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Michigan Legislature and Governor Snyder Approve Beneficial Use By-Products Reforms

On June 10, 2014, the Michigan Legislature passed three bills (HB 5400, HB 5401, HB 5402) intended to facilitate the beneficial reuse of high volume/low impact materials such as foundry sand, pulp and paper mill ash, coal bottom ash, and certain other materials – providing a way for beneficial use by-products to avoid classification as a solid waste under Part 115 of the Natural Resources and Environmental Protection Act (NREPA). The bills were signed by Governor Snyder on June 17, 2014 and designated as Public Act 178 of 2014 (PA 178).

Five categories of beneficial uses are created by PA 178:

• Beneficial Use 1:      Use as aggregate, road material, or building material that will be bonded or encapsulated by cement, limes, or asphalt.
• Beneficial Use 2:      Use as one of the following:
  • Construction fill at nonresidential property, provided it is placed at least 4 feet above seasonal groundwater; does not contact surface water; is covered by concrete, asphalt, or other material approved by DEQ; and does not exceed 4 feet in thickness;
  • Road base or soil stabilizer, provided it is placed at least 4 feet above seasonal groundwater; does not contact surface water; is covered by concrete, asphalt, or other material approved by DEQ; and does not exceed 4 feet in thickness;
  • Road shoulder material, provided it is placed at least 4 feet above seasonal groundwater; does not contact surface water; does not exceed 4 feet in thickness; is sloped; and is covered by asphalt, concrete, 6 inches of gravel, or other material approved by DEQ.
• Beneficial Use 3:      Apply to land as a fertilizer or soil conditioner under Part 85 of NREPA or a liming material under 1955 PA 162, provided certain conditions are met.
• Beneficial Use 4:      One of the following:
  • Use to stabilize, neutralize, solidify or treat waste for disposal at a Part 115 or Part 111 facility;
  • Use to treat wastewater, wastewater treatment sludge, or wastewater sludge in compliance with Part 31 at a private or publicly owned wastewater treatment plant;
  • Use to stabilize, neutralize, solidify, cap or otherwise remediate contaminants as part of a response activity under Part 201, Part 213, CERCLA, or a Part 111 corrective action;
  • Use as construction material at a licensed Part 115 landfill.
• Beneficial Use 5:      Blended with inert materials or with compost and used to manufacture soil.

Beneficial use by-products are defined as the following materials, provided they are stored and beneficially used in accordance with Part 115:

PA 178 also provides a mechanism for additional materials and uses to be approved by the DEQ (Section 11553(3) or (4)).

 To qualify as a beneficial use by-product, the material must meet all of the following requirements:

• The material is not a Part 111 hazardous waste or mixed with a hazardous waste;
• The material is not stored at the generation site for more than 3 years;
• Storage is appropriate to maintain its usefulness, control wind dispersal, and prevent loss;
• Storage does not cause groundwater violations;
• Transportation method prevents accidental leakage, spillage, or wind dispersal;
• Material use is consistent with generally accepted engineering, industrial or commercial standards;
• For beneficial use 2, material is appropriately leach tested;
• For beneficial use 3, material must meet “cumulative load” standard for eight metals
• For beneficial use 5, representative sampling is performed and total or leachate analysis is performed.

PA 178 also contains certain notification, reporting and recordkeeping provisions:

• Property owner must notify prospective transferee of material used on property for beneficial use 2, including the date and location.
• Advance written notice must be provided to the DEQ for beneficial use 2 if the amount used will exceed 5,000 cubic yards.
• By October 30 of each year, a generator/broker of >1,000 cubic yards of material used for beneficial uses 1, 2, or 4 must submit a report to the DEQ.

PA 178 provides an important protection against certain claims that could otherwise be brought under Part 201 of NREPA, in that the Part 201 definition of “release” was amended to exclude the “placement, storage, or use of beneficial use by-products or inert materials at the site of storage or use if in compliance with part 115”.

It is hoped that these important amendments will encourage the reuse of materials that otherwise would be disposed of as waste, reduce both raw materials costs and disposal costs, and preserve landfill capacity for other wastes.

The DEQ Office of Waste Management and Radiological Protection intends to develop rules to implement these amendments sometime in late 2014 – mid 2015.

To access the Michigan Legislature web page regarding PA 178, click here: http://www.legislature.mi.gov/(S(0dl5sc55pw54g0jcali3qpeh))/mileg.aspx?page=getObject&objectName=2014-HB-5400

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