Regulations for the Excavation and Management of Fill Material : A
CSSAB ALTERNATIVE TO THE SAFE FILL POLICY

The Pennsylvania Department of Environmental Protection (DEP) recently developed guidelines for the excavation and management of fill entitled the "Safe Fill Policy." The purpose of the current document is to describe an alternative to that proposed policy in the form of Fill Regulations. This alternative has been developed by the Cleanup Standards Scientific Advisory Board (CSSAB) at the request of the DEP. These Fill Regulations would supplement existing Municipal and Residual Waste Regulations by establishing de minimis criteria for determining whether fill material contains concentrations of regulated substances that necessitate management in accordance with Municipal and Residual Waste Regulations (i.e., Regulated versus Unregulated Fill). These regulations further provide concentration limits below which Regulated Fill may be managed under a Permit-By-Rule (PBR). Fill material subject to these regulatory determinations includes soil or soil-like material that is moved and used for fill off-property, and falls into one of the following categories:

Category 1. Historically contaminated material that is a conglomeration of soil and residuals, such as slag, fly ash and incinerator ash, used prior to September 7, 1980 to bring an area to grade;

Category 2. Historically contaminated materials that are soils contaminated by airborne pollution or sediment and that cannot be attributed to a specific point source;

Category 3. Soil or soil-like material from dredging;

Category 4. Soils contaminated with lead and arsenic by authorized releases of pesticides applied to crops in accordance with the law;

Category 5. Soils contaminated by a known point source spill or release that has been or is being remediated under a DEP-approved cleanup plan pursuant to the Act 2 Land Recycling Program statute and regulations.

Category 6. All other soils or soil-like materials that are not known or suspected of falling into categories 1-5 above and are not otherwise currently managed as waste under the existing Municipal, Residual or Hazardous Waste Regulations.

The first step in applying these proposed regulations is to use knowledge of the material intended for movement off-property for fill to determine the category in which it should be classified. Once that category has been determined, the requirements for testing and the limits applied to the testing results can also be determined. In applying knowledge of the material, note that no element of these regulations exempts any person from liability for the improper movement and disposal of solid waste. Therefore, any person moving such materials remains liable for the correctness of the determinations made regarding the character of the material.

That said, the proposed Fill Regulations establish de minimis or minimum contamination thresholds for substances that may be found in fill including organic regulated substances, metals and chlorides. If concentrations of regulated substances within the subject fill do not exceed these de minimis contaminant levels, the fill material is not considered contaminated and may be used and moved in a manner not subject to DEP regulations. However, if the concentrations of regulated substances within the fill material exceed these contaminant thresholds, compliance with other provisions of the proposed Fill Regulations or other DEP regulations will be required in order to move and use the contaminated soil.

Fill, as defined in Pennsylvania’s Municipal and Residual Waste Regulations, is uncontaminated and nonwater-soluble material that can be moved and used as fill material. Although fill material may contain certain contaminants, these contaminants are present in the fill at de minimis concentrations which are considered in the proposed regulations to be protective of public health.

Fill material is usually generated by a variety of construction and development projects and generally includes soil, rock, stone, and gravel. In addition to these materials, waste materials including fly ash, bottom ash, boiler ash, steel slag, and various foundry sands may also be beneficially used in a variety of ways such as construction material. However, the current regulatory proposal deals only with soil and soil-like materials, not with waste that is, and will continue to be, managed or beneficially used in accordance with existing regulations and policies.

The proposed Fill Regulations establish procedures for determining the applicability of regulatory requirements to each of the six categories of material described above if the material is to be removed from the property from which it is excavated for off-property use as fill. These regulations do not apply to the reuse of materials in these categories on the property from which it is excavated (including contiguous properties with common ownership and continuous rights-of-way for public projects).

The applicability of additional regulatory requirements for the off-property movement and use of fill is based upon meeting specific contaminant threshold levels to be determined from testing of the material; however, the regulations establish the following exemptions from this testing requirement (the option to perform testing remains voluntary for these cases):

Category 7. All Category 6 materials are exempt from the testing requirements. Persons transporting such materials off-property for use as fill may use their knowledge of the property from which the material is removed (in lieu of testing) to determine that the material meets the limits for Unregulated Fill.

Category 8. Removal of 1000 cubic yards or less of Category 1 or Category 2 material from existing residential properties of one acre or less is exempt from the testing requirement.

Category 9. Removal of all categories of material derived from trenching for utilities is exempt from the testing requirements.

Category 10.Removal of de minimis quantities of material (equal to or less than 12 cubic yards) in all categories except Category 5 is exempt.

Again, if the subject fill is not being moved to another site for further use, the proposed Fill Regulations do not apply.

The Fill Regulations establish regulatory levels to assist you in determining whether your soil or soil-like materials are regulated or unregulated. These limits include de minimis contaminant threshold levels for organic regulated substances, metals and chlorides. Although the regulations do not require in all cases (as discussed above) that your soil or soil-like material be tested to determine if it exceeds specific contaminant levels, you may want to have the soil tested if you suspect it may be contaminated. For example, testing should be considered the soil originated from a site where the property was used for commercial or industrial purposes, or the soil has an odor, an unusual color, or an oily appearance. The results from the testing will determine whether the soil is contaminated and if it must be managed according to these proposed Fill Regulations or other existing regulations.

Under natural conditions, a wide variety of regulated substances may be present in soil or soil-like materials. The deposition of regulated substances in soil can occur over time due to naturally occurring processes or through the long-term effects of urbanization and historical agricultural practices. For example, regulated substances at varying concentration levels may be present in soil due to factors such as climate, the origin of the soil, biological factors, and through urban air pollution.

The proposed Fill Regulations establish de minimis concentration limits or threshold levels for regulated substances in Unregulated Fill. These limits are based on first selecting the higher of the background concentration of the regulated substance at the property receiving the fill (if available, as determined by the method established in 25 Pa. Code Chapter 250 for establishing naturally occurring or areawide background concentrations in soil) and the residential used aquifer soil to groundwater generic value (RSGGV) published in Tables 3 and 4 of 25 Pa. Code Chapter 250 for organic and inorganic substances, respectively (the RSGGV may be replaced in this comparison by the alternate soil-to-groundwater standard determined by performing SPLP tests on the subject material in accordance with the Act 2 regulations and guidance). The higher of these two values (or the RSGGV if background values and the alternate soil-to-groundwater standards are not available) is then compared to the Residential Direct Contact Numeric Value (RDC) (also from Tables 3 and 4 in Chapter 250) and the lower of the two is selected as the "Upper Limit for Unregulated Fill." Of the 222 organic regulated substances listed in Table 3 of Chapter 250, direct comparison of their default values associated with the RSGGV and the RDC shows that 206 have RSGGV values that are lower than their respective RDCs. Therefore, only 16 organics have default limits that are as high as their RDC. Similarly, of the twenty-four inorganics listed in Table 4 of Chapter 250, seven have default limits equal to their RDC (four of which have no RSGGV) and the remaining seventeen have default values equal to their RSGGV. These de minimis values for each regulated substance therefore clearly represent levels of such substances in fill material that ensure protection of public health and the environment including the safety of groundwater. In addition to meeting these levels, dredge material from the Delaware Estuary (Category 3) must be tested for chloride through an SPLP analysis.

If your fill material contains concentrations of regulated substances that are below the "Upper Limits for Unregulated Fill," you may use the fill material in a manner not subject to the remaining provisions of the proposed regulations or other DEP solid waste regulations; however, if your soil material contains concentrations of regulated substances that exceed these limits, you must comply with the remainder of the draft Fill Regulations in order to move and use the soil material off-property.

While persons using fill for off-property grading or other permitted uses may choose to analyze for any regulated substances, there are minimum testing requirements established in the Fill Regulations for some of the categories of fill identified above. These are as follows:

1. For mandatory testing of materials in Categories 1, 2, and 3, and voluntary sampling of Category 6 materials, samples must be analyzed for each of the inorganics listed in Table 1 and the organics listed in Table 2, which are attached hereto.
2. For Category 4, samples must be analyzed for lead and arsenic and the pesticides listed in Table 2.
3. For Category 5, samples must be analyzed for the specific regulated substances known to have been released into the environment. If no concentration limits are published in Tables 3 and 4 of Chapter 250 for a specific regulated substance, then no determinations may be made under the draft Fill Regulations

The number of samples that must be collected and analyzed depends upon the volume of soil that will be removed for off-property use. For volumes equal to or less than 125 cubic yards, a total of eight samples must be collected. For analysis of all regulated substances other than the Volatile Organic Compounds (VOCs), these samples are to be analyzed in two composites of four samples each. Additionally, two samples are to be selected from the eight for analysis of VOCs based on field screening to select those that are most likely to contain the highest concentrations of VOCs. For volumes greater than 125 cubic yards and less than or equal to 3000 cubic yards, three composites of four samples each must be analyzed as above and three samples must be selected for VOC analysis. An additional composite and VOC sample must be analyzed for each additional 3000 cubic yards or part thereof over the initial 3000 cubic yards. If the results for all regulated substances reported for composite samples are equal to or less than one-half their relevant limits, and the results reported for VOC samples are all equal to or less than their relevant limits, then the material is Unregulated Fill.

If the result for any regulated substance exceeds its relevant limit, but is less than the RDC for that substance (indicating that the basis for the limit is the RSGGV), testing may be performed to determine an alternate soil to groundwater standard based on SPLP testing (as provided for in Chapter 250) or the naturally-occurring or areawide background concentration for that substance at the site that will receive the fill. If one of these determinations yields a value that is higher than the concentration for that regulated substance in the material to be moved off-property, but still lower than the RDC, then that value (i.e., the receiving site background or the alternate soil to groundwater standard) may become the limit for determining that the material is Unregulated Fill. If both of these values are higher than the RDC, then the RDC becomes the limit for determining that the material is Unregulated Fill. This same procedure may be followed to determine the limit for any regulated substance listed in Tables 3 and 4 in Chapter 250.

The draft Permit-By-Rule (PBR) provisions of the Fill Regulations is a new category of permit-by-rule that would allow certain material to be used in non-residential areas if the material will bring an area to grade; control fire and subsidence events; or be used to reclaim an abandoned mine if the reclamation work is approved by DEP. Under the draft Permit-By-Rule, the material may be dewasted if it remains in place and is not removed from the non-residential site.

The draft PBR provisions apply to material that does not meet the standards for Unregulated Fill and does not exceed the limits in the draft Fill Regulations for PBR materials. These limits correspond to the lower of the Non-Residential Surface Soil Direct Contact (NRSSDC) numeric values published in Tables 3 and 4 in Chapter 250 and the total concentration of a particular regulated substance in the fill material that does not produce a leachate concentration that exceeds the limits for such leachate in the residual waste regulations contained in 25 Pa. Code Chapter 287. Leachate tests are to be performed using the Synthetic Precipitation Leaching Procedure (SPLP) and the total concentration corresponding to the leaching limit is to be determined using the same procedure established in the Land Recycling Program Technical Guidance Manual for determining alternative soil-to-groundwater standards. For those regulated substances for which no leaching limit has been specified in Chapter 287 (e.g., organics with no MCL) the leaching limit will be the Non-Residential Groundwater Standards published in Tables 1 and 2 of Chapter 250.

In addition to the draft Permit-by-Rule, the Fill Regulations still contain a draft permit waiver. This draft permit waiver would allow the movement of waste, associated with a site remediation, from one location to another as long as the waste remains on-property and is moved in accordance with a DEP approved remedial investigation report. The permit waiver is available for individuals conducting a cleanup using the site-specific standards under the Act 2 Land Recycling Program.