2B — March 11 - 24, 2016 — New Jersey — M id A tlantic

Real Estate Journal


N ew J ersey By Dennis Toft,Chiesa Shahinian & Giantomasi, PC It’s all about the dirt

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ny one involvedwith de- velopment in New Jer- sey knows the problem

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. Un- like other states, New Jersey regulates dirt containing con- tamination 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 re- sult, many development proj- ects are potentially subject to the solid waste requirements. After Hurricane Sandy, the Federal Emergency Manage- ment Agency undertook the remapping of flood elevations throughout much of New Jer- sey. 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 in- creased the demand for fill, and made more sites subject to fill regulation. The first issue to consider in addressing fill needs is wheth- er 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 Jer- sey Department of Environ- mental Protection (“NJDEP”) Site Remediation Program (“SRP”) is subject to the “Fill Material Guidance for SRP Sites” guidance document is- sued 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 docu- ment 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 con- taminants—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 contami- nants 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 continued on page 16B

with dirt. On many if not mo s t s i t e s the developer either needs to dispose of excess fill, or needs to import fill. Rarely does

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Dennis Toft

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

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