Filled with Uncertainty: Toxic Dirt in Building & Construction


Jim Vallette - June 13, 2016

In a cavernous, lightly filled, State House hearing room last month[1], the New Jersey State Commission of Investigation turned over the latest evidence that highly contaminated materials are winding up in the worst of all places: around buildings, in playgrounds, gardens, and backyards.

Lee C. Seglem, the commission’s acting executive director, testified that “rogue dirt brokers” with “criminal ties” are unloading contaminated fill materials in all sorts of places.  They have even “passed off” toxic dirt as “properly recycled topsoil – perhaps destined for gardens and flower beds in neighborhoods across the State.”[2]

Over in New York City, regulators have cracked down on soil traders, and say contaminated fill is going into the “cheapest hole.”[3] They say that a lack of oversight over the soil trade opens the door for shady operators, like Pure Earth Inc., a publicly traded company registered with the Securities and Exchange Commission[4], that received over 11 millions of tons of waste to recycle, including contaminated soil.[5]  In 2010, the New York City Business Integrity Commission (BIC) denied its trade waste license because the company lacked “good character, honesty and integrity” and “knowingly associated with convicted racketeers.”[6] After losing its license, Pure Earth abandoned “acres of contaminated soil” in Vineland, N.J.[7]

Developers of buildings, from public housing to high-end skycrapers, likely are unaware of the unregulated dirt trade. All developers should consider this: incredibly, while it is standard practice to assess underlying soil conditions prior to site development, there is no systematic due diligence applied to fill materials brought into a site for construction. And there is plenty of cause for increased diligence. 

Dangerous Exemptions

Business integrity investigative commissions in New Jersey and New York have been zealous in probing the toxic fill trade while environmental agencies have been far less inquisitive. The contaminated soil and fill trade is a hidden, widespread, and nationwide problem, because of not only what is done illegally, but also what is allowed by environmental agencies. Federal and state agencies exempt a wide range of contaminated wastes from regulation if the wastes may be “beneficially used” in applications like structural fill and playground mulch.

Authorities routinely issue “Beneficial Use Determinations” (BUDs) through a process that falls far short of a comprehensive review. A BUD is not a regulatory scheme. It is rather the opposite: once the agency clears a waste for “beneficial use,” its oversight ends. This process allows millions of tons of wastes to escape scrutiny. Coal ash, contaminated soil and sludge, shredded tires, and chips of old vinyl floors, are just some of the wastes that are used in landscaping, playgrounds, and structural fill. Once they grant a BUD regulators do no further testing. They don’t even verify whether the wastes go where they are supposed to go.

Officials acknowledge that they know little about what happens after they make a beneficial use determination. “Often a beneficial use request involves diverting a waste from a relatively secure disposal facility into a use or location where there may be the potential for a release or exposure to one or more contaminants,” noted an association of solid waste management officials in 2007.  New York state officials worried they had to work with “insufficient information to determine human or ecological impacts of use rather than disposal.”[8]

The New Jersey commission attributed the criminality of some waste traders to statutes that “all but invite exploitation by unsavory operators... When it comes to vetting, overseeing and controlling the activities of those engaged in recycling, the flaw is obvious and far more fundamental: there is no systemic oversight.”[9]

In New York City, historic urban fill[10] and other contaminated soils are often removed from construction projects in NYC, processed in New Jersey, and returned to the city as “clean fill.”

“Historic fill is ending up in the wrong holes,” warned Kenneth Brazner, an engineer with the New York Department of Environmental Conservation (DEC) in 2014. “Historical Fill from construction sites are going without any control by local governments into the cheapest holes. Since there is no tracking system in place, DEC only finds out after the fact, usually at the end.”[11]

Due Diligence Needed

The American landscape is riddled with abandoned communities that have been poisoned by contaminated fill. Over the past few decades, many toxic fill sites have become Superfund cleanup targets, from Love Canal[12] to Los Angeles.[13] The regulatory void into which BUD wastes enter provides little confidence that such horrors will not be repeated.

Last year, the New York DEC urged building owners “to use caution when contractors offer to provide free fill materials for use in leveling or grading of their residential properties… The 'clean fill' often ends up being solid waste and homeowners could find their properties burdened with contaminated material.”

The DEC recommended that owners “identify where the materials are coming from; ensure that the contractor is licensed by a government authority; and ensure that the materials are free of any regulated wastes such as asbestos, drywall, plaster, roofing materials, wood, metal, tiles, paint chips, ash, slag, coal, pieces of particle boards, carpet, petroleum-contaminated soil and other contaminated materials.”[14]  

But some of the materials listed in the agency’s warning are the very wastes that government agencies have promoted for “beneficial use”, such as ash and drywall. According to the EPA’s Inspector General, 70 million tons of fly ash from coal fired power plants were used as fill between 2001 and 2008 “without any effective guidance” from the EPA. And the EPA has no way of finding where the fly ash has been used. The coal fired “utility industry has been able to rid itself of millions of tons of toxic waste under the guise of beneficial reuse. The big losers are the communities that have time bombs ticking in their neighborhoods,” warns Lisa Evans of Earthjustice.[15]   

Pathways for Exposure 

Residents can become exposed to toxic substances in recycled fill materials by touching or swallowing dirt, breathing in dust particles blowing in the wind, tracking the fill material indoors where the contaminants become incorporated into dust, drinking water contaminated by pollutants in the fill, and breathing them in via vapor intrusion of volatile chemicals from the soil into indoor air.

“Where coal ash is used for fill in construction, the ash can readily blow or erode. Windblown particulates called ‘fugitive dust’ also arise when ash is loaded, unloaded and transported,” Earthjustice and Physicians for Social Responsibility reported.[16]   

In Portsmouth, Virginia, local affordable housing authorities and private homeowners unwittingly built residences atop lead-laden furnace sands. “Residents were concerned that their children were likely to dig in the soil and inadvertently expose themselves to lead-tainted soil,” reported the Center for Risk Management. Physicians confirmed that local children had highly elevated levels of lead in their blood, leading the responsible parties to buy out the private residents’ homes.[17]

In 2014, a Wisconsin environmental group traced drinking water contamination to the use of coal ash as fill material. “Hundreds of children at the Yorkville Elementary School in rural southeastern Wisconsin cannot drink the water at their school because it is contaminated,” begins the Clean Wisconsin report. “Homeowners in the four surrounding counties have had to drink bottled water or install expensive water filters to protect their families. Their wells, and much of the groundwater in the area, contain unsafe levels of molybdenum, a metal found in coal ash.” Forty-five percent of nearly 1000 private wells tested in the region had high to very high levels of molybdenum.

Clean Wisconsin tied this contamination to the use of at least a million tons of coal combustion waste in southeast Wisconsin. They found that “homes nearer to those coal ash reuse sites have significantly higher levels of molybdenum in their drinking water on average than homes farther from coal ash sites.”[18

Volatile and semivolatile contaminants can even migrate from fill materials into indoor air. According to the Centers for Disease Control, trichloroethylene in soil “may evaporate and migrate into air spaces beneath buildings to enter the indoor air, a process termed vapor intrusion.”[19]

Vapor intrusion of toxic substances from contaminated soil is a potentially significant liability for affordable housing owners, according to Dianna Crocker, a New York City-based environmental analyst at Environmental Data Resources. In response, the US HUD Office of Multifamily Housing recently added testing requirements for vapor intrusion to property environmental assessments.[20]

Contaminated waste in building site construction exposes people to at least 32 neurotoxicants commonly found in recycled soil and fill materials (see table below). Contaminants include metals like lead, pesticides, dioxin, and semivolatile and volatile compounds. Preventing the presence of these neurotoxicants in building and construction is an essential public health intervention strategy. The benefits will endure.

Building owners and project developers can help by putting more protections – like obtaining chain of custody information, prohibiting the use of certain materials, and testing[21] of any materials of unknown origin – into their construction fill specifications and contractual arrangements. Start by asking contractors, where did their dirt come from? 

Table. Neurotoxic Contaminants Commonly Found in Recycled Fill Materials and Soil

 Neurotoxicant[22]

 Sources of contamination in soil and  fill[23]

 Metals

 Arsenic

 CCA-treated wood, Metal smelters

 Lead

 Paint, Ashes (coal, incinerator), Gasoline  spills and deposition, Used batteries,  Pesticides, Lead smelters, Ground tire  rubber

 Manganese

 Coal ash, Used batteries, Blast Furnace  Slag

 Mercury

 Coal ash, Used batteries, Coal power  plant emissions, Ground tire rubber

 Polychlorinated biphenyls    (PCBs)

 Leaking transformers, Illegal landfills and  scrap yards

 Pesticides

 Intentional use on vegetation, Dumping

 Dioxin (2,3,7,8-TCDD)

 Cement kiln dust, PVC and other fires,  Chemical production

 Semivolatile Organic Compounds

 Aniline

 Industrial activity

 Bis(2-ethylhexyl) phthalate  and Di-n-butyl phthalate

 Plastic waste disposal

 Chloroethane

 Waste disposal, Ground tire rubber

 Hexachlorobenzene

 Historic pesticide use, Dumping

 Hexachlorocyclopentadiene

 Pesticide production and disposal

 Methanol

 Furniture refinishing

 Methyl Isobutyl Ketone

 Evaporation and deposition from solvents

 Nitrobenzene

 Industrial and urban air pollution

 Pentachlorophenol

 Wood preservatives

 Volatile Organic Compounds

 Carbon Disulfide

 Deposition from industrial processes  including waste incineration

 Ethylbenzene

 Gasoline spills, Pesticides, Varnishes and  paints

 Styrene

 Chemical spills and manufacturing,  Landfills, Ground tire rubber

 Tetrachloroethene

 Dry cleaning operations, Auto or machine  repair

 Toluene

 Leaking underground storage tanks,  Above ground spills of solvents and  petroleum products, Ground tire rubber

 Trichloroethylene

 Metal degreasing

 

Thanks to Connie Murtagh for her extensive investigative contributions to this article.

The New York Community Trust, www.nycommunitytrust.org, funded this research. The Healthy Building Network appreciates its support.

 

ENDNOTES


[1] Flanagan, Brenda. “State Investigation of NJ Recycling Industry Uncovers Shady Practices.” NJTVNews, May 25, 2016. http://www.njtvonline.org/news/video/state-investigation-nj-recycling-industry-uncovers-shady-practices/

[2] Seglem, Lee C. “Opening Statement,” presented at the New Jersey State Commission of Investigation, Trenton, N.J., May 25, 2016. http://www.nj.gov/sci/pdf/DirtOpeningStatment.pdf.

[3] The New York City Business Integrity Commission yanked scores of operating licenses from waste traders like Pure Earth. The BIC determined that these haulers’ activities ran counter to its city’s mission of “ensuring that an industry once overrun by corruption remains free from organized crime and other criminality, and that commercial businesses that use private carters can be ensured of a fair, competitive market.”  On this basis, since 2009, the commission denied or revoked licenses for 102 companies, including other soil and fill movers with names like like Clean Soil Solutions and New York Dirt Contracting Corp. City of New York Business Integrity Commission. “Decision of the Business Integrity Commission to Denying the Registration Renewal Application of Clean Soil Solutions Incorporated (BIC #4511) To Operate As A Trade Waste Business,” November 9, 2015. http://www.nyc.gov/html/bic/downloads/pdf/denials/denial-clean_soil_solutions_inc.pdf ; City of New York Business Integrity Commission. “Decision of the Business Integrity Commission to Denying the Renewal Application of New York Dirt Contracting Corp. For A Registration To Operate As A Trade Waste Business,” July 31, 2009. http://www.nyc.gov/html/bic/downloads/pdf/pr/nydirbicdeny0409.pdf.

[5] The Right-To-Know Network. “Pure Earth Recycling NJ Inc. (1989-2013).” Database, October 27, 2015. http://www.rtknet.org/db/brs/brs.php?epa_id=NJD045995693&detail=-1&datype=T&reptype=f&database=brs&reporting_year=&submit=GO 

[6] City of New York Business Integrity Commission. “Decision of the Business Integrity Commission to Denying the Renewal Application of Juda Construction, Ltd. For A Registration To Operate As A Trade Waste Business,” June 28, 2010. http://www.nyc.gov/html/bic/downloads/pdf/denials/deny_juda_cons.pdf

[7] Woods, Douglas E. “Vineland Meets with DEP, EPA over Pure Earth Waste Management Site | NJ.com,” March 14, 2013. http://www.nj.com/cumberland/index.ssf/2013/03/vineland_meets_with_depepa_ove.html; Putnam, Edward. “Re. Removal Action Site Submission,” memorandum, December 9, 2015. https://snjtoday.com/wp-content/uploads/2015/12/Former-Pure-Earth-Removal-Action-Site-Submission-letter-dated-12-9-15.pdf

[8] Association of State and Territorial Solid Waste Management Officials. “ASTSWMO 2006 Beneficial Use Survey Report.” Washington D.C., November 2007. http://www.astswmo.org/Files/Policies_and_Publications/Solid_Waste/2007BUSurveyReport11-30-07.pdf

[9] State of New Jersey Commission of Investigation. “Industrious Subversion: Circumvention of Oversight in Solid Waste and Recycling in New Jersey,” December 2011. http://www.state.nj.us/sci/pdf/Solid%20Waste%20Report.pdf.

[10] As much as 25% of New York City is built upon fill, rather than native soils. In many locations, particularly along the city’s waterways, historic urban fill underlies everything. Prior to 1963, there were no regulations on solid waste disposal, and no recordkeeping. The result was that much hazardous material was used as fill.  “The common practice was to incinerate solid waste and use the ash as fill material to ‘reclaim’ wetlands,” according to the DEC. (Parisio, Steven. “Historic Fill & Old Landfills: Tools for Delineation.” presented at the Federation of New York Solid Waste Associations Solid Waste & Recycling Conference, May 20, 2014. http://www.nyfederation.org/pdf2014/16.Parisio.pdf) “Areas of historic fill are often contaminated with polycyclic aromatic hydrocarbons (PAHs), heavy metals such as lead, and petroleum products,” notes a 2014 city report. (Mayor’s Office of Environmental Remediation, New York State Department of State, and City of New York Department of City Planning. “Existing Conditions and Brownfields Analysis: Red Hook, Brooklyn,” September 2014.  http://www.nyc.gov/html/oer/downloads/pdf/Red%20Hook%20-%20Brooklyn.pdf)

[11] Brezner, Kevin. “Historical Fill Management in New York State.” June 18, 2014. www.trb-adc60.org/downloads/6b.4%20brezner.ppt.

[12] In Love Canal, outside Buffalo, NY, developers built houses and schools, atop fill contaminated by toxic incinerator ash and pesticides, leading to the eventual relocation of the entire community. (Office of Emergency and Remedial Response, and US Environmental Protection Agency. “Superfund Record of Decision: Love Canal/93rd Street, NY,” September 1988. http://1.usa.gov/24MK56O.

[13] In Los Angeles, EPA found “bowling ball-sized chunks of DDT” in residential yards, leading to the relocation of 30 families. Office of Policy, Economics, and Innovation, and US Environmental Protection Agency. “Stakeholder Involvement & Public Participation at the U.S. EPA: Lessons Learned, Barriers, & Innovative Approaches.,” January 2001. http://1.usa.gov/1Yo4ZJI.

[14] “DEC Warns Long Island Homeowners to Be Wary of ‘Clean Fill’ Offers to Level Properties - NYS Dept. of Environmental Conservation,” June 20, 2014. http://www.dec.ny.gov/press/97734.html.

[15] Evans, Lisa. “Coal Ash Conundrum - The Biggest Loser?” Earthjustice, March 28, 2011. http://earthjustice.org/blog/2011-march/coal-ash-conundrum-the-biggest-loser#. The EPA’s new fly ash rule may begin to address this regulatory gap. According to Ms. Evans, EPA’s new fly ash rule requires large-scale users will have to demonstrate that the coal ash will cause no harm. This applies to projects using 12,400 tons or more fly ash, the equivalent of a six foot high pile on a football field. (Personal communication, August 11, 2015)

[16] Lockwood, Alan H., and Lisa Evans. “Ash In Lungs: How Breathing Coal Ash Is Hazardous to Your Health.” Physicians for Social Responsiblity and Earthjustice, July 2014. http://www.psr.org/assets/pdfs/ash-in-the-lungs.pdf.

[17] Hersh, Robert, Katherine Probst, Kris Wernstedt, Jan Mazurek, and Center for Risk Management. “Linking Land Use and Superfund Cleanups: Uncharted Territory.” Resources for the Future, 1997. http://www.rff.org/files/sharepoint/WorkImages/Download/RFF-RPT-landuse.pdf.

[18] Cook, Tyson, Paul Mathewson, and Katie Nekola. “Don’t Drink the Water: Groundwater Contamination and the ‘Beneficial Reuse’ of Coal Ash in Southeast Wisconsin.” Clean Wisconsin, November 2014. http://www.cleanwisconsin.org/wp-content/uploads/2015/02/dont-drink-the-water-report-clean-wisconsin.pdf.

[19] “ATSDR - Public Health Statement: Trichloroethylene (TCE).” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=171&tid=30.

[20] Dianne Crocker. “HUD Takes A Stand On Vapor Intrusion,” October 2009. http://www.pacelabs.com/assets/documents/twitter/HUD_Takes_a_Stand_on_Vapor_Intrusion

[21] Some companies do test their soils to ensure they meet certain standards. Clean Earth, which operates in North Jersey and six other locations, handles more than 3 million tons of materials per year,  and says it reuses 98% of the waste it receives. It treats soil with high levels of contaminants and then “an independent certified laboratory” tests it “to ensure effective treatment and fulfillment of reuse standards.” (“Treatment Technologies | CleanEarth Inc.” Accessed December 18, 2015. http://www.cleanearthinc.com/solutions/treatment-technologies)

[23] Soil contamination data sources include: Shayler, H., M. McBride, and E. Harrison. "Sources and Impacts of Contaminants in Soils. Cornell Waste Management Institute." (2009). http://cwmi.css.cornell.edu/sourcesandimpacts.pdf; Health Effects Review vol 3 issue 4, Fall 2000 http://www.ijc.org/rel/pdf/vol3s4.pdf; “ATSDR - Public Health Statement: Hexachlorobenzene.” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=625&tid=115; “ATSDR - Public Health Statement: Hexachlorocyclopentadiene (HCCPD).” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=990&tid=208; DOW Chemical. “Product Safety Assessment: Methyl Isobutyl Ketone, December 23, 2014. http://msdssearch.dow.com/PublishedLiteratureDOWCOM/dh_0925/0901b80380925af5.pdf?filepath=productsafety/pdfs/noreg/233-00582.pdf&fromPage=GetDoc; ATSDR Toxprofile for Nitrobenzene, Section 5 http://www.atsdr.cdc.gov/toxprofiles/tp140-c5.pdf; “ATSDR - Public Health Statement: Pentachlorophenol.” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=400&tid=70; Oregon Department of Environmental Quality. “Fact Sheet: Sources of Polychlorinated Biphenyls.” http://www.deq.state.or.us/lq/cu/nwr/PortlandHarbor/docs/SourcePCBs.pdf; “ATSDR - Public Health Statement: Ethylbenzene.” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=381&tid=66; ATSDR Toxprofile for Styrene, Section 6 http://www.atsdr.cdc.gov/toxprofiles/tp53-c6.pdf; “Fact Sheet: Tetrachloroethene (PERC) in Indoor & Outdoor Air,” September 2013. Accessed December 18, 2015. https://www.health.ny.gov/environmental/chemicals/tetrachloroethene; “ATSDR - Public Health Statement: Toluene.” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=159&tid=29; “ATSDR - Public Health Statement: Trichloroethylene (TCE).” Accessed December 18, 2015. http://www.atsdr.cdc.gov/phs/phs.asp?id=171&tid=30; http://www.epa.gov/nerl/features/tire_crumbs.html


Jim Vallette is the Research Director for the Healthy Building Network.