legal and regulatory framework for soil management in...
TRANSCRIPT
Legal and Regulatory Framework
for Soil Management in MA
Robert D. Cox, Jr.
Partner
Bowditch & Dewey, LLP
Environmental Business Council of New England
Energy Environment Economy
Robert D. Cox, Jr., Esquire
Bowditch & Dewey, LLP
May 7, 2014
EBC Program on Management of Urban Soil
Legal and Regulatory Framework for Soil Management in Massachusetts
Overview • Laws governing soil with stuff in it
• Laws governing soil with stuff in it and you want to move it
• Laws governing locations where soil with stuff in it is to be placed
stuff in soil
soil
Can You Explain That?
• “Stuff” – on lists: MOHML, CERCLA, RCRA, CWA, CAA
and TSCA
• “Laws” – Laws, Regs, Policy, Guidance, etc.
• “Soil” – means any unconsolidated mineral and organic
matter overlying bedrock that has been subject to and
influenced by geologic and other environmental factors,
excluding sediment. 310 CMR 40.0006
Laws Governing Soil With Stuff In It
• RCRA Corrective Action
• CERCLA
• G.L. c. 21E
• Contaminated soil presents risk to H S PW or E and
therefore must be moved
• Remedial Laws – Pre-Brownfields
• Liability for generators/arrangers and transporters of
hazardous substances
Laws Governing Soil With Stuff In
It And You Want To Move It
• Radioactive – CERCLA
• PCBs – TSCA
• Hazardous Substances – CERCLA
• Solid Waste
– Hazardous Waste – RCRA and G.L. c. 21C
– Solid Waste – RCRA Part D and G.L. c. 111, § 150A
• OHM – G.L. c. 21E and MCP
Moving Soil With Stuff In It (Cont’d)
• Hazardous Waste Under RCRA
– Waste
• Listed waste
• Characteristic waste
• RCRA Land Disposal Restrictions (LDR)
– When soil is “generated” and contains hazardous waste
• Contained-In Policy – MassDEP Technical Update,
August 2010
Moving Soil With Stuff In It (Cont’d)
Solid Waste • G.L. c. 111, § 150A
– MA excludes hazardous waste from definition
– ABC
– C&D
• “Solid waste” means useless, unwanted or discarded
solid . . . material resulting from industrial, commercial,
mining, agricultural, municipal or household activities
that is disposed or is stored, treated, processed or
transferred pending such disposal, but does not include
a bunch of stuff. 310 CMR 16.02
Moving Soil With Stuff In It (Cont’d)
OHM
• At “Disposal Sites” – G.L. c. 21E/MCP
• Remediation waste
– Uncontainerized waste
– Contaminated debris
– Contaminated media
• 310 CMR 40.0032(3) – Similar Soils Provision
• Guidance WSC #-13-500, October 2, 2013
– Soils < RCs
• Not hazardous waste
– Not create notifiable condition at receiving location
Laws Governing Location Where Soil With Stuff
In It Is To Be Placed
• RCRA – TSDF
• RCRA – Part D Landfills
• G.L. c. 111, § 150A
– Siting – 310 CMR 16.00
– Permitting – 310 CMR 19.00
• Reuse and Disposal of Contaminated Soil at
Massachusetts Landfills, DEP Policy #COMM – 97- 001
MassDEP COMM – 97 – 001 Policy
• “Contaminated soil”
– Soil that contains OHM as a result of a release to
the environment
– Includes anthropogenic contaminants, regardless of
whether the contaminant levels exceed applicable
RCs
– Broader than MCP definition, includes soil less than
RCs
• Reuse and disposal at landfills
• Table 1 – contaminant levels for reuse as daily
cover and contour material
Laws Governing Receiving Location (Cont’d)
• G.L. c. 21E – Remedial law, but if create a
“disposal site” . . .
• CWA
• WPA
• Local Laws
Laws Governing Receiving Location (Cont’d)
Local Laws
• Earth removal and import bylaws
– Home rule
– Zoning
• Board of Health
– Regulations Relating To Nuisances –
G.L. c. 111, § 122
What To Take Away?
• Soil has stuff in it
• Soil that has anthropogenic stuff in it is
subject to regulation
– “release” G.L. c. 21E, § 2
– “unwanted or discarded solid…resulting
from…activities that is disposed” – 310 CMR
16.02
Take Away? (Cont’d)
• Soil with non-anthropogenic stuff in it
– G.L. c. 21E
– Will have HM and if moved to new location
“dumping or disposing into the environment”
– Solid waste – unwanted or discarded and
disposed, but resulting from…activities?
• Earth to earth, dust to dust, ash to ash