Similar Soils Provision Guidance
Guidance for Identifying When Soil Concentrations at a Receiving Location Are “Not Significantly Lower Than” Managed Soil Concentrations Pursuant to 310 CMR 40.0032(3)
September 4, 20141
(Originally published October 2, 2013 and revised April 25, 20142)
The information contained in this document is intended solely as guidance. This guidance does not create any substantive or procedural rights, and is not enforceable by any party in any administrative proceeding with the Commonwealth. Parties using this guidance should be aware that there may be other acceptable alternatives for achieving and documenting compliance with the applicable regulatory requirements and performance standards of the Massachusetts Contingency Plan.
I. Purpose and Scope
The Massachusetts Contingency Plan (“MCP”, 310 CMR 40.0000) establishes conditions and requirements for the management of soil excavated at a disposal site. This guidance addresses the specific requirements of 310 CMR 40.0032(3) and the criteria by which a Licensed Site Professional (“LSP”) may determine that soil may be moved without prior notice to or approval from the Department. Soil managed pursuant to 310 CMR 40.0032(3) may be transported using a Bill of Lading (“BOL”), but a BOL is not required. Attachment 1 provides a flowchart depiction of the Similar Soil regulations and guidance.
This guidance is not applicable to the excavation and movement of soil from locations other than M.G.L. Chapter 21E disposal sites, nor to the management of soils considered Remediation Waste under the MCP.
II. Relationship to Other Local, State or Federal Requirements
This guidance is intended to clarify and more fully describe regulatory requirements contained within the MCP. Nothing in this guidance eliminates, supersedes or otherwise modifies any local, state or federal requirements that apply to the management of soil, including any local, state or federal permits or approvals necessary before placing the soil at the receiving location, including, but not limited to, those related to placement of fill, noise, traffic, dust control, wetlands, groundwater or drinking water source protection.
III. Requirements of 310 CMR 40.0032(3)
The requirements specified in 310 CMR 40.0032(3) are:
(3) Soils containing oil or waste oil at concentrations less than an otherwise applicable Reportable Concentration and that are not otherwise a hazardous waste, and soils that contain one or more hazardous materials at concentrations less than an otherwise applicable Reportable Concentration and that are not a hazardous waste, may be transported from a disposal site without notice to or approval from the Department under the provisions of this Contingency Plan, provided that such soils:
(a) are not disposed or reused at locations where the concentrations of oil or hazardous materials in the soil would be in excess of a release notification threshold applicable at the receiving site, as delineated in 310 CMR 40.0300 and 40.1600; and
(b) are not disposed or reused at locations where existing concentrations of oil and/or hazardous material at the receiving site are significantly lower than the levels of those oil and/or hazardous materials present in the soil being disposed or reused.
There are therefore four requirements that must be met before the managed soil can be moved to and re-used (or disposed) at a new location without notice to or approval from MassDEP. Each requirement (A. through D.) is addressed below.
A. The Managed Soil Must Not Be a Hazardous Waste
310 CMR 40.0032(3) applies to soils containing oil or waste oil that are not otherwise a hazardous waste, and to soils containing hazardous materials that are not a hazardous waste. The MCP definition of hazardous waste (310 CMR 40.0006) refers to the definitions promulgated in the Massachusetts Hazardous Waste Regulations, 310 CMR 30.000.
Under the federal Resource Conservation and Recovery Act of 1976 (“RCRA”, 42 U.S.C. §§6901 et. seq.), the Massachusetts Hazardous Waste Management Act (M.G.L. c.21C), and the Massachusetts Hazardous Waste Regulations (310 CMR 30.000), soil is considered to contain a hazardous waste (hazardous waste soil) if, when generated, it meets either or both of the following two conditions:
the soil exhibits one or more of the characteristics of a hazardous waste pursuant to 310 CMR 30.120 [such as exhibiting a characteristic of toxicity under 310 CMR 30.125 and 30.155 (Toxicity Characteristic Leaching Procedure, or TCLP)]; or
the soil contains hazardous constituents from a listed hazardous waste identified in 310 CMR 30.130 or Title 40, Chapter I, Part 261 (Identification and Listing of Hazardous Waste) of the Code of Federal Regulations.
MassDEP has published a Technical Update entitled: Considerations for Managing Contaminated Soil: RCRA Land Disposal Restrictions and Contained-In Determinations (August 2010, http://www.mass.gov/eea/docs/dep/cleanup/laws/contain.pdf) that focuses on the determination of whether contaminated soil must be managed as a hazardous waste subject to RCRA requirements, and the presumptive approval process an LSP/PRP can use to document such a determination.
B. The Managed Soil Must Be Less Than Reportable Concentrations (RCs).
This requirement is intended to ensure that the soil being excavated and relocated from a disposal site is not “Contaminated Soil” and therefore neither “Contaminated Media” nor “Remediation Waste” as those terms are defined in 310 CMR 40.00063.
310 CMR 40.0361 sets forth two reporting categories for soil (RCS-1 and RCS-2). Reporting Category RCS-1 applies to locations with the highest potential for exposure, such as residences, playgrounds and schools, and to locations within the boundaries of a groundwater resource area. Reporting Category RCS-2 applies to all other locations.
Note that the “applicable Reportable Concentrations” referred to in 310 CMR 40.0032(3) may be the RCS-1 or RCS-2 criteria, depending upon which category would apply to the soils being excavated at the original disposal site location, not the RCs applicable to the soils at the receiving location (see Section III.C. below).
EXAMPLE: If soil is being excavated from a disposal site at an RCS-2 location and the soil contaminant concentrations are found to be less than the RCS-2 criteria, then the soil is not “Contaminated Soil” since the soil is less than the release notification threshold established for RCS-2 soil by 310 CMR 40.0300 and 40.1600. The RCS-2 soil in this example is not “Contaminated Soil” even if one or more constituent concentration is greater than an RCS-1 value.
Also, the language at 310 CMR 40.0032(3) specifies the applicable RCs. If a notification exemption (listed at 310 CMR 40.0317) applies to the OHM in soil at its original location, then the corresponding Reportable Concentration is not applicable. Thus 310 CMR 40.0032(3) should be read to apply to soils containing concentrations of oil or hazardous material (“OHM”) less than the applicable RCs or covered by a notification exemption. This interpretation of the requirement is consistent with the definition of Contaminated Soil, which uses the term “notification threshold” rather than “Reportable Concentration.”
C. The Managed Soil Must Not Create a Notifiable Condition
at the Receiving Location.
This requirement is intended to prevent the creation of new reportable releases that must be subsequently assessed and remediated.
If the contaminant concentrations in the soil being relocated are less than the RCS-1 criteria, then placement of the soil in any RCS-1 location would not create a new notifiable condition. There are, however, conditions that could result in a notifiable condition.
First, if the soil is excavated from an RCS-2 location (as described in the example in Section III.B. above) with contaminant concentrations between the RCS-1 and RCS-2 criteria, then the placement of that soil at an RCS-1 receiving location would create a notifiable condition since one or more concentrations of OHM would then exceed the RCS-1 criteria in the RCS-1 receiving location.
Second, a notification exemption that applies to the original location of the soil may not apply to the receiving location. (For example, the lead paint exemption at 310 CMR 40.0317(8) is specific to “the point of application.”) In cases where a notification exemption applies only to the original location, the managed soil must be evaluated solely based on whether its OHM concentrations exceed the applicable RCs at the receiving location.
D. The Managed Soil Must Not Be Significantly More Contaminated Than
the Soil at the Receiving Location.
This requirement has been referred to as the “anti-degradation provision” although it is more accurately described as the “Similar Soils Provision.” 310 CMR 40.00032(3)(b) requires that the concentrations of OHM at the receiving location not be “significantly lower” than the relocated soil OHM concentrations. One could also say that the provision requires that “there is no significant difference between the relocated soil and the soil at the receiving location,” or that “the soils being brought to the receiving location are similar to what is already there.” This requirement embodies several considerations.
First, as a general principle, M.G.L. c.21E is intended to clean up contaminated properties and leave them better than they started -- even to clean sites to background conditions, if feasible. It would be inconsistent with this principle to then raise the ambient levels of contamination in the environment as a consequence of a response action conducted under the MCP.
Second, despite the three other requirements (A. through C. above) of 310 CMR 40.0032(3), decisions about the movement of the managed soil will be based upon sampling of soil that is likely to have significant heterogeneity. The Similar Soils Provision is an additional measure to minimize the adverse effects of soil characterization that may not be representative of such heterogeneity.
Third, none of the criteria of 310 CMR 40.0032(3) address the question of whether the soil poses a risk in its original or receiving location, although the hazardous waste- and notification-related requirements seem to imply risk-based decision making. Put simply, soil that is not a hazardous waste and does not require notification may still pose incremental risk at the receiving location. The Similar Soils Provision is intended to ensure that the managed soil does not increase risk of harm to health, safety, public welfare or the environment at the receiving location, since it will be similar to what is already there.
The “not… significantly lower” language of 310 CMR 40.0032(3)(b) can be interpreted to mean either a quantitative “not statistically different” analysis, or a semi-quantitative, albeit somewhat subjective, approach. MassDEP does not believe that a statistics-driven quantitative approach is necessary when comparing managed soil to known or assumed background conditions, given (a) the relatively low concentrations at issue and (b) the cost of such an analysis, driven by the quantity of sampling needed to show a statistical difference.
The regulations imply that the LSP must have knowledge about the concentrations of OHM in the soil at the receiving location in order to apply the Similar Soils Provision. The regulations also imply that the new soil may contain concentrations of OHM that are somewhat higher than those levels at the receiving location – just not “significantly” higher.
MassDEP recognizes that there may be several approaches to address this “knowledge” issue when implementing the Similar Soils Provision of the MCP.
Assume the soils at the receiving location are natural background.
Sampling of the soil at the receiving location is not necessary if it is assumed that the concentrations of OHM there are consistent with natural background conditions. MassDEP acknowledges that there is a range of background levels, and that the concentrations at any given location may be lower than the statewide levels published by the Department4, but the costs associated with determining site-specific background are not justified by likely differences. Further, the published “natural background” levels are similarly used in several areas of the MCP as an acceptable endpoint, including site delineation and the development of the MCP cleanup standards.
Of course, routine due diligence about the receiving location may still reveal factors that would make the location inappropriate to receive the proposed fill material. Nothing in this guidance relieves any party of the obligation to conduct such due diligence and appropriately consider and act on information thereby obtained.
Sample the soils at the receiving location.
The sampling plan should include a sufficient number of samples taken at locations selected to provide an understanding of the concentrations of OHM present and the distribution of OHM throughout the receiving location. In order to provide data appropriate for the Similar Soils comparison, the soil at the receiving location should be analyzed for constituents that are likely to be present there (e.g., naturally occurring metals) as well as any OHM known or likely to be present in the soil brought from the disposal site. If a receiving location has been adequately and comprehensively characterized, that data may then be used for comparison to the OHM concentrations in any subsequent soil deliveries - additional sampling is not required.
Provide Technical Justification for an Alternative Approach
There may be situations for which a different combination of analytical and non-analytical information available for both the source and receiving locations is sufficient to conclude that the nature and concentrations of OHM in the soils are not significantly different. Guidance on recognizing such conditions and the level of documentation that would be necessary to support such a technical justification is beyond the scope of this guidance.
Once the concentrations of OHM in the soils are known (or assumed consistent with this guidance), the LSP must compare the concentrations of the source and receiving locations and determine whether the concentrations at the receiving location are “significantly lower” than those in the soil proposed to be relocated from the disposal site. This comparison may be conducted in several ways, including analyses with appropriate statistical power and confidence. MassDEP has also developed a rule-of-thumb comparison to simplify this determination, as described in Section IV.
IV. Determining whether soils at the receiving location are “significantly lower” using a simplified approach
The simplified comparison shall be made using the maximum values of the OHM concentrations in both the soil at the receiving location and the soil proposed to be disposed of or reused.
Use of the maximum values is appropriate for several reasons. First, the provisions of 310 CMR 40.0032(3) include comparisons to Reportable Concentrations, and notification is triggered by any single value (i.e., maximum value) exceeding the RC. Second, soil is by its nature heterogeneous, and the use of maximum values is a means of minimizing sampling costs while addressing the expected variability of results. Third, if natural background levels are assumed at the receiving location, the MassDEP published background concentrations are upper percentile levels that are only appropriately compared to similar (e.g., maximum) values of the soil data set.
Note also that when using the maximum reported concentrations for comparison purposes, the typical or average concentration will be lower. This is important to recognize if/when the question of the risk posed by the soil is raised. For example, the RCS-1 and the Method 1 S-1 standard for arsenic are both 20 mg/kg. The Reportable Concentration is applied as a not-to-be-exceeded value, triggering the need to report the release and investigate further. However the S-1 standard is applied as an average value, considering exposure over time. At a location where the highest arsenic value found is less than 20 mg/kg, the average concentration would be well below the Method 1 S-1 standard.
The maximum concentration in the soil at the receiving location may be less than that in the proposed disposed/reused soil by some amount and not be considered “significantly lower.” The question is how much lower is “significantly lower”? In this guidance, MassDEP establishes a multiplying factor to be applied to the concentration in the soil at the receiving location. The multiplying factor varies depending upon the concentration in the soil at the receiving location, as shown in Table 1.
Table 1. Receiving Soil Concentration Multiplying Factors
If the concentration in soil
at the receiving location for a given OHM is:
Then use a multiplying factor of:
< 10 mg/kg
10 mg/kg ≤ x <100 mg/kg
100 mg/kg ≤ x <1,000 mg/kg
> 1,000 mg/kg