Filled with Uncertainty: Toxic Dirt in Building & Construction

Jun 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.

 

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