Any business that reuses soil or construction debris should begin 2023 by assessing how they are impacted by New Jersey’s “Dirty Dirt Law.” Landscapers, contractors, pool companies, home remodeling companies, plumbers, electricians, and more could be affected.
There are three questions to ask. Are you exempt? Are you required to certify that your business uses nonrestricted (clean) materials? Or do you need to register and apply for an A-901 license from the state Department of Environmental Protection (NJDEP)?
Businesses were given a July 14, 2022, deadline to “certify clean” or register and apply for a license while NJDEP works on the formal rules expected in summer 2023. Enforcement is possible now, given that the law is in the books, but NJDEP may be in more of a compliance assistance mode until the new rules are formally proposed. That is why now is the time to review business practices and reporting requirements.
On Jan. 21, 2020, New Jersey enacted the Dirty Dirt Law after the New Jersey State Commission of Investigation released reports revealing improper and illegal disposal of contaminated soil and construction debris following Superstorm Sandy. NJDEP has already issued various compliance advisories, FAQs and forms related to the law.
“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. Exceptions are 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.
Businesses are exempt from the law if they meet these criteria:
- 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 these available to NJDEP or delegated agencies upon request to prove they meet the above criteria.
Non-restricted soil and fill recyclable materials certification
NJDEP’s updated FAQs explains the exemption, the non-restricted soil and fill recyclable materials certification, and 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 one proves 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 is needed to prove cleanliness.
Registering and applying for A-901 license
A business’s last resort for compliance, because it may be the most burdensome, is registration and application for an 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.
One 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 the Dirty Dirt Law.
Questions also remain on whether a business working with an A-901 licensee would still be subject to Dirty Dirt Law 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.
While we await the formal rule proposal from NJDEP this summer, affected businesses should determine if they need to “certify clean,” register and apply for A-901 licenses or adapt business their practices to keep from running afoul of the Dirty Dirt Law.
Attorney Steve Barnett is a partner in the Environmental Law Practice at Connell Foley in Roseland.