MassDEP Proposes Asbestos-in-Soil Regulations
Beveridge & Diamond, P.C., April 2007
MassDEP has proposed significant changes to air, site cleanup and solid waste regulations and policy to address asbestos fibers and asbestos-containing material (ACM) found in the environment at significant levels. While MassDEP states that the proposal will “clarify and streamline” requirements for assessment and cleanup of asbestos released to the environment, we believe that the regulations if promulgated will fundamentally change how asbestos contamination in soil is managed in practice. To view the public hearing draft of this proposal, please click here.1
Existing laws governing asbestos remediation and asbestos abatement are found primarily in the air and site cleanup programs. These programs have not previously been integrated. In brief, the asbestos abatement program found in the air regulations imposes notification, licensing and work practice requirements on renovation and demolition work involving asbestos. Site cleanup regulations impose notification, assessment and cleanup requirements on asbestos-related releases if the release poses an imminent hazard or involves the release of one pound or more of asbestos within a 24-hour period. In addition, solid waste regulations identify asbestos containing waste material as a “Special Waste,” substantially limiting disposal options.
The MassDEP proposal builds from these existing laws, by expanding site cleanup requirements to fill gaps and creating additional disposal options. We summarize the proposal below, at the 30,000-foot perspective:
- For purposes of the site cleanup regulations, MassDEP is proposing a threshold for notification of asbestos-in-soil conditions based on visual observations of ACM debris in soil. Assessment and remediation of the material would then continue under the site cleanup program. In particular, MassDEP proposes to define “Debris Containing Releasable Asbestos” to refer to manufactured objects (e.g., shingles) no longer serving their intended use that are 3 inches or more in diameter and contain 1% or more asbestos by area that, when dry, can be crumbled by hand or already has become crumbled or broken. This definition would be used as follows:
- A discovery of a 5 pounds or five cubic feet of Debris Containing Releasable Asbestos at the ground surface near an occupied building, school, playground or park would be defined as an “imminent hazard.” Such discovery would trigger notification within two hours and an immediate assessment of the hazard. Remediation or abatement would then be required as necessary to eliminate the imminent hazard.
- A discovery 1 pound or 1 cubic foot of Debris Containing Releasable Asbestos in soil would trigger notification within 120 days, followed by remediation or abatement. However, no notification is required if the material can be fully excavated and properly disposed of (up to 100 cubic yards) during the 120-day period. Notification under the asbestos abatement program is required if more than 20 cubic yards of material is excavated.
MassDEP states that it will re-evaluate these notification criteria after two years of implementation.
- The asbestos abatement program’s notification, licensing and work practice requirements for renovation and demolition work would be largely unaffected, except exemptions from these requirements are proposed for ACM (a) identified in soil below 150 mg/kg; or (b) managed under the site cleanup program.
- Excavation, handling and management of substantially intact, buried building components (e.g., pipes) would continue to be managed under the asbestos abatement program, unless located at a site being addressed under the site cleanup program.
- Soil containing less than 150 mg/kg ACM would no longer be a Special Waste when disposed. Further, by policy, soil containing more than 150 mg/kg but less than 1,000 mg/kg ACM may be used by active Massachusetts landfills as daily cover, and soil containing more than 150 mg/kg but less than 8,000 mg/kg ACM may be used as shaping or grading material by Massachusetts landfills that are closing.
- Because no standard method exists for quantifying asbestos fibers in soil, MassDEP developed the “sieve method,” which can be used to determine the concentration of ACM for purposes of these regulations and policy. MassDEP is seeking comment on what it calls an “ongoing project to develop analytical methods.”
The public comment period for these rules runs through June 1, 2007. Public meetings will be held throughout the state during early May 2007.
For further information, please contact Jeanine Grachuk at jgrachuk@bdlaw.com or Steve Richmond at srichmond@bdlaw.com.
