Update on the Management of Fill Policy

January 22, 2017
Michael M. Meloy
MGKF Special Alert - Forecast 2017

In terms of ramifications for the regulated community, few if any technical guidance documents issued by the Pennsylvania Department of Environmental Protection (“PADEP”) rival in importance the Management of Fill Policy (also referred to as the Clean Fill Policy).  The Management of Fill Policy establishes guidelines for delineating between fill material that can be used as unregulated “clean fill” and fill material that instead must be managed as a waste under the Pennsylvania Solid Waste Management Act (“SWMA”), 35 P.S. §§ 6018.101 – 6018.1003.  The current version of the Management of Fill Policy was issued in 2004 and was slightly revised in 2010. 

On December 20, 2014, PADEP issued significant proposed changes to the Management of Fill Policy for public comment.  The proposed changes focused predominantly on modifying the numeric standards that are used to help determine whether fill material qualifies as “clean fill” or instead is regulated under the SWMA.  The proposed changes also included modifications to the sampling and analytical protocols contained in the Management of Fill Policy.  The proposed changes sparked significant public comment during the public comment period that closed on February 18, 2015.

The numeric standards in the Management of Fill Policy are generally based on the direct contact numeric values and generic soil-to-groundwater numeric values developed by PADEP to implement the statewide health cleanup standard under the Pennsylvania Land Recycling and Environmental Remediation Standards Act (“Act 2”), 35 P.S. §§ 6026.101 – 6026.908, for soils at residential properties overlying used aquifers.  Since these standards were adopted in 2004, the numeric values under Act 2 have been amended on multiple occasions.  The most recent amendments took effect on August 27, 2016. 

PADEP has indicated that it plans to proceed with revisions to the Management of Fill Policy to take into account the most recent modifications to the cleanup standards under Act 2.  If PADEP embraces the approach that it used in 2004, a number of the numeric standards for “clean fill” will decrease significantly.  In certain instances, the new “clean fill” standards will drop to below background levels for commonly occurring regulated substances including benzo(a)pyrene and vanadium.  As part of public comments regarding the proposed changes to the Management of Fill Policy, Manko, Gold, Katcher & Fox has emphasized the importance of developing options to address default background levels for various regulated substances that might be higher than the new “clean fill” standards to avoid the significant problems that will be created without such a “safety valve.” 

In addition, PADEP seems to have given little thought to the major legal issues that will be triggered by imposing new and more restrictive numeric standards on fill material.  For example, such changes will necessarily place into question the status of fill material that was used in accordance with the current numeric standards but which might not qualify as “clean fill” under the new numeric standards.  Likewise, the status of fill material that has been acquired in reliance on the current clean fill standards but may not be used by the time the new standards take effect will need to be resolved. 

PADEP has suggested that it may decide to propose additional changes to the Management of Fill Policy beyond those identified in late 2014 and reissue the updated version of the Management of Fill Policy for further public comment.  These developments are likely to unfold in the coming months and will be critically important to anyone involved in excavating, moving, placing, or otherwise handling soils and other types of fill material in Pennsylvania.