Dirty Dirt Act Update: DEP Extends Compliance Deadlines, Opens Registration Process, and Establishes A-901 License Safe Harbor for Soil and Fill Recycling Service Providers | Greenbaum, Rowe, Smith & Davis LLP

What you should know

  • The DEP has issued a new compliance notice to clarify the New Jersey regulated community on the applicability of the Dirty Dirt Act
  • Deadlines for companies providing soil and fill recycling services to register for DEP and/or complete A-901 permit applications are extended to July 14, 2022
  • A newly developed certification program has been added for companies that exclusively process non-virgin soils and recycled fill materials that do not present environmental issues

Responding to the need to clarify for the regulated community the applicability of New Jersey’s “Dirty Dirt Law”, which was signed into law by Governor Phil Murphy on January 20, 2020, the New Jersey Department of Environmental Protection (DEP) published a Mar 16, 2022 Notice of compliance which gives businesses that currently provide or intend to provide soil and fill recycling services more time to comply with A-901 business registration and A-901 license application deadlines.

In addition to clarifying the exemption criteria for low-volume (de minimis) businesses, the DEP has developed a certification program that provides a safe harbor from the A-901 license for businesses that only handle “materials Recyclables of Unrestricted Soil and Fill” as defined. below.

Dirty Dirt Act, Notice of Compliance, Frequently Asked Questions (FAQ), Registration Form and Certification Form are available here.

Broad Definitions of Materials and Services

While the DEP is engaging in a robust process with stakeholders and developing regulations that will provide the required clarity, the regulated community has struggled with the applicability of the Dirty Dirt Law in light of its definitions. wide range of regulated materials and services.

According to the Dirty Dirt Law’s definition, regulated “recyclable soil and fill materials” are “non-putrescible aggregate substitutes” such as “broken or crushed brick, block, concrete, or other similar manufactured materials ; soil or soil that may contain aggregate substitutes or other debris or materials, generated by land clearing, excavation, demolition or redevelopment activities that would otherwise be managed as solid waste, and which may be re-injected into the main economic stream in the form of raw materials for further processing or for use as backfill material. “Soil and fill recycling services” are also broadly defined as the collection, transportation, processing, brokerage, storage, purchase, sale, or disposal, or any combination thereof. here, recyclable materials for soils and embankments.

Any limitations, exceptions, or qualifications provided for in the pending regulations have been exceeded by the ambitious compliance timelines originally set out in the law. DEP compliance notices, including this most recent notice and its FAQs, have provided relief and greater clarity to the regulated community regarding the timing, applicability and exemptions of the law pending the publication of regulations.

Extensions of deadlines

The March 16, 2022 Notice of Compliance provides a reprieve from ceasing operations or risking continued operations that may be inconsistent with the law by opening the filing of business registration forms. The possibility of registration will automatically expire on July 14, 2022 unless an application for an A-901 license is filed by that date to keep the registration active until the A-901 license is issued or denied.

Prior to the March 16, 2022 Notice of Compliance, companies that provided soil and fill recycling services had to register with the DEP by October 14, 2021 or cease providing these services on January 13, 2022. Companies did not could not resume soil and fill recycling operations. until the company has completed the entire process of obtaining an A-901 license, which can take a year or more. This was an extremely harsh consequence for the companies, many of whom were unsure or unaware that their filling operations were covered by the Dirty Dirt Act.

In addition, the latest Notice of Compliance also sets July 14, 2022 as a new deadline for (i) submission of the completed A-901 License Application, which was due April 14, 2022, as well as (ii) submission of a new Recyclable Flooring and unrestricted backfill as discussed below.

Exemptions

The guidance and information published by the DEP in its FAQ dated October 7, 2021 (as updated March 16, 2022) interprets the Dirty Dirt Act to include several exclusions from the definition of recyclable soil and fill materials that translate effectively through exemptions from A-901 registration and licensing requirements. Some of them include:

  • Companies that exclusively process Class A recyclable materials; Class B recyclable material shipped to an approved Class B recycling center; DEP-approved beneficial use material
  • Companies that engage in the management of clean, uncontaminated and undisturbed virgin quarry products
  • Retail stores that only supply bagged and bulk soil products
  • Companies that handle low volumes of soil (de minimis) soil and fill materials, such as landscapers, contractors, pool companies and home improvement companies, plumbers and electricians who only handle unrestricted soil and fill materials that meet certain conditions:
    • Generate less than fifteen (15) cubic yards of unrestricted soil and fill with recyclable materials each business day;
    • Use a truck or trailer with a loading capacity of less than fifteen (15) cubic yards for the transport of unrestricted earth and recyclable fill materials;
    • Maintain a storage yard containing less than 100 cubic yards of unrestricted soil and fill with recyclable materials; and
    • Maintain appropriate records and make them available to the Department or delegated agencies upon request to demonstrate that they meet the above criteria.

Certification program

The March 16, 2022 Notice of Compliance adds a newly developed certification program that is available to companies that exclusively process non-virgin soils and recycled fill materials that do not present environmental concerns, i.e. materials that are not mixed with debris and are not contaminated. with chemicals. This material is referred to as “Unrestricted Recyclable Soil and Fill Material” as defined below.

To benefit from the exemption, no later than July 14, 2022, companies must submit a Attestation form for the purpose of excluding the company from the requirements of the Dirty Dirt Act.

They must then certify to the DEP on an annual basis that:

  • the company continues to exclusively handle “unrestricted recyclable soil and fill materials”. 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 under the NJAC 7 Solid Waste Rules : 26-1.6 (a) 6.”
  • the company has a quality control and quality assurance program in place to ensure materials handled qualify as unrestricted recyclable soil and fill materials.
  • company retains records for three (3) years, including “analytical data, contracts, bills of lading and QA/QC plans, relating to collection, transportation, processing, brokerage, storage, the purchase or sale of soil and fill materials, including non-soil materials and restricted fill materials, generated by land clearing, excavation, demolition or redevelopment activities” available on request for the DEP .