Council Opposes Reissuance of Permit To "Landfarm" Petroleum-Contaminated Soils

Ronald D. Gruzesky, P.E.
Division of Waste Management
200 Fair Oaks Lane
Frankfort, Kentucky 40601
(Via e-mail)

Application APE20090001 / AI# 3981
Dear Mr. Gruzesky:

These comments are submitted concerning the draft permit that the Division of Waste Management has proposed to issue to Triple M Land Farms, Inc. for a land farm facility in Simpson County, Kentucky. For the reasons stated below, I respectfully suggest that the permit should not be renewed, and that the facility should begin closure and post-closure care. Failing that, significant revisions should be made in order to assure that the activities at the facility do not violate applicable environmental compliance standards.

According to the draft permit, if issued, Triple M Land Farms would be authorized to accept:

"Petroleum contaminated soil and petroleum contaminated water from UST corrective action; petroleum contaminated soil and petroleum contaminated water from spills that are not hazardous wastes; petroleum contaminated solids and water from oil/water separators that are not hazardous wastes; water treatment residuals from publicly-owned water treatment or industry-based water treatment plants that have been characterized in accordance with 401 KAR 45:100 Section 6(20)(b) and do not exceed the Class I heavy metals concentrations; and grease trap and food industry wastes that are not hazardous wastes."

Additionally, ?[o]ther industrial or commercial wastewaters shall be subject to approval on an individual basis in writing by the cabinet, based on ability of the waste to biodegrade and provide beneficial characteristics as a soil amendment or to enhance soil microbiological activity” could be approved for disposal at the facility.

The Council has a number of concerns with the draft permit.

I. The land application of petroleum-contaminated soils does not appear to fall within the definition of activities for which a Class II “landfarming permit” can be issued.

The land application of petroleum-contaminated soils does not appear to fall within the definition of activities for which a “landfarming permit” can be issued under 401 KAR Chapter 47 and 48.

401 KAR 47:005 defines "Landfarming facility" to mean a “facility for land application of sludges or other solid waste by any method for purposes of disposal. It can be on any piece or pieces of land and may improve the physical and chemical qualities of the land for agricultural purposes, but does not alter the topography of the application area as revealed by contours and will not disturb the soil below three (3) feet from the surface.”

401 KAR 47:080 Section 2 classifies the different types of solid waste permits, and provides in pertinent part as follows:

"(4) Landfarming permit. Landfarming is a category of solid waste site or facility where solid waste is applied to the soil surface or injected into the upper layer of the soil to improve soil quality or provide plant nutrients. Solid wastes suitable for this purpose include, but are not limited to, food processing waste, municipal sewage treatment plant sludge, and municipal water treatment plant sludge. The technical requirements for landfarming facilities are found in 401 KAR 48:200."

Absent a demonstration that does not appear to be in the record, supported by sound scientific information, that UST and other soils contaminated by benzene, toluene, xylene, ethylbenzene, MTBE and other compounds typically found in gasoline, improve soil quality or provide plant nutrients, the facility cannot be issued a landfarming permit to land apply such wastes, and the draft permit should be withdrawn.

II. The land application of petroleum contaminated soils for the purpose of “treatment” of the contaminant levels, constitutes a “petroleum-contaminated soil facility” subject to regulation under 401 KAR 48:205

401 KAR 48:205 establishes the technical requirements for “site selection, design, operation, and closure of a petroleum-contaminated spoil treatment facility,” which is defined to be a “solid waste site or facility where petroleum-contaminated soil is treated to reduce contaminant concentrations to or below the levels established” by that regulation.

Since the contaminated soils are being treated and then excavated for use elsewhere, the facility is not “landfarming” the wastes, which is defined as landspreading of wastes for disposal, but is instead engaging in “treatment” of the petroleum-contaminated soils. As such, the facility must be required to comply with the technical standards of 401 KAR 48:205, which applies, according to Section 2, to “any person conducting treatment of excavated petroleum-contaminated soils” and which does not grandfather or exempt facilities in existence when the regulation was adopted. The operational, closure, post-closure, corrective action, and monitoring requirements of the facility must be upgraded to reflect the requirements of 401 KAR 48:205, and no additional land application of petroleum-contaminated soils should be permitted absent excavation of existing cells containing such soils and proper installation of a composite liner.

The allowance of land treatment of petroleum-contaminated soils by the Cabinet in cells that have nothing more than a compacted soil or clay liner, is of particular concern since the Cabinet is or should be well-aware that clay liners do not attenuate the movement of benzene into the subsurface and potentially into groundwater systems. Richard L. Johnson, John A. Cherry and James F. Pankanow published a paper titled Diffusive Contaminant Transport in Natural Clay: A Field Example and Implications for Clay-Lined Waste Disposal Sites, in Environmental Science and Technology Vol. 23 (March 1989) pps. 340-349. In the article, the authors reflected on studies conducted on a five-year old landfill in southwestern Ontario by a Canadian-American team of scientists, to analyze the transport of organic chemicals in the subsurface. What the researchers found was that advective flow (which is the flow of fluids through the pore spaces in soil and which is the theory upon which the tight permeability clay liners are based and our landfills are designed) is not the dominant mode of migration of organic chemicals through clay liners. Rather, fickean diffusion was found to be an important mechanism by which substantial quantities of organic chemicals move through clay landfill liners. Among the findings of the team was that diffusion will transport chemicals through a double clay liner even if the leachate collection system between the clay layers is working properly.

Full compliance with 401 KAR 48:205 is mandated by the plain language of the “applicability” section of that regulation.

III. Additional characterization of the hydrologic regime appears to be warranted

The Council is concerned that the complex hydrogeology of the area may not be adequately characterized to provide a sufficient level of confidence in the groundwater gradient and flowpaths beneath the site. As noted in a February 26, 2010 field inspection report, the geologic formations underlying the area are of a “highly karst nature” which results in “rapid groundwater flowrates,” and may allow for greater distances that potential contamination can travel due to conduit flowpaths.

There are two specific areas of concern based on a review of the Cabinet’s records. The first is in regard to the two detections of toluene that occurred in a downgradient well, which led to development of groundwater assessment plan on behalf of Triple M. As part of the groundwater assessment plan, the company consultant proposed to sample at several wells and springs. According to the report, the presence of toluene (in the absence of other BTEX constituents) was believed to be due to landspraying of a particular wastewater stream rather than from UST soil disposal.

In reviewing the approved groundwater assessment report, it is unclear whether the extent of any toluene plume was ever determined, since regardless of whether the subsequent sampling indicated non-detection, if the consultant is correct that the toluene presence was from the landspraying of wastewater containing toluene, there may be contamination beyond the extent of the downgradient well.

A second concern is the detection of naphthalene in what is identified as an “upgradient well.” Given the karst nature of the area, groundwater flow paths may not be from areas of higher surface gradient to lower, so that absent further investigation, the gradient of the groundwater surface cannot be assumed to be higher simply because of surface elevation. Dye tracing should be performed to better characterize the hydrogeology of the area, in order to determine whether the springs and wells that have been used for sampling are in fact hydrologically connected to the site, and specifically to determine whether the well that has detected napthalene is in fact hydraulically upgradient.

The Cabinet is prohibited by regulation from permitting “the land application of a solid waste that may present a threat to human health and the environment” and is to base the decision on the suitability of a particular waste for land application based, among other things, on “the likelihood that waste constituents shall contaminate surface water or groundwater, the potential for nuisances from odors or unsightly conditions, and the potential for the waste to harm human health or the environment.” 401 KAR 48:200. Absent sufficient evidence that these wells and springs are connected to the site so that sampling can detect any migration of constituents of concern, it is difficult to see how the Cabinet can aver, with much confidence, that the prohibitions of 401 KAR 48:200 are being respected.

Finally, the characterization in of the “Type of Agency Interest” as “AGR-Cattle Ranching & Farming” appears inaccurate, since neither appears to be occurring on the areas that have received land treatment for petroleum-contaminated soils. The activity being undertaken under this permit is not “agricultural” within any fair meaning of the word, but rather constitutes a treatment facility for petroleum-contaminated soil.

For the reasons stated herein, the Council respectfully requests that the draft Class II landfarming permit be withdrawn and that compliance with the requirements of 401 KAR 48:205 be required prior to any further land treatment of petroleum-contaminated soils, or failing that, that the facility cease accepting those waste streams and begin closure of such cells.

Cordially,
Tom FitzGerald
Director

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