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Management Of Coal Tar Waste and Coal Tar Contaminated Soils and Sediment (DER-4)

Program Policy

Department ID:DER-4

Program ID:TAGM-4061

Title: Management of Coal Tar Waste and Coal tar Contaminated Soils and Sediment From Former Manufactured Gas Plants ("MGP"s)

Issuing Authority:

Name: Carl Johnson
Title: Deputy Commissioner
Signature: /s/
Date: 12/03/2001

Issuance Date: January 11, 2002

Originating Unit: Division of Environmental Remediation Technology Section
Phone: 518-402-9756

Latest Review Date (Office Use):


This guidance outlines the criteria wherein coal tar waste and soils and sediment that have been contaminated with coal tar waste from former manufactured gas plants (MGPs) only exhibiting the toxicity characteristic for benzene (D018) may be conditionally excluded from the requirements of 6 NYCRR Parts 370 -374 and 376 when they are destined for permanent thermal treatment. This is an amended version of the document effective on September 13, 2001. The only modification is to the Responsibility Section. Additions are underlined and deletions are stricken.

I. Purpose

This guidance memorializes an exercise of enforcement discretion, effective immediately, with regard to the conditional exclusion of soils, sediments, and waste contaminated with coal tar from the site of former Manufactured Gas Plants ("MGPs") which exhibit the toxicity characteristic for benzene (D018) from New York State's hazardous waste management regulatory program. The intent of this exercise is to facilitate the permanent treatment of these materials in an environmentally sound manner.

This change will be proposed as part of the next rulemaking which includes 6 NYCRR Part 371. This Enforcement Directive supersedes Program Policy DER - 3 (TAGM 4060) entitled "Management of Soil and Sediment Contaminated with Coal Tar From Former Manufactured Gas Plants." Specifically, that guidance allows for the decharacterization of coal tar contaminated soil and sediment which exhibit the D018 hazardous characteristic, that were destined for thermal treatment. That guidance did not allow for the decharacterization of coal tar that failed the D018 hazardous characteristic, requiring that it be managed as a hazardous waste.

II. Background

Historically, MGP contaminated soils, sediments or waste were regulated as hazardous if they exhibited a hazardous waste characteristic. On April 21, 2000, a court decision (Association of Battery Recyclers Inc. vs. United States Environmental Protection Agency - April 21, 2000) vacated the use of the Toxicity Characteristic Leaching Procedure (TCLP) test to determine if, under federal law, MGP waste and contaminated soils exhibited a characteristic of hazardous waste. The United States Environmental Protection Agency (USEPA) has not challenged the decision and has clarified its position in a letter to Vectren Corporation, dated October 19, 2000, and a memo to USEPA Senior Resource Conservation and Recovery Act (RCRA) personnel. These documents acknowledge that the TCLP test cannot be used to determine if MGP waste, contaminated soil, or contaminated sediment exhibits a characteristic of a hazardous waste and since these materials typically do not exhibit any other hazardous characteristic, they will unlikely be classified as a hazardous waste under the federally administered program.

USEPA also acknowledged that many states have regulations that are broader in scope than the federal regulations, and may regulate MGP wastes as hazardous under their own state requirements.

The Battery Recyclers case does not directly affect New York's hazardous waste management regulatory program since its program derives from state, not federal, law. However, USEPA has authorized the State program to be administered in lieu of the federal RCRA program. New York's hazardous waste management regulatory program currently uses TCLP to determine if MGP contaminated soil exhibits a characteristic of a hazardous waste.

The Department of Environmental Conservation (DEC) recognizes that mixing of soil or sediment occurs through the normal consolidation of contaminated soil or sediment from various portions of a site during the course of remedial activities or in the course of normal earthmoving and grading activities, and does not consider this to be a form of impermissible dilution. However, mixing cannot be allowed to merely dilute the hazardous constituents into a larger volume so as to lower the constituent concentration in order to avoid treatment.

III. Policy


This guidance applies to former MGP sites being remediated under the oversight of the DEC, either through a Consent Order, Voluntary Cleanup Agreement or State funded project, in instances where soil or sediment contaminated with coal tar related residuals will be thermally treated (as in a combustion boiler unit or in a thermal desorber) at an off-site (including out-of -state) facility permitted to receive non-hazardous contaminated soil or at an on-site facility. This guidance does not apply to coal tar contaminated materials which contain significant quantities of purifier wastes or any quantity of other hazardous wastes. A significant quantity of purifier waste is defined as any quantity that would cause the MGP site remediation waste mixture, sent for thermal treatment, to contain in excess of 3.5 % sulfur by weight. Other hazardous waste includes listed hazardous wastes and wastes exhibiting a characteristic of a hazardous waste except for MGP related remediation waste exhibiting the Toxicity Characteristic for benzene. MGP site remediation waste meeting the applicability requirements that are being sent out of state must comply with the rules and regulations of the receiving state.


  1. Management of Soil/Sediment: Management of MGP site remediation waste meeting the applicability requirements, that is under DEC oversight is not subject to the DEC's hazardous waste management regulatory program {6 NYCRR Parts 370 to 374 and 376} if that soil or sediment is thermally treated at a facility permitted to receive non-hazardous contaminated soil or sediment. The following activities are exempt from the hazardous waste management requirements, however they continue to be subject to the solid waste management requirements {6NYCRR Parts 360 and 364}:
    1. Excavation and storage at the point of generation;
    2. Transportation to the thermal treatment facility or unit;
    3. Handling and storage prior to thermal treatment at the facility;
    4. Thermal treatment; and
    5. Management of treated materials.

    Materials transported off-site, and are stored outside the shipping container at locations other than the site of generation or the treatment facility, must be placed on an impervious surface such as asphalt, concrete or other impervious material and covered with plastic or other impervious material. Storage at the treatment facility must be in compliance with the facility's permit.

    MGP site remediation waste meeting the applicability requirements can be mixed with coal fines, carbon, onsite soil, sediment or other materials deemed necessary to facilitate and ensure proper operation of the final treatment technology as approved by the DEC.

    There must be a demonstration that MGP site remediation wastes do not contain a significant quantity of purifier wastes, do not contain any listed waste or do not exhibit a characteristic of a hazardous waste (except for TCLP benzene) and are not otherwise incompatible with proper and effective thermal treatment. Soil or sediment which contains discernible amounts of purifier material must be tested for hazardous characteristic of reactivity, total cyanides and sulfur.

  2. Permit Requirements: No solid waste management permit is required for the thermal treatment of coal tar contaminated soil or sediment from a former MGP site by a corporate entity acting pursuant to a Consent Order or a Voluntary Cleanup Agreement, provided that the thermal treatment occurs either at that site or at another former MGP site owned by the same corporate entity and provided that the applicable substantive regulatory requirements are met. Coal tar contaminated soil or sediment may also be transported to a facility for thermal treatment which has received a permit to accept this type of contaminated material. Coal tar contaminated soil or sediment must be transported by a 6 NYCRR Part 364 permitted transporter.
  3. Land Disposal Restrictions: Coal tar contaminated materials which meet the applicability requirements and the respective treatment residuals are not subject to the LDRs.

IV. Responsibility

The person(s) remediating the site is(are) responsible for complying with all applicable regulations. This includes the LDRs if the materials are not destined for permanent thermal treatment. The Project Manager assigned to oversee the remediation of the former MGP site, is responsible for reviewing and accepting any demonstration that the materials are being managed in accordance with this policy. The Project Manager's supervisor must concur with the Project Manager's determination.

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