On March 16, 2022, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) announced changes relevant to the so-called “Dirty Dirt Law.” These changes include certain deadline extensions as well as clarifications on handling of soil and fill recycling materials[i] that are clean and/or low in volume. The announcement was made in NJDEP Compliance Advisory No. 2022-04 (the “Advisory”), available here, and potentially impacts construction contractors, home remodeling companies, pool companies, landscapers, plumbers, electricians, and any other business that is unsure whether its handling of soil and fill qualifies as “soil and fill recycling services” under the statute.
The Dirty Dirt Law, available here, was signed into law in 2020. Thereunder, any business concern that does not already possess an A-901 license (for handling of solid and/or hazardous waste) and that “actively engages in, or otherwise provides soil and fill recycling services shall register with the department.” Under the law, “soil and fill recycling services” are defined as “services provided by persons engaging in the business of the collection, transportation, processing, brokering, storage, purchase, sale or disposition, or any combination thereof, of soil and fill recyclable materials.” After registration, a “registrant shall submit a valid and administratively complete application for a soil and fill recycling license with the Attorney General.” Beginning 180 days after the effective date of the statute, “no business concern shall engage in soil and fill recycling services unless it holds” a soil and fill recycling registration, a soil and fill recycling license, or an A-901 license.
The deadlines in the Dirty Dirt Law were extended because of the COVID-19 pandemic, but now they have been extended again. Per the Advisory:
- the registration period has been reopened and will remain open until July 14, 2022; and
- the deadline to apply for a soil and fill recycling license has been extended from April 14, 2022 to July 14, 2022.
“Any business engaging in soil and fill recycling services after July 14, 2022, that has not registered and submitted an A-901 License application must cease to engage in soil and fill recycling services and will be subject to enforcement.”
The Advisory also announced that NJDEP has developed a Certification Program for businesses that exclusively handle “Non-Restricted Soil and Fill Recyclable Materials,” as defined in the Advisory. Businesses validly completing the annual certification process for handling Non-Restricted Soil and Fill Recyclable Materials “will need to be registered but will not have to apply for an A-901 License.”
Finally, the Advisory clarified the de minimis exemption that NJDEP had previously recognized in a Frequently Asked Questions document. This exemption is not expressly recognized in the statute, but the Advisory asserts that businesses “are not required to register, certify or apply for and possess an A-901 license,” if they:
- 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 the Department or delegated agencies upon request to prove they meet the above criteria.
Despite outlining all of the above, the Advisory notes that NJDEP is still preparing regulations implementing the Dirty Dirt Law and that those regulations will eventually supersede the Advisory and “any associated guidance.” The Advisory therefore recognizes that the information provided therein and on NJDEP’s website is “subject to change.”
In any case, the Advisory leaves certain questions unanswered. For example, it does not explain why the Legislature did not explicitly extend to soil and fill recycling services the “self-generator” exemption that applies to A-901 licenses for solid and/or hazardous waste. Further, the Advisory does not explain why NJDEP set the threshold for the de minimis exemption at 15 cubic yards per day. As is mentioned above, the statute itself defines “soil and fill recycling services” as “services provided by persons engaging in the business of the collection, transportation, processing, brokering, storage, purchase, sale or disposition, or any combination thereof, of soil and fill recyclable materials.” Connell Foley will continue to monitor the situation.
 “Soil and fill recycling materials” are defined as:
non-putrescible aggregate substitute, including, but not limited to, broken or crushed brick, block, concrete, or other similar manufactured materials; soil or soil that may contain aggregate substitute or other debris or material, generated from land clearing, excavation, demolition, or redevelopment activities that would otherwise be managed as solid waste, and that may be returned to the economic mainstream in the form of raw materials for further processing or for use as fill material. “Soil and fill recyclable materials” shall not include: (1) Class A recyclable material, as defined by regulation adopted pursuant to section 4 of P.L.1989, c.268 (C.13:1E-99.43); (2) Class B recyclable material, as defined by regulation adopted pursuant to section 4 of P.L.1989, c.268 (C.13:1E-99.43), that is shipped to a Class B recycling center approved by the department for receipt, storage, processing, or transfer in accordance with subsection b. of section 41 of P.L.1987, c.102 (C.13:1E-99.34); (3) beneficial use material for which the generator has obtained prior approval from the department to transport to an approved and designated destination pursuant to regulations adopted pursuant to subsection a. of section 6 of P.L.1970, c.39 (C.13:1E-6); and (4) virgin quarry products including, but not limited to, rock, stone, gravel, sand, clay and other mined products.