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Variances and the Use of Best Professional Judgement

Varying from SRP's Technical Requirements and Guidance

The variance process is outlined in the Technical Rules at N.J.A.C. 7:26E-1.7. When conducting the remediation of a contaminated site, any person (Licensed Site Remediation Professional (LSRP) or non-LSRP environmental consultant) may vary from many of the technical requirements specified in regulation and guidance. The decision to vary from a technical requirement must be technically sound and based on best professional judgment, must be documented and adequately supported with data or other information provided to the Department.

N.J.A.C. 7:26E-1.7(b) establishes rule requirements from which a person conducting remediation may not vary. The following is a list of those requirements and examples of or notes for each:

Requirement Examples or notes
1. Department notification requirements Examples: Reporting a spill or IEC to the hotline
2. Mandatory or regulatory timeframes Extensions of timeframes for valid reason are generally granted by the Department
3. The requirement to obtain permits Examples: Discharge permits or remedial action permits
4. Reporting requirements The Technical Rules require the submission of reports and forms for different phases of remediation. However, if a remediating party proceeds to a later phase of remediation they may submit reports for the later phase as long as the report includes pertinent information from the PA, SI, RI or RAW. The person must ensure that they are meeting established regulatory and mandatory timeframes.
5. Applicable remediation standards The remediating party may request that the Department approve an alternative remediation standard pursuant to N.J.A.C. 7:26D-7.
6. Quality assurance laboratory requirements Must use laboratories certified by the State of New Jersey; laboratories must ensure that they meet the QA/QC requirements specified by analytical methods.

2. Reporting of variances

Any person that varies from technical requirements or guidance must report that variance in the next applicable remedial phase report that is submitted to the Department. The report must include the following:

  1. The rule citation for the requirement, or the name and version of the guidance that was varied;
  2. A description of how the work deviated from the rule requirement or guidance; and
  3. The rationale for varying from the requirement that includes supporting information as necessary to document that the work conducted has:

    1. Provided results that are verifiable and reproducible;
    2. Achieved the objectives as the rule requirement or guidance from which it varied; and
    3. Furthered the attainment of the goals of the specific remedial phase.

Ask yourself: What kind of documentation would I want to see if I were taking over a case from another LSRP or consultant?

3. What is "Best Professional Judgment"?

The Department recognizes that rules and guidance do not appropriately apply in every site specific situation. Consequently, the person responsible for conducting the remediation and their LSRP (or environmental consultant) must make some site-specific decisions based on best professional judgment. These decisions allow a person to vary from a specific rule requirement or guidance but must still meet the intent of the rule or guidance and the result must be protective of human health and the environment.

Decisions based on best professional judgment must represent a good faith effort to comply with a rule requirement or guidance and be based on a reasonable effort to identify and obtain relevant and material facts, data and other information on which to support the decision.

4. Will the Department accept a decision based on best professional judgment?

The Department will look at the following factors when evaluating a decision based on best professional judgment.

  1. Does the decision, or the resulting action based on the decision, meet the overall intent of the regulatory requirement or guidance?
  2. Is the decision based on all available information? Has that information and all supporting documentation been submitted to support the decision?
  3. Was the rationale provided for making the decision clearly described and reasonable? Was the decision made in good faith?
  4. In your opinion, is the resulting action protective of human health and the environment? Now and in the future?

 

Important Messages

  1. Affirmative Obligation to Cleanup
  2. Training and Resource Disclaimer
  3. Variances and the Use of Best Professional Judgement

II. Administrative Processes - Quick Reference Guides

  1. New ISRA Cases
  2. New Discharge Cases
  3. New UST Cases
  4. Existing Cases Opting into the LSRP Program
  5. Existing Cases NOT opting in to LSRP program
  6. Alternative ISRA compliance options for existing ISRA cases
  7. Alternative ISRA compliance options for new ISRA cases
  8. UHOT - Unregulated Heating Oil Tank remediation cases

III. New responsibilities for ALL cases - Quick Reference Guides

  1. Immediate Environmental Concern (IEC) Overall process
  2. Receptor evaluation Posted 6 June 2010
  3. LNAPL Free Product Remedial Requirements
  4. Remedial action permits
    1. Soil
    2. Ground Water
  5. Discharge permits

    1. Discharge to Ground Water Proposals
    2. Discharge to Surface Water Proposals
  6. Summary of Regulatory and Mandatory Timeframes
  7. Reporting and forms/CID etc
  8. Public notification
  9. Remediation Funding Source and Financial Assurance

V. Miscellaneous

  1. Acronym glossary
    1. Acronyms Glossary with Definitions
    2. Printable List of Acronyms without Definitions
  2. Exceptions - Who does not need to hire an LSRP
  3. SRRA - Related FAQs