Synergy Environmental, Inc.
Brian Loughnane, P.G
November 19, 2019
PADEP’s Management of Fill Policy is set to take effect on January 1, 2020 here are some thoughts from a Pennsylvania Licensed Professional Geologist
Land owners, real estate developers, excavation contractors, municipalities, environmental consultants and lenders need to take note of the upcoming changes that will be occurring with the Pennsylvania Department of Environmental Protection’s (PADEP’s) Management of Fill Policy (Fill Policy). On November 2, 2019 PADEP published a notice within the PA Bulletin that the new Management of Fill Policy has been finalized. The policy is effective as of January 1, 2020. Projects and activities throughout Pennsylvania that involve earth disturbance or excavation will be impacted by the new Fill Policy.
The new (Management of Fill) policy can be viewed here. The PADEP Comment Response Document can be viewed here.
PADEP’s new Management of Fill policy directs how fill material can be moved and utilized rather than being regulated as a waste material under PADEP’s Solid Waste Management Act. The new policy is concentrated principally on the relocation of fill material between project sites from January 1, 2020 moving forward. Due to this focus, the policy appears to have a grandfathering for previously deposited fill material until it is moved to another project site.
What is Fill Material?
Civil engineers, excavation contractors and developers have a generic engineering term for soil or crushed stone that is utilized to fill in depressions in the ground surface or create mounds. This material is called “Fill Material”. Fill material that was transported from one project site to a different project site was, in essence, loosely regulated by PADEP. However, during 2004 a Clean Fill Policy was issued by PADEP. This environmental policy was brought into play to ensure that releases of contaminants from one location were not introduced into sites at another location during site development.
PADEP defines the term “Fill” by stating in its definition “The term is limited to clean, regulated and historic fill that is soil, rock, stone, gravel, used asphalt, brick, block or concrete from construction and demolition activities that is separate from other waste and recognized as such” further on the PADEP definition states, “The term does not include reclaimed asphalt pavement, naturally occurring asbestos, mine spoils or acid producing rock.” Fill Material in its definition by PADEP does not include reclaimed asphalt pavement, naturally occurring asbestos, mine spoils or acid producing rock.
Reclaimed Asphalt Pavement and Acid Producing Rock are new terms, what do they mean?
Reclaimed Asphalt Pavement (RAP) are small particles, typically less than an inch in size of bitumen and inorganic materials produced by the mechanical grinding of bituminous pavement surfaces. Of note is that Fill, by PADEP’s definition, does not include “RAP”. But Used Asphalt (UA) is acceptable for Fill. PADEP’s definition of Used Asphalt is pieces of bitumen and inorganic materials from the demolition of bituminous pavement. The used asphalt definition specifies that RAP is not included. In summary according to PADEP’s new policy UA is acceptable as fill material, but RAP is not.
As defined by PADEP within the policy, Acid Producing Rock (APR) is stone, rock or other mineral materials that when exposed to air and water cause a low pH discharge that adversely affects or endangers public health, safety, welfare or the environment, or causes a public nuisance. According to PADEP’s new policy APR is not acceptable as fill material. Please note that many sections of Pennsylvania are underlain by APR.
What is the difference between “Clean Fill”, “Regulated Fill” or “Historic Fill”?
PADEP sub classifies fill material into either: 1) clean fill; 2) regulated fill; or 3) historic. PADEP’s defines “Clean Fill” as uncontaminated, non-water soluble, non-decomposable, inert solid material used to level an area or bring an area to grade. The term does not include materials placed in or on waters of the commonwealth. Clean Fill does not contain concentrations of regulated substances that exceed the numeric values specified in Table 3 and Table 4 of Appendix A in 25 Pa. Code 250 (PADEP’s ACT 2 standards). The applicable numeric limit is determined by comparison to the generic soil to groundwater value with the direct contact residential values and selection of the lower of the two values. PCBs and Chloride have their own action levels that are separate from the ACT 2 standards. Fill that is demonstrated to be clean fill can be used in an unrestricted manner.
“Regulated Fill” is fill that has been affected by a release of a regulated substance and is not “uncontaminated material” as defined by PADEP. By PADEP’s definition this term does not include fill that has been blended, mixed or treated with the purpose of meeting the definition of “regulated fill”. Regulated Fill does not contain concentrations of regulated substances that exceed the numeric values specified in Table 3 and Table 4 of Appendix A in 25 Pa. Code 250 (PADEP’s ACT 2 standards). PCBs and Chloride have their own action levels that are separate from the ACT 2 standards. The applicable numeric limit is determined by comparison to the generic soil to groundwater value with the direct contact nonresidential values and selection of the lower of the two values.
“Historic Fill” is defined as “Material, excluding material disposed in landfills, waste piles and impoundments, used to bring an area to grade prior to 1988, and consisting of a conglomeration of soil and residuals, such as ashes from the residential burning of wood and coal, incinerator ash, coal ash, slag, dredged material and construction and demolition waste”.
Clean Fill is good, but what about “Regulated Fill”?
Clean fill determination needs to have a record of its determination. This is performed by utilizing Form FP-001-Certification of Clean Fill. Form FP-001 requires the following information: Name of person determining clean fill; location or originating property for clean fill; Site Characterization information; of person receiving or placing clean fill; and the volume of clean fill.
Regulated fill, as dictated by PADEP, may not be obtained from one site and used at another site unless a PADEP Solid Waste Management Act (SWMA) permit (General Permit No. WMGR096) has been issued to the user of the regulated fill material.
The policy does not apply to mine land reclamation activities, which are subject to a permit or fill used within the same project area or project right-of-way. Excavation, movement or reuse of fill within a project area or right-of-way is not an activity that requires a SWMA permit.
The policy does not apply to fill that has been placed prior to the effective date of this new policy. It does if the fill is moved to another site or off the project right-of-way after the effective date of the policy.
How do we apply the new changes to how we manage Fill material?
This is where things get interesting. We’ll cover that in our next article which will be out soon.
Mr. Loughnane is a Professional Hydrogeologist and Director of Geosciences at Synergy Environmental. He works out of the Royersford, PA Office.