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New Ground Rules on Soil in Landfills

Summer 1995

After significant controversy over its implementation, Wis. Admin Code NR 722 took affect May 1, 1995. While initially included in the comprehensive NR 700 series, the remedy selection criteria under the initial NR 722 was cause for concern by interests both in the environmental industry as well as amongst legislators and other public policy makers.

Based on the experience in Wisconsin of remediating contaminated sites, many of which are Leaking Underground Storage Tanks (LUST) sites containing petroleum products in various states of degradation, concerns were raised about Volatile Organic Compound emissions created when such soils are excavated, transported, and placed at landfills throughout the State.

A re-evaluation resulted in modifications of NR 722, and establishment of air emissions guidelines affecting landfills under NR 419. The two rules read together present landfill operators and responsible parties ("RP") with the following constraints on post-May 1, 1995 remediation activities.

Responsible parties may still dispose of "untreated contaminated unconsolidated material", but may only place up to 250 Cubic Yards (per site being remediated) at those landfills without "composite liners" or the WDNR equivalent. Up to 2000 cubic yards (per site being remediated) may be placed by an RP at properly lined landfills, but remedial action plans ("RAPs") calling for such disposal volumes will require "a more detailed evaluation of remedial options" although no direct WDNR approval. In those instances when a proposed RAP calls for placing volumes greater than 2000 cubic yards, formal WNDR review and approval will be required. This applies whether or not the site is classified as a "simple" or "complex" under additional new provision in NR 700.

While, landfill operators appear under NR 722 to be able to accept unlimited volumes from multiple RPs/sites, the changes under NR 419 will affect landfill operators by limiting emissions from petroleum contaminated soils (note: This is slightly different than the NR 722 limitations on "untreated contaminated unconsolidated material").

These limitations apply differently in attainment and non-attainment areas. In attainment areas landfill operators may comply with NR 419 by meeting volume thresholds specified in the rule. For non-attainment area landfills, an actual emissions standard is set under which it may be very difficult to actually demonstrate compliance. The result may be that non-attainment area landfill operators may begin to limit their own intake of petroleum contaminated/VOC-emitting soils to avoid non-compliance with NR 419 limits.

From the perspective of RPs, the new limitations will make a landfilling remedial-option of more than 250 cubic yards more costly by requiring RPs to use specially lined landfills, potentially incurring higher tipping fees and transport costs. In those instances of 2000 cubic yard excavations, prior WDNR approval will be required. Under NR 722, RPs will need to more closely evaluate their remedial options to consider other forms of remediation, including on-site or off-site "bio treating," using thermal roasting of soils to destroy contamination prior to landfilling, or other reuse or recycling methodologies.

In addition it appears that RPs who are currently engaged in remedial actions that include high volumes of landfill placements as of May 1, 1995 will not be "grandfathered" in to allow completion of landfill placement in excess of the new NR 722 limits. Again, this will result in mid-remediation revaluation and higher costs, including higher up front expenditures in PECFA eligible cleanups.

While the spirit of the compromise the resulted in NR 722 and NR 419 seems to be encouraging movement away from landfill use, it is unclear if the alternatives to landfilling will be utilized and will result in a net gain for the environment.

Media Contact 

If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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