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(Editor’s note: The Pennsylvania Department of Environmental Protection is currently considering modifications to its “Fill Policy.” The proposed revisions appear likely to result in a reduction in acceptable numeric values of contaminants in “clean fill.” The public comment period on the proposal closes on February 18, 2015. On-going projects may not be grandfathered from application of any new definition of clean fill. In other words, there is potential for confusion and significant disruption in the “earthwork” segment of the construction industry. The article below is the first in a series we will post on this topic. Guest author, Gary Brown, President of RT Environmental Services, Inc. has over 30 years of experience in environmental compliance and engineering.)

In 1996 Pennsylvania became one of the first states to place numeric limits on contamination in earthwork (“Fill”) that was to be moved across property lines.  While other states regulate releases and discharges to the environment, the Department of Environmental Protection (“DEP”) placed direct limits on the Fill itself, whether or not there was pre-existing evidence of a spill or release.

The 1996 limits set by DEP proved unworkable because concentrations of a number of common constituents were set below background levels. The limits were disruptive to reclamation operations and construction projects, including highway and other transportation projects throughout the state.  In practice, the limits were widely ignored.  Attempts at enforcement generated controversy.  Ultimately, in 2002, the Governor’s Independent Regulatory Review Commission chided the DEP for attempting to establish regulatory limits without compliance with required rule-making procedures.

Following DEP’s withdrawal of its controversial, and potentially unenforceable, Fill limits then- Secretary Katie McGinty, in 2004, was instrumental in issuing a guidance document, the Management of Fill Policy (updated in August 2010), establishing clean fill limits based on Pennsylvania’s Award Winning Act 2 Land Recycling Program.

The construction industry and others who had interest in the Fill Policy hailed the action as practical and appropriate and most considered its issuance environmentally protective.

The Management of Fill Policy, however, clearly stated that neither clean fill nor regulated fill could be placed in Waters of the Commonwealth.  That created a significant problem in connection with reclamation projects. Often, after dewatering stops at a quarry, for example, the water table rises, resulting in the submergence of fill that has been placed as part of the reclamation process. Thus, an alternative to the Management of Fill Policy was required to address reclamation projects where fill would be in contact with groundwater, a common situation in Pennsylvania.

Quarry operators were promised that regulatory limits would be set within one year to address the problem.  It took nearly ten years however for DEP to complete that work. In 2013, DEP proposed Reclamation Fill at Active Non-coal Sites. Again, as with earlier efforts by DEP, the  concentrations proposed were unworkable.  Finally, in late in 2014, DEP issued new “Reclamation Fill Limits,” which establish concentrations for reclamation fill based on the Land Recycling Program.  This was welcomed by the construction industry as providing uniformity in determining which materials are and are not suitable as Fill, fostering high levels of compliance.

In December 2014, unfortunately, DEP revisited its 2010 Management of Fill Policy and has proposed to change the concentrations of contamination that define “clean fill.” In many instances the new proposed limits are considered unworkable by the construction industry.

Instead of proceeding with a single set of uniform standards for Fill managed under various programs, DEP appears to be headed toward repeating the mistakes of the past by having unworkable concentration limits for  Fill being moved across property lines.  The limits would prevent Fill which meets Act 2 residential standards from being moved across property lines, which simply makes no sense.  If materials are clean on a property which will have residential use, they must be suitable for use on other property.

From 2002 to 2004, when the construction industry objected to unworkable DEP Clean Fill Limits, the Pennsylvania Asphalt Paving Association, the Pennsylvania Aggregates and Concrete Association, the Associated Pennsylvania Constructors, and National Utilities Contractors Association worked with PENNDOT to insist on a workable DEP Clean Fill Program.   The same associations, now joined by the Pennsylvania Chamber of Business and Industry are working to make sure that the DEP does not repeat its mistakes of the past in connection with its proposed revisions to the Management of Fill Policy. DEP has not provided information on a single environmental incident or contamination problem that would justify the reduced limits that are now being proposed.

Governor Wolf has said he wants to put Pennsylvanians “back to work,” but senior construction industry trade organization representatives believe that the DEP is proposing to interfere with current and future construction contracts by reducing the  limits for concentrations of constituents in soils moving across property lines without  any demonstrated environmental benefits.

I think we are moving backwards in Pennsylvania. Both New Jersey and Ohio have more workable programs, and DEP does not seem to be aware of the impacts of its actions.  Pennsylvania’s Act 2 Program is an award winning program, used as a national model and both the Reclamation Fill Program and the Clean Fill Program historically worked with the Act 2 Program.  The current revisions will create confusion in the construction industry, impact important construction projects and make Pennsylvania’s redevelopment process more uncertain.

Gary R. Brown, P.E.
President
RT Environmental Services, Inc.

Please direct questions or concerns about the Fill Policy to Joseph McGovern (joseph.mcgovern@obermayer.com; 215-665-3058) or Gary Brown (gbrown@rtenv.com; 610-768-0232).