NJ Assembly Advances Bill to Increase Oversight Over Soil and Fill Recyclers

Gov. Phil Murphy recently signed legislation intended to increase oversight over the soil and fill recycling industry…

Gov. Phil Murphy recently signed legislation intended to increase oversight over the soil and fill recycling industry. Under the new law (Senate Bill 1683), soil and fill recyclers will be subject to the same regulations that govern the solid waste industry. The new law also amends the existing law to expand the requirement for background checks to a broader range of persons involved in the solid waste industry, such as salespersons, consultants, and brokers. Additionally, Senate Bill 1683 increases the penalties for violating the “A-901” licensing law by provide the New Jersey Department of Environmental Protection (NJDEP), local boards of health, and county health departments with enforcement options, including levying civil fines of up to $100,000 per day and petitioning the Attorney General to bring a criminal action.

A-901 Licensing

Pursuant to N.J.S.A. 13:1E-126, any business that collects, transports or disposes of solid or hazardous waste in New Jersey must obtain and maintain an A-901 license, which requires detailed disclosures by the business and key employees during the application process. Owners, managers, officers and other “key employees” must submit to a fingerprint check, and undergo a background investigation. The primary goal of the A-901 licensing program is to keep organized crime and other criminal elements from the waste industry.

Background Check Requirement Expanded

Senate Bill 1683 amends the A-901 law to expand the requirement for background checks to a broader range of persons involved in the solid waste industry. Specifically, definition of “key employee” now includes “any family member of an officer, director, partner, or key employee, employed or otherwise engaged by the applicant or permittee; or any broker, consultant or salesperson employed by or otherwise engaged, or who do business with, the applicant, permittee, or licensee, with respect to the solid waste, hazardous waste, or soil and fill recycling operations of the business concern.”

Senate Bill 1683 prohibits the issuance of an A-901 approval to persons debarred from operating in other states. It also bans individuals otherwise deemed unsuitable for the solid waste or recycling industries, convicted felons, and others of questionable character from holding an indirect, non-licensed stake in a solid waste or recycling industry, i.e., those involved in vehicle leasing arrangements or property rental agreements with legitimate licensees.

To facilitate information sharing, the new law requires the NJDEP, the Department of the Treasury, and the Attorney General to enter into a memorandum of agreement to provide for a reciprocal information exchange method to provide each agency with effective and efficient access to information on the solid waste and hazardous waste and recycling industries, as well as their current and prospective license and permit holders. In addition,  it mandates that the Attorney General establish a reciprocal information exchange system with the State of New York and other states in the region to facilitate information sharing on the solid waste and recycling industries.

Licensing Requirements Extended to Soil and Fill Recyclers

The new law also expands A-901 licensing requirements to individuals and businesses engaged in soil and fill recycling services, which includes the collection, transportation, processing, brokering, storage, purchase, sale, or disposition of soil and fill recyclable material.  “Soil and fill recyclable material” is 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.” 

There are several notable exceptions. “Soil and fill recyclable material” does not include: (1) Class A recyclable material (i.e., metal, glass, paper, plastic containers, and corrugated cardboard); (2) Class B recyclable material, such as construction and demolition debris, that is shipped to a Class B recycling center approved by the DEP; (3) beneficial use material for which the generator has obtained prior approval from the DEP to transport to an approved and designated destination; and (4) virgin quarry products.

Acknowledging that obtaining an A-901 license can be time-consuming, Senate Bill 1683 creates a temporary registration program. Covered entities/individuals must submit a registration form with the DEP no later than 90 days after the date of enactment, which was January 21, 2020. The soil and fill recycling registration will authorize a registrant to provide soil and fill recycling services pending the approval or denial of the registrant’s A-901 application. 

No more than 270 days after the law’s effective date, registrants must submit an application for a soil and fill recycling license with the Attorney General.  A soil and fill recycling registration issued under the new law will expire upon a failure by the registrant to submit an application for a soil and fill recycling license or upon a final determination by the DEP regarding the registrant’s application. 

Increased Enforcement Authority

The new law also grants new enforcement authority to the DEP and local officials. It provides that any person who collects, transports, treats, stores, brokers, transfers, or disposes of solid waste or hazardous waste, or who engages in soil and fill recycling services, is required to furnish the appropriate license or registration upon the request of any law enforcement officer or any agent of the DEP, a local board of health, or a county health department. It also allows the DEP, a local board of health, and a county health department to enter, inspect, and take samples at or from any facility or premises used in connection with the provision of soil and fill recycling services in order to determine compliance with the provisions of the new law, and any other applicable law, rule, or regulation.

Finally, the new law adds a penalty section to the “A-901” licensing law to provide the NJDEP, local boards of health, and county health departments with various enforcement options. They include bringing a civil action, levying a civil administrative penalty, bringing an action for a civil penalty, and petitioning the Attorney General to bring a criminal action.

Next Steps for Impacted Businesses

The new law makes significant changes to A-101 licensing regime and increases the penalties for noncompliance. We encourage members of the waste/recycling industry to contact experienced counsel to determine how the new requirements may impact your business.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Peter Yarem, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.