NJDEP Grants Temporary Extension of Dirty Dirt Law Deadlines

The NJDEP recently announced that it has extended the deadline for businesses to register and apply for a soil and fill recycling license under the State’s new “Dirty Dirt Law.”

The New Jersey Department of Environmental Protection (NJDEP) recently announced that it has extended the deadline for businesses to register and apply for a soil and fill recycling license under the State’s new “Dirty Dirt Law.” The new deadline is July 14, 2022.

In response to the COVID-19 public health emergency and pursuant to Executive Order (EO) 136, NJDEP previously extended the deadline to register to October 14, 2021 and the deadline to file an A-901 application to April 14, 2022. The NJDEP is providing an additional extension in response to concerns that businesses may be facing compliance challenges.

“The Department recognizes, however, that confusion within the regulated community regarding the Act’s applicability in specific circumstances may have resulted in certain businesses not registering by the aforementioned dates and, as a result, these businesses may be at risk of operating in violation of the Act,” the NJDEP said in its compliance advisory. The Department also recognizes that the appropriate method to provide clarity and definitive interpretation of the applicability of the Act is through the promulgation of necessary regulations and has begun an extensive and in-depth stakeholder and rule development process.” 

Requirements Under NJ’s Dirty Dirt Law

On January 21, 2020, Governor Phil Murphy signed S-1683/A-4267 into law, which expands NJDEP oversight of business concerns that engage in or provide soil and fill recycling services that do not already possess a valid A-901 License. As discussed in greater detail in prior articles, under the so-called Dirty Dirt Law, soil and fill recyclers are subject to the same regulations that govern the solid waste industry. The requirements apply to any corporation, association, firm, partnership, sole proprietorship, trust, limited liability company, or other commercial organization providing services for the collection, transportation, processing, brokering, storage, purchase, sale, or disposition of soil and fill recyclable materials.

The law defines “soil and fill recyclable materials” 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. The following items are not considered “Soil and fill recyclable materials” under the new law:

• Source separated Class A source-separated recyclable material
• Source separated Class B recyclable material shipped to a NJDEP approved Class B recycling center for receipt, storage, processing, or transfer
• Beneficial use material for which the generator has obtained prior approval from the DEP to transport to an approved and designated destination
• Virgin quarry products including, but not limited to, rock, stone, gravel, sand, clay, and other mined products.

NJDEP Compliance Advisory

In its compliance advisory, the NJDEP advises regulated entities that it requested on behalf of the regulated community a 90-day extension of the deadline to submit a valid and administratively complete application for an A-901 license, and the Attorney General has determined that good cause exists to extend the deadline by 90 days 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 compliance advisory also issues new guidance in two key areas:

Certification Program for Businesses that Handle Non-restricted Soil and Fill Recyclable Materials 

The NJDEP has established an annual Certification Program for businesses exclusively handling “Non-Restricted Soil and Fill Recyclable Materials.” Non-Restricted Soil and Fill Recyclable Materials means 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 Solid Waste rules at N.J.A.C. 7:26-1.6(a)6. 

In accordance with the new guidance, businesses validly completing this annual certification process will need to be registered but will not have to apply for an A-901 License. The certification form, which includes guidelines for the certification program and instructions for submission, is available at https://www.nj.gov/dep/dshw/a901/a901frms.htm. 

Exclusion for Businesses that Handle Lower Volumes of Soil and Fill Recyclable Materials 

Under additional new guidance set forth in the NJDEP’s compliance advisory, businesses which handle specified low volumes (de minimis quantities) of soil and fill recyclable materials (such as landscapers, contractors, pool companies, home remodeling companies, plumbers, electricians, etc.), are not considered to be “engaged” in soil and fill recycling services provided that the soil and fill recyclable materials they handle are exclusively non-restricted soil and fill recyclable materials. Businesses that are engaged in handling de minimis quantities of non-restricted soil and fill recyclable material are not required to register, certify or apply for and possess an A-901 license, provided that they possess all other applicable licenses and authorizations including, but not limited to, a Division of Consumer Affairs Home Improvement Contractor license or other trade license as applicable. 

To meet the de minimis quantity criteria, the business must determine that it will: 

• Generate less than fifteen (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 fifteen (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. 

Businesses that fail to meet the above criteria will be considered to be “engaged” in soil and fill recycling services and subject to enforcement. 

New Deadlines

Businesses that determine that they are subject to the law must submit a Soil and Fill Recycling Registration or certify that they are engaged in using only non-restricted soil and fill recyclable materials to the NJDEP no later than July 14, 2022. 

Businesses that are regulated and can’t certify that they are engaged in using only non-restricted soil and fill recyclable materials, and have submitted a registration, must submit an A-901 License application to the Office of the Attorney General no later than July 14, 2022. 

Businesses that do not certify that they are engaged in using only non-restricted soil and fill recyclable materials, submit a Soil and Fill Recycling Registration, or submit an A-901 License application, must cease to engage in soil and fill recycling services and may be subject to enforcement by the NJDEP. 

Given the risk of costly penalties for noncompliance, we encourage members of the waste/recycling industry to contact experienced counsel for assistance navigating the process.

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, Monica Schroeck, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.