By Endpoint LLC.

The State of New Hampshire (NH) made some recent changes to its rules and regulations managing asbestos in soil.  This change was in most part due to the significant number of sites identified in the Nashua and Hudson area that have been filled with a mixture of soil and asbestos waste materials.  Asbestos product manufacturing companies were located in Nashua, Meredith, and Tilton, NH.  From the early 1900s to the 1970s, a Nashua based company gave away soil mixed with asbestos waste products as free fill.  Local residents and contractors eagerly utilized this free fill to develop property throughout the Nashua and Hudson area. The New Hampshire Department of Environmental Protection (NHDES) has estimated that there is over 400,000 tons of asbestos-contaminated soil in southern NH.  Properties with asbestos in soil are identified as asbestos disposal sites.

Since the turn of the Century, NH has reorganized the rules and regulations affecting asbestos disposal sites (ADS).  The U.S. Environmental Protection Agency (EPA) has approved the NH rules and regulations.  An ADS is loosely defined as a site where asbestos debris and or waste materials have been buried or otherwise disposed of.  The management of these sites was regulated under NH RSA 149-M, NHDES Solid Waste rule Env-Wm 2601, and EPA’s National Environmental Standard for Hazardous Air Pollutants (NESHAP).  These rules and regulations required asbestos in soil to be managed in a manor similar to a hazardous waste site.  NHDES determined that these rules and regulations placed an unfair burden on residential and commercial property owners that were developed with asbestos fill materials.  The NESHAP regulations require property owners to restrict access.  Can you imagine commercial or residential property surrounded by a fence and signs stating “Asbestos Waste Disposal Site, Do Not Create Dust, Breathing Asbestos is Hazardous to Your Health”?  The NESHAP regulations also require a 45-day notification period prior to any disturbance of soil on an ADS.

On July 1, 2000, the NH legislature enacted changes to the RSA 141-E regulations regarding asbestos materials in soil. The changes gave authority to NH Department of Health and Human Services (NHDHHS) and NH Department of Environmental Services (NHDES) Solid Waste Division to promulgate rules to manage asbestos in soil.  NHDHHS amended He-P 5000 (amendments effective March 23, 2001), to include the certification of individuals and licensure of companies that disturb asbestos-contaminated soil on these properties.  NHDES wrote Env-Wm 3900 (effective February 16, 2002), which outlines the maintenance and work practices to be used on these properties.

The He-P 5000 ADS rule amendments include licensing of companies to conduct ADS work, training requirements for ADS workers, certification for ADS workers, and ADS exemptions.  In order to become an ADS Worker, one must complete training, pass the NHDHHS administered exam, and complete 40 hours of ADS work under an ADS Worker.  Exemptions under He-P 5000 are geared toward the individual homeowner who is working on their property to remove non-friable asbestos waste materials from the surface of their property.  However, if excavation is planned or friable (easily crumbled under hand pressure) asbestos materials are on the property, the homeowner needs to have taken the training and be certified.  The exemptions also include small-scale (less than one cubic foot, or 3 square feet), short duration (less than 2 hours) disturbance of asbestos.  If site work doesn’t fall into the above exemptions, then notification prior to conducting work activities must be made to the local health officer and NHDHHS, and only licensed ADS contractors may perform the work.

The Env-Wm 3900 rules require identification and characterization of asbestos in soil, completion and submittal of work plans, capping requirements, and closure reports.  Work plans must be written by an ADS Worker and pre-approved by NHDES in writing prior to commencement of ground-breaking activities on properties with greater than 160 square feet or 35 cubic feet of asbestos-contaminated soil.  Capping requirements include meeting certain criteria regarding 100-year flood, seasonal frost, erosion, etc., and minimum cover requirements. The minimum cover requirements include either 2 feet of clean fill or a geotextile fabric and 6 inches of clean fill.  The use of a geotextile fabric may be used to minimize the overall cover height and thereby, potential impact to current site buildings (i.e. ability to open a door).  The geotextile fabric also acts as a warning to future site activities that asbestos-contaminated soil lies below.

The liability of the ADS property owner is focused on the communication of the hazard to prospective buyers, tenants, employees, and workers who may disturb the soil.  It is the duty of the owner to know, through due diligence, if the property contains asbestos in soil.  This is similar to a property owner’s responsibility to know if a building they own contains asbestos.  It is also the responsibility of the owner to ensure that a licensed ADS contractor conducts the work if disturbing asbestos soil is necessary.

Costs associated with ADS work are driven by the tonnage of soil to be removed and disposed or the aerial extent were placement of cover is planned.  Other cost factors include the availability of water, electricity, and underground utility issues.  Costs for removal or otherwise addressing the ADS can be significant.

Another consideration when conducting work at an ADS is neighbors.  The image of people in “moon-suits” and respirators, air monitoring equipment, water spraying from a fire hose, and “Danger Asbestos” signs makes people think of their own safety as they drive or walk by.  It will save time and effort by sending a friendly notification to your neighbors that ADS work will be conducted and what to expect to see.

In closing, it is important to remember that prior to conducting any soil disturbance specifically in Nashua or Hudson, NH, that a call to NHDES is made to check their data base of listed ADS sites.  Contingencies should be planned in case asbestos waste materials are encountered in the soil.  A property in New Hampshire where buildings have been demolished without documented asbestos removal, and the demolition debris subsequently buried in the ground, is also considered a potential ADS.

Published in “New England’s Environment”, Volume 9, Number 6, November/December 2003.