CPES Hot Topic on Enforcement of the “Dirty Dirt Law” with Tom Farrell, CHMM, Chief, NJDEP, Bureau of Solid Waste Compliance & Enforcement. Tom spoke about the upcoming rule and guidance for the handling of “Dirty Dirt” in New Jersey
Speaker: Tom Farrell, CHMM, Chief, NJDEP – Bureau of Solid Waste Compliance & Enforcement
Moderator: Philip I. Brilliant, LSRP
Getting Ready for New Jersey’s “Dirty Dirt” Rules: What Tom Farrell Told CPES—and What Contractors, LSRPs and Haulers Need to Do Next
Recap of the April 2024 CPES Hot Topic webinar, “Enforcement of the Dirty Dirt Law,” (N.J.S.A. 13:1E-126 -135.6) with Tom Farrell, CHMM, Chief, NJDEP Bureau of Solid Waste Compliance & Enforcement
1. How We Got Here
- Sandy, scam fill and a 2017 SCI report. Storm-repair sites, Facebook “free-fill” ads and broker schemes pumped demolition debris and lightly contaminated soil onto backyards and beaches.
- The 2020 “Dirty Dirt Law.” Formally an extension of New Jersey’s A-901 licensing program, it says anyone transporting, brokering or accepting soil and fill must hold a solid-waste license – unless they fall under a specific exemption.
2. Key Concept: “Non-Restricted Soil & Fill”
The proposed rules (now in legal review, with publication targeted for 2024) invent a new category:
| Non-Restricted Soil & Fill (NRSF) | Meets NJ residential ingestion/dermal and inhalation criteria, but does not have to meet default migration-to-ground-water standards. |
|---|---|
| Why it matters | Any load that is not NRSF is “dirty dirt” and triggers A-901 licensing, manifesting and enforcement. |
3. Who’s Automatically Exempt
- LSRPs—but only for the volume needed to remediate an Area of Concern (AOC). Put a privacy berm on the back lot? You’re outside the exemption.
- Subsurface Evaluators—for clean backfill on UST jobs.
- Utilities under a forthcoming UBUD (Utility Beneficial-Use Determination) for spoil generated by linear trenching.
- Class B recycling facilities (crushing plants) if they run the new testing program (see below).
- Virgin quarry products, Class A recyclables, approved BUD materials and soil covered by an existing DEP permit.
4. New Testing and “Final-Batch” Rules for Class B Facilities
DEP will treat soil like any other Class B recyclable. Highlights of the draft guidance:
| Material Category | Incoming C&D Debris in Mix | Recommended Lab Frequency | Required Analytes |
|---|---|---|---|
| Recyclable Soil & Fill (may exceed res. stds) | Any | 1 sample / 500 yd³ | TAL/TCL metals, PAHs, PCBs; VOCs by headspace/PID; ≈ EPH optional |
| Non-Restricted Soil & Fill | < 1 % C&D | 1 / 300 yd³ | Same list |
| Non-Restricted Soil & Fill | > 1 % C&D | 1 / 100 yd³ | Same list |
| Clean Fill candidate | < 1 % C&D | 1 / 40 yd³ | Adds SPLP or site-specific GW check |
| Clean Fill candidate | > 1 % C&D | 1 / 20 yd³ | Adds SPLP |
- Data averaging allowed within a batch—recognising the soil is continuously mixed.
- Final-batch sampling. Each storage bin must be homogenised and sampled when full; no new soil can enter until it’s emptied.
- QA/QC “red-flag” review. DEP won’t require full data validation, but Class Bs must interpret non-conformance summaries and keep Tier 2 deliverables on file.
5. Di-Minimis Carve-Outs
| Actor | Exempt if… |
|---|---|
| Transporter | Truck/tipper capacity < 15 yd³ or moves < 15 yd³/day. |
| Fill yard / landscaper | Stockpile < 100 yd³ total. |
| Contractor generating soil | < 15 yd³/day and keeps disposal records. |
6. The Licensing Fork in the Road
| Scenario | License Needed? | Why |
|---|---|---|
| LSRP orders 2,000 yd³ of certified NRSF to backfill a former tank pit. | No. | Within AOC, volumes tied to remedy. |
| Same LSRP is asked to source 5,000 yd³ for a parking-lot berm. | Yes. A-901 (or register as soil broker). | Not remediation; acting as broker. |
| Civil engineer (no LSRP) arranges import of NRSF for subdivision grading. | A-901 or Soil-Broker registration | Consultant exemption does not cover buying & arranging transport. |
New wrinkle: DEP told CPES that even consultants who simply advise on fill quality must file a Personal History Disclosure (PHD)—and the firm itself may need an A-901 unless that gets tweaked before final adoption.
7. Enforcement Posture
- Cease-and-desist first. Unlicensed broker or hauler must stop work immediately and cannot even subcontract.
- Civil penalty next. Illegal transport or dumping can run into five-figure fines and third-degree criminal charges.
- No penalty for innocent homeowners who discover contaminated fill—and are remediating under an LSRP.
8. Timeline & Next Steps
| Milestone | Target |
|---|---|
| Rule proposal lands in NJ Register | Mid-2024 (expected) |
| 60-day comment period + public hearing | Summer 2024 |
| Final adoption | Late-2024 / early-2025 |
| Existing soil brokers must file full A-901 | 30 days after adoption |
| DEP publishes final guidance (BMPs, QA/QC templates, utility UBUD, etc.) | Immediately after rule adoption |
What To Do Now
- Inventory your soil flows. Know which projects (and which parts of projects) are covered by LSRP or UST exemptions—and which are not.
- Talk to your Class B vendors. Confirm they’re gearing up for the new batch-testing regime.
- Decide on licensing or certification. Haulers under 15 yd³ may stay exempt; larger fleets and brokers should budget for A-901 filings.
- Watch for the rule publication. DEP’s comment clock will be short—and this is the industry’s last chance to refine the testing tables or di-Minimis thresholds.
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