State regulation of contaminated soil hauling is finally a reality
April 20, 2020 was the deadline for unlicensed soil and debris fill businesses to register with the Attorney General
The influence of organized crime in the solid waste hauling industry is embedded in New Jersey culture. Aggressive state laws, including the “A-901” program, long ago sought to eliminate the infiltration of organized crime through an exhaustive licensing process, including far-reaching background checks.
Left unregulated, by comparison, but no less susceptible to darker influences, was the hauling of hazardous waste, solid waste, and soil or debris that is recycled and used as fill. For years, the State Legislature and the State Commission on Investigation (“SCI”) studied and reported on the improper and illegal disposal of contaminated soil and construction debris near waterways, residential developments, and other sensitive areas. Among other things, State government found that loopholes in the existing rules governing the handling of so-called “Class B” solid waste recyclables enabled for-profit soil haulers, and their unscrupulous ‘dirt broker’ counterparts, to pose as legitimate recyclers and escape the usual licensing and background checks required of typical solid waste haulers.
Extreme examples of the impact of the problem included the creation of a seven-story pile of contaminated waste and debris on a landowner’s property in a residential section of Vernon Township in Sussex County, and the dumping of tons of contaminated soil and debris on property that was being developed for business and residential use in Old Bridge and, by the same hauler, the disposal of contaminated soil and debris on a horse farm in Marlboro.1
While the disposal of contaminated soil and debris has long been a regulated activity in New Jersey, where the contaminated soil and debris are utilized for seemingly legitimate development purposes, the problem cannot be identified until after the dirt and debris have been moved, if ever. Regulating the hauling and movement of the contaminated dirt and debris, before it happens, stops the problem before it disappears from view.
On January 21, 2020, Governor Murphy approved S. 1683, which expands the “A-901”-type licensing and background check requirements for soil and recycling debris haulers, and subjects persons or business concerns engaged in soil and recycling fill services to the same regulation and oversight as applies to the solid waste industry.2 The law authorizes the imposition of substantial monetary penalties and potential criminal liability for violations.
By April 20, 2020, or 90 days after the effective date of the law, any business concern that does not already hold an A-901 solid waste hauling license must register with the state Attorney General, providing basic contact and business information. No more than 90 days after submitting a registration form, the Attorney General is authorized to issue a soil and fill recycling registration to applicants, and by September 20, 2020, those registrants must submit a full and valid application for a soil and fill recycling license with the Attorney General. The initial registration temporarily authorizes a hauler to provide soil and fill recycling services pending the approval or denial of the application for a soil and fill recycling license. The registration expires if a registrant fails to apply for a soil and recycling fill license.2
State and local authorities are also permitted to enter property where waste or dirt is being moved to take samples and to ensure compliance with the registration requirements, and local law enforcement is authorized to stop dump trucks suspected of hauling regulated solid waste in order to conduct license checks.1 State regulators are authorized to share information with other regional state governments on the solid waste and soil and fill recycling industries, and the law orders the creation of a centralized list in the Department of Treasury of those who have been debarred by State agencies from participating in regulated industries apart from solid waste and recycling, such as construction, casino gaming, and transportation.2
The new registration and licensing requirements close a vexing but effective loophole in an already exhaustive regulatory waste hauling scheme. Strong penalties for violations of the new licensing requirements provide a deterrent to the hauling of contaminated soil and debris, and the licensing requirements, when adhered to, give the regulated soil and debris hauling community, and land developers, regulatory certainty about the conduct of their business, and removes potential jeopardy from those with legitimate motives.
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