Determine if a Closed Municipal Solid Waste Landfill is Present and if You Need an Authorization

If you are considering developing a property, you may need a Texas-licensed professional engineer (PE) to conduct a soil test to determine if a closed MSW landfill is present. Certain properties may be exempt from this requirement.

You may be able to determine in advance whether a prospective property contains a known landfill. One method is to contact the Council of Governments (COG) for your region to learn if they have any record of known landfills on the property. Your regional COG may have information about known landfills posted on its website.

Another method is to search county records to see if a Title 30, Texas Administrative Code, Section 330.962 (30 TAC 330.962) Notice to Real Property Records or 30 TAC 330.19(c) Affidavit to the Public has been filed indicating the former use of the land for a landfill.

You are exempt from the rules for use of land over closed MSW landfills if you are:

• A property owner (other than a developer of a housing subdivision) constructing a single-family or double-family home.
• The owner of an existing single-family or double-family home built over a closed MSW landfill.

All persons planning to develop a tract of land greater than one acre must direct a PE to conduct a soil test to determine if the property contains a closed MSW landfill as required by 30 TAC 330.952(a) . If a landfill is present, you must submit an application to TCEQ and obtain authorization before proceeding with any disturbance or development.

The soil test a PE should choose depends on the nature of the potential construction or disturbance. The soil tests are described in 30 TAC 330.953(c) :

• Test I is appropriate for a project where a PE will be on site to observe all subsurface disturbances, undertaken for whatever reason, during development through the completion of a foundation. Test I does not require a subsurface investigation prior to construction. However, if a closed landfill is discovered, construction must cease and an application for development or other disturbance must be submitted to TCEQ and approved before work may continue.
• Test II is appropriate for subsurface investigations for determining if a landfill is present and the extent of the landfill, and involves borings or excavations.
• Test III allows the developer or the PE to use existing subsurface investigations already performed for geotechnical purposes, environmental purposes, or a Housing and Urban Development homeowner's warranty in lieu of conducting additional tests.

If buried waste is encountered during development, construction activities must cease, and the owner must notify the persons listed in 30 TAC 330.953(d) and file a Notice to Real Property Records in accordance with 30 TAC 330.962 . The owner must then obtain an authorization to conduct an investigation to delineate the extent of the waste before continuing construction.

If the construction is for an enclosed structure over the waste area, the owner must obtain a development permit before construction of the enclosed structure may resume.

If the construction is for something other than an enclosed structure, the owner must obtain authorization to disturb the landfill cover.

If the PE who is overseeing a subsurface investigation determines that the limits of the waste are different than indicated in existing records, the PE or owner must:

• File a Notice to Real Property Records under 30 TAC 330.962 . The notice should indicate the limits of waste. If you decide to develop the property, you will need to apply to TCEQ for authorization to develop over the closed landfill and include a copy of the notice and documentation that it was recorded in the county records.
• Notify persons listed in 30 TAC 330.953(d) .

If the landfill history is unknown, you will need to sample and classify the waste following procedures in 30 TAC Chapter 335, Subchapter R .

If the waste is determined to be municipal solid waste, proceed under the rules for use of land over closed MSW landfills found in 30 TAC Chapter 330, Subchapter T , and described in Determine What Type of Authorization You Need to Use Land Over a Closed MSW Landfill.

If landfill history or waste sampling indicates the waste is industrial waste (resulting from or incidental to operations of industry, manufacturing, mining, or agriculture), contact the TCEQ Industrial and Hazardous Waste Permits Section or the TCEQ Remediation Division for information about how to proceed.

The rules for use of land over closed MSW landfills—whether for a building or for a disturbance of the landfill cover for any reason—apply only if the building or other disturbance overlies an area containing waste.

Owners of buildings near but not over closed MSW landfills still need to be aware of the potential that methane gas could migrate into the adjacent properties, and may wish to install methane detectors in spaces where migrating gasses may accumulate.

Please contact the MSW Permits Section if you have questions about using land over a closed MSW landfill.