The Vermont House and Senate passed legislation this week that will help save hundreds of thousands, if not millions, of dollars for economic development and redevelopment projects located in downtowns, village centers, and other areas where state policies incentivize investment. The legislation, which now heads to the Governor for approval, addresses certain development projects that require the excavation and offsite management or disposal of soils for essential infrastructure such as: foundations and footers, parking garages, stormwater control measures, and grading. These excavated soils frequently contain levels of polycyclic aromatic hydrocarbons (“PAHs”), arsenic, and lead. The source of these PAHs, metals and other potentially hazardous materials is often simply the area-wide atmospheric deposition of exhaust products from the incomplete combustion of hydrocarbons including wood, oil, coal, gasoline, and garbage. As a result, PAHs and select metals are often found in soils associated with downtowns and village centers at concentrations that exceed the current Vermont soil screening standards for residential use. Therefore, under existing Vermont environmental rules, these soils are not allowed to be treated as clean fill, are typically forbidden from being used on any other property, and are almost always required to be shipped for disposal at a certified landfill (i.e., Coventry). Unfortunately, the State requirements imposed on Coventry limit its ability to use most of this mildly impacted development soil as daily cover for the landfill. Allowing the use of the soils for daily cover would be a much more cost-effective disposal option than what the State currently allows.
Under the current soil management regulatory regime, the shipping costs, district charges, and tipping fees to dispose of these soils in certified landfills are expensive and add hundreds of thousands or even millions of dollars to project costs. Under existing Vermont rules, these costs are frequently unavoidable. Moreover, these costs are incurred by both public projects financed with Vermont and federal tax dollars, including Tax Increment Financing, state and federal grants and loans, and other public sources of funds and private development. The new legislation should significantly reduce or even eliminate these costs for eligible soils, while maintaining the protection of human health and the environment. The legislation requires the Department of Environmental Conservation (“DEC”) to use interim procedures set forth in the new statute and to promulgate rules by July 2016 to establish a regulatory process that will appropriately manage development soils. The new rules must create a process to identify suitable alternative disposal or reuse locations for these excavated development soils and to authorize the deposit of soils at these locations.
Here are key points contained in the legislations:
- “Development soils” are eligible for the alternative handling options, and are defined as soils that contain concentrations of PAHs, arsenic, and lead that exceed the residential screening standard. The soils, when managed according to the requirements of legislation, will not pose new risk to the environment or human health. The legislation includes specific standards that must be met and approved by DEC before the soils are excavated and managed.
- Soils excavated at properties located in designated downtowns, village centers, Tax Increment Finance districts, and Neighborhood Activity Centers are potentially eligible for alternative management, as long as the property is not part of a CERCLA site or subject to a CERCLA action.
- The excavated development soils must be tested and handled in accordance with plans submitted and approved by DEC.
- In some cases, excavated development soils can be moved to another parcel with “approximately equivalent” concentrations of PAHs, arsenic, and/or lead.
- Excavated development soils can also be sent to approved categorical solid waste facilities or used as alternative daily cover at a certified landfill.
- By July 2016, DEC is required to promulgate rules that, among other things, set a statewide or regional background soil concentration level for PAHs, arsenic and lead that represents “typical soil concentrations.” Soils with concentrations of PAHs, arsenic and lead below the background levels would not be considered “solid waste” under Vermont law and could be relocated and reused with fewer regulatory restrictions.
Click here to read the Burlington Free Press article: “State sympathizes with developers’ dirt”.
