What’s New About PA’s Management of Fill Policy

Effective January 1, 2020, the Pennsylvania Department of Environmental Protection (PADEP) is enforcing significant changes to the Management of Fill Policy (read it here). Here are the key points you need to know:

The policy is important to anyone who moves fill

Developed in 2004, original Management of Fill Policy was designed to facilitate the unrestricted movement of uncontaminated material, such as soil, asphalt, brick, block, concrete and stone within the state of Pennsylvania.  The policy is important to a variety of industries 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 (“SWMA”). SWMA regulates solid waste storage, collection, transportation, processing treatment and disposal, requiring county plan development, permits and licenses, and establishing the Solid Waste Abatement Fund. In short, thanks to this policy, if you are moving uncontaminated material, your actions are less regulated, and life is easier.

The new policy contains a lot more detail than the previous one

According to the Associated Pennsylvania Contractors (APC), the updated 2020 policy “is a comprehensive overhaul of the existing version of the policy.” APC’s Risk Allocation Committee has been working with PennDOT to develop a practical solution to these updates, including discussions regarding the need for testing if bid documents indicate that testing is ongoing.

While PADEP will largely maintain the same process for determining whether fill material can qualify as clean fill, there are several important changes to how such determinations will be made. Some changes include:

  • Fill material is now a defined term, limited to soil, rock, stone, gravel, used asphalt, brick, block or concrete from construction and demolition activities that is separate from other waste, and dredged material as defined in the municipal and residual waste regulations
  • Analytical testing of fill material (except for historic fill) is not necessary unless environmental due diligence indicates that the fill material may have been affected by regulated substances
  • If testing is performed, the results must be compared to the clean fill concentration limits, which are standards used by PADEP to determine whether fill material is labeled uncontaminated
  • Fill material that does not qualify as clean fill may still be beneficially used under a residual waste general permit (WMGR-096) if it qualifies as regulated fill

The new policy contains much more detail regarding the manner in which due diligence must be performed and how sampling is to be undertaken. There is also debate around exactly how historic fill is treated under the new policy, an issue particularly relevant in the state of Pennsylvania.

Fill material that has already been used is grandfathered in

Fill material that has already been used is not subject to the new policy, unless and until that fill material is moved to another site. Similar grandfathering protections apply to fill material that has been determined to be clean fill prior to January 1, 2020, “unless the fill is moved to a new receiving site or off the project area or project right-of-way after the effective date of this policy.”

For pending projects, fill material that has been determined to be clean under the previous policy and has been stockpiled for use at a particular receiving site is likely to avoid needing to meet the new requirements.

We can help you through it

For over 30 years, the BAI Group has provided technical consulting services to private and public entities typically involved with environmental development projects. The services we traditionally provide our clients include studies, designs, permit applications, construction management/CQA along with other compliance monitoring and reporting activities. Contact us today for a cost-effective approach to your specific needs.