Originally published in New Jersey Builders Association’s Dimensions magazine, Fall 2016 issue.
Written by: Richard Lake, LSRP
With the economy returning and construction projects ramping up, it seems we receive calls on a weekly basis requesting environmental sampling of soil in need of import or export at construction projects. Import or export of soil in New Jersey is generally not regulated except through some local municipal ordinances or when the soil is imported/exported from a property undergoing remediation. Nevertheless, evaluating the environmental quality of soil imported/exported should be considered to protect the liability of both the sending and receiving parties. This typically involves due diligence to evaluate whether the soil has the potential to be contaminated and/or collection of soil samples for laboratory analysis.
For most development projects, a Phase I Environmental Site Assessment (ESA) and/or Preliminary Assessment (PA) is the first step in evaluating the potential for contamination at a property. If potential environmental concerns are identified during the Phase I ESA or PA, soil or groundwater sampling is often performed. This data should be considered when evaluating the environmental quality of soil that may be imported/exported.
In some cases, a Phase I ESA or PA may not identify environmental concerns associated with a property; however, that does not eliminate the potential that soil may contain contaminants above strict New Jersey Department of Environmental Protection (NJDEP) standards. A Phase I ESA or PA typically focuses on evaluating whether a release of petroleum products or hazardous substances has occurred. But there are other sources that may result in elevated concentrations of contaminants in soil. For example, arsenic is naturally occurring and is often found in New Jersey soil at levels that exceed the NJDEP standards. Other contaminants such as polycyclic aromatic hydrocarbons (PAHs) originate from diffuse anthropogenic sources (i.e., from widespread manmade sources such as combustion of fossil fuels) and may exist at levels exceeding the standards, particularly since NJDEP lowered the standards for these contaminants in 2008. While contaminants from these sources may not be regulated by NJDEP, they could impact the ability to import the soil to a site and significantly affect soil export costs. Considering these issues and the potential liability, it is generally good practice to sample the soil that is planned for import/export regardless of the findings of a Phase I ESA or PA.
When soil is to be imported/exported for use during remediation of a contaminated property in the State’s Site Remediation Program (SRP) (for instance, to cap contaminated soil), evaluation and sampling of the soil pursuant to NJDEP guidance is required. The NJDEP published the Alternative and Clean Fill Guidance for SRP Sites (December 29, 2011), which included conservative sampling requirements, including laboratory analysis of samples collected from virgin sources such as quarries. In April 2015, NJDEP published a revised version (Fill Material Guidance for SRP Sites) that slightly relaxed the sampling requirements. The guidance outlines a sampling frequency based on soil volume with a full suite of analytical parameters typically needed unless due diligence research suggests otherwise. The cost to collect and analyze soil samples pursuant to the guidance can be significant. Analytical results must also meet strict criteria.
For projects where import/export of soil is not dictated by the NJDEP guidance or local ordinances, the level of sampling to be performed is typically established following an environmental due diligence review, and is based on 1) the likelihood that the soil is contaminated, 2) the volume of soil to be exported, and 3) the requirements of the receiving property owner/developer.
The need for soil import/export should be evaluated during project planning, prior to initiating construction. This will allow time to assess potential sources of imported soil, or to sample soil planned for export. Discovery of unanticipated contamination during construction can lead to project delays and cost overruns. Exceptional project planning does not eliminate the possibility of generating soil in need of export from a construction project. Soil suitability, weather, and other factors often contribute to the generation of excess soil.
It is recommended that project specifications detail the level of sampling (and what standards will apply) for imported soil so contractors can properly bid projects. The developer and contractor should also be made aware that an environmental professional or a Licensed Site Remediation Professional (LSRP) for a remediation project may need to review the analytical data prior to soil import. A developer/contractor could be faced with project delays and increased costs associated with importing soil if finding an acceptable clean fill source proves troublesome. Likewise, a developer or contractor can expect premium costs to manage and export to an approved facility excess soils that contain contaminants above NJDEP’s standards. NJDEP guidance permits the reuse of marginally contaminated soil (a.k.a., alternative fill) at properties undergoing remediation provided that certain conditions are met. Soil that contains elevated concentrations of naturally occurring elements such an arsenic can also remain on site, and remediation of naturally occurring elements is normally not required. The ability to reuse soil that is considered alternative fill or that contains naturally occurring elements is typically evaluated by the LSRP.
Due diligence and project planning are key to managing costs associated with the import/export of soil. A qualified environmental professional should be consulted to assist with these efforts since each site is unique.
Richard Lake is an Associate with GTA, and a New Jersey Licensed Site Remediation Professional (LSRP). Rich has more than 20 years of experience providing environmental consulting for sites throughout New Jersey and Pennsylvania.