To Fill or Not to Fill

TO FILL OR NOT TO FILL...

Submitted by Michelle Proscia, Ag Educator The issue the state of Maine is having with contaminated soils from approved sludge applications only heightens the reminder for landowners to be attentive to the application they make to their soils, especially if they ever plan on using them as agricultural lands or the property remaining suitable for sale. Aside from threatening the value of, typically, a farm’s greatest asset, there is the risk of charges from agencies such as the Department of Environmental Conservation (DEC) and the Environmental Protection Agency (EPA). DEC revised the regulations for solid waste management in 2017, and subsequently issued (and updated on March 16, 2022) Enforcement Discretion Letters clarifying the Department’s stance on fill material https://www.dec. ny.gov/regulations/118777. html. Many landowners are unaware of the new regulations and hefty penalties that may not only mean fines but incarceration. https://www.dec.ny.gov/ chemical/292.html. If fill is needed for foundation for building or expanding, landowners might be able to accept fill but here are some tips:

• Check with your town if they have fill

requirements. Some towns in NY have additional requirements defining “clean” fill and/or when fill can be applied, such as a building permit filed and approved.

• NYSDEC must be notified of any transfers of fill material generated in, imported to or relocated within

New York City and also transfers of restricteduse and limited-use fill in other areas of the

State when the amount of fill is greater than ten (10) cubic yards.

• Get an analysis for

EACH load of fill. The sampling of the fill must be conducted by a qualified environmental professional (QEP), that is, a person/business with sufficient training to exercise professional judgment regarding the presence and impact of hazardous substances.

The QEP is required to sample the fill for contaminants such as metals, PCBs, asbestos, petroleum products, and other volatile organic compounds and possibly pathogens. The allowable concentration of any contaminant is based upon the classification of the fill and where it is going to be reused. Due diligence requires inspection of the analysis and ensuring what was sampled is what is in the truck rolling onto the property. Be skeptical that the analyses are not fraudulent in some way. Note: this has occurred. Landowners have ended up with “hot” soil only to bear the sole responsibility for the contamination.

• Reject any loads that do not appear to match the analysis.

Any soil that has debris that may have come from construction and demolition (frequently referred to as C&D) and includes bricks, cement, wires, re-bar, etc. is generally not suitable as structural fill. Soil that has an unnatural sheen, smell of petroleum, or other waste should also be rejected. Examine closely for clues of contamination in smaller particles of what would be man-made products like carpet fibers, paint chips, or porcelain chips from plumbing fixtures.

Document findings and rejection of the load as accurately as possible.

Since most carry still and video cameras in a pocket, that might be a good way of recording the findings of an inspection.

• Some C&D fill may be acceptable, but it needs to have been processed by a facility that is permitted to recycle

C&D. These facilities are required to keep records of soil movement. C&D tracking documents must accompany all fill

material leaving a C&D facility that does not qualify for a beneficial use determination. A Beneficial Use Determination (BUD) is where a waste product from some industry can be utilized in another way and the waste does not have to be solely treated as waste. An example of a BUD is the use of nitrate from silver refining being used in fertilizer production. A BUD may permit the use of C&D debris that has been specifically approved to be used elsewhere in NY for a specific application. Usually, these applications must meet several requirements that include that the debris will not be an environmental or human risk such as when it is used in the foundation of a building.

• Note that a BUD is a petition process with forms to fill out.

https://www.dec.ny.gov/ chemical/8821.html. It is an official exemption of the law that must be approved specifically by DEC that results in a letter outlining the permitted practice.

Landowners that use or accept fill or C&D debris should review all regulations and comply in order to avoid potential penalties and enforcement action.

• All loads from the five boroughs of New Jersey must meet stricter requirements than from elsewhere in NY.

• Landowners MAY NOT be reimbursed for

accepting fill. Clean fill, if needed from off-site, for a building project is usually part of the expense of the project. A landowner may reduce the cost of the project if they can find fill for free.

If a landowner accepts payment for the fill, they are now considered a landfill. Without proper permitting and designation as a landfill, that landowner is in violation of NY law.

The fine for solid waste violations for landfilling are substantial. Fines in the hundreds of thousands are not unheard of and criminal penalties might result in incarceration. At the very least, it is common for land which has been contaminated in this way to have deed restriction applied. This, in most ways, would make the land valueless as it would likely be unsalable and limit ability to even obtain a mortgage using it as collateral.

DO THE MATH

12” of fill on 1 acre 12” of fill on 1 acre amounts to approximately amounts to approximately 1600 cu.yd. or about 100 1600 cu.yd. or about 100

• Disposition site might

require a SWPP. Like other businesses that have construction or other projects where soil is loose or disturbed, the site might require a Stormwater Prevention Plan to keep the loose soil on site and out of surface water. https:// www.dec.ny.gov/ chemical/43133. html. Construction for buildings on a farm may not qualify under agricultural exemption.

• Be cautious of where

fill is dumped. It may not be dumped in

NYSDEC or Federal wetlands, flood plains, or floodways. Floodways (State oversight) are the narrower areas where water is regularly conveyed and the immediate areas that also fill with water seasonally.

The floodplain (typically under Town oversight) is the larger area that includes the floodway fringe. This is where floods may occur 1% of the time. Dumping fill (even clean/permitted) in areas or in such depths that may impact the environment (usually water sources) in a negative way may also violate DEC, EPA or other regulations. Bottom line: It may be financially beneficial to accept fill for free if there’s a need for a building project but diligence to ensure the fill meets requirements in quality, quantity, and disposition is necessary to avoid serious repercussions.