Environmental Law

Brother can you spare some fill material

By M. Joel Bolstein

Everyone who works on brownfield redevelopment projects in Pennsylvania needs to understand how the PADEP regulates the use of fill material.  Why?  Because many brownfield projects require some beneficial re-use of on-site fill material or the importation of fill material, either to bring areas up to grade, or to fill in tank excavations, or to use as material to cap areas of the site to eliminate potential direct contact using the Site Specific standard.   If the site needs to import lots of fill material, let's say to cap a large former disposal area, that could be a significant added expense over and above the cost of the site assessment and other necessary remediation work.  As a result, developers need to have ready sources of fill material and the cheaper the better.   

Act 2 doesn't address fill material specifically.  PADEP has used several policies over the years to regulate the beneficial re-use of fill material.  The current version is the Management of Fill Policy dated April 24, 2004.  The policy provides PADEP's procedures for determining whether material is clean fill or regulated fill.  Whether something qualifies as clean fill or regulated fill will depend on the due diligence relating to the origin of the fill material and the testing conducted to determine the substances present in the fill material.  Under the policy, if material qualifies as clean fill it can be used in an unrestricted and unregulated manner under PA Act 2.  You don't need any permits to beneficially re-use clean fill.  You do still need to comply with PADEP's regulations relating to erosion and sedimentation control and dam safety and waterway management.  Regulated fill, on the other hand, can't be used at a greenfield property not planned for development or on a property that is currently residential or planned for residential use, unless otherwise authorized by PADEP.  Also, to use regulated fill at a brownfield site, you need to use the regulated fill general permit (GP)# WMGR096 (application Form 20 RF), unless there is an exception that would apply.  Those exceptions include:

• You don't need a GP to beneficially re-use regulated fill material for remediation activities undertaken entirely on an Act 2 site.
• You don't need a GP to import regulated fill from one Act 2 site for use as construction material on another Act 2 site.
• You don't need a GP if you are using regulated fill that is the subject of a Section 902 waiver letter from PADEP.

That last bullet is very interesting and very useful.  Section 902 of Act 2 allows PADEP to waive in whole or in part any state or local permit requirement (which would include a GP) that would otherwise be required for the work being undertaken on an Act 2 site.  I have helped clients obtain numerous Section 902 waiver letters as they relate to the use of fill material at Act 2 sites.  These letters are extremely helpful in that they can clarify sampling and testing requirements, in addition to avoiding the need for a permit. 

Clients often have lots of questions regarding the application of the Management of Fill Policy.  When I get a question, I pull out my handy copy of the fill policy to see if the question can be answered just by reading the policy.   Unfortunately, the policy is not the model of clarity and there are numerous ambiguities and grey areas.  If the answer isn't readily apparent, the next place I look is the page on PADEP's website  that is called Management of Fill Questions and Answers.  Since April 24, 2004, I and many of my colleagues in the environmental bar, as well as developers and consultants, have submitted numerous questions to the ECP program staff in Harrisburg regarding the implementation of the fill policy.  To their credit, the ECP staff  has placed 58 questions with specific answers on the website.  The Q&A is informative and wide-ranging.  It covers virtually all aspects of the fill policy.  It tells you, for example, that something doesn't qualify as clean fill if it meets the numerical standards but has an objectionable or strong odor.  It also tells you that the Department expects to have "minimal" involvement and oversight in the management of clean fill at sites, that it doesn't issue letters certifying that material is clean fill, and that it's involvement is probably going to be limited to responding to complaints received relating to the placement of fill material.  If you haven't read the Q&A, I urge you to do that.  The Department continues to add new Q&A periodically so you'll need to check back every so often.  The information is useful for attorneys, consultants, developers and anyone interested in gaining a better understanding regarding PADEP's management of fill policy.   If I can't find the answer to the question by reading the policy and the Q&A, I can always formulate my own question and send it into the ECP staff in Harrisburg by email.  They ordinarily get back to you with a timely answer.  

Remember, brownfield projects require creative thinking and problem solving.  How you handle fill material at a brownfield site is part of that mix.    

Full post as published by PA Brownfields Environmental Law on September 19, 2007 (boomark / email).