Getting Your Fill: Why PA's Management of Fill Policy Requires Experts to Dig Through it
The Pennsylvania Department of Environmental Protection's ("Department") Management of Fill Policy ("Policy") applies to a variety of different situations. Parties who are moving fill from one location to another need to be cognizant of the Policy and the requirements it imposes. Prior to placing fill onto the land, a person must determine whether it qualifies as clean fill, regulated fill or meets the definition of a solid waste. The outcome of that determination has significant financial and regulatory implications for the party placing the fill.
Clean fill can be managed for placement without further regulation. Material qualifying as regulated fill, meaning it has levels of contamination higher than clean fill but still meeting certain analytical standards, can only be placed as fill through the use of a general permit issued by the Department under the Solid Waste Management Act ("Act"). Material exceeding the regulated fill standards must be managed as waste and properly disposed of in accordance with the Act and the Department's regulations.
Common Confusion
Despite being more than 15 years old, the Policy remains misunderstood. Parties wishing to place fill must first determine whether the material has ever been impacted by a release of a regulated substance. This determination can be based upon research/ knowledge of the history of the site where the material is taken from, analytical testing of the material, or a combination of those factors. If the material is impacted by a release, the party then must characterize the material to determine whether the concentrations exceed regulatory standards, and the Policy has very specific sampling requirements for determining whether or not clean or regulated fill standards are met.
The Policy generally applies standards that are consistent with the risk-based standards utilized in the Department's Act 2 Cleanup Program. The Policy also has specific exemptions/provisions for different situations such as movement of fill within a single site, movement of fill between different state Act 2 cleanup sites, movement of fill within a linear project right of way, and the treatment of various historic fill materials.
Due to the significant regulatory complexity of the Management of Fill Program and the complexity of the Policy, it is highly recommended that parties wishing to move fill material seek help from legal and technical experts. Experienced professionals can ensure that parties looking to move fill efficiently conduct appropriate background due diligence and that appropriate analytical sampling of the fill material, if necessary, is completed.
A well thought out sampling plan and strategy will accomplish several objectives: 1) it will minimize the number of samples that need to be collected to establish the needed information; 2) it will identify and characterize different layers and types of materials on a site such that the different types of fill material can each be managed in the least expensive fashion; and 3) it will also minimize Department review time. Proper characterization and management of fill can greatly reduce costs and prevent undue delays.
Recent Update
The Department recently issued an updated Policy (effective on January 1, 2020) with revised numerical limits to be more consistent with the current residential and non-residential statewide health standards utilized in the Act 2 Program. The new Policy also incorporates a lot of clarifying language. including clearer requirements for making clean fill determinations and additional guidance on sampling plans. Any fill material characterized under the prior policy needed to either be moved before January 1, 2020 or be re-characterized under the new standards.
If you are planning a fill management project, or have one underway, MacDonald ig Attorneys can help you minimize the regulatory costs and delays. Contact Robert Gandley at 814/870-7661 or rgandley@mijb.com.
Article featured in the Manufacturer and Business Associations' February 2020 Business Magazine.
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