In January 2020, New Jersey’s “Dirty Dirt” legislation was signed into law. The law requires companies 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 Dirty Dirt Act Compliance Notice that:
- Extends the deadline for registering soil and fill recycling companies with the NJDEP to July 14, 2022;
- Extends by 90 days, from April 14, 2022 to July 14, 2022, the time within which these companies must file an application for an A-901 license;
- Reaffirms that any business engaging in soil and fill recycling services after the date of July 14, 2022 without registering and submitting an A-901 license application will be in violation of the Dirty Dirt Act; and
- Establishes a certification program for companies that engage in certain soil and fill recycling activities that require less regulatory oversight.
Businesses still unsure whether to comply with the law should consult a lawyer familiar with the new law.
The Law of Dirty Dirt
The genesis of the law was the alleged illegal dumping and mishandling of soil and fill materials. 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 originally created to deter bad actors from participating in the solid waste industry, and the license application requires officers, directors and key employees of solid waste companies to file disclosure statements background information, and any business in the chain of ownership is required to file a second level corporate disclosure statement. Traditionally, the A-901 license was limited to businesses that transported, stored or disposed of solid waste. The Dirty Dirt Act, however, expands the scope of the A-901 permit to include entities that engage in soil and fill recycling.
The Need for Extended Deadlines Under the Dirty Dirt Act
As the NJDEP works to draft regulations to implement the law and holds meetings with stakeholders to get input from the regulated community, many questions have been raised about the scope of the law. The Dirty Dirt Act specifically covers businesses that engage or intend to engage in “the collection, transportation, processing, brokering, storage, purchase, sale, or disposal, or any combination of these, recyclable earth and fill materials”. Ambiguities in the law led some companies to determine, incorrectly, that they were not covered and as a result these companies did not register with the NJDEP by the required deadline of October 14, 2021. notice of compliance was issued to clarify requirements and give regulated businesses more time to register under the law if they had not already done so, and file an application for an A-901 license in a timely manner.
Reduced Dirty Dirt Law Regulatory Burdens
Additionally, to reduce the regulatory burden on companies that engage in certain types of soil and fill recycling and companies that only process de minimis quantities of soil and fill materials, NJDEP has created a certification program, which is addressed in the Notice of Compliance. This program reduces requirements for companies that handle only “unrestricted recyclable soil and fill materials”, which are defined as “non-putrescible, non-water-soluble, non-decomposable inert aggregate substitutes, including rock, soil, broken materials or crushed bricks, blocks, concrete, glass and/or clay or ceramic products, or any combination thereof, generated by land clearing, excavation, demolition or redevelopment activities which are excluded from the definition of solid waste. The program also provides additional regulatory relief for businesses that handle specified low volumes of these unrestricted recyclable soil and fill materials, such as landscapers, contractors, pool companies, electricians, and more. (“de minimis companies”).
Certification for companies handling unrestricted recyclable soil and fill materials
Although the law specifically excludes certain “clean” materials from regulation, the Department has concerns about the handling of unrestricted recyclable soil and fill materials, and believes these materials require additional care and monitoring. Therefore, the NJDEP has created a certification program that places the onus on the recycler to certify that they 1) know the regulatory qualifications regarding the composition of recyclable soil and fill materials without restriction (contains no debris and is not 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 company that is not a de minimis business but exclusively handles unrestricted recyclable soil and fill materials must register with the Department, but will not be required to obtain an A-901 license. Instead, the Department will provide certification to allow these businesses to operate. The certification form is available here and must be filed annually no later than July 14.
Requirements for De Minimis companies
About the de minimis businesses, 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 the exclusion applies to companies that only handle recyclable unrestricted soil and fill materials and 1) generate less than 15 cubic yards of unrestricted soil and fill material each business day, 2) use a truck whose cargo capacity is less than 15 cubic yards to transport this material, 3) maintain a storage area containing less than 100 cubic yards of this material, and 4) maintain appropriate records to prove that it is a de minimis company which can be made available to the Department upon request.
Conclusion NJDEP’s latest compliance notice helps alleviate some of the uncertainty about the scope of the Dirty Dirt Act, but many companies may not know if they are subject to it. Therefore, a company involved in soil and fill materials and unsure whether the law applies to them should seek legal counsel before the next deadline of July 14, 2022.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.