Mildly Contaminated Dirt Developing State Soil Reuse Regulation

Photo of Gregory H. Smith
Gregory H. Smith
Director & Chair, Administrative Law Department and Managing Director of State Capital Office
Michael J. Quinn
Director, Administrative Law and Litigation Departments and Managing Director Portsmouth Office
Published: New Hampshire Bar News
September 17, 2015

The permissible reuse of non-pristine or mildly contaminated soils excavated from construction projects, urban renewal and similar locations is of obvious importance to property owners, planners, builders, contractors, developers and regulators.

Those who are engaged in construction need to know where they can put the soils they excavate. Regulators have now become concerned with the potential for environmental risks from contact with these soils, the possibility for vapors from the contaminants, and from secondary contamination of water supplies within and underlying the soil. Until recently, in the absence of contamination above regulatory remediation standards, the excavation and reuse of soils was not subject to any environmental regulation at all.

With the pace of national economic activity rising over the past few years, soil reuse is drawing the attention of state regulators, not just in New Hampshire, but in the rest of New England and across the nation as well. In New England, New Hampshire, Massachusetts, Connecticut and Vermont are all dealing with how best to regulate soil reuse. Perhaps leading the way in June, Massachusetts issued a “Draft Interim Policy on the Re-Use of Soil for Large Reclamation Projects.” Comments to this interim policy are currently under review by regulators in that state.

New Hampshire is not as far along as Massachusetts in formulating a response to this issue, but this state certainly recognizes the importance of finding a regulatory approach, and New Hampshire’s plan is expected to be announced during fall 2015.

Those who have been around long enough will remember that as modern environmental law steadily expanded its reach, it was said that environmental regulations represent a body of law that rivals in complexity and size the tax code, and changes even more rapidly. And, while it is certainly true that in some cases the means of regulation have become more sophisticated while simultaneously diminishing reliance on methods of simple command and control, the broadening scope of regulation continues.

Those who have tried to keep up with the development of environmental law into the second decade of the 21st Century, will not be surprised by the attention now focused on reuse of soil. Uncounted millions of cubic yards of soil are moved each year in New England alone. However, it is clear that in the future if a volume of excavated soil demonstrates some level of contamination, even very minimal levels, then regulation may be required.

According to NH Department of Environmental Services (NHDES) regulations found at at Env-Or Part 602.07, any non-naturally occurring, regulated contaminant “that has the potential to adversely affect human health or the environment,” is subject to regulation. While New Hampshire relies on the broad definition of “contamination,” it recognizes it lacks explicit legal authority to implement a regulatory program for reuse of what is often referred to such mildly contaminated soil.

In these circumstances, New Hampshire is currently regulating the use of mildly contaminated soil on a case-by-case basis, and generally limiting those properties that may receive such soils to taking only those soils that do not exceed natural levels of such contamination in the environment. This ad-hoc approach to regulation, in the view of the regulated community, is slow, frustrating and does not recognize the economic realities. Although not yet finalized, it appears the Massachusetts policy simply formalizes this case-by-case approach.

Currently, solid waste regulation can be avoided only by an agency waiver of the solid waste rules, or reuse can be explicitly approved by the agency with an acceptable soil management plan and testing protocol for the soils at the source. NHDES is making efforts to respond to approval requests rapidly enough to avoid frustrating market-driven transactions. It is doing so because NHDES recognizes, as other regulators do, that construction projects may otherwise be forced to send lightly or mildly contaminated soil to landfills, depriving the region of essential landfill capacity, while increasing construction costs for little, if any, environmental benefit.

The regulators certainly recognize that un-reclaimed gravel pits and quarries present potential hazards and risks of their own. As the insurance industry and personal injury attorneys know, they can be attractive nuisances that claim the lives of those who try to use them unwisely for recreation, and can become repositories for discarded materials, including stolen or abandoned vehicles. In short, they can be a locus of a range of community problems, if unattended. Rather than pay to send mildly contaminated soils to landfills, everyone understands a better and more beneficial use could be found.

The Massachusetts interim policy will apply to any project “commenced or expanded” after the effective date of the policy that is expected to accept 100,000 cubic yards or more of soil in order to reclaim or fill a quarry, gravel pit, or sand pit. To be eligible under the policy, only de minimis quantities of solid waste may be contained in the soil to be used. Understandably, many of the comments received by Massachusetts regulators are reported in the media to focus on the applicability of the policy.

From a legal perspective, and perhaps most significantly, under the current draft of the policy, Massachusetts will require projects to obtain an Administrative Consent Order (ACO), a legally binding document that is intended to ensure that the proposed reuse of large volumes of soil pose no significant risk of harm, and would not create a new release of oil or hazardous materials requiring cleanup under that state’s site cleanup program. It remains to be seen whether the requirement that an ACO be obtained provides the desired level of certainty to the process, or creates a further impediment to economic activity.

Other states considering new programs recognize that their efforts to impose environmental regulation on such a substantial volume of previously unregulated activity could well have unintended and unnecessary, adverse consequences for both small- and large-scale redevelopment projects, just as the region’s economy is gaining strength.

Regulatory change must be undertaken in a manner that will not exacerbate these other very significant potential problems. An alternative approach being considered by various states will likely bear the simplicity and efficiency of general permits. Legislative action will no doubt be necessary to authorize such a new program.

There is little question that as the economy continues to improve, all states must establish consistent criteria setting forth the standards to be used in determining where mildly contaminated soils generated at construction projects and other developments can be disposed of and re-used at subsurface locations. The regulated community in New Hampshire needs to be educated about this process and engage with the regulators to ensure that the final standards are well-understood, easily implementable, and adequately ensure the environment is protected.