N.J. Admin. Code § 7:26C-4.7

Current through Register Vol. 56, No. 18, September 16, 2024

Section 7:26C-4.7 - Oversight costs

(a) The person responsible for conducting the remediation shall pay the Department's oversight costs pursuant to this section whenever the Department assesses those costs against the person responsible for conducting the remediation that is subject to any of the following circumstances:

1. The provisions of 7:26C-2.3(a)3 i;

2. The Department assigns a case manager pursuant to the criteria in the Site Remediation Reform Act at N.J.S.A. 58:10C-21b or c;

3. The provisions of N.J.A.C. 7:26C-4.3(i); or

4. The person incurred oversight costs prior to May 7, 2009.

(b) The person responsible for conducting the remediation shall pay the Department's oversight costs by the date indicated on the invoice for the Department's oversight costs.

(c) The Department shall include the following information on the bill for the Department's oversight costs referenced in (b) above:

1. The case Program Interest ID and associated Job Code(s);

2. The name of each staff member performing work on the site during the respective two week pay period, with a work activity description;

3. The number of hours spent by each staff member working on the site; and

4. The dollar amount of the oversight costs calculated pursuant to (e) below.

(d) The Department shall send a bill based on the formula in (e) below to the designated fee billing contact for the person responsible for conducting the remediation periodically throughout the remediation.

(e) The Department shall calculate its oversight costs based upon the following:

OC = DPC + IPC + E;

DPC = (CH)*(HSR)*(1 + SAR)*(1 + FBC);

IPC = (CH)*(HSR)*(IPCRF)

where:

OC = oversight costs

DPC = direct program costs, where:

CH = The number of coded hours, which represents the sum of hours each Departmental employee has coded to the site specific job number. Actual hours for all Departmental employees including without limitation case managers, geologists, technical coordinators, samplers, inspectors, supervisors, section chiefs, and bureau chiefs using the site-specific job number, shall be included in the formula calculations;

HSR = The hourly salary rate, which is an employee's annual salary divided by the number of working hours in a year (1,820 hours);

SAR = The salary additive rate, which represents the prorated percentage of charges attributable to each Department employee's reimbursable "down time" salary expenses. Reimbursable "down time" expenses includes costs for vacation time, administrative leave, compensatory time, sick leave, holiday time, emergency or early closing, jury duty, absent with pay, convention, injury in the line of duty (SLI), military allowance with pay, union negotiating sessions, lost time on first day of injury, counseling employee advisory service, union business activities, grievances/hearings/Department conferences, civil service examinations, absent with pay in lieu of working holiday, and workers' compensation/SLI. The calculation for the salary additive rate is the sum of the reimbursable "down time" expenses divided by the net Department regular salary for a given fiscal year. The net Department regular salary cost is calculated by subtracting the Department employees' reimbursable "down time" expenses from the Department's regular salary; and

FBC = The fringe benefit rate, which represents the Department's charges for the following benefits: pension, health benefits including prescription drug and dental care program, workers compensation, unemployment insurance, temporary disability insurance, unused sick leave, FICA and Medicare. The fringe benefit rate is developed by the Department of the Treasury's Office of Management and Budget (OMB). OMB negotiates the rate with the United States Department of Health and Human Services on an annual basis. The rate is used by all State agencies for estimating and computing actual charges for fringe benefit costs related to Federal, dedicated and non-State funded programs; and

IPC = Indirect program costs, where:

IPCRF = The indirect program cost rate factor, which represents the rate which has been developed for the recovery of indirect program costs in Site Remediation. This indirect rate is developed by the Department on an annual basis in accordance with the applicable New Jersey Department of Treasury OMB Circular Letters and the Federal OMB Circular A-87, "Cost Principles for State and Local Governments" ( 2 CFR Part 225); and

The methodology for computing the indirect program cost rate involves the following basic processes:

Identification of Site Remediation expenditures that cannot be assigned directly to a specific Site Remediation cost objective. These expenditures include indirect labor coded as such by employees, and approved by supervisors, on their timesheets. Also included are expenses such as the Site Remediation's proportionate share of costs associated with upper management offices, and individual costs such as rent, general equipment use charges, office supplies, training, etc. that cannot be identified to a specific Site Remediation cost objective;

Site Remediation indirect expenditures identified above are adjusted for any expenses not allowed by the Federal Cost Principles such as interest expense;

The adjusted Site Remediation's indirect expenditures are then reduced by the amount of any funds received by the Program from Federal Grants or New Jersey State Fee Reimbursements; and

The resulting total unreimbursed Site Remediation indirect expenditures is then divided by the total unreimbursed Site Remediation direct labor expenditures to arrive at the indirect program cost rate.

E = expenses, which includes non-salary direct costs specific to the site such as sampling, analytical, equipment, or supply costs, contractor expenses, and Emergency Response overtime hours. These costs are not subject to additive, fringe, or indirect multipliers.

(f) The person responsible for conducting the remediation:

1. Is exempt from paying the indirect program costs if the person is responsible for conducting the remediation of discharged substances at their primary residence; or

2. May be exempt prospectively from paying the indirect program costs if:

i. The person meets the criteria in the Developer Certification form in Appendix A of this chapter, incorporated herein by reference, and submits the completed form to the Department to the address in 7:26C-1.6(a); and

ii. The person requests a statutory exemption pursuant to 58:10B-2.1 from the obligation to reimburse the Department for its indirect costs, by following the procedures in (g) below.

(g) To request the prospective application of the statutory exemption for which the person qualifies pursuant to (f)2 above, the person responsible for conducting the remediation shall submit the following to the Department within 60 calendar days after the person initiates remediation at the site or area of concern:

1. An executed Developer Certification, found in Appendix A of this chapter, that establishes that that person is neither:

i. The owner or operator of an industrial establishment or any other person required to perform remediation pursuant to the Industrial Site Recovery Act, 13:1K-6 et seq.; nor

ii. A discharger, or a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 1g, and who does not have a defense to liability pursuant to N.J.S.A. 58:10-23.1 1g.d; and

2. A form found on the Department's website at www.nj.gov/dep/srp/srra/forms, that requires the person(s) completing the form to describe information concerning the acquisition of the site and that person's liability for the discharge at the site, including the name and address of the site and the person responsible for conducting the remediation, that person's signature, when and how the person either acquired or plans to acquire the site, a statement that the person exercised the appropriate due diligence at the site, the type of due diligence the person conducted, when the discharge occurred, and that the person is not liable for the discharge;

(h) When the Department determines that a person who has complied with (g) above meets the statutory exemption, the Department shall calculate that person's prospective oversight costs, beginning on the date of the requested exemption, using the following alternative oversight cost formula; however, the Department may only offset any future costs by the exempted amount, and shall not offset or pay any rebates of such costs prior to either May 7, 2012 or the date the requested exemption is submitted to the Department.

OC (NI) = DPC + E

where

OC (NI) = oversight costs without indirect program costs included;

DPC = direct program costs as defined in (e) above; and

E = expenses, as defined in (e) above.

N.J. Admin. Code § 7:26C-4.7

Amended by 50 N.J.R. 1715(b), effective 8/6/2018