NJDEP Increases Site Remediation Fees by 25 Percent and New Technical Guidance Documents Issued on Fill Material and Off-Site Groundwater
Based on the New Jersey Department of Environmental Protection's (NJDEP) new Annual Site Remediation Reform Act Fee Calculation Report (Calculation Report), the fees for the Site Remediation Program (SRP) will be increasing by 25 percent effective July 1, 2015, with one exception - the "contaminated media fee" for groundwater and surface water impact cases will stay the same. The increases affect annual remediation fees, remedial action permit (RAP) annual fees and RAP activity fees (i.e., the fees to submit applications for or transfer, modify or terminate RAPs). The higher remediation fees and RAP annual fees will start with NJDEP invoices dated July 1 or later. The change in the RAP activity fees will start with applications postmarked July 1 or later.
This is a substantial increase that is premised on a decrease in the projected number of areas of concern (AOCs) that will be covered by the average SRP case during the coming year (the annual remediation fee is calculated based on a formula that takes into account the estimated number of AOCs) and NJDEP's past underestimate of the number of NJDEP person-hours required to review submissions (which is the basis for the activity fees).
In most cases the Calculation Report determined that fees would have had to increase more than 25 percent under the applicable formulas but NJDEP decided to limit the increase to 25 percent so as to limit the burden on the regulated community. For example, the annual remediation fees would have increased 68 percent and some of the RAP activity fees would have increased by over 100 percent. In light of the foregoing, parties conducting remediations can expect that the fees are likely to continue to increase for a while into the future, probably by 25 percent annually, if NJDEP keeps to the 25 percent ceiling.
Also, DEP will begin charging a fee for the use of a credit card for fees paid online (1.9 percent of the fee plus $1.00). This charge can be avoided by use of the eCheck/EFT system of payment.
Parties conducting remediations may be able to avoid some fee increases where they can control the timing of certain submissions that require a fee. For example, the party can get the benefit of the lower RAP activity fee if they make the submission prior to July 1. The same applies to the first annual remediation fee that is paid for new cases at the time that the paperwork initiating the case is submitted (subsequent annual remediation fees are invoiced by NJDEP).
In addition to working on its fee schedule, NJDEP has been busy issuing significant revisions to its technical guidance documents on the use of fill material at contaminated sites (May 2015) and a new guidance document governing the procedures to be used to show that contaminated groundwater beneath a SRP site is being impacted by contamination from an off-site source and therefore not the responsibility of the property owner to remediate (April 2015). For details on these guidance documents click here. Further information on the fee increases may be obtained from Bruce Katcher (firstname.lastname@example.org; 484-430-2320), the firm's partner in charge of our New Jersey practice.