PA DEP Issues New Management of Fill Policy
The long-awaited revised Management of Fill Policy was finalized by the Pennsylvania Department of Environmental Protection (PA DEP) on November 2, 2019. The New Management of Fill Policy (Policy) is a revision of the previous policy that has been in effect since 2004. The new Policy will take effect on January 1, 2020. The new Policy is long-awaited for two reasons. First and foremost, the prior policy was not tied to the Act 2 standards, and there were certain metals that met the residential Act 2 criteria, but not the clean-fill criteria. Secondly, PA DEP has been working on the revision since 2014, and the requirements the regulated community would be held to were unclear. The new Policy can be viewed here.
The Policy provides PA DEP’s procedures for determining whether fill is categorized as “clean fill” or “regulated fill” according to the Pennsylvania Solid Waste Management Act (SWMA). The Policy provides guidance on how fill material can be used and moved versus being regulated as a waste, and is focused on the relocation of fill material from project sites.
The Policy is far reaching as it provides guidance for earth‑moving projects, excavation activities and demolition activities. These activities occur at numerous projects, including development and redevelopment projects, utility work, Brownfields projects and remediation projects. As one can imagine, the Policy will impact excavation contractors, builders, developers, landowners, municipalities and utilities.
The new Policy has eliminated the standards defining “clean fill” and has incorporated by reference the current residential soil standards. The old clean fill standards did not completely line up with Act 2, which caused confusion and frustration among the regulated community. The clean fill standards for several regulated substances are lower under the new Policy. Also worth noting, is that the new Policy stipulates that fill material containing polychlorinated biphenyl (PCB) compounds at concentrations greater than 2 parts per million (ppm) may only be used if prior written approval is obtained from the US EPA. The other variable to note, is that since the clean fill standards are tied to the Act 2 standards, the clean fill standards will change every time the Pennsylvania Environmental Quality Board makes changes to the Act 2 standards.
The basic framework of determining if fill material can be classified as “clean” fill or regulated fill remains in place. The first step is to perform environmental due diligence related to the source of the fill material and operational history of the property from which the fill material was sourced. The new Policy provides rigorous guidelines for due diligence. If due diligence indicates that the fill may have been negatively impacted by a release of a regulated substance, then the fill must be tested to determine if it is clean or regulated fill. The Policy requires the development of a Sampling Plan for the collection of samples to characterize the fill.
When the proposed fill material has been determined to be clean fill, Form FP-001 (Certification of Clean Fill) must be filed electronically before the fill material is transported to the receiving site. If the determination includes sampling, the Form FP‑001 must be accompanied by the Sampling Plan and laboratory data.
If you have any questions regarding the new Policy, feel free to contact Stephen Brower.here