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Management of Fill Questions and Answers

Question: I have a building where the block and brick foundation has been painted. I am going to demolish the building and want to use the foundation material as fill. What must I do to determine if the brick and block meet the clean fill criteria? 

Answer: Prior to and during the demolition process, Best Management Practices must be used to segregate the brick, block, and concrete in the foundation from the remaining demolition debris, since only brick, block, and concrete, and not construction/demolition debris, may qualify as either clean fill or regulated fill. The primary concern with the painted brick and block is lead contamination. The due diligence requirements of the Management of Fill policy apply to these materials just like any others. If your due diligence shows that the brick or block was painted after 1978 (the date lead was prohibited in paint), then there is no concern for lead in the paint. If painting occurred prior to 1978, then the paint should be tested to determine if it contains lead. This may be done by scraping. If the testing shows that the paint is lead free, then the brick or block may be used as clean fill as long as it has not been subject to any other spill or release that causes it to exceed the clean fill criteria in Tables FP-1a and b. If the testing shows that lead is present in the paint, then the brick or block may be tested by taking representative core samples for analysis. If the results show that the lead concentration meets the level in Table FP-1b and there is no other evidence of a spill or release that would cause it to exceed the clean fill criteria, then the brick or block may be used as clean fill. Otherwise it must be managed as a waste under the appropriate permits, including the general permit for regulated fill (WMGR096) if it meets the regulated fill criteria.

Question: The policy says regulated fill may be moved from one Act 2 site to another without a permit. Does this mean an Act 2 site or a property?
Answer: Fill may be moved within the area undergoing remediation under Act 2 without a permit. Material may be moved outside the area of construction if it is part of the construction project and that area is covered by the required deed notice. An example is of a brownfield property encompassing an entire city block, but where only pockets of contamination exist and therefore it has several small "sites". As long as the entire property is part of the construction project and will be entirely nonresidential then there is no problem moving fill to any portion of the property. However, on a property that is, say, 100 acres, with a relatively small nonresidential Act 2 site covering only 5 acres, then movement of material from that Act 2 site area to other parts of the property would require the general permit.

Question: Can regulated fill be used for landscaping?
Answer: Yes. Regulated fill may be used for landscaping in conjunction with an approved construction project.

Question: Do the siting limitations apply when using regulated fill onsite at an Act 2 property? The general permit is not required, but do the requirements of the permit need to be met?
Answer: Section 902 of Act 2 allows the Department to waive state and local permit requirements as long as the substantive requirements of that permit are met. The policy as written says that placement of fill must be in compliance with Section 902, so the siting limitations are not required to be met as longs as the Act 2 requirements, such as the submittal of an NIR, are met.

Question: Several people commented that the brownfield definition in Condition 27 does not include the requirement that a site be remediated. Does this mean that regulated fill can be used under this general permit for construction at a contaminated site that will not be remediated?
Answer: Yes, as long as the requirements of the general permit are met.

Question: Can regulated fill be used within a project or right-of-way (ROW) without a permit? What happens when the ROW is owned by someone else?
Answer: Yes, provided the fill is tested and concentration limits are below Table GP-1. If the levels are above the Table GP-1 levels, then material is treated as waste. There may also be limitations as part of right-of-way agreements that would not allow the placement of contaminated material. These requirements are separate from those of the general permit.

Question: Can contaminated soil be moved from one site remediated to site-specific standard to another site that is also remediated to site-specific standards but the contaminants are not the same at the two sites?
Answer: Yes. Material that meets the regulated fill criteria can only be placed on a nonresidential property under the permit exclusion provided in the policy for such movement and is protective of that use.

Question: Does contaminated material reused along a right-of-way have to meet the regulated fill requirements although the permit is not required?
Answer: Yes. The material must meet the definition of regulated fill, or the material may not exceed the background level of the project area of the right-of-way for inorganics.

Question: Regulated fill may only be used in conjunction with an approved construction project. Does this mean that a developer must construct something over regulated fill in order for it to be used according to the policy?
Answer: No. Regulated fill may be used for any purposes that are connected with a construction project. It may be used for property improvements such as to construct berms or embankments, for landscaping, or for building foundations or sub-bases for roads and parking facilities.

Question: Is an engineer's seal required on the application for the general permit? Is there anything in the regulations that requires a seal?
Answer: The general permit application package consists of several forms. The new Form 20RF requires certification and notary seal only. Form B, Professional Certification, submitted as part of the application for the general permit requires the seal of a Professional Engineer and/or a Licensed Professional Geologist.

Question: If there is no spill or release on rock but testing indicates exceedance of Table FP-1. Is material clean fill, regulated fill or waste?
Answer: Such a situation would generally apply only to inorganics and not to organic regulated substances. If due diligence shows that there are no spills or releases, and testing reveals higher concentrations for one or more inorganics on Table FP-1, then this may be due to natural conditions in the rock. This should be verified with data from the literature or from chemical analysis in the area where the fill material originates. Such rock can be used as clean fill as long as it complies with other regulations such as Chapter 102 and 105.

Question: Will new application forms be developed for the general permit?
Answer: A new general permit form has been created and has been given the number 20RF. This draft form is currently being reviewed in the regions for comments and edits.

Question: Under the policy, clean fill can not contain free liquid based on a visual observation. Does this include water also?
Answer: Yes. Water is a consideration when using dredge material as fill. The intent is to not use material that is a slurry or otherwise contains free liquid, including water. If the material is allowed to drain so that no free liquid is present it may be used as clean fill as long as it meets all clean fill criteria.

Question: How can the Department bypass the statutory requirement for permitting the transportation of waste from one Act 2 site to another?
Answer: If the material meets the clean fill definition it meets the definition of uncontaminated, and it is not a waste. No placard is required on vehicles transporting clean fill. If material meets the regulated fill definition, placards are needed, and all transportation requirements of Chapter 299 apply. A licensed hauler is only needed when the material is being transported to a permitted facility, such as a processing facility or a landfill.

Question: Under the general permit, the municipality must be notified of the placement of regulated fill 30 days in advance of the placement. Can the municipality object to the placement of fill?
Answer: Yes. The municipality will be noticed before the application is submitted to the Department since the applicant must include proof of this notice with an application sent to the Department. Since the municipality already knows about the proposed activity, any objection they have, they can bring it to the Department's attention as soon as the registration is received. This will safeguard their objections as the Department will inform the applicant not to start placement within the 15 day or 60 day timeframes in the permit.

Question: In the deed notice required by the general permit, must the quantity of fill be included?
Answer: The deed notice provisions do not specifically require that the quantity of the fill be included; however the person using the fill should maintain records of the quantities placed since this information is required elsewhere in the application for the general permit.

Question: Can a brownfield be an operating facility? The definition of brownfield leaves open this possibility.
Answer: No. An operating facility cannot be a brownfield property.

Question: Who is the applicant…the receiving site or the source?
Answer: The permitting program is set up to allow either the receiving site, the property developer, or the fill generating property to register for the general permit.

Question: Under the commencement of activities there is either a 15 day or 60 day waiting period. Are these calendar days or business days?
Answer: It is calendar days.

Question: If everything in the general permit is acceptable, should we acknowledge that in a letter?
Answer: Yes.

Question: Is rejection of a registration for the general permit or a denial of a request to waive siting limitations an appealable event?
Answer: Such a rejection or denial is an action of the Department and is appealable.

Question: Regarding the exemption from waste permit given to movement within ROW or property, can a contaminated material or historic fill be moved to clean areas of the property or ROW.
Answer: The utility, PADOT or any other entity involved in excavating at a property or along a ROW must use industry-established BMPs that will be used to identify clean materials from contaminated materials. Material that meets the clean fill definition may be used without restriction. If material is regulated fill, then that material may be placed along the ROW or within that property without the need for the general permit, but if it is moved offsite or taken to another non-contiguous ROW, they would need to register under this GP or get another GP or dispose the waste in a landfill.

Question: Is there hazardous waste determination for clean fill?
Answer: The Fill Policy is silent on this determination but Condition 4 of the general permit states that hazardous waste is prohibited from being used as regulated fill. For materials determined to be clean fill by due diligence that shows there is no spill or release, the issue of hazardous waste does not arise. For materials considered clean fill because the concentrations of regulated substances are below Table FP-1 and due diligence has identified a spill or release into that material, there is no SPLP or TCLP analysis requirement.

Question: How do we handle soil that meets the clean fill limits, but has high TPH levels and a strong odor?
Answer: This material cannot be used as clean fill because of the prohibition on causing a public nuisance through objectionable odors.

Question: How can we allow the movement of regulated fill to another property that does not have the same contaminants on it? Aren't we allowing contamination of a previously uncontaminated property?
Answer: The management of fill policy presents a risk-based approach to fill management. The requirements for use of regulated fill match the concentrations of regulated substances to the use of the property where it is being placed. Since regulated fill must meet nonresidential standards and must be placed on a nonresidential property, its placement is protective of the use of the receiving property.

Question: Are registrations tracked in eFacts?
Answer: Yes.

Question: The re-use language in the storage tank regulations is very similar to the fill policy language. Will the tank regs be amended to reflect the fill policy?
Answer: At this time the Department is not anticipating any regulatory changes.

Question: If construction does not start within one year of fill placement, who do we go after for enforcement? The permittee?
Answer: The Department could take enforcement action against the permittee or the landowner, if different from the permittee. The degree of enforcement will depend on the reason the requirement was not met.

Question: What if the person placing fill does not give Form FP-001 to the property owner?
Answer: We have no enforcement authority on a policy.
If the Department receives a complaint on the placement of this fill, it can request a copy of Form FP-001, and it may test the fill to see if it meets the clean fill standards.

Question: The general permit has a requirement that dredge material from tidal areas be tested by the SPLP for chlorides. Is the ASTM leach test also acceptable?
Answer: Act 2 establishes the SPLP as the test for leachability for calculating the soil-to-groundwater numeric value under the Statewide health standard. The policy follows the Act 2 process.

Question: Someone could buy a large property that has high "background" then bring regulated fill under this GP above nonresidential SHS allegedly as construction fill at a cost to the fill sources. Essentially this person would be operating a "landfill" without a permit for a year and then put in a parking lot on that property they said they were to construct.
Answer: The general permit requires that fill be placed as part of an approved construction project. This means that plans must be in place and approved before fill material may be placed. Simply placing a parking lot over fill without an associated building or other facility would not meet this requirement.

Question: The exemption from waste permit provided in the policy to movement of contaminated soil from one Act 2 to another Act 2 site, does this exemption extend to storage tank sites undergoing remediation?
Answer: Regulated storage tank remediations meet the Act 2 standards but not the Act 2 procedural requirements. In order for regulated fill to be moved from a storage tank site to another Act 2 site without the need for the general permit the storage tank site must fully enter the Act 2 process by submitting an NIR to the Department and complying with all public notice requirements of Act 2. The movement of fill must be included in the NIR and the final report for both the source property and the receiving property.

Question: Does the Fill Policy apply to mine spoils?
Answer: No.

Question: What is considered as "evidence of release"?
Answer: Due diligence will indicate if there has been a spill or release based on review of the history and written records of the site, interviews with people who have knowledge of the site, screenings to confirm or reject the findings, etc.

Question: Can soil contaminated with fuel - for which we require Form FC-1 for disposal be considered clean fill? If the TPH is >10,000 ppm?
Answer: No. Material for which form FC-1 is required is already a waste and therefore cannot qualify as clean fill. Material with TPH > 10,000 ppm will have an odor because of the high TPH levels, and therefore cannot be used as clean fill.

Question: It was mentioned that "objectionable odor" is a highly subjective criteria in this policy for clean fill.
Answer: While the perception of odors as objectionable is subjective, a permittee should not place material as clean fill that could present a nuisance to occupants of the property or to adjacent property owners.

Question: In determining the numeric standard for clean fill or regulated fill, why wasn't the 100xGWMSC option under the soil-to-groundwater pathway used and only the generic value considered?
Answer: The CSSAB had recommended using the lower of the residential direct contact and residential generic value from the soil to groundwater pathway options in 2000 when the Department was drafting the proposed safe fill regulations. The generic value is the result of modeling the movement of a regulated substance through the vadose zone and is based on default soil characteristics. The 100 XGWMSC option does not make use of such default assumptions and the CSSAB felt that the generic value is more representative of generic site conditions.

Question: Does the GP have a me-too option?
Answer: The me-too option was deleted from the residual waste regulations when they were amended in January 2001.

Question: What is the definition of a release? Does it include agricultural chemicals and pesticides applied according to regulations?
Answer: The definition of a release contained in the policy includes pesticides and agricultural chemicals that have been applied according to EPA or Department of Agriculture regulations. Under due diligence, such applications constitute a release that would trigger the testing of the fill material to determine if it is clean fill or regulated fill.

Question: What level of oversight will the Department provide in the management of clean fill? Will it only get involved in cases where complaints have been received over the use of fill?
Answer: The Department's involvement in the management of clean fill will be minimal, and limited to cases where complaints have been received regarding the placement of fill material. The Department will not issue letters certifying material to be clean fill nor will it be notified when clean fill that contains regulated substances from a spill or release is placed on a property.

Question: How can I determine if arsenic concentration on a property are from natural sources, area wide deposition, or the result of a release?
Answer: The following guidance was developed by the arsenic workgroup and presented in the Land Recycling Program Enhancements Report
When screening for arsenic, a remediator should compile a site history, document the type of soil and include a review of aerial photographs of the property and surrounding area at a frequency that will allow a historical perspective of site activities back to the 1930s or to the earliest available time frame. This review process is often referred to as a Phase I Assessment. Upon completion, areas should be grouped into either (Level A) non-agricultural use or not influenced by close-by incinerators or coal-fired power plants or (Level B) atmospheric deposition potential or orchard/land application potential. Then the following soil sampling strategy should be applied:
A. Level A: One sample location should be taken per 5 acres. At each sample location, three (3) discrete samples should be obtained at the following depth intervals: 0-2 inches, 2.5 to 3 feet, and 5 to 6 feet. All samples should be run for RCRA metals and other potential constituents of concern identified in the site history research. Do not use alconox rinse of sampling tools, instead use only acid wash decontamination procedures. A minimum of four sample locations and associated samples are required for each designated Level A area. If exceedances are discovered, the remediator must go to Level B.
B. Level B: One sample location must be taken per acre. At each sample location, three (3) discrete samples obtained at the following depth intervals: 0-2 inches, 2.5 to 3 feet, and 5 to 6 feet. Biased sample locations should be taken in areas of potential concern, i.e. - the end of planted rows, mixing areas, tool sheds, and surface water low points. All samples should be run for RCRA metals and other potential constituents of concern identified in the site history research. Do not use alconox rinse of sampling tools, instead use only acid wash decontamination procedures.
A review of the results of this screening process would conclude that:
• Elevated concentrations of arsenic only at the surface interval would occur from atmospheric deposition or from a lead arsenate application.
• Uniformly rising and falling lead/arsenic concentrations would result from lead arsenate application.
• No decrease in arsenic concentration with depth, potentially an increase with depth, would indicate natural background arsenic.
In those areas where elevated arsenic concentrations are identified, the remediator must then complete horizontal and vertical delineation per the TGM. The remediator may then select any of the Act 2 standards to clean up this property.

Question: Does DEP have to issue concurrence/approval letters in all cases to certify fill clean?
Answer: No. The program recommends that such letters not be issued.

Question: Under the Fill Management Policy, what are the testing requirements for fill? Do we have to test for everything?
Answer: It will depend on the environmental due diligence and source(s) of spills/releases identified by due diligence procedures. Testing is based on the knowledge of the chemicals used on the site resulting from the environmental due diligence.

Question: Under the Fill Management Policy, does the clean fill policy apply to both active and abandoned mines?
Answer: The policy does not apply to fill being placed in active or abandoned mines unless the activity is permitted or approved by the Department as part of a facility specific reclamation project.

Question: Under the Fill Management Policy, if fill material is excavated within a right-of-way, can the material be put back into the right-of-way? What if the concentrations exceed the clean fill values?
Answer: According to the Management of Fill policy, excavated material can be put back into a right-of-way without a permit. This provision applies to material that qualifies as regulated fill. Placement of clean fill by definition does not require a permit. Material that exceeds the values in Table GP-1 for regulated fill must be managed as waste under a permit.

Question: Under the Fill Management Policy, if the site that is the source of regulated fill is not an Act 2 site and the receiving site is, is a General Permit required?
Answer: Yes.

Question: Under the Fill Management Policy, how is background defined? After fill is placed, can the level of regulated substances in it be used as the background level for future fill placements?
Answer: The background provision of Condition 7 applies to the substances on Table GP-1b (inorganic substances). Background is the concentration of a substance present on a site before beneficial use activities occur under the general permit. This is intended to be the concentration before any placement of fill has occurred. Credit cannot be taken for concentrations in any fill that has previously been placed under the general permit. For any fill placement, either the first time or multiple times at a receiving site, either the higher of the values in Table GP-1 or the receiving site background will be the ceiling concentration.

Question: Under the Fill Management Policy, how is this situation handled? In constructing a new highway, is PADOT required to test for all regulated substances on an agricultural area where pesticides and/or herbicides were used, or is testing only required if there is a known spill of pesticides and/or herbicides.
Answer: PADOT could just do screening rather than full blown testing in areas that are not known to be subject to a spill or release unless the results indicate that more in-depth testing is needed.

Question: Under the Fill Management Policy, can discretion be used in the sampling protocol, for example 12 samples per 3,000 yd3. of material? Can a determination be made in a lesser number of samples?
Answer: One can use the procedure in Appendix A(d) which refers to 250.707(e). Also, when the contamination in the material is known to be fairly uniform and without "hot spots" (from existing data, records, etc.), then fewer samples may help confirm the already recorded contamination levels. In order to reduce the sampling frequency required by Appendix A, one should be able to demonstrate that contamination is uniform in that pile or at that location.

Question: Under the Fill Management Policy General Permit, is the registration applied to the source, the destination, or both?
Answer: The registration applies to both. The registration process requires that the applicant identify the receiving property where the material will be used as construction material. An application for registration may include one or more sources of fill material. As stated in Condition 26, a registration is required for each location of beneficial use. A registration will be required for each new site where fill will be beneficially used. If one applies for more than one receiving site, a separate registration may be received for each receiving site in that group. Furthermore, an applicant must indicate in the application where all of the regulated fill will be coming from and can include more than one fill generating location. ( See 26(b)). If a new fill generating location is to be added to an existing registration for a receiving site, the permittee must follow Condition 28 and submit information requested in subparts (a) - (f) of Condition 26.

Question: Under the Fill Management Policy, if a property receives regulated fill from multiple sources, are multiple deed notices required?
Answer: The deed notice requirements are that the exact location and the chemical composition of the fill be noticed in the deed. If fill from multiple sources is placed at different locations on a property, all locations must be identified. If fill from multiple sources is placed at one location at a receiving site, all of the fills with their chemical analyses must be included in the deed notice as well as each fill's exact location in that receiving site. If placement occurs over a period of time, this may require multiple deed notices for a property.

Question: Under the Fill Management Policy, if a site is receiving regulated fill from three sites, are registrations required for each source?
Answer: If the three sources of fill are already listed in the original registration application for a site where the fill is to be used beneficially, then only one registration is required, per Condition 26(b). If all three sources are not included in the original registration, then the information required in Condition 26(a) - (f) should be submitted for each new source of fill for that site, and the new fill sources should be included in the existing registration, per Condition 28.

Question: Under the Fill Management Policy, is a broker of waste required to obtain a permit for the use of fill when a receiving site is found?
Answer: If the receiving site is already registered under this general permit, then this would be a new source of fill that needs to be registered under Condition 28. If the receiving site is not registered, the broker or site owner can apply for registration under this general permit.

Question: Is regulated fill a waste that is subject to the storage and transportation requirements of the municipal and residual waste regulations?
Answer: Yes.

Question: If regulated fill is going into a large quarry, how many certifications and deed notices are required?
Answer: A quarry, which is an open pit, cannot be filled using this general permit, which is issued under the authority of the residual waste regulations. Section 287.611(e)(3) of these regulations states that a general permit will not be issued for the "use of residual waste to fill open pits from coal or noncoal mining except for coal ash mixed with residual waste. . ." Also, this general permit requires the material to be used as construction material and in connection with an approved construction project. Quarry reclamation does not fit that activity. Furthermore, the definition of "construction material" in the residual waste regulations does not include valley fills or the use of residual waste to fill open pits from coal or other mining.
Regulated fill may be placed on previously reclaimed mine lands in association with an approved construction project, subject to the requirements of the general permit, including the prohibition on placing regulated fill into waters of the Commonwealth.

Question: Under the Fill Management Policy, if clean fill is used as cover in a landfill, is the clean fill considered a waste that is subject to fees?
Answer: No, fill material is not a waste if it meets the requirements for clean fill under the policy. Fees are not required in this case.

Question: Under the Fill Management Policy, if the clean fill status of material that is coming into PA from NJ is questionable, may the regional office staff require testing?
Answer: DEP staff can request additional sampling if there is reason to believe that the material does not qualify as clean fill.

Question: Can the clean fill certification form that is provided to the owner of the receiving property also be required to be given to the Department?
Answer: No. However, the Department may request this information if it receives complaints regarding the placement of the fill.