• Dennis Toft, Chiesa Shahinian & Giantomasi, PC

It’s all about the dirt

Any one involved with development in New Jersey knows the problem with dirt. On many if not most sites the developer either needs to dispose of excess fill, or needs to import fill. Rarely does it seem that a site balances. And it always seems that a developer can never easily find fill when needed or find a place to easily dispose of it when there is excess. Issues with fill are made more complicated by the way dirt is regulated in New Jersey. This article will attempt to provide clarity for those needing or seeking to dispose of fill.Several factors complicate fill issues in New Jersey. Unlike other states, New Jersey regulates dirt containing contamination at concentrations above the most restrictive cleanup standard as a solid waste. This means that the handling of contaminated soil is subject to New Jersey’s solid waste regulations. Many New Jersey properties are built on historic fill and much of this fill is contaminated. As a result, many development projects are potentially subject to the solid waste requirements.After Hurricane Sandy, the Federal Emergency Management Agency undertook the remapping of flood elevations throughout much of New Jersey. The increased elevations have made it necessary to bring fill to many development sites so that the development is raised above the new flood elevation line. This has increased the demand for fill, and made more sites subject to fill regulation. The first issue to consider in addressing fill needs is whether the site is contaminated. If the developer needs to add fill, this could be a blessing in disguise. If a developer needs to remove fill, this will add complications.

Fill at a contaminated site regulated under the New Jersey Department of Environmental Protection (“NJDEP”) Site Remediation Program (“SRP”) is subject to the “Fill Material Guidance for SRP Sites” guidance document issued in April, 2015. Pursuant to this guidance, the developer of a contaminated site may be able to bring in contaminated fill material from other sites if the standards set forth in the guidance document are met. The use of contaminated fill pursuant to the guidance document is done outside the world of solid waste regulation. The most basic element of the guidance document is that contaminated material to be placed on a contaminated site may not contain new contaminants—in other words the contamination in material proposed to be brought to a site must be like the contaminants already there. Additionally, the concentration of contaminants in the material proposed as fill must be lower than those at the receiving site. Contaminated fill that meets these criteria may only be used in areas of the site that are also contaminated with the same material. In other words, use of contaminated fill may not be done in a manner that adds contamination to an area of the site that is not already contaminated. This applies to both on site and off site fill sources.

The guidance document also notes that contaminated fill may only be brought to the extent necessary to implement the remediation of the site. Excess fill over this amount may only be brought onto the site with permission from NJDEP. This provision is intended to limit the opportunity for an owner of a contaminated site to go into the fill disposal business by accepting material in excess of remediation needs, in a way that would circumvent solid waste regulations. Fortunately, NJDEP does acknowledge that elevating a site out of a flood plain may be a component of completing a remediation.For those who do not want to deal with alternative or contaminated fill at an SRP site, the guidance document provides information on what constitutes “clean fill”, and sets forth the testing and other requirements related thereto. It also provides recognition that material from a certified quarry may be used without further testing if the proper certification is provided.For site owners who need to dispose of contaminated soil, the guidance document may also be helpful. If there is a similarly contaminated site that needs fill, it may be possible for the developer of a site disposing of fill to find a match which could lead to cost savings particularly if the site is close by. At times a brownfields developer may charge less than a landfill to take the material. It is important to undertake careful due diligence in considering sending contaminated fill to a development site and to ensure that there are adequate contractual safeguards, backed up with an appropriate balance sheet when doing so. The last thing anyone needs is to create liability at a site by sending contaminated material there, without adequate protection. This is another area where environmental insurance could come into play, and non-owned disposal site coverage should be obtained if available. If the risks are untenable, the fill will need to be disposed of as a solid or hazardous waste at a licensed facility.

For sites that are not under the oversight of the SRP, or for SRP sites where consideration is being given to using material other than soil, there is a possibility that a Beneficial Use Determination (“BUD”) may be obtained from the NJDEP Solid Waste Program to allow for the use of such material as fill. Such material could include construction and demolition material or recycled concrete. Material from a Class B recycling center may not need a separate BUD. Dredge material does not require a BUD, but does require and Acceptable Use Determination (“AUD”) for use at a particular site.The BUD requirements are site specific. In order to obtain a BUD, the owner of the receiving site must submit an application to NJDEP including specifics of the receiving site and the proposed material to be beneficially reused. If the criteria are met, and the BUD issued, the specific material may be reused and not subject to regulation as a solid waste.

As this all shows, dealing with dirt in New Jersey is not a simple process. Developers and their environmental and legal professionals need to be aware of the requirements set forth in NJDEP rules and guidance documents. Licensed Site Remediation Professionals are usually aware of these requirements, but at times even they can be confused by the myriad of regulations and guidance. With the right understanding and help developers may see their way past the dirt piles to a successfully completed project.

Dennis Toft is a member of CSG’s executive and management committees and co-chair of the firm’s Environmental Group.

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