MassDEP’s interim policy for use of soil for filling of quarries, gravel pits and sand pits is out.  You can read the new interim policy HERE.  After two public meetings, a few drafts, and a lot of conceptual thinking, MassDEP’s policy is pretty simple: MassDEP will issue site-specific approvals, in the form of an Administrative Consent Order, to ensure that the reuse of large volumes of soil for reclamation of sand pits, gravel pits and quarries pose no significant risk of harm to health, safety, public welfare or the environment and will not create new releases or threats of releases of oil or hazardous materials.

Is this so new?  Not really.  It is what MassDEP was doing for large projects before the issue of what to do with mildly contaminated soils came up a few years ago, and before MassDEP was directed by Section 277 of Chapter 165 of the Acts of 2014 to come up with regulations, guidelines, standards or procedures for determining the suitability of soil used as fill material for reclamation projects.

While the legislative directive of Section 277 is clear and specific, what is the underlying statutory authority to regulate reclamation soils? Chapter 21E, governing releases of oil and hazardous material to soil, gives MassDEP authority to regulate soil that has been contaminated by spills or releases of oil and hazardous material and sites were releases of oil and hazardous material might occur.  And MassDEP’s solid waste regulations and policies have been used to guide what type of materials may be brought to solid waste facilities. But do these laws apply to the fill material to be used for reclamation projects? Perhaps.

This is where the metaphysics comes in.

Let’s say I am putting in a new building on my property that needs a deep foundation. Because there is no room for the displaced soil on my property, it must go off site.  The material to be removed from the ground has been tested: no oil or hazardous material release.  It is just rock, minerals, and dirt.  My goal is to get rid of this material.  I want to dispose it.  It is a “waste” to me.  But hang on.  From MassDEP’s perspective, if the material I generate is a waste, is it a solid waste and therefore must go to a location that has solid waste site facility approval?  Some at MassDEP have said so. But that would be a problem. MassDEP in no way would want to call the location to which reclamation soils are destined – sand pits, gravel pits and quarries – solid waste facilities and in need of site assignment.  If, however, that same material is re-purposed or re-used for something we all consider a better use, such as to fill a quarry so that it may become a ball field, golf course, or housing – a reclamation project – then, from MassDEP’s perspective, we avoid calling it a waste and subject to facility siting requirements.  The metaphysics of dirt. Dirt is defined by how you use it, right?

But wait. The Policy says: “Fill projects that accept any amount of soil (whether pursuant to this Interim Policy or otherwise) must ensure that the filling does not create new, reportable releases of oil or hazardous materials to the environment pursuant to M.G.L. c. 21E and 310 CMR 40.0000, or will not violate M.G.L. c. 111, section 150A, 310 CMR 16.00, or 310 CMR 19.000.”  (regulating solid waste).  Thus, reclamation soils can’t contain oil or hazardous materials that, when “re-purposed,” would create a new c. 21E site, and likewise, solid waste that would require solid waste permitting (i.e. site assignment).  So, if c. 21E and solid waste regulations prohibit disposal or re-use of certain soils, what authorizes MassDEP to say reclamation soils can go to quarries, sand pits and gravel pits?

Where the “stuff” that would be used as fill is not c. 21E oil or hazardous material that would create a new c. 21E site or solid waste (because it is being re-purposed), but natural soils, free of anthropogenic sources – dirt – is it subject to regulation by MassDEP?   Section 277 of Chapter 165 of the Acts of 2014 directed MassDEP to “establish  regulations, guidelines, standards or procedures for determining the suitability of soil used as fill material for the reclamation of quarries, sand pits and gravel pits.”  The Legislature may have asked MassDEP to do something it simply can’t do.