Limitation on NJDEP Oversight Fees
By Al Moffit
The limitation on New Jersey Department of Environmental Protection (NJDEP) Oversight Fees is still in place. It is their program that places a cap on the amount of oversight costs (fees) NJDEP can charge for a specific site. The Site Remediation Reform Act merely clarified the requirements to qualify for the cap with the most important elements being the client's record keeping of amounts billed and paid and submitting a claim.
Pursuant to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS, N.J.A.C. 7:26C), NJDEP issues invoices on a yearly basis for oversight costs. These invoices, based on the number of contaminated areas of concern (AOCs), as well as if any specific media (ground water, sediment), can quickly add up each year. The Brownfield and Contaminated Site Remediation Act (NJSA 58:10B-2.1d) places a 7.5% cap on what the NJDEP may charge a person responsible for conducting the remediation in oversight costs and fees. This 7.5% cap is reviewed upon issuance of a Remedial Action Outcome (RAO) letter by a Licensed Site Remediation Professional for the case but only if the consultant, attorney, or client bring this information to NJDEP's attention.
EWMA strongly recommends that, upon receiving the RAO, the NJDEP oversight invoices be reviewed relative to the remediation costs to determine if this 7.5% cap is applicable to your project. NJDEP has very specific requirements on what qualifies as remediation costs, as well as requiring information as to the nature of the remediation of the site and a summary of the payment history of NJDEP oversight costs. A Certified Public Accountant (CPA) or Independent Auditor must certify these costs along with the LSRP.