2.0 Material Regulations (2024)

Introduction

Users must be familiar with the Federal, State, and local laws and regulations that apply to RM. This chapter summarizes those laws and regulations most likely to be applicable to ODOT transportation projects. Familiarity with waste types specifically allows the user better understanding about disposal requirements. Table 1.0 provides a general overview of the typical RM waste types generated on ODOT transportation projects and their associated disposal requirements.

The following is not a comprehensive list of federal and state regulations.

2.1 Federal

2.1.1 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

CERCLA (42 United States Code [USC] Part 103, Sec. 9601 et seq.) established bans and requirements concerning closed and abandoned hazardous waste sites, provided liability to persons responsible for releases of hazardous waste at these sites, and established a trust fund to provide cleanup when no responsible party can be identified. The Superfund Amendment and Reauthorization Act (SARA) of 1986 (Public Law #99-499) modified CERCLA to provide defenses to the liability provisions for contaminated sites. CERCLA established liability that forces cleanup costs of contaminated sites to responsible parties. CERCLA liability for the parties responsible can be identified as strict, joint, several, or retroactive. For more on defined liability, refer to the United States Environmental Protection Agency’s (USEPA’s) website: Superfund: CERCLA Overview.

Under CERCLA, Property owners, both private and public, have three defenses to CERCLA liability: 1) an act of God, 2) an act of war, and 3) an act or omission of a third party. The "third party defense" is supported by establishing that "... the defendant (a) exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circ*mstances, and (b) took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions." These two defenses are commonly referred to as "due care" and "due diligence.”

In addition, SARA provides government agencies an additional defense known as "eminent domain." When ODOT validly uses its power to appropriate Property for a Project, ODOT will typically not be subject to certain CERCLA liabilities, such as becoming a potentially responsible party (PRP) or becoming liable for cleanup costs.

From ODOT’s perspective, Properties with RM regulated under CERCLA, such as landfills, can potentially impact:

• Acquisition
• Project cost and schedule to address the excavated material handling and disposal of the waste
• Extent of liabilityand
• Real estate decisions associated with corrective action or closure activities.

Institutional Controls (IC), such as deed restrictions, easem*nts, covenants, and zoning restrictions, and Engineering Controls (EC), such as soil capping, sub-surface venting systems, mitigation barriers, and fencing, associated with a CERCLA closure or restriction on a Property need to be understood to ensure that Project actions do not violate the restrictions.

2.1.2 Resource Conservation and Recovery Act (RCRA)

RCRA (40 Code of Federal Regulations [CFR] Parts 260–299) is the primary law governing solid and hazardous waste. RCRA deals with waste management including the manufacture, storage, transportation, use, treatment, and disposal. Subtitle C regulates hazardous waste, Subtitle D regulates solid waste, and Subtitle I regulate underground storage tanks (USTs) containing hazardous materials and petroleum products.

From ODOT’s perspective, Properties with RM regulated under RCRA can potentially impact:

• Project cost and schedule to address the excavated material handling and disposal of the waste
• Extent of liability and
• Project schedule and real estate decisions associated with corrective action or closure activities.

IC and EC associated with a RCRA closure or restriction on a Property need to be understood to ensure that Project actions do not violate the restrictions.

2.1.3 Safe Drinking Water Act (SDWA)

Congress enacted Title XIV of the Public Health Service Act “Safe Drinking Water Act” (Public Law 93-523) and the National Primary Drinking Water Regulations (40 CFR Part 141) to protect public health by regulating drinking water quality. The SDWA authorizes the USEPA to establish national drinking water standards such as Maximum Contaminant Levels (MCL) and health-related standards (Health Advisory Levels) for both naturally occurring and man-made contaminants that may be found in the water supply, including underground sources. An MCL denotes the maximum concentration legally allowed to occur in the drinking water supply for a given substance.

2.1.4 Toxic Substance Congrol Act (TSCA)

TSCA (USC Title 15 Chapter 53), passed by the United States Congress in 1976 and administered by the USEPA, establishes requirements for chemical reporting, record-keeping, and testing and restrictions relating to chemical substances and/or mixtures. Certain substances are generally excluded from TSCA, such as food, drugs, cosmetics, and pesticides.

TSCA regulations manage electrical transformers and other polychlorinated biphenyl (PCB)-containing equipment and releases. If present, the utility owner is responsible for transformer equipment, including those that are PCB-containing, and would be responsible for maintenance and/or cleanup.

From ODOT’s perspective, RM regulated under TSCA can significantly impact the Project cost and schedule to address excavated material and disposal and liability concerns.

2.2 State

2.2.1 Bureau of Underground Storage Tank Regulations (BUSTR)

The Ohio Department of Commerce Division of State Fire Marshal’s mission is to safeguard the public, its property, and the environment from fire and related risks through education, regulation, investigation, and enforcement. It consists of eight bureaus, including the Bureau of Underground Storage Tank Regulations (BUSTR). To protect human health and the environment for the citizens of Ohio, BUSTR uses a risk-based corrective action process to ensure an appropriate investigation and clean-up of releases from UST systems. The following resources provide more detailed information regarding BUSTR regulation and guidance:

• OAC 1301:7-9-12 regulate out-of-service, closure-in-place, and permanent removal of USTs. Collectively, these activities are known as closure.
• OAC 1301:7-9-13 regulate the investigation of releases and suspected petroleum releases from UST systems and require corrective actions for clean-up of a release to levels acceptable by BUSTR.
• OAC 1301:7-9-16 and 17 regulate handling of petroleum contaminated soils (PCS).
• BUSTR’s Technical Guidance Manual for the 2017 Closure, Corrective Action, and Petroleum Contaminated Soil Rules Table 5 presents action levels for soil reuse consideration.

From ODOT’s perspective, Properties with RM regulated under BUSTR can impact the Project cost and schedule as it relates to handling excavated material and disposal. Though it is preferred to avoid USTs, if USTs are encountered, ODOT, currently by mandate, must acquire them. Deed restrictions, including IC and EC associated with the BUSTR UST closure on a Property must be understood to prevent Project actions that could violate the restrictions.

2.2.2 Ohio's Voluntary Action Program (VAP)

VAP (OAC 3745-300-07) governs sampling activities of environmental media, the analysis of samples, and risk-based remediation of “brownfields” in Ohio. VAP also provides generic direct contact standards (GDCS) for soils under a variety of land assessment/investigation scenarios (residential, commercial/industrial, and construction/excavation) which can be used as a comparison tool in the RMR. These standards are helpful in assisting decision-making related to both due diligence and materials management in the RMR, by defining “how clean is clean.”

In a larger sense, VAP guides the risk-based remediation of land in Ohio through the issuance of No Further Action (NFA) Letters by Ohio Certified Professionals and the agency’s issuance of Covenants Not to Sue (CNS) for Properties that fulfill all the requirements under the VAP. However, ODOT rarely conducts VAP activities as part of the RMR. OAC 3745-300 contains these regulations that fall under the Ohio Environmental Protection Agency’s (OEPA’s) Division of Environmental Response and Revitalization (DERR).

From ODOT’s perspective and as part of the RMR, any CNS on Properties within ODOT Project Limits should be understood to prevent Project actions (like disturbance of the RM soil cap or an environmental covenant prevent a port of the Property from being disturbed the VAP CNS) which could violate the covenant.

2.2.3 Materials and Waste Management

Waste management regulations and the handling of hazardous and non-hazardous waste are managed under OEPA’s Division of Materials and Waste Management (DMWM). Wastes are classified into two broad categories: 1) hazardous waste or 2) solid waste, infectious waste, and construction and demolition debris (C&DD).

Hazardous waste is defined as waste that poses substantial or potential threats to public health or the environment. The treatment, storage, and disposal of hazardous waste is regulated under RCRA and defined under 40 CFR 261. Final disposition of hazardous waste must go to a licensed Treatment, Storage, and Disposal Facility (TSDF) for recycling, treatment, or disposal depending on type, volume, and cost.

Solid waste, infectious waste, and C&DD are non-hazardous wastes that may be encountered at a Property and are regulated under OAC 3734, OAC 3745-27, -29, -30, -37, -53, -56, -400, and -500 through -503.

For ODOT, understanding the waste type when handling excavated material on a Project is critical since waste management requirements can affect budget, schedule, and liability. Understanding the various waste types allows for:

• Defining measures required for handling and excavation
• Compliance with land-disposal restrictions
• Transportation requirements
• Long-term liability and,
• Acceptance of the wastes by appropriate recycling or disposal facilities.

2.2.4 Hazardous Waste

Hazardous wastes are wastes with properties that are considered dangerous or potentially harmful to human health or the environment. Hazardous wastes can be liquids, solids, contained gases, or sludges. They can be by-products of manufacturing processes or simply discarded commercial products, such as cleaning fluids or pesticides.

Hazardous waste as discussed herein is divided into two categories and presented in the regulations under OAC 3745-51:

• Listed Hazardous Wastes: The waste type is identified on one of four lists (F, K, P, or U) published in Ohio’s hazardous waste rules as presented in OAC 3745-51-31 through 3745-51-33. Each waste on each list is assigned a hazardous waste code.
• Characteristic Hazardous Wastes: If wastes are not a Listed Hazardous Waste, the waste may still be regulated as hazardous if it exhibits a hazardous characteristic. Four characteristics that could cause a waste to be regulated as hazardous are: ignitability, corrosivity, reactivity, and toxicity.

Wastes that are classified as hazardous and may be encountered on a Property are regulated under RCRA under subcategories such as:

• Cessation of Regulated Operations (CRO) (OAC 3745-352)
• Treatment, Storage, & Disposal Facilities (TSDF) (OAC 3745-54 through 57 and 3745-205)
• Transporters (OAC 3745-53)
• Hazardous Waste Generator requirements for conditionally exempt and small and large quantity generators of hazardous waste (OAC 3745-52, -65, -66, -69, -256, and -270)
• Universal wastes (OAC 3745-273) and
• Used oil (OAC 3745-279).

2.2.5 Solid Waste

Solid waste, as defined in OAC 3745-27-01(S)(23), is an “unwanted residual solid or semisolid material, including but not limited to, garbage, scrap tires, combustible and noncombustible material, street dirt, and debris, as results from industrial, commercial, agricultural, and community operations.” Solid waste does not include earth or material from construction, mining, or demolition operations, or other materials of the type that normally would be included in demolition debris, nontoxic fly ash, and bottom ash. Solid waste does not include any material that is an infectious waste or a hazardous waste.

2.2.6 construction and Demolition Debris (C&DD)

OAC 3745-400-01(C)(2) defines C&DD as those materials resulting from the alteration, construction, destruction, rehabilitation, or repair of any manmade physical structure, including, without limitation, houses, buildings, industrial or commercial facilities, or roadways.

2.2.7 Infectious Waste

OAC 3745-27-01(I)(6) defines Infectious Wastes as any wastes or combination of wastes that include cultures and stocks of infectious agents and associated biologicals, human blood and blood products, and substances that were or are likely to have been exposed to or contaminated with or are likely to transmit an infectious agent or zoonotic agent, including the following:

• Laboratory wastes
• Pathological wastes, including human and animal tissues, organs, body parts, and body fluids and excreta that are contaminated with or are likely to be contaminated with infectious agents or zoonotic agents
• Animal blood and blood products
• Animal carcasses and parts
• Waste materials from the rooms of humans, or the enclosures of animals, that have been isolated because of diagnosed communicable disease that are likely to transmit infectious agents. Also included are waste materials from the rooms of patients who have been placed on blood and body fluid precautions under the universal precaution system established by the "Centers for Disease Control" in the public health service of the United States department of health and human services, if specific wastes generated under the universal precautions system have been identified as infectious wastes by rules referred to in OAC 3745-27-01 (I)(6)(g)
• Sharp wastes used in the treatment, diagnosis, or inoculation of human beings or animals
• Any other waste materials generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production of testing of biologicals, that the public health council created in ORC Section 3701.33, by rules adopted in accordance with ORC Chapter 119, identifies as infectious wastes after determining that the wastes present a substantial threat to human health when improperly managed because they are contaminated with, or are likely to be contaminated with, infectious agents. As used in this rule, "blood products" does not include patient care waste such as bandages or disposable gowns that are lightly soiled with blood or other body fluids unless those wastes are soiled to the extent that the generator of the wastes determines that they should be managed as infectious wastes.
• Any other waste materials the generator designates as infectious waste.

2.2.8 Ohio’s Asbestos Regulations

The OEPA asbestos regulations established under the OAC Chapter 3745-20 Asbestos Emission Control are consistent with federal asbestos NESHAP regulation. These regulations were established by the OEPA for controlling asbestos emissions during demolition and renovation projects. Chapter 3745-22 encompasses the rules governing asbestos hazard abatement contracts, specialists, project designers, workers, and asbestos training courses. Further information on asbestos is provide in Appendix K of this Manual.