On January 21, 2025, NJDEP proposed its long-awaited regulations implementing New Jersey’s so-called “Dirty Dirt” Law, P.L. 2019, c. 297, which Governor Phil Murphy signed into law in January 2020. The proposal, once adopted, will amend NJDEP’s Solid and Hazardous Waste Licensing and Revocation Rules (N.J.A.C. 7:26-16), Solid Waste Rules (N.J.A.C. 7:26), and Recycling Rules (N.J.A.C. 7:26A).
The Legislature enacted the Dirty Dirt law in an effort to crack down on the illegal disposal and use of contaminated soil and debris, and to close a regulatory loophole which gave rise to the misuse of soils and fill materials. The Law requires all persons and businesses engaged in soil and fill recycling services to obtain an A-901 solid waste operating license, which was previously required only for those engaged in the transportation, disposition, purchase, sale or brokering of solid or hazardous waste. Now, under the new law, parties engaged in soil and fill recycling (in addition to those engaged in disposal) services must not only register with NJDEP, but must also comply with a variety of requirements, including the filing of business disclosure statements that identify all companies in their chain of ownership and personal disclosure statements concerning their officers, directors, and key employees.
As we previously shared in a May 2020 alert, the April 20, 2020 deadline set by the Dirty Dirt Law for soil and fill recyclers to register with NJDEP was extended due to COVID-19. However, further guidance concerning the Dirty Dirt Law remained scarce until the new regulations were released, despite concerns from the public and the potentially regulated community about the Law’s scope and application.
Many of the changes proposed by NJDEP are intended to align the existing regulatory definitions of various terms, such as “broker” and “consultant”, with the requirements of the Dirty Dirt Law. Beyond these changes, affected developers and professionals will be particularly interested in the exclusion of Licensed Site Remediation Professionals (also known as “LSRPs”), Certified Subsurface Evaluators, and individuals handing de minimis quantities of eligible soil and fill recyclable materials from the A-901 licensing requirements. In layman’s terms, this means that LSRPs will not need an A-901 license when retained to remediate a contaminated site.
The proposed rules also clarify the circumstances under which an LSRP may use alternative fill to remediate a contaminated property. “Alternative fill” refers to soil or non-soil material that is used in site remediation activities despite containing low levels of contaminants in excess of the most stringent relevant DEP standards. The Rules will allow LSRPs to arrange for the use of alternative fill to remediate a contaminated property without obtaining prior approval from NJDEP. Furthermore, the proposed rules would allow contaminated soil and fill material to be used as a subbase for roadways and parking lots if the soil or fill material meets certain criteria. Finally, the proposal sets forth the conditions under which materials like glass, recycled asphalt pavement and steel slag may qualify as “beneficial use” or “beneficial reuse,” which would allow these materials to be productively incorporated into future projects—rather than disposed of at a solid waste facility, as normally required—without the need for further NJDEP approval. This would be a change from the current practice.
Kindly note that the Dirty Dirt Rules proposed by NJDEP are extensive, and the summary offered above is not exhaustive. If you have any questions about their potential impact on your business or how can you submit effective comments on the proposal to NJDEP, please contact Amie C. Kalac (AKalac@cullenllp.com) or Zachary Klein (ZKlein@cullenllp.com) at (609) 279-0900.
This is a general overview of the law and does not constitute legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient.