After nearly a year of evaluation, MassDEP has issued a draft policy requiring an Administrative Consent Order (ACO) for large-scale projects that fill or reclaim quarries, sand pits, and gravel pits.  Comments on the policy were due June 17, 2015.  This effort has been driven by a requirement in the fiscal year 2015 budget that required MassDEP to develop a policy for such projects by June 30, 2015.  Large fill projects that do not involve quarries, sand pits and gravel pits are not covered by this draft policy. 

As drafted, the interim policy will apply to any project “commenced or expanded” after the effective date of the policy that is expected to accept 100,000 cubic yards or more of soil in order to reclaim or fill a quarry, gravel pit, or sand pit.  Many of the comments received by MassDEP relate to the applicability of the policy.  In discussing these comments at the June 25, 2015 Bureau of Waste Site Cleanup Advisory Committee Meeting, MassDEP suggested that the word “expanded” may be given a broad interpretation or possibly MassDEP may change this wording so that all such projects – even those currently in operation – fall within the policy, after some kind of transition period.

Under the policy, MassDEP will require such projects to obtain an ACO that would, according to MassDEP, ensure that this reuse of large volumes of soil would pose no significant risk of harm to health, safety, public welfare or the environment, and would not create a new release of oil or hazardous materials requiring cleanup under the state site cleanup program.  MassDEP has indicated that its long-term goal is to develop regulations addressing these projects; at that time, the interim policy will be superseded.

According to the policy, among MassDEP’s considerations in approving an ACO are:

• The amount of solid waste in the soil:  MassDEP expects such projects to contain no more than de minimis quantities of solid waste.

• The amount of oil or hazardous materials in the soil:  MassDEP will review data on oil or hazard material constituents in the fill material as well as the nature of the receiving location and surrounding area.

• Awareness in the local community:  MassDEP will consider whether any required local permits or approvals have been obtained, whether local officials and boards have been notified, and any steps taken to solicit input from local officials. 

• Impacts on the local community:  MassDEP will not finalize an ACO “unless and until all comments on project impacts related to noise, dust, odor and/or trucks have been appropriately addressed by the proponent.” 

The policy also indicates that an ACO entered into under this policy will contain certain elements, including a detailed soil and fill management plan, a detailed stormwater management plan, provisions governing impact to wetlands (if relevant), a plan for communication with the public at key points during the project, oversight by an LSP or other qualified third party, and stipulated penalties for failing to comply with the order.

This policy is limited to projects that fill a quarry, gravel pit, or sand pit and therefore will not apply to the vast majority of projects that involve reuse of soil.  MassDEP is currently evaluating developing regulations or guidance for these other projects.