We are often asked by clients if their property contains “urban fill” that has characteristics requiring either MassDEP reporting or cleanup, are they required to do so under the Massachusetts Contingency Plan (MCP). The short answer is maybe! The MCP does not contain a definition for urban fill. Urban fill a term used by many in the environmental and property development fields to include non-native, disturbed material in urban areas that may be mixed with demolition debris, asphalt, and wood ash, coal and coal ash. As a result, some constituents regulated under the MCP, such as polycyclic aromatic hydrocarbons (PAHs) and metals, are widespread in the environment and may be present in this material.  PAHs result from the incomplete burning of organic materials used for heat and energy sources, such as wood, coal, fuel, and garbage.  PAHs are also detected in coal tar, creosote, and asphalt. Metals, such as arsenic, lead, chromium and nickel, are also widely distributed in the environment and may be either naturally-occurring or from the debris present in the fill. Naturally occurring metals present in wood and coal are also often found concentrated in ash residues.
The MCP contains provisions that require reporting and/or cleanup of certain levels of these constituents that could pose an unacceptable risk to human health, safety, public welfare, and the environment. MassDEP reporting and/or cleanup is required when chemical constituents are detected above certain levels. However, the MCP provides exemptions from reporting and/or cleanup for specific conditions that are common in urban fill.  As a result, the presence of urban fill is sometimes misconstrued as being exempt from reporting and/or cleanup.  What is exempt from reporting include the specific conditions listed in Section 40.0317 of the MCP such as releases related to coal, coal ash, and wood ash (excluding wood products treated with chemical preservatives). What is exempt from cleanup include conditions that are considered background, as defined in the MCP as being conditions that existed prior to a release. The MassDEP’s “Technical Update-Background Levels of Polycyclic Aromatic Hydrocarbons and Metals in Soils” (which can be found on the MassDEP Website) was developed to assist in the determination of background conditions for “natural” soil and soil containing coal, coal ash, and wood ash.
A recent reporting example included a developer who was told by a consultant that a property that he was interested in purchasing contained a MassDEP notification condition discovered during environmental due diligence. The condition included the presence of PAHs and nickel in urban fill at concentrations above the applicable reportable concentrations. However, after further evaluation, the fill where the PAHs were detected clearly contained wood ash and coal, and the nickel was taken from a sample collected from Boston Blue Clay. Based on the reportable exemptions presented in MCP Sections 40.0317(9) and (22), a reportable condition was not present.
Another example relative to cleanup requirements included the presence of PAHs and metals in urban fill that were detected during an evaluation of soil disposal options at a construction site. During an initial site investigation, it was discovered that: 1) these constituents were ubiquitous and consistently present in fill that contained coal and ash, 2) the concentrations correlated with the presence of coal and ash, 3) other oil or hazardous materials, as well as historical information that would suggest the presence of historical releases, were not present; and 4) the site was in an industrial area of Somerville. Based on this information, it was concluded that the site conditions met the definition of background under the MCP, and as a result, cleanup of these materials were not required under the MCP.
Note that the term “urban fill” was not a component in reporting or cleanup decision-making in either of these examples even though it was present at both sites. The presence of urban fill alone does not mean that the fill (and constituents present in the fill) are exempt from reporting or cleanup. In the examples presented above, it was the clear connection between the site conditions and either the MCP reporting exemptions or the definition of background. It is important to note that you cannot assume, for example, that all PAHs and metals are exempt from reporting and/or cleanup. Adequate environmental assessment is needed to demonstrate that the site conditions fit with either the reportable exemptions or the definition of background. It should also be recognized that even though a background condition does not require cleanup, there still may be an unacceptable risk to human health and the environment, and thus, other considerations may need to be considered in concluding that no cleanup is necessary. Finally, it should be noted that other States, including New Hampshire, have similar regulatory reporting and/or cleanup exemptions to address the presence of constituents in urban fill.
Should you have questions regarding the regulatory requirements for a property containing urban fill, please contact Richard J. Wozmak, P.E., P.H., LSP, LEP at EndPoint.