PADEP Issues New Management of Fill Policy

January 21, 2020
Michael M. Meloy, Esq. and Will Hitchcock, Technical Consultant
MGKF Special Alert - Pennsylvania Forecast 2020

Sweeping changes to Pennsylvania’s Management of Fill Policy went into effect on January 1, 2020. The Policy is critically important because it defines when and under what circumstances fill material can be moved and used without being regulated as a waste under the Pennsylvania Solid Waste Management Act. Work involving earth disturbance, excavation, and demolition activities, as well as Brownfields, development, infrastructure, and utility projects fall within the scope of the Policy. The changes to the Policy will have broad impacts within the regulated community, affecting, among others, real estate developers, land owners, railroads, port operators, public utilities, municipalities, excavation contractors, and environmental consultants who regularly support such entities.

One of the most notable changes to the Policy is the elimination of the numeric standards defining “clean fill” that were found in the prior version of the Policy. Instead, the new Policy incorporates by reference certain of the numeric values established under the Land Recycling and Environmental Remediation Standards Act (Act 2) to implement the statewide health cleanup standards for residential properties. This means that each time the cleanup standards under Act 2 change, the clean fill standards will change at the same time. The immediate impact of incorporating by reference the numeric standards under Act 2 has been dramatic. The clean fill standards for various regulated substances are now significantly lower under the new Policy than they were under the prior version of the Policy including the standards for substances such as various semi-volatile organic compounds and metals that are ubiquitous in urban and suburban environments. The changes in the clean fill standards for benzo[a]pyrene and vanadium are particularly significant. The clean fill standard for benzo[a]pyrene has decreased from 2.5 mg/kg to 0.58 mg/kg which is below the background level of benzo[a]pyrene typically found in many developed areas in Pennsylvania. The clean fill standard for vanadium has decreased from 1,500 mg/kg to 15 mg/kg which is substantially less than typical naturally occurring background levels.

Other important changes to the Policy include changes to the list of materials that can qualify as “clean fill,” new procedures for identifying and sampling “historic fill,” new requirements for performing due diligence at donor sites, increased reporting requirements, new definitions that determine whether the Policy applies to movement of material within a right-of-way or “project area,” alternative analytical methods, and grandfathering provisions to address fill that had already been determined to qualify as clean fill under the existing Policy but not yet placed. The new Policy is the subject of a pending appeal before the Environmental Hearing Board based on the theory that the new Policy is effectively a regulation that should have gone through a formal rulemaking process, and that the new Policy imposes other unreasonable conditions. In the meantime, PADEP is implementing the new Policy and attempting to address numerous questions that are arising as the regulated community moves ahead with steps to comply with the new Policy.