May 9, 2022

Contractors, Developers and Other Handlers of Soil and Fill Recycling Services Beware of Dangers for Non-Compliance with New Jersey's Dirty Dirt Law

By Heidi S. Minuskin, Esq. and Phoebe Youhanna, Esq.

If your business handles or brokers soil and/or fill recycling services, it is likely subject to the onerous requirements of the law enacted on January 21, 2020, affectionately dubbed, the “Dirty Dirt Law,” See, N.J.S.A. 13:1E-127, et seq. (the “Law”). Under the Law, a business that engages in the collection, transportation, processing, storage, purchase, sale or disposition of soil and fill recyclable materials, or who acts as a broker, defined as a person who, for direct or indirect compensation, arranges between a business and a customer for the “collection, transportation, treatment, storage, processing, transfer or disposal of … soil and fill recycling services” must comply with the Law. N.J.S.A. 13:1E-127.2.

Compliance includes (1) registering with the New Jersey Department of Environmental Protection (“NJDEP”), and (2) obtaining an A-901 license, which includes background checks, etc. Failure to register and obtain a license by the applicable deadline may subject your business to penalties of up to $50,000 for each violation.

Recognizing the confusion and controversy currently surrounding the applicability of the Law—and noting that clarifying formal rules are forthcoming—the NJDEP issued a compliance advisory, dated March 16, 2022, advising that the deadline for registering and applying for an A-901 license has been extended to July 14, 2022.

Furthermore, NJDEP developed a certification program for businesses exclusively handling “non-restricted soil and fill recyclable materials,” which exempts qualifying businesses from having to obtain an A-901 license. However, the businesses are required to register for the program.

To qualify for the certification program, the business must:

  • exclusively handle 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.

Additionally, NJDEP created a category for businesses handling low volumes of soil and fill recyclable materials that excludes them from having to comply with the registration or A-901 licensure requirements (the “de minimis exception”). By way of example, NJDEP includes landscapers, contractors, and other trade professionals in this category.

To qualify for the de minimis exception, the business must:

  1. exclusively handle non-restricted soil and fill recyclable materials; and
  2. possess all other applicable licenses and authorizations, including, but not limited to, a DCA Home Improvement Contractor license or other trade license; and
  3. generate less than 15 cubic yards of non-restricted soil and fill recyclable materials each business day; and
  4. use a truck or trailer that has a loading capacity of less than 15 cubic yards; and
  5. maintain a storage yard containing less than 100 cubic yards of non-restricted soil and fill recyclable materials; and
  6. maintain appropriate records, available to the NJDEP upon request.

The extended deadline offers some compliance reprieve for subject businesses. If you have any questions or need assistance with this, please give us a call.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.