight and enforcement only when a remedy is not protective.
- Current reality. Panelists described a “return to 2007,” with frontline DEP reviewers second-guessing professional calls on well placement, capping, sampling density and alternative remediation standards.
- Symptoms of drift.
- Iterative comment letters on minutiae; 20-page “response to comment” cycles.
- Routine demands to withdraw or hold RAOs and permit applications—sometimes authored by reviewers with fewer than six months’ experience.
- Permits that once issued in days now languish 18-24 months.
2. Concrete Impacts on Redevelopment
Attorney Joanne Voss detailed the downstream cost:
- Delayed certificates of completion stall closings, Fannie Mae financing and condo conversions.
- Municipalities must rewrite redevelopment agreements or accept higher risk because RAPs and RAOs cannot be secured on predictable timelines.
3. Root Causes (Panel View)
| Category | Issue | Illustrative Quote |
|---|---|---|
| Training & QA | New reviewers lack field experience; no internal checklist or QA buffer. | “There’s nobody willing to manage anybody in that building right now.” – Ferguson |
| Process Design | All permits funneled to a small team; every submittal treated like a high-risk exception. | “They’re going back to look at the other 32 AOCs that already have RAOs.” |
| Culture & Incentives | DEP fears a new “Kidde College,” defaults to defensive reviews. | “They’ve been trained—or permitted—to inject their own professional judgment every time.” – Rivers |
4. Solutions Proposed During the Session
- Publish the reviewer’s checklist and flow-charts; require senior sign-off before telling an LSRP to withdraw.
- Tiered permit pathway
- Category 1 (low-complexity): general permit / permit-by-rule, no DEP review.
- Category 2-3: reviewer assigned by complexity and expertise.
- Independent dispute panel for RAP/RAR impasses (outside CSRRP chain).
- Legislative back-stop
- Clarify in statute that RAP issuance is the LSRP’s responsibility unless DEP proves non-protectiveness.
- Require DEP reviewers who exercise technical vetoes to hold—or pass—the LSRP exam.
- Board of LSRP oversight to guard against agency over-reach (file a test complaint when DEP pre-empts IPJ).
5. What Happens Next?
Assistant Commissioner David Haymes convened an internal “listening session” on Feb 22 but has not yet scheduled a follow-up. Panelists urged:
- Pressure from the top. If DEP stalls, raise the issue to Commissioner LaTourette and the Governor’s office.
- Legislative engagement. Brief Sen. Bob Smith (ENRC) and Asm. John McKeon / Asw. Nancy Pinkin to restore the original equilibrium of SRRA.
- Data transparency. DEP’s own metrics show 19,700 RAOs with only 24 invalidations (0.12 %). Public release of those numbers would undercut “bad-actor” narratives.
6. Take-Away for Practitioners
- Document the why behind every deviation—then stand firm on IPJ.
- Escalate reviewer disagreements quickly, in writing, through the chain.
- Track and share permit delays with trade groups: numbers matter in Trenton.
Keep the Conversation Moving—With CPES
CPES will continue to convene monthly Hot-Topics until workable reforms are in place. Stay informed, share your case studies and help safeguard the integrity of New Jersey’s LSRP program.
Together we can keep remediation efficient, science-based and redevelopment-ready.