The Dirt on ‘Dirty Dirt’: A Primer.
Is this ‘
Dirty Dirt’, Disguised as Clean Fill? Read On.
[9-minute read]
Over the years, the New Jersey Department of Environmental Protection (NJDEP) has tended to ping-pong from one red hot-button topic to the next — the next big push from a regulatory perspective.
For those operating in the New Jersey environmental arena, this button has shifted over the years; some of the familiar red flags from years past include: radon gas infiltration, environmental impacts affecting day-care centers, vapor intrusion issues for building occupants, the licensing of environmental professionals, the aggressive pursuit of natural resource damage claims against polluters, to, more recently regulating emerging contaminants (such as PFAS in groundwater and drinking water — refer to our accompanying blog articles on PFAS; PFAS Update — Now Coming to Your Tap and The New Bane of the Real Estate World: PFAS.
At the end of this red-flag string, one of the newcomer hot-button logs the NJDEP has thrown on the fire is ‘dirty’ dirt; namely, contaminated soil/fill material that is imported and placed on properties, usually as part of site development or capital construction-related projects.
The regulatory management of contaminated soil is certainly not a new area of NJDEP oversight, but recent events have changed the rules and forced an enforcement spotlight on the issue.
First, a little background on ‘dirty dirt’; let's wind the clock back to 2011.
Some Regulatory Background on ‘Dirty Dirt’:
The New Jersey State Commission of Investigation (SCI) is an independent watchdog agency, formed in 1968, to investigate the effects of organized crime, corruption and general abuse of the public trust in a variety of business areas. In 2011, the SCI decided one of the areas it would focus upon was the recycling business in New Jersey. Without going into exhaustive detail, traditional waste disposal firms in New Jersey are strictly regulated and required to secure rigorous licenses, including criminal background checks, including one called an A-901 License. It is not easy to secure this license; one of the goals of this onerous vetting process was to weed out the criminal element in the garbage hauling business.
But the A-901 regulations had a specific carve-out for recycling activities, and one of the recycling activities exempted was the reuse of soil/fill material. This carve-out, meant to foster growth and competition in the nascent recycling industry, unfortunately, allowed for firm's with less-than-stellar reputations to operate in this soil 'recycling' arena even when they would have been barred from the traditional solid waste/garbage business since they would never have met the strict background check criteria to secure a standard A-901 license. Many of these firms were barred from the waste industry in neighboring states, but could 'recycle' soils with impunity in New Jersey.
After 6 years of investigation, the SCI issued a findings report on this topic on March 22, 2017, concluding the recycling business, and especially the soil/fill aspect of same, was prone to corruption and infiltration by a criminal element due to loopholes in solid waste regulatory oversight. Specifically, many purportedly legitimate 'recycling' firms were not, and would knowingly accept contaminated soil from in-state and out-of-state construction and contaminated sites, and would either sell this tainted material, or give away same for 'free' as 'clean fill' or 'topsoil' to unsuspecting end-users, creating a contamination situation on the receiving site, usually unbeknownst to the recipient. Many of these end-users were residential homeowners. This created an environmental, legal, and regulatory nightmare for both the end-user of the recycled soil and potentially neighboring parcels to the dumping sites.
Fast forward two years to Vernon, Sussex County, New Jersey, in February,
The 2019 Vernon Residential Dumping Exposé:
As part of an in-depth investigative reporting scoop, NJ Advance Media published in the Star-Ledger an expose on a two-acre residential property reportedly owned by an excavator/landscaper — who, over the course of eight years, had apparently accepted debris and contamination-laced fill material from a variety of sources onto his property, ostensibly, to repair erosion-related damage from tropical storm Irene. Over the years, this pile of imported fill material trucked onto his property morphed into a seven-story tall behemoth, to the fear and consternation of neighboring property owners.
In response to the Star-Ledger story, and at the urging of elected officials, the NJDEP sued the homeowner for the illegal importation of fill material — deemed to be solid waste; namely, the individual was cited for operating an 'illegal solid waste facility' (he was later arrested on related contempt charges). More than a dozen trucking firms who delivered the tainted fill to the Vernon property have also been pursued by the NJDEP.
Over the course of this litigation, the soil has reportedly been sampled and found to contain a variety of hazardous constituents above NJDEP regulatory standards; said contaminants include compounds commonly found in fill material removed from former industrial/commercial and roadway projects, including polycyclic aromatic hydrocarbons (think asphalt-type materials), pesticides and polychlorinated biphenyls (PCBs). The fill also was interlaced with wood scraps/planks, vegetative debris and other non-native solid waste materials commonly encountered on previously developed sites. According to NJDEP statutes, such tainted fill material must be disposed of in a permitted solid waste facility; it is not allowed to simply be dumped on unlicensed parcels, and certainly not on residential property. Both the NJDEP and State Attorney General's (AG) office have used the Vernon case as an example of getting tough on illegal dumpers; New Jersey AG Gurbir Grewal stated that the Vernon case should serve as a warning to others, making the argument that the State and NJDEP will hold dumpers accountable for health and environmental impacts due to illegal fill deposition.
Thus contaminated fill became a new NJDEP 'hot button' issue.
The Fallout and New NJDEP ‘Dirty-Dirt’ Hot Button:
Due to the SCI study/findings on shady recyclers and unpermitted dumping sites across the State, as well as the Star-Ledger expose on the Vernon soil dump, the New Jersey legislature decided they needed to deal with this contaminated fill material issue posthaste. To that end, the New Jersey Senate introduced Bill No. 1683, approved in June 2019, four months after the Vernon story broke, which was given the moniker: The ‘Dirty Dirt’ Bill. Essentially, the bill required soil/fill recycling firms, truckers, brokers, and other entities associated with the recycling business to undergo the same vetting/background checks and licensing process as A-901 License holders, to weed out the corrupt element in the industry. This bill would not apply to virgin, quarry-sourced materials (e.g., gravel, sand, stone from a licensed quarry), but would apply to most other soil sources.
The June Senate Bill was followed in August 2019 by a NJDEP Compliance Advisory, which confirmed to the regulated community in New Jersey that soil intermixed with non-native debris generally cannot be used as 'clean fill', but must rather be disposed at an approved solid waste facility.
Two months later, the NJDEP followed the Compliance Advisory with an October 8, 2019 Press Release for municipalities, communities, and the general public to manage imported fill material, entitled the Guard Your Backyard campaign, with a dedicated website: www.guardyourbackyard.nj.gov. This website has a wide variety of important and useful links, including:
Descriptions to citizens on how to report illegal dumping in their community to the NJDEP, including use of a mobile app for your phone, called WARN NJDEP;
Another informative website entitled stopdumping.nj.gov, which allows you to sign up for a periodic newsletter, and, most importantly;
A model municipal ordinance drafted with the assistance of the NJDEP that towns may adopt to complement the State's ‘Dirty Dirt’ Bill, with the goal being to monitor and assess any imported fill material being brought into their respective towns, especially sites that are not currently being remediated, and, therefore, are not under the purview of the NJDEP. As you can suspect, due to the Vernon case being in Sussex County, that a variety of neighboring towns in this far northwestern county have proactively adopted local fill importation ordinances, including Wantage, Lafayette, Frankford and Hampton. However, other towns throughout the State have drafted model ordinances as well, including Plumsted and Jackson in Ocean County. Others are sure to follow. These model ordinances do not specify the soil sampling frequency, parameters to be analyzed or sampling protocol to be followed when assessing suspect imported fill, leaving these details up to the discretion of the individual town, which creates a patchwork of potentially conflicting soil reuse criteria across the State, as you move from one town to the next.
On January 21, 2020, seven months after Senate Bill No. 1683 passed, Governor Murphy officially signed the ‘Dirty Dirt’ Bill into law (PL 2019, c. 397), with the overarching goal of reducing illegal dumping of both solid waste-infused soil and contaminated soil at unpermitted sites in New Jersey. This law also empowers the NJDEP and local/county health agencies to enter and collect soil samples at a recycled soil receiving site, which means your, or your client's property. An important fact to take into consideration.
Our upcoming newsletter will outline how to apply these new soil regulations to your particular site or pending transaction; it will assist you in identifying and avoiding common pitfalls with respect to ‘Dirty Dirt’, disguised in the back of that dump truck as clean fill.