Removing ‘Dirty Dirt’: Common Pitfalls to Know and Avoid.

‘Dirty Dirt’, Part II.

Our last blog discussed the what and why of ‘dirty dirt’; namely what it is and the regulatory history as to why it became a recent hot button issue in New Jersey, as well as a recurring red flag to the New Jersey Department of Environmental Protection (NJDEP, or Department).

This companion article presents the nuts and bolts of assessing soils that may be ‘dirty dirt’, and how to protect yourself if looking to remove fill from your property or project site.

One of the most common ways to unknowingly back yourself into a ‘dirty dirt’ situation is when you voluntarily test ‘dirt’ on your site that you have no knowledge of, or suspect as being, contaminated.  Property owners in this category can quickly find themselves in a precarious, vulnerable situation. 

What does ‘dirty dirt’ look like?

It is important to remember that some soils exhibit clear and easy-to-recognize signs of contamination when viewing them in the field; petroleum contaminated soils come to mind —many times they are stained gray/black and exhibit an unmistakable odor corresponding to the contamination at hand —gasoline, fuel oil or the like. Those are easy to figure out, even to a layperson.

However, those types of 'easy' field indicators usually point to grossly contaminated soil, and only for very specific types of impacts (like petroleum). Most contaminated soils don't fall into that category, but rather look like plain old 'clean dirt’ to the unsophisticated observer. 

But when this supposedly 'clean dirt’ is tested at a laboratory, it can commonly exhibit a wide variety of contaminants at levels above NJDEP regulatory standard...levels that people simply cannot ascertain by smell or vision alone. The standards for contamination in soil are typically in the parts per million (ppm) range, well below what humans can readily detect — what you think looks or smells like ‘clean’, many times isn't. And the NJDEP's regulatory standards are usually a bright-line — you exceed it, and you have contamination on your hands...simple as that, there’s no gray area. Even petroleum-contaminated soils, if the contamination is minor (down in the low ppm range), may not have any odor or visual component, but it is still considered contaminated and must be dealt with accordingly. Other common contaminants, such as volatile organic compounds, semi-volatile organic compounds, polychlorinated biphenyls (PCBs), pesticides, herbicides, heavy metals, and the like, simply have no defining field features — they can easily contaminate soils, and looking at the ‘dirty dirt’, you would be none-the-wiser... thinking “it looks clean to me”. 

That is the risk. You are flying blind most of the time without the analytical testing of the soil to truly confirm or deny the existence of contamination above NJDEP standards. Now let's explore the real-world aspect of this issue.

I have a site that needs to have soil removed offsite. What do I do and where does it go?

If you have a site with previously unsampled soils to be removed for some particular reason (e.g., regrading for development, utility installation, foundation excavation, etc.), especially in an urban area, but also in less-developed areas (e.g., in the suburbs, farm fields), our first advice to clients usually is this: don't do it — find a way to leave the soil on site. 

More often than not, the better solution is to find a way to redesign your development, redevelopment or project plans to keep that untested soil on-site and have it remain untested. It may take some creative thinking or engineering, but in the end, it is usually the safer bet.

Why? Simple. 

You never want to put yourself in a position to voluntarily sample and analyze soils when you have no mandatory, regulatory reason to do so.

If the soil analytical results come back clean, you simply dodged an expensive bullet you didn't have to shoot. You got lucky, but why test your luck at all?

However, if the soil analytical results come back dirty (i.e., you have ‘dirty dirt’ on your site, even though you didn't know it) you can't put that bullet back in the gun. You have knowledge of the data and must deal with it accordingly. And that process can get expensive and time-consuming in a hurry. Compliance will likely entail reporting the contamination to the NJDEP, conducting additional sampling to delineate the extent of contamination, enlisting the services of a Licensed Site Remediation Professional (LSRP), and ultimately remediating the soils, either by removing it offsite (at a potentially considerable cost), or leaving it onsite for remediation in-place, or capping (which entails a host of engineering and deed-related notifications and controls — both expensive and resulting in legacy environmental costs). None of these options are ideal and could have been potentially avoided.

Significant time and dollars could have been saved simply by better planning.

Some common onsite soils solutions that would negate testing include:

• Relocating net-cut soils to other areas onsite (this is a more viable solution on larger parcels);

• Building berms/elevated yard/landscape areas to permanently 'store' the excess soils; and/or

• Modifying the project design to eliminate or lessen soil removal situations (e.g., pile footings versus excavated spread footings).

There aren't always onsite solutions available, especially for smaller/tighter or urban parcels, but it pays to explore these options before sampling net-cut soils, which should be considered a last resort.

If you find that soil testing is simply unavoidable, select a soil disposal site that requires the least amount of sampling, both in terms of frequency and parameters to be tested. When it comes to data generation, less is more desirable. The requisite testing parameters can vary widely from one facility to the next, so do your homework. Licensed recycling facilities tend to have written protocols; however, at unlicensed sites simply looking for 'clean' fill, the sampling frequency and parameters are usually negotiated on a project-specific basis; be sure to negotiate carefully, and be sure you vet the receiving firm, to ensure they are operating in a sound manner. If the site gets flagged in the future for accepting improper fill from you, or even others, you could get dragged into the conflict as a 'supplier', and differentiating your fill from someone else's fill months, or even years, later, can be difficult and costly at best.

If your soil is tested and found to be not contaminated, many times disposing of it at a licensed recycling facility will offer more long-term liability protection than a one-off site that is accepting clean fill. However, it pays to explore both avenues. 

If the sampling shows your soils are in fact ‘dirty dirt’, then you will have to utilize a licensed facility, unless you find a contaminated site that is accepting like-kind contaminated soils under a Site Remediation Program (SRP) approved by a LSRP and the NJDEP for net-fill purposes. Bigger remediation sites with large net-fill requirements fall into this category. And, of course, you are in a NJDEP reporting situation as discussed above, with all the requisite obligations and costs to remediate your contaminated soil.

What if my soil is clean, but still has a little bit of 'stuff' mixed in?

Legally removing soil from your site and bringing it to another site requires the clearing of two different regulatory hurdles.

The contaminated soil hurdle(s) with the NJDEP has been discussed above. But a second, formidable NJDEP hurdle involves soils intermixed with ‘solid waste’. That has been a big red flag issue with the Department of recent.

Okay, so what is considered 'solid waste’? 

Just about anything man-made, and even some natural items (such as woody products like stumps, branches, and vegetative debris). Typical types of solid waste the NJDEP earmarks include, but are not necessarily limited to: asphalt, concrete, glass, brick, pipe, plastic, paper products, and metal, even if these materials are present in very small sizes. Also, the volume of solid waste can be a tiny fraction of the overall soil content (i.e., soils with less than 1% solid waste is still considered contaminated with solid waste by the NJDEP). This solid waste prohibition has been in place for some time, but lately the NJDEP, due, in part, to high profile cases detailed in our last blog, has placed an emphasis on identifying and policing these unpermitted solid waste disposal sites/sources. As you can suspect, from urban settings or sites that have experienced historic demolition of structures (even suburban and agricultural/farm sites), the likelihood of finding some solid waste in the soil is high. These types of materials may seem innocuous to a lay person, but are not so to the NJDEP.

If tested-clean soils you are looking to remove from your site contain solid waste as characterized above, it typically cannot be transported to anything other than an approved, permitted solid waste receiving facility. Unless, of course, you screen/sort out all this solid waste prior to removing it; then your disposal options expand. But the screening/sorting of solid waste from the soils means all solid waste, not simply most of it, or just the big pieces. So screening, although a solution, but might not work for all soils impacted by solid waste.

In summary:

1. Most ‘dirty dirt’ is not obvious unless it is tested at a laboratory, and the general rule of thumb is don't test it until you have fully explored onsite solutions that would preclude the need to test.

2. If you have to test the soil, do your research and identify the receiving site that requires the minimum amount of testing, for the least amount of parameters. However, that exercise needs to be balanced with selecting a disposal location that has a low risk of coming back in the future to bite you, if they get audited for accepting improper soils in the future from you or others. The disposal location selection becomes an important cost/benefit analysis.

3. Soil may be clean from a contaminant perspective, but dirty and regulated in another way, if it contains solid waste. If your soils contain such materials, it will drastically limit your disposal options, unless you can fully/totally screen out the suspect materials, which is not always possible, or practical. Again, it becomes a cost/benefit analysis as to whether screening makes sense from both a liability and cost perspective.

The next blog, ‘Dirty Dirt’ Part III: What to do to Protect Yourself from Accepting Someone Else’s ‘Dirty Dirt’ will view the ‘dirty dirt’ topic from the receiving end, versus the removal side of the equation detailed above. A different hat to wear, with a whole separate set of technical decisions to make.

Stay tuned.

 If you have any questions on the information presented above, feel free to contact Glenn Brukardt at glenn.eikon@gmail.com or at 908-813-2323, extension 36.