CSG Law Alert: NJDEP Publishes Proposed Dirty Dirt Rules
On January 21, 2025, the New Jersey Department of Environmental Protection (“DEP”) published the long-awaited proposed rules implementing New Jersey’s “Dirty Dirt Law.” If adopted, these regulations will significantly impact a broad array of industries including, recycling facilities, site remediation, construction and waste management. The written comment period for the proposed rules closes on April 21, 2025.
Signed by Governor Murphy in 2020, the “Dirty Dirt Law” amended the A-901 licensing statute to require persons engaged in the business of soil and fill recycling services to comply with the extensive background checks and strict licensing requirements traditionally imposed on the solid waste industry. As a result, many industries that were not historically considered part of the regulated waste industry may now be subject to increased oversight by DEP. Some key provisions of the proposed regulations are set forth below.
Brokers and Consultants definitions:
The proposed rules significantly expand and reshape the A-901 licensing program. Although DEP’s intent was to alleviate concerns expressed by the regulated community that the statutory definition of “Broker” is overly broad and would reach too many entities, the proposed rules expand the definition even further and is now much broader than the statutory definition. To be considered a “broker,” a person must arrange an agreement between its customers and a business for the provision of soil and fill recycling services for direct or indirect compensation. Notably, the types of activities identified in the rule that would constitute brokering are sweeping in scope and likely unworkable. For example, any person that recommends a business engaged in solid or hazardous waste services or soil and fill recycling services to a client, or even informs or advises a client as to that business’s compliance with its operational requirements, including possession of an A-901 now constitutes brokering. This expansive definition means a wide range of businesses, including construction managers, site developers and general contractors, could be classified as brokers for activities that were never contemplated to be regulated under the statute. The term “consultant” is also defined broadly, which includes any person retained to give specialized advice to the business concern regarding the provision of solid or hazardous waste or soil and fill recycling services. The proposed rules, however, clarify that LSRPs and Certified Subsurface Evaluators (“CSE”) who are remediating a contaminated site will continue to be exempt from obtaining an A-901 license as long as remediation is conducted in conformity with the ARRCS Rules. This exemption also applies to persons employed by the same firm as the LSRP/CSE who are performing remediation at the site which the CSE/LSRP is employed but does not exempt LSRPs conducting sampling for due diligence. The proposed rule also permits an LSRP to use alternative fill to remediate an area of concern at a contaminated site without obtaining a formal approval from the DEP.
De minimis exemptions:
Persons handling de minimis quantities of nonrestricted soil and fill recyclable materials will be permitted do so without an A-901 license. Specifically, the DEP is proposing an exemption for a person who generates less than 15 cubic yards (the volume that a smaller dump truck can transport) of the materials each day, stores less than 100 cubic yards of the materials at any one time, transports the materials using a truck/trailer with a capacity of less than 15 cubic yards, and possesses any necessary contractor or trade license. While the DEP believes this exemption will protect small generators of soil, such as pool contractors and landscapers from being regulated by the A-901 program, anyone invoking this exemption must certify that the materials they are handling qualify as “non-restricted soil and fill recyclable material,” most likely requiring sampling, that they have quality assurance programs in place, and maintain detailed records concerning the handling of these materials. These requirements are likely to pose significant burdens on small business and may ultimately prove unworkable. There has been significant concern from the regulated community that the current de minimis threshold is too low.
Solid Waste definition:
The definition of “solid waste” is also amended to clarify whether material is regulated as solid waste or is a recyclable material pursuant to the recycling rules. Notably, DEP proposes eliminating certain types of materials (i.e., uncrushed bricks, concrete, etc.) that are often used as fill material from the exclusions under the solid waste rules. This will likely result in additional solid waste disposal rather than reuse of these materials.
Class B recyclable materials:
DEP is proposing an expansion of the definition of “Class B recyclable materials” to include source separated recyclable soil and fill material. Currently, source separated petroleum contaminated soil is the only soil or fill material classified as a Class B recyclable material. Historically, Class B recycling facilities (which handle materials like concrete, asphalt, wood and soil) were not required to test incoming or outgoing materials. Under the proposed rules, a Class B facility accepting “recyclable soil & fill material” will be required to develop and implement a materials acceptance plan, adhere to stricter operational and design requirements (i.e., 25-foot buffer), meet enhanced recordkeeping requirements and implement rigorous sampling and analysis protocols before accepting or processing soil-like materials. These new requirements will likely increase the operating costs of existing Class B facilities. The DEP plans to issue a guidance document regarding these new recycling requirements after the final rules are adopted.
Scope of Proposed Rules:
A critical aspect of the broad expansion of persons or businesses that must obtain licenses is that all key employees and even family members of closely held companies will be subject to background checks by the State Police. Even homeowners could be required to obtain a license if they contract for the disposal of more than de minimis quantities of soil.
Conclusion:
The proposed rules and regulations implementing the Dirty Dirt Law are likely to face significant pushback from a variety of stakeholders and industries. CSG Law will closely monitor the public comment process and ultimate rule adoption to determine how to best assist our clients.