Soil as RCRA Hazardous Waste

Determination of whether contaminated soil must be managed as a hazardous waste subject to RCRA requirements and the process to make and document that determination.

This information addresses the implications and application of the U.S. Environmental Protection Agency (“USEPA”) Land Disposal Restrictions (“LDR”) regulations under the Resource Conservation and Recovery Act (“RCRA”) to soil managed under the Massachusetts Contingency Plan (“MCP”, 310 CMR 40.0000).

The focus of this material is the determination of whether contaminated soil must be managed as a hazardous waste subject to RCRA requirements and the process that can be used to make and document that determination, subject to MassDEP’s presumptive approval.

USEPA Land Disposal Restrictions (LDR)

The USEPA LDR program is designed to ensure that wastes are properly treated prior to land disposal, by immobilizing the harmful constituents or reducing the waste toxicity or by destroying or removing the harmful constituents. The LDR requirements stipulate treatment standards that apply to all hazardous wastes and also provide for optional alternative treatment standards for some specific wastes. Importantly, alternative treatment standards are available for contaminated soil - commonly identified at Massachusetts disposal sites being assessed and remediated pursuant to the MCP. USEPA has published an extensive summary of the LDR requirements in an August 2001 guidance document, "Land Disposal Restrictions: Summary of Requirements."

The MassDEP document, Technical Update Considerations for Managing Contaminated Soil: RCRA Land Disposal Restrictions and Contained-In Determinations (link below) addresses questions about the Land Disposal Restrictions, such as:

  • When is contaminated soil considered to be “generated”?
  • When is contaminated soil considered to contain a hazardous waste?
  • How can hazardous waste soil be considered “non-hazardous”?
  • Do the LDR treatment standards apply to formerly hazardous waste soils?

Additional Resources

Contained-In Determinations in Massachusetts

MassDEP has received authorization from USEPA to regulate most of the RCRA hazardous constituents and wastes commonly encountered at Massachusetts disposal sites. Under the authorized state RCRA program, MassDEP has established specific criteria for making determinations consistent with the USEPA Contained-In Policy for sites undergoing assessment and cleanup under the Massachusetts Contingency Plan.

MassDEP policy (link below) provides for the use of the MCP Category S-1 standards promulgated at 310 CMR 40.0975(6)(a) to make contained-in determinations by the LSP-of-Record conducting work at a disposal site where the soil is managed as part of a Response Action. Such determinations are subject to review and presumptive approval by MassDEP and the documentation supporting the determination must accompany the submittal.

While alternative approaches for making contained-in determinations may be considered (e.g., a contained-in determination is sought by a person other than the LSP-of–Record for a disposal site, a method other than a comparison to the S-1 soil standards is proposed, or S1 soil standards do not currently exist for the hazardous constituents at issue) such approaches fall outside the scope of this policy and such determinations must be submitted directly to the MassDEP hazardous waste management program for explicit written approval.

The MassDEP document, Technical Update Considerations for Managing Contaminated Soil: RCRA Land Disposal Restrictions and Contained-In Determinations (link below) addresses specific issues about Contained-In Determinations, such as:

  • Criteria and Conditions for Making Contained-In Determinations;
  • Submittal and Review of Contained-In Determinations;
  • Documentation Required for a “Contained-In” Determination; and
  • Subsequent Management of Contaminated Soil.

Additional Resources

Considerations for Out-of-State Management of Excavated Soil

Note that this approach for "contained-in” determinations made for soil generated within Massachusetts does not limit the responsibility of generators to comply with the applicable requirements of other states.

Before shipping the soil out of Massachusetts, an LSP or generator must contact both the operator of the landfill or other receiving facility and the relevant state agency (or the relevant USEPA region, if the state does not administer the RCRA program) to determine if they are willing to accept the determination by the LSP that the soil does not contain a listed hazardous waste. The LSP or generator should explain the Massachusetts process of making “contained-in” determinations to the relevant parties and keep records of any such conversations.

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