In January 2020, New Jersey’s “Dirty Dirt” legislation was signed into law. The law requires businesses engaged in soil and fill recycling to register with the New Jersey Department of Environmental Protection (“NJDEP”) and apply for an A-901 license.
On March 16, 2022, the NJDEP issued a Compliance Advisory relating to the Dirty Dirt law that:
Businesses that are still uncertain as to whether they must comply with the law should consult with counsel familiar with the new law.
The Dirty Dirt Law
The genesis for the law was the alleged illegal dumping and improper handling of soil and fill material. To address this concern, the law requires companies engaged in soil and fill recycling services to obtain an A-901 license. The A-901 license was initially created to deter bad actors from participating in the solid waste industry, and the application for a license requires officers, directors and key employees of solid waste companies to file personal history disclosure statements, and any company in the chain of ownership is required to file a second level business disclosure statement. Traditionally, the A-901 license was limited to companies that transported, stored or disposed of solid waste. The Dirty Dirt law, however, expands the breadth of A-901 licensure to include entities that engage in the business of soil and fill recycling.
The Need for an Extension of Deadlines under the Dirty Dirt Law
As the NJDEP works on drafting regulations to implement the law, and holds stakeholder meetings to obtain input from the regulated community, there have been many questions about the law’s scope. The Dirty Dirt law specifically covers businesses that are engaged in or intend to engage in “the collection, transportation, processing, brokering, storage, purchase, sale or disposition, or any combination thereof, of soil and fill recyclable materials.” Ambiguities in the law led some companies to determine, incorrectly, that they are not covered and, thus, these companies did not register with the NJDEP by the required October 14, 2021 deadline. The Compliance Advisory was issued to clarify requirements and provide additional time for regulated businesses to register under the law if they had not already done so, and timely file an A-901 license application.
Reduction in Dirty Dirt Law’s Regulatory Burdens
Moreover, to reduce the regulatory burden on businesses that engage in certain soil and fill recycling and companies that handle only de minimis amounts of soil and fill material, the NJDEP created a Certification Program, which is discussed in the Compliance Advisory. This Program reduces requirements for businesses that only handle "Non-Restricted Soil and Fill Recyclable Materials,” which are defined as “non-putrescible, non-water-soluble, non-decomposable, inert aggregate substitute, including rock, soil, broken or crushed brick, block, concrete, glass and/or clay or ceramic products, or any combination thereof, generated from land clearing, excavation, demolition, or redevelopment activities that are excluded from the definition of Solid Waste.” The Program also provides additional regulatory relief for businesses that handle specified low volumes of such Non-Restricted Soil and Fill Recyclable Materials, such as landscapers, contractors, pool companies, electricians, etc. (“de minimis companies”).
Certification for Companies handling Non-Restricted Soil and Fill Recyclable Materials
Although the law specifically excludes certain “clean” material from regulation, the Department has concerns regarding the handling of Non-Restricted Soil and Fill Recyclable Materials, and believes this Material requires additional care and oversight. Therefore, the NJDEP created a Certification Program placing the burden on the recycler to certify that it 1) is familiar with the regulatory qualifications regarding the composition of the Non-Restricted Soil and Fill Recyclable Material (contains no debris and is not contaminated above established standards), 2) has a regulatory quality control/quality assurance program in place with respect to the Material, and 3) agrees to maintain records and cooperate with the Department if the Material is disqualified. Under the Certification Program, a business that is not a de minimis company but exclusively handles Non-Restricted Soil and Fill Recyclable Materials must register with the Department but will not be required to obtain an A-901 license. Instead, the Department will provide a certification to allow such companies to operate. The certification form is available here and must be filed annually on or before July 14.
Requirements for De Minimis Companies
With respect to the de minimis companies, they are not required to register, certify or apply for an A-901 license as long as they possess all other applicable licenses and authorizations necessary to operate. This de minimis exclusion applies to businesses that only handle Non-Restricted Soil and Fill Recyclable Material and 1) generate less than 15 cubic yards of Non-Restricted Soil and Fill Material each business day, 2) use a truck that has a loading capacity of less than 15 cubic yards to transport such Material, 3) maintain a storage yard containing less than 100 cubic yards of such Material, and 4) maintain appropriate records to prove they are a de minimis company that can be made available to the Department upon request.
The NJDEP’s most recent Compliance Advisory helps alleviate some of the uncertainty regarding the scope of the Dirty Dirt law, but many businesses may remain unsure as to whether they are subject to it. Therefore, a company that is involved with soil and fill material and is uncertain as to whether the law applies to it should seek legal counsel before the upcoming deadline on July 14, 2022.
For more information, please contact the author Laurie Sands or any attorney in our Environmental Practice Group.