Cleanup of contaminated sites just became a lot more difficult in the Town of Dartmouth. In April 2014, the Dartmouth Board of Health enacted a regulation prohibiting anyone from importing or using certain moderately contaminated soils in the town or transporting such soil through the town. This regulation has the potential to affect remediation of contaminated properties within Dartmouth and use of major roads such as I-195 to transport soils through Dartmouth, if it survives judicial scrutiny. The Dartmouth Board of Health has issued at least one Order to Cease and Desist prohibiting transport of such soils from a property located in Dartmouth being remediated under state cleanup law.
A lawsuit has been filed challenging the regulation, arguing that it is unconstitutional, arbitrary and capricious, and pre-empted under state law. The notion that a town can prohibit transport on federal and state roads is questionable at best, especially when you consider the potential for frustration of state laws and impact on interstate commerce.
The regulation relates to so-called “COMM-97 Soils,” which are contaminated soils that meet criteria in MassDEP’s COMM-97-001 Policy entitled Reuse and Disposal of Contaminated Soils at Massachusetts Landfills. Under this policy, COMM-97 Soils may be used at lined or unlined landfills as daily cover, intermediate cover, or pre-capping contour material without approval from MassDEP. However, if the soils are too contaminated to meet the criteria in the policy, they cannot be used in this way without specific approval from MassDEP.
The Dartmouth Board of Health determined that COMM-97 Soils, “including their transportation into, transportation through, and use within the Town, constitutes a public nuisance that may be harmful or dangerous to persons and property, and may be injurious to public health and the environment.” Dartmouth Board of Health Contaminated Soils Regulations, § 3. The regulations state: “[i]n order to protect the public health and environment, … the importation into, transport through, and use within the Town of COMM-97 Soils is prohibited.” Dartmouth Board of Health Contaminated Soils Regulations, § 4. The regulations also prohibit any for-profit business utilizing COMM-97 Soils on the basis that it is a nuisance trade. Dartmouth Board of Health Contaminated Soils Regulations, §5. A copy of the regulations is available here.
Why did Dartmouth enact this regulation? According to the regulatory language, the Board of Health was concerned about the risk posed by transport and use of moderately contaminated soils, risk which MassDEP addressed before issuing its COMM-97 policy more than 15 years ago. According to the complaint filed in state court claiming that the regulation is unlawful, the purpose is to prevent implementation of an agreement between the owner of the Cecil Smith Landfill in Dartmouth and MassDEP to close the landfill by importing substantial COMM-97 soils as landfill cover.
What is the effect of this regulation on the cleanup of contaminated properties in Dartmouth? The impact is not entirely clear. Under the rule, soils that qualify as COMM-97 Soils cannot be transported through the town and therefore cannot leave the property from which they were excavated. As noted above, the Board of Health has already issued a cease-and-desist order to a landowner who had planned to transport contaminated soils meeting the COMM-97 criteria from his land in Dartmouth to a landfill in another town for reuse. However, if the soils are more contaminated than allowed to be managed under the MassDEP COMM-97 policy, transport appears to be allowed under the regulations as written. It is hard to justify the purpose of the rule as protecting public health when it prohibits the transport of low-contamination impacted soil but not high-contamination impacted soil.