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Comprehensive Look at DEC Regulation of Soil

This presentation provides an overview of DEC regulations related to soil, including the definition of uncontaminated soil, current BUDs for soil, management of TENORM materials, and more. The presentation covers the basic questions and considerations for determining if soil is contaminated or clean.

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Comprehensive Look at DEC Regulation of Soil

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  1. A Comprehensive Look at DEC Regulation of SoilOriginator – William Ottaway, DECPresentation to the AWMAJanuary 25, 2017 Lippes Mathias Wexler Friedman LLP

  2. Presenters Peter Grasso, P.E. – NYSDEC Greg Sutton, P.E. – E&E Martin Doster, P.E. – LMWF

  3. Overview of Today’s Topics • The Basic Questions • Defining “uncontaminated” soil • Current BUDs for soil • Soils under DER programs (Superfund, Brownfield, Spills, and RCRA) • Management of TENORM materials

  4. The Phone Rings… I’m buying a property; how do I find out if the soil is contaminated? I dug up some soil and want to know if I can sell or give it away as fill I took soil samples and don’t know what the lab results mean

  5. What is “Clean” Soil? It Depends!!

  6. Rule #1 • All soil is clean unless you know it is not

  7. “How clean is clean” principles • Knowledge of the site (potential contamination sources) • Site or regional background concentrations • Olfactory, visual criteria

  8. Rule #2 • always sample in areas you are going to disturb because you don’t want to violate Rule #3

  9. Rule #3 • once excavated, the soil likely becomes a solid waste (or worse) and is now magically regulated which means it costs you a lot of $

  10. Uncontaminated Soil: Part 3606 NYCRR 360-7.1(c)(4) and 360-16.2(c) • not mixed with any other solid waste • not contaminated with spills of: • petroleum product, • hazardous waste or • industrial waste • (road runoff and pesticide applications excepted).

  11. Uncontaminated Soil: Part 375 • 375 : Soil with no “presence” of hazardous substances (Part 597) or petroleum; or • Since 2006: Soil meeting unrestricted SCOs.

  12. Lead (Pb) • USCO = 63 ppm • Rural background = 63 ppm • ATSDR = 400 ppm • Urban neighborhood – range 168-2520 ppm

  13. Soil Testing: Using Part 375 SCOs • Soil meeting 375-6.8(a) Unrestricted Use SCOs is uncontaminated • Soil meeting the lower of 375-6.8(b) Protection of Public Health-Residential and Groundwater Protection SCOs can be considered uncontaminated in urban, non-agricultural settings • Cannot use Restricted-Residential, Commercial or Industrial SCOs to qualify excavated soil as uncontaminated.

  14. Consequence of testing • Soil that exceeds the lower of residential or protection of groundwater SCO, but which has no obvious contamination becomes “contaminated” • If excavated, typically becomes a solid waste • This does not appear in any regulation or guidance

  15. Soil Testing • No general requirement to test • If you do test, then we need to evaluate results Bottom Line: Know your excavation/disposal costs upfront!

  16. If you have results, do you need to report them? • You need to report any petroleum contamination as a spill • You need to meet RCRA requirements for soil that is a hazardous waste • Manifesting • Transporter requirements • DER does not oversee all HW remediation

  17. Soil that is a Solid Waste

  18. Soil Can Be a Solid Waste… • 360: any garbage, refuse, sludge …and other discarded materials including solid, liquid, semi-solid, or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations, and from community activities.

  19. How does Part 360 classify soil as a solid waste? As construction and demolition (C&D) debris: 360-1.2(b)(38)

  20. Excess Uncontaminated Soil • Uncontaminated soil going back in the hole - or anywhere else not prohibited under the ECL (e.g., not in wetlands or streams) - is not a solid waste when used as fill • Ceases to be solid waste pursuant to 360-1.15(b)(7) – pre-determined BUD

  21. Excess Contaminated Soil • You can put it back in the hole, or use elsewhere on the same site if there are “similar contaminants” • 360-1.15(b)(8) • Otherwise it is a solid waste and needs to be disposed of • You need a case-specific BUD to do anything else

  22. Historic Fill • Definition in 375-1.2(x): old deposits of ash, refuse, and C&D to create additional land area • DMM considers historic fill “MSW” for purpose of Part 360 regulation; it is not soil • Can be relocated in same footprint pursuant to 360-1.7(b)(9)

  23. Remediation Sites

  24. Imported Soil (375) • Must be comprised of soil or other unregulated material as set forth in Part 360; • Assume unregulated=not a solid waste • Could include material with a BUD • Must not exceed applicable SCO

  25. Imported Soil (DER-10) must… • comply with any RAOs • be free of extraneous debris or solid waste; • be recognizable soil or other unregulated material as set forth in 6 NYCRR Part 360 • not exceed the allowable constituent levels

  26. Non-Soil • Recognizable, uncontaminated concrete, brick or asphalt may be reused without a case-specific BUD • If you have anything other than soil, rock, concrete or brick: • Must petition the Department for a BUD • Chemical and physical sampling may be required

  27. Beneficial Use Determinations (BUDs)

  28. What is a Beneficial Use Determination (BUD)? • 6 NYCRR Part 360, Solid Waste Management Facilities • 360-1.2(a)(4)(vii) and Section 360-1.15 • “A jurisdictional determination made by the Department that a solid waste, when used in a specific manner, shall no longer be regulated as a solid waste”

  29. Why BUDs? • BUDs are intended to allow “recycling” of diverse commercial and industrial waste streams • Reduce landfilling, conserve virgin materials, save energy

  30. Predetermined BUDs • “Generic” • Promulgated into regulation • Minimal or no petitioning or reporting

  31. Predetermined BUDs • 360-1.15(b)(7) – Excess uncontaminated soil used as fill anywhere • 360-1.15(b)(8) – Contaminated soil used on the same site to backfill excavation or in “areas of similar contaminants”

  32. Predetermined BUDs • 360-1.15(b)(11) – Recognizable and uncontaminated concrete, asphalt pavement, brick, glass, soil and rock as substitute for aggregate • 360-1.15(b)(10) – Alternate daily cover, or other liner or final cover components inside landfill footprints

  33. Case-Specific BUDs • 360-1.15(d) • In-depth evaluation • Allows flexibility based on material and location or mode of use • Often location-specific • Typically requires Annual Reporting

  34. Case-Specific BUD Criteria • Not a hazardous waste • The proposed use must constitute legitimate reuse rather than disposal • Material must serve as an effective substitute for an analogous raw material in manufacturing or commercial product • Material should not need to be decontaminated or specially handled before use (BUD cannot cover process)

  35. How to obtain a case-specific BUD

  36. How to obtain a case-specific BUD Currently 8 end-use specific petition forms (plus general use): - Aggregate - Fill or Cover • Animal Feed - Soil Amendment • Animal Bedding - Mulch • Road Treatment • Cement Kiln Feedstock

  37. Beneficial Use Determinations by DER • Memorandum of Understanding between DER and DMM was signed in 2013 to authorize DER to grant BUDs for DER Remediation projects: - importation of contaminated soils as fill, filter media, cover, etc. - reuse excess soils on-site • Off-site reuse of excess excavated material requires case – specific BUD from DMM

  38. Proposed Part 360 Regulations Managing Historic Fill

  39. Hazardous Waste

  40. Hazardous Waste • 371 Definition vs. 375 definition • 375 includes hazardous substances • Hazardous substances need to be cleaned up, but do not necessarily need to be manifested

  41. Contaminated soil is not generated unless it is “actively managed” • Soil is not “actively managed” if you: • Treat it in place • Move it within an area of contamination (even in a dump truck) • Soil is “actively managed” if you • Treat it ex-situ • Put it in a “container” • Move it from one distinct area to another

  42. Hazardous Characteristic • Toxic (40 Chemicals, TCLP) • Reactive • (violent reaction, explosion, form toxic gas) • Ignitable • Liquid: (flashpoint <140ºF) • Capable of causing a fire under standard conditions and burning vigorously • Corrosive • Liquid well defined (pH ≤2 or ≥12.5) • Solids not as clear

  43. Treatment • If you eliminate the hazardous characteristic, the material is no longer a hazardous waste • Still may need to meet Land Disposal Restrictions (LDRs) • Disposal or “use constituting disposal”

  44. Listed Hazardous Waste (371.4) • No testing required, no minimum concentration • Mixture rule – if you mix a listed waste with other waste, it is all hazardous waste

  45. Contained-In • Contaminated “environmental media” (soil, water, sediment) is not hazardous waste…it “contains” a hazardous waste. • If there is a “de minimis” amount of hazardous waste, we can decide that it the soil no longer “contains” a hazardous waste.

  46. Contained-In Determination • Still going through Henry Wilkie • No self implementing • Can’t exhibit a hazardous characteristic • Still need to meet LDRs for land disposal

  47. Land Disposal Restrictions (LDRs) Part 376 • Special provisions for contaminated soil 376.4(k)3: • Treatment must achieve 90% reduction, or 10 times the “Universal Treatment Standard” (UTM), whichever is easier

  48. Low Level Radiation

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