Important Changes to PADEP's Management of Fill Policy--Is the Availability of Clean Fill in Question?

December 19, 2014
Michael M. Meloy and Michael C. Nines
MGKF Special Alert

On Saturday, December 20, 2014, the Pennsylvania Department of Environmental Protection ("PADEP") will publish a notice in the Pennsylvania Bulletin announcing proposed substantive revisions to the Management of Fill Policy, 258-2182-773 (the "Policy"). The link to the notice is http://www.pabulletin.com/secure/data/vol44/44-51/2629.html. The proposed changes to the Policy will have broad impacts within the regulated community, affecting, among others, real estate developers, land owners, railroads, port operators, and excavation contractors. Activities and projects involving earth disturbance and excavation work including Brownfields projects, development projects, infrastructure projects and utility projects are likely to be impacted. PADEP has invited public comment on the proposed revisions to the Policy. The public comment period will close on February 18, 2015.

Some of the most important changes that PADEP is proposing to make to the Policy involve revisions to the numeric standards defining "clean fill" found in Tables FP-1a and FP-1b of the Policy generally to align with the current and future residential cleanup standards for soils established under the Pennsylvania Land Recycling and Environmental Remediation Standards Act ("Act 2"). For many of the regulated substances listed on the tables, more stringent numeric standards will apply once the Policy becomes effective. For example, proposed revisions to the tables will result in significant reductions in clean fill limits for substances such as semi-volatile organic compounds which are ubiquitous in urban environments. Of particular concern is the fact that the clean fill limit for benzo(a)pyrene is expected to decrease from 2.5 mg/kg to 0.57 mg/kg, adding complexity to projects using materials sourced from urban environments. Numeric standards for other regulated substances such as polychlorinated biphenyls ("PCBs") and manganese are also expected to decrease.

It is important to note that the current cleanup standards under Act 2 are being revised. The new cleanup standards are expected to be finalized in 2015. It is our understanding that PADEP anticipates that these new standards will automatically be incorporated into the Policy and will likely result in further changes in the numeric standards for clean fill. In some cases, we anticipate that the new cleanup standards under Act 2 will result in further decreases in the numeric standards for clean fill. For example, clean fill limits for regulated substances such as vanadium and certain organic compounds are likely to become more stringent.

The draft Policy raises important questions that will need to be addressed during the pending public comment period. Namely, it is unclear if past projects which managed clean fill materials under the current Policy will be "grandfathered" or if there is a potential for fill materials that meet the current clean fill limits, but do not meet the anticipated new clean fill limits, to be reclassified as wastes under the Pennsylvania Solid Waste Management Act. A host of related issues are potentially implicated by PADEP's intended approach. In addition, questions remain concerning the appropriateness of the proposed clean fill limits and the manner in which the cleanup standards under Act 2 have been used to derive those standards. For instance, a majority of the clean fill limits for organic substances correspond to the soil-to-groundwater numeric values developed under Act 2 without any consideration of alternative standards available under Act 2 to address the soil-to-groundwater pathway.

Manko, Gold, Katcher and Fox, LLP is currently engaging in the preparation of written comments to PADEP's proposal and strongly encourages potentially impacted parties to develop and submit comments on the proposal. If you have questions or concerns regarding the proposal or would like to submit comments to PADEP, either individually or as part of a group, please contact either Michael Meloy (mmeloy@mankogold.com; 484-430-2303) or MGKF senior technical consultant Michael Nines (mnines@mankogold.com; 484-430-2350). We would also be happy to provide you with a copy of the proposed Policy should you need a copy of the document.