After AGC protests, DOE pulls back for now on soil handling rules


The Department of Ecology will issue a second draft of proposed solid-waste rules that could cause a contractor to unwittingly become subject to solid-waste landfill rules, or require satisfaction of onerous landfill post-closure care or financial assurance requirements.

AGC and other groups submitted extensive comments laying out significant concerns with the first draft. In response, DOE has said a re-draft is in the works and will be issued soon. At this time, it is not clear what changes DOE will be making to the proposed rules. Information on the initial complex and extraordinarily long draft rules can be found here.

AGC’s Environment Committee vetted the rules and elaborated on AGC’s many concerns in a response to DOE. Click here to see AGC’s complete response.

A liability concern expressed by AGC involves the transfer of impacted soils or sediments permitted under the rules, which may expose contractors to potential liability under the Model Toxics Control Act (MTCA), including citizen suit liability, for releases or potential releases of contaminants at levels above those for clean soil and clean sediment currently in law but not above background levels at the receiving site.

Also, AGC is concerned that the rules would have the unintended consequence of pushing lower-quality material through recycling facilities, making it harder to achieve LEED certification.

The proposed rule would create a significant, new regulatory burden and environmental liability for property owners who import or export soil in conjunction with site development, for owners of properties that have ongoing or proposed fill operations, and for the reclamation of thousands of permitted mineral extraction facilities. It would create a process for evaluating soil quality based on new soil-screening levels (SSLs) for multiple-exposure scenarios that is comparable to MTCA regulations in complexity. AGC maintains that there is not a clear demonstration that this level of regulation is warranted for general-fill soil and properties.

AGC thanks the Environment Committee – and particularly Jimmy Blais (Stoneway Concrete) who was the primary author of AGC’s response -- for the time and effort given to the thoughtful response to the proposed rules that, should they be adopted, have significant impact on the construction industry.

Environment Committee members include
     Carter Rohrbough of Granite Construction (Chair)
     Jimmy Blais of Stoneway Concrete
     Connie Sue Martin of Schwabe, Williamson & Wyatt
     Jake Jacobson of Osborne Construction
     Jennifer Frey of Sellen Construction
     Keven Samuelson of Granite Construction
     Jim Shellooe of AMEC Earth and Environmental and
     Stacy Smedley of Skanska.