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Pennsylvania Brownfields & Environmental Law Information and Developments in Brownfields and Pennsylvania Environmental Law

New Guidance Issued on Clean Fill

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When it comes to clean fill, the world is divided into good guys and bad guys.  The good guys play by the rules and don’t cut corners.  That means if something tests out as exceeding the clean fill numbers in PADEP’s Management of Fill Policy, you don’t try to sneak it into a Pennsylvania construction site or quarry hoping no one notices.  The bad guys look for unsuspecting property owners, hide data, blend material in violation of the Fill Policy, and do everything they can to evade detection.  They take contaminated soil from sites being remediated under regulatory programs in New York, New Jersey, and elsewhere and dump it in Pennsylvania because no one is watching.  That is, up until now.

On Saturday, the Department released a new interim guidance making revisions to its Certification of Clean Fill Form and for the first time, requiring that form to be filed with the regional office of the Department where the receiving site is located.  The new form also requires the person performing the fill characterization to identify whether the fill is coming from a regulated site, and if so, to identify that site and the contact person for the overseeing regulatory agency.  So now, if a dirt broker wants to send contaminated dirt from a regulated site in New Jersey that is being remediated with NJDEP oversight, the form will need to identify that site in New Jersey, include its ID number and the NJDEP contact person, include all of the analyticals AND send a copy of the form to the regional PADEP office where the receiving site is located.

As someone who was involved in the development of the Management of Fill Policy and its precursors, I fully support the revised form and the requirement to file the form with the regional office.  What some people don’t know is that the bad guys have been moving contaminated dirt into Pennsylvania for a number of years.  Occasionally, someone blows the whistle on them.  In June 2009, a group of local citizens called PADEP regarding contaminated fill material that was taken from a remediation site in New Jersey and dumped at a Monroe County residential construction site.  The fill material had benzo(a) pyrene at elevated levels.  The Pocono Record wrote an editorial soon after on June 22, 2009, which stated:

Citizens must be alert to possible violations and report them to the DEP, conservation district or local municipality if they believe a violation has occurred.  Another issue is the higher regulatory threshold in New jersey than Pennsylvania when it comes to hazardous waste and fill.  Some material that New Jersey considers hazardous and requires to be carefully disposed of in a landfill at the generator’s cost, can legally be used as fill here.  This only encourages the shipments of "low level" contaminated fill to our state.  It’s time to fix that loophole, either by raising Pennsylvania’s threshold, or by enacting a regulation banning the importation of fill that wouldn’t meet standards of the state from which it originated. 

Pennsylvania has not banned the importation of fill material.  But it has now shined a bright light on it.  As long as that fill material meets the standards for Clean Fill in the Management of Fill Policy, citizens have no need to fear.   Those levels are safe and protective of human health and the environment.  By revising the Clean Fill form and requiring that it be submitted to the local PADEP regional office, the bad guys are now on notice that Pennsylvania won’t tolerate the importation or use of contaminated fill.  To put some added weight behind that notice, the Department is requiring both the sender and receiver of the fill material to certify "under penalty of law" that all of the information regarding the fill is true and correct.

Will this new form create added burdens?  It shouldn’t.  The people who have been playing by the rules have been filling out a different version of this form and retaining it on site since the Management of Fill Policy was enacted.  Do I expect PADEP to review these forms when they are filed?  They might.  I hope they would review them, if for no other reason then to get a sense of what kind of fill material is being brought into their local areas and where it is coming from.  I would especially hope that they’d look very closely at any receiving site that checks the box on the form noting that it is receiving 20,000 or more cubic yards of material from a regulated site.   Citizens need the comfort of knowing that if something is supposed to be clean fill it really is clean fill.   

Developers, consultants, property owners, dirt brokers, attorneys and others need to be aware of the new Clean Fill Form and what is now required.   PADEP has now given fair warning to those that might think of bringing contaminated fill into Pennsylvania being disguised as clean fill.   The message is to play by the rules.