July 14, 2022, was the deadline for those engaged in soil and fill recycling services in New Jersey to (i) be exempt, (ii) annually certify to New Jersey Department of Environmental Protection (NJDEP) that they only handle “non-restricted” (a/k/a “clean”) materials, or (iii) register with NJDEP and apply for and obtain a A-901 license. NJDEP has not set forth how to demonstrate that materials are “non-restricted” or “clean”, nor how to determine whether one is engaged in soil and fill recycling services. Enforcement is possible now, given that the law is on the books. NJDEP plans to propose regulations in the summer of 2023, and, until then, may be more in compliance assistance than enforcement mode. Now is a good time to review business practices and determine what reporting is needed or whether to change business practices.
Background
On January 21, 2020, New Jersey enacted the Dirty Dirt law (S-1683/A-4267 codified at N.J.S.A. 13:1E-126 et seq.). The law was the result of investigations by the Legislature (e.g., State of New Jersey Commission of Investigation, “Dirty Dirt: The Corrupt Recycling of Contaminated Soil and Debris,” March 2017.), as well as reports and observations of improper handling, disposal, and “recycling” or “reuse” of soil and debris following Superstorm Sandy. NJDEP plans to propose regulations in the summer of 2023. In the meantime, NJDEP has set forth various compliance advisories, FAQs and forms. Soil and fill recyclable materials is a broad term covering soil, brick, block, concrete, and other materials generated from land clearing, excavation, demolition, or redevelopment activities, which are to be reused as fill, except Class A recyclables (metal, glass, paper, plastic containers, and cardboard); Class B recyclables taken to a permitted Class B recycling center; materials for which NJDEP has approved a Beneficial Use Determination (BUD) application; and virgin quarry products.
Exempt status
The criteria for exempt status are:
- Generate less than 15 cubic yards of non-restricted soil and fill recyclable materials each business day;
- Use a truck or trailer that has a loading capacity of less than 15 cubic yards for transport of non-restricted soil and fill recyclable materials;
- Maintain a storage yard containing less than 100 cubic yards of non-restricted soil and fill recyclable materials; and
- Maintain appropriate records and make them available to NJDEP or delegated agencies upon request to prove they meet the above criteria.
Non-restricted soil and fill recyclable materials certification
NJDEP updated FAQs explains: (i) the exemption, (ii) the non-restricted soil and fill recyclable materials certification, and (iii) registration for A-901 application and licensing. In addition, the non-restricted materials certification includes certification that materials do not contain debris or contaminants above NJDEP cleanup standards, that there is a QA/QC program in place to ensure all materials qualify for non-restricted use and other certifications. How to prove that a volume of soil or debris is entirely free of contaminants above cleanup standards remains an elusive goal. NJDEP has not identified how many samples or other information needed to prove cleanliness.
Register and apply for A-901 license
A last resort for compliance, because it may be the most burdensome, is registration and application for a A-901 license. A-901 application requires an extensive disclosure of personal and business information, which will be reviewed by the Office of the Attorney General, New Jersey State Police, FBI and other federal and New Jersey agencies. Processing time can be years. Regulated activities cannot be conducted until the license is issued. An option is to acquire, or contract with, an existing A-901 licensee. However, the terms of an existing license should be reviewed and may need to be amended to be consistent with Dirty Dirt. Questions remain whether a business working with a A-901 licensee would still be subject to Dirty Dirt requirements. For example, is someone sampling demolition debris exempt if an A-901 licensee relies on the sampling data to reuse the materials? Also, will Dirty Dirt A-901 licensees need to be included in the applicable counties’ solid waste management plans? That is a requirement for current A-901 licensees.
Conclusions
Anyone reusing soil or construction debris for reuse should assess whether they are exempt, need to certify that they only reuse “clean” materials, or need to register and apply for A-901 licensing. Current NJDEP instructions are to register or certify “clean” to NJDEP by July 14, 2022. NJDEP plans to propose formal rules in the summer of 2023. In the meantime, those covered should act to come into compliance while NJDEP may be in more of a compliance assistance, rather than enforcement, posture with respect to Dirty Dirt.