Local Regulation of Moderately Contaminated Soils  
By: Jeanine Grachuk, Esq.; Beveridge & Diamond, P.C.; and Loss Prevention Committee member 

When doing any project, consider whether local Board of Health, Planning Board, Wetlands or other municipal ordinances, bylaws, or regulations could limit or restrict your planned work.  Local rules may impact site cleanup by requiring an additional permit or approval or by imposing stricter requirements.  An unusual case-in-point is a set of regulations adopted by the Town of Dartmouth Board of Health in April 2014 which will have the effect of prohibiting certain types of remediation at properties in Dartmouth, if it withstands judicial scrutiny.  At least one LSP has received an Order to Cease and Desist prohibiting transport of such soils from a property located in Dartmouth being remediated under state cleanup law, bringing the remediation to a halt.  

The Dartmouth regulations prohibit anyone from importing or using COMM-97 Soils in the town or – more importantly - transporting such soil through the town.  COMM-97 Soils are contaminated soils that meet the criteria in MassDEP’s COMM-97-001 Policy (entitled Reuse and Disposal of Contaminated Soil at Massachusetts Landfills) for use at lined or unlined landfills as daily cover, intermediate cover, or pre-capping contour material without approval from MassDEP.  The Board of Health determined that this prohibition was necessary to “protect the public and the environment” because the import, transportation and use of COMM-97 Soils “constitute[s] a public nuisance that may be harmful or dangerous to persons and property, and may be injurious to public health and the environment….”  The regulations also prohibit any for-profit business utilizing COMM-97 Soils on the basis that it is a nuisance trade.  See Dartmouth Board of Health Contaminated Soils Regulations, a copy of which is available here.  

A lawsuit has been filed challenging the regulations, arguing that it is unconstitutional, arbitrary and capricious, and pre-empted under state law.  The notion that a town can prohibit the transport of a particular material on federal and state roads is questionable at best, especially when you consider the potential for frustration of state laws and the impact on interstate commerce.  However, it may take some time before a court rules on the Dartmouth regulations. 

Why did Dartmouth enact these regulations?  
According to the regulatory language, the Board of Health was concerned about the risk posed by the  transport and use of moderately contaminated soils, a risk which MassDEP addressed before issuing its COMM-97 policy more than 15 years ago.  According to the complaint filed in state court claiming that the Dartmouth regulations are unlawful, the purpose of the regulations is to prevent the implementation of an agreement between the owner of the Cecil Smith Landfill in Dartmouth and MassDEP to close the landfill by importing a substantial quantity of COMM-97 soils as landfill cover.  

What is the effect of these regulations on the cleanup of contaminated properties in Dartmouth?  
The impact is not entirely clear.  As noted above, the Board of Health has already issued a cease-and-desist order to a landowner who had planned to transport contaminated soils meeting the COMM-97 criteria from his land in Dartmouth to a landfill in another town for reuse.  How many other cleanups will be affected by these rules?  Do these regulations apply only when soils are being transported to a landfill?  If the regulations only apply to soils that are being sent to a landfill, then soils that are not going to a landfill – even if they are more contaminated -- may be transported through the town.  It is hard to justify the purpose of the rule as protecting public health when it prohibits the transport of low-contamination impacted soil, at least in some circumstances, but not high-contamination impacted soil.