1. 1 Draft Final Safe Fill Regulations

2. 2 W hat’s new in Safe Fill Definition? Definition is short as a result of: – Due diligence procedures moved to existing §287.11(a) – Exceptions to safe fill moved to a new section, §287.12 (Determination that a material is safe fill – Placement along waterways moved to another new section, §287.13

3. 3 Safe Fill Process Material is:  Safe fill by Definition – Unrestricted use  Safe fill by Determination – Restricted uses  Otherwise waste – PBR, General Permit or individual permit for beneficial uses – Disposal

4. 4 Safe Fill Definition Limited to the following uncontaminated materials: – Soil including rock and stone – Dredged material – Used asphalt – Brick, block, concrete or mixtures of brick, block, concrete generated from C/D activities must be separate from other c/d wastes Recognizable as brick, block or concrete Examples of other c/d wastes that may contaminate: wood waste, metal, plaster, gypsum, paper, lead painted materials, wiring, etc.

5. 5 Safe Fill Definition (continued) Materials are uncontaminated safe fill based on the following: – Not affected by a spill or release (determined by appropriate level of due diligence) – No visible staining, odor or sensory nuisance from chemical contaminants associated with the material does not include staining from normal vehicular use or dripping lubricant – Meet numeric standards of §287.11(b) --- lower of: residential generic value or the lowest residential direct contact numeric value(risk-based Statewide health standards) – Sampled and analyzed based on procedures in §287.11(c-f)

6. 6 Safe Fill Definition (continued) Safe Fill Definition (continued) Material may be safe fill under 287.12 (Determination that a material is safe fill) Burden of proof on user to demonstrate material is safe fill Placement in Waters require Department approval and comply with §287.13 (Relationship of safe fill to surface waters) Safe fill not regulated as waste with one exception : – Materials determined to be safe fill under §287.12 are regulated as waste until used as safe fill

7. 7 Due Diligence and Safe fill Numeric Standards – §287.11 (continued) Due diligence requirements moved to 287.11(a) – 2 options instead of proposed three options – Possible to screen by field or laboratory testing to verify spill or release or confirm due diligence results Numeric standards moved to §287.11(b) – No changes to proposed safe fill numeric standards – No changes to proposed composite and discrete sampling procedures in §287.11, moved to subsections (c), (d) & (e)

8. 8 Due Diligence and Safe fill Numeric Standards – §287.11 – PQL (practical quantitation limitation) added to demonstrate compliance with safe fill numeric standards if lower than PQL – Statistical analysis provisions for large sites or piles added, to a new subsection, (f). Overall, draft final regulations allow for field and laboratory screening of material including composite, discrete or statistical sampling and analyses for safe fill by definition or determination and for the permits by rule provisions.

9. 9 New §287.12 Determination that a material is safe fill Two options under safe fill determination: 287.12(a)(1) and 287.12(a)(2) §287.12(a)(1) – requirements for determination are: – Material exceeds SF numeric std. but is not affected by a spill or release – Soil or drained dredged material only qualify – No visible staining, no odor or nuisance does not include staining due to normal vehicular use and dripping lubricant – Numeric standards may be > safe fill but may not be > the cap (cap = lower of nonresidential direct contact or nonresidential generic value of SHS)

10. 10 §287.12(a)(1) (continued) Determination that a material is safe fill Use of material limited to: – Within a right-of-way – Offsite of residential property – Within a property For drained dredged material, additional uses limited to: – Beach nourishment on land adjacent to dredging (consisting mainly of sand and gravel) – Soil additive/soil substitute for commercial or industrial purposes or, – blended with clean soil/dredge to use as fill for residential purposes. Blend must meet safe fill numeric standards

11. 11 §287.12(a)(2) (continued) §287.12(a)(2) - Requirements for determination are: – Material affected by a spill or release – Soil, drained dredged material, historic fill, and recognizable brick, block, concrete or their mixtures (no waste) qualify – Visible staining acceptable but no odor or nuisance – Num. standard may be above SF but < cap Use of material limited to: – Within a right-of-way – Historic fill can be moved offsite in amounts < 500 cy/excavation location; used as fill or as construction material – Within a property

12. 12 §287.12(b) (continued) Determination that a material is safe fill Numeric standards capped under determination – The cap is lower of : lowest nonresidential direct contact or nonresidential generic value from soil-to-groundwater pathway numeric values

13. 13 §287.12(c) (continued) Determination that a material is safe fill Safe fill determination under (a)(1) & (a)(2) require: – Appropriate level of due diligence for material not subject to a spill or release under (a)(1) – Sampling /analysis for material subject to a spill or release under (a)(2) – Sampling/analysis based on 287.11 (c - f) – user maintains documentation to support determination

14. 14 §287.12(c) (continued) Determination that a material is safe fill – User submits proof of recorded deed notice to Department that includes following: exact location by latitude and longitude of the fill placement list contaminants and their concentrations – Location and contaminant description part of the deed for all future conveyances or transfers of subject property

15. 15 §287.12(c)(7) (continued) Determination that a material is safe fill Deed notice not required if: – Material is not affected by a spill or release in accordance with § 287.12(a)(1) and exceeds SF but is equal to or below the cap, or – Material is affected by a spill or release in accordance with § 287.12(a)(2), is below the cap but also at or below the background level at the property

16. 16 §287.12(d) to (g) (continued) Determination that a material is safe fill Placement in Waters prohibited Not regulated as waste when used as fill Storage/transportation requirements of Chapter 299 apply Zoning restrictions when sf num. Std. exceed – Offsite movement when allowed only to zoned commercial/industrial properties – Unzoned commercial/industrial use only where background contaminants > those in the material Burden of proof on user

17. 17 New §287.13 (continued) Relationship of Safe Fill to surface Waters For placement of safe fill into or along surface waters: – If approved under Chapter 105, material may not produce leachate in excess of residential GWMSC for used aquifer and TDS<2500 mg/L by SPLP analysis – Comply with water quality standards in Chapters 16 & 93 For placement into waters as part of an active or abandoned mine or abandoned quarry reclamation: – 10% of safe fill numeric standards for contaminants – Approved sampling/analysis plan required – Comply with water quality standards in Chs.93 & 16

18. 18 §287.13 Relationship of Safe Fill to surface Waters – For metals, in lieu of 10%, SPLP analysis to show material does not produce a leachate in excess of residential GWMSC for used aquifer/TDS<2500 mg/L. SPLP only if GW monitoring is conducted where material is to be placed Material determined safe fill under §287.12, may not be placed into waters of the Commonwealth

19. 19 Changes to Permits by Rule §271.103(i) & §287.102(j) (continued) §271.103(i): PBR for beneficial use of contaminated brick, block or concrete or mixtures of brick, block or concrete from C/D activities that do not meet SF definition – Clarification that it should not be mixed with other c/d wastes and brick, block or concrete should be recognizable, as such. Three proposed PBRs -(j), (k) & (l)- in §287.102 are consolidated into one PBR, now subsection (j)

20. 20 Changes to Permits by Rule §271.103(i) & §287.102(j) (continued) PBR §287.102(j) for beneficial use of contaminated soils, dredged material, used asphalt and historic fill (j) can be used also for material that is not subject to a spill or release but exceeds safe fill numeric standards and proposed for uses not authorized under §287.12(a) Numeric standards based on nonresidential SHS instead of proposed residential SHS – Lower of the nonresidential generic value or the lowest nonresidential direct contact value SHS (Tables 3 & 4) – For drained dredged material TCLP or SPLP required

21. 21 Permits by Rule (continued) §271.103(i) & §287.102(j) Material may be beneficially used: – To bring an area to grade – As construction material – In reclamation of active/abandoned mines or abandoned quarries if approved by the Department or under Department contract – For control of fire and subsidence events

22. 22 Permits by Rule (continued) §271.103(i) & §287.102(j) All conditions proposed for the two PBR are retained and following new ones added: – Document longitude and latitude of location where material is placed for beneficial use – Eliminate direct contact pathways promptly & permanently by using engineering controls – User to maintain records of analytical evaluations that include: a recorded, amended deed that shows the exact location where material is placed at the property including description of contaminants from sampling and analysis deed to be part of all future conveyances or transfers of subject property

23. 23 Permits by Rule §271.103(i) & §287.102(j) – User submits a copy of recorded deed notice to Department with latitude/longitude of placement, contaminants detected including concentrations Placement into or on waters prohibited Except for reclamation, when used to bring an area to grade, material not to be used in a way to create a landfill or a valley fill

24. 24 Permit by Rule - §287.102(k) Proposed PBR (m) for placement of contaminated soil at a site undergoing remediation is now subsection (k) with following minor changes: – Sampling and analysis based on §287.11 (c – f) – PQL to demonstrate compliance with the applicable SHS used as remediation standards

25. 25 Other Changes (continued) Historic fill definition amended by deleting 287.1(ii) due to: – Moved volume exemption to §287.12(a)(2)(ii) – Spill or release requirement from exempted volume deleted §287.2 (relating to Scope) expanded to include following activities as not regulated under the residual waste regulations: – §287.2(e)(3): noncoal materials from noncoal surface mining activities as defined §77.1, and in compliance with Noncoal Surface Mining Conservation and Reclamation Act

26. 26 Other Changes – §287.2 (e)(4): Commercial dredging operations where mainly sand and gravel are dredged in compliance with Department-issued Chapter 105 permit, 401 certification, and consistency determination under the Coastal Zone Management Program

27. 27 Changes to Appendix A (continued) Proposed Tables 3 (short list under safe fill), 4, 5 and 6 (under PBR) are deleted due to: – Two options for due diligence instead of proposed three options – testing is based on substances suspected or identified by knowledge, due diligence or both – Consolidation of 3 PBRs into one PBR in 287.102(j)

28. 28 Changes to Appendix A Changes to Appendix A Tables 1 and 2 (safe fill numeric standards) are updated to include numeric standards applying under §287.12 and listed as a range (>safe fill <cap) New Table 3 – lists numeric standards for organics under the PBR provisions in 271.103(i) & 287.102(j) New Table 4 – lists numeric stds. for metals and inorganics under the PBR, 271.103(i) & 287.102(j) Numeric values in all 4 Tables are corrected to be in compliance with the SHS in amended Act 2 regulations

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