Uncovering historic fill can be an unwanted surprise for a real estate development project. The need for unexpected testing and possible landfill disposal can crush a project budget. However, with proper due diligence and planning, you can avoid unexpected delays and costs.

What is Historic Fill?
Historic Fill is non-indigenous material that was previously placed on a property in order to raise the topographic elevation of the site. The fill material was typically imported from offsite, and had nothing to do with the operations conducted onsite. The material generally contains mixtures of soil and residuals, including coal or wood ash, foundry sands, construction or demolition debris, and/or dredge spoils. The source of the material is usually undocumented, and problems arise because it is often contaminated by residual metals and/or hydrocarbon compounds at concentrations exceeding regulatory cleanup standards.

Since historic fill is not federally regulated, various state agencies have developed their own specific definitions for “historic fill” in their states, and they have differing requirements for its management and remediation. Pennsylvania and New Jersey have some of the more robust regulations and policies on historic fill, but their approaches are very different. It is important to know the differences (see below).

How to Limit Surprises
Proper environmental due diligence (a Phase I ESA) should identify whether there is the potential for contaminated historic fill to be present on a property. If the potential is identified, Phase II sampling and analysis can confirm whether fill is contaminated, and whether it falls under that state’s definition of historic fill.

Historic fill is often found in urban locations, but can be found in suburban and rural locations, as well. The approach for assessing the fill should be site-specific, based on the project goals and design, geotechnical considerations, and State-specific regulations.

For instance, often times a site will have soil/fill material that is not physically suitable for constructing a building, based on a geotechnical study. The unsuitable soil/fill is shipped offsite. If this fill is classified as contaminated historic fill, it would need to be sent to a permitted landfill, at a cost of tens of thousands to hundreds of thousands of dollars. This could obviously cause major project delays and cost overruns. However, if this issue was identified during due diligence, the problem could have been avoided, or renegotiated upfront.

Different States Have Different Requirements
In most states, including Pennsylvania and New Jersey, there is no regulatory requirement to physically remove contaminated historic fill from the property. It can remain onsite. However, between these two states, not only is historic fill defined differently, but there can be significant differences in how the fill can be managed onsite, potential residual liabilities, and ongoing reporting and care obligations. Here are some highlights:

New Jersey

The biggest difference between Pennsylvania and New Jersey is that, as currently defined by statute, historic fill meets the definition of a discharge within New Jersey’s Spill Compensation and Control Act (N.J.S.A. 58:10-23.11), and therefore requires remediation.

Based on this requirement for remediation, the NJDEP has enacted regulations (N.J.A.C. 7:26E-5.4 and the NJDEP Historic Fill Material Technical Guidance Document) detailing requirements for the investigation and remediation of historic fill. Consistent with New Jersey Technical Regulations, a series of reporting and administrative filings will also be required to document the presence, delineation, remediation, and certifications for remediation of historic fill. In addition, the reporting and filings are required to be approved and signed by a Licensed Site Remediation Professional (LSRP) registered in the State of New Jersey.

There is flexibility in selecting the remedial strategy, and it can be tailored to property uses (i.e. residential vs. industrial use). The fill can be left onsite, if desired, by “remediating” through the use of engineering controls (e.g. capping at residential establishments), or institutional controls (e.g. deed notice), and a Soil Remediation Permit to ensure the continued protectiveness of the engineering control. But even this simplest of remedial strategies still requires a full delineation of the historic fill, the previously referenced administrative filings, and long-term reporting and care obligations until the controls and Remedial Action Permit are removed.

It should also be noted that New Jersey’s “Brownfield and Contaminated Site Remediation Act” requires the NJDEP to map regions of the state where large areas of historic fill exist and make this information available to the public. These maps are currently available, which is useful in conducting due diligence prior to purchase of a property, but can have other implications if you already own the property.

Pennsylvania

The management and handling of all fill material in Pennsylvania is regulated by the PADEP’s Management of Fill Policy (August 7, 2010). In this policy, defined classes of fill material include clean fill, regulated fill, and historic fill. The biggest differences between Pennsylvania and New Jersey are that, in Pennsylvania:

–      there is no obligation to remediate historic fill, and

–      the State has not mapped regions of the State where historic fill is known to exist.

If fill is known to have existed prior to 1988, even if it is identified as contaminated, it is defined as historic fill and there is no obligation to clean it up or delineate it. However, if you dig it up, and send it offsite, it must be sampled, analyzed, and characterized as a waste, unless sampling demonstrates that the material meets clean fill standards.

Also, in PA, if materials were buried or used to fill an area prior to 1980, it may not be classified as a waste at all, since it pre-dated Pennsylvania’s Solid Waste Management Act (Act 97).

Final Thoughts
The discovery of contaminated historic fill can introduce unwanted delays and significant cost increases to a development project. The extent of these impacts can be affected greatly by the particular State in which the project is being conducted, especially in Pennsylvania and New Jersey. Therefore, it is important to have a strong understanding of fill management policies and regulations, before digging into your real estate development project.

Project delays and cost increases can be avoided, or at least managed, by including historic fill evaluations as part of your environmental and geotechnical due diligence studies. By considering the potential presence of historic fill upfront, and incorporating its presence into your preliminary site design, you can avoid costly surprises during the project, and stay on-time and in-budget.

If you have questions regarding the management of historic fill, or other related issues, you may contact David Farrington, P.G. at dfarrington@brickhouse-environmental.com, or Alfred Yates, P.E. at ayates@brickhouse-environmental.com for further detail. Or feel free to call us at 610-692-5770.

Most people probably still not have heard of Perfluorooctanoic acid (PFOA) or Perfluorooctane sulfonate (PFOS), but for many people living near U.S. military bases, these chemicals have become very well known. Over the past few years, PFOS and PFOA have been generating headlines across the country, with drinking water contamination from firefighting foams reported on and around at least 37 military bases in 19 states. In the Philadelphia region, the highest profile contaminated military sites include the former Willow Grove Naval Air Base and current Horsham Air Guard Station, and the former Naval Air Development Center in Warminster, Bucks County, as well as New Jersey’s Joint Base McGuire-Dix-Lakehurst, and the Delaware Air National Guard Base in New Castle, Delaware.

PFOS and PFOA, the two most notable of the Perfluorinated compound (PFC) family, have been found in the blood of humans, wildlife, and fish. Adverse health risks associated with exposure to PFCs include developmental issues and select types of cancer (i.e. kidney cancer). These chemicals were widely used in firefighting foams from 1970 to 2015, to extinguish fires from aviation fuels at military sites and airports. On May 25, 2016, the United States Environmental Protection Agency (EPA) issued a public health advisory, and established health advisory levels of 70 parts per trillion (ppt) for PFOA and PFOS in drinking water. This interim standard is very low, and is especially impactful, considering that the compounds were previously unregulated in drinking water supplies. More recently, the States of Delaware and New Jersey have issued even stricter regulatory standards of 7 (PFOA and PFOS) and 14 (PFOA) ppt, respectively.

After the EPA classified these compounds as “emerging contaminants,” the Department of Defense required testing of water quality at nearly 400 facilities where the firefighting foam was used. The results have been staggering for some of these communities, as public water supplies have been shut down, due to significant exceedances of the EPA health advisory standards. More studies are yet to come, as Congress’ recently approved Omnibus spending bill allocated $44 million to the Air Force and $44 million to the Navy, to conduct additional studies and remediation, specifically on sites with suspected and/or confirmed PFOA and PFOS contamination.

As more studies are conducted, PFCs are being found in water supplies near other types of non-government facilities, including certain types of manufacturing plants, fire safety training centers, airports, and other undetermined sources. Locally, PFOA and PFOS have impacted drinking water supplies in two additional Bucks County neighborhoods, at the Ridge Run PFC Site in East Rockhill, and the Easton Road PFC Site in Doylestown. These Sites are actively being investigated by the Pennsylvania Department of Environmental Protection.

How Do PFCs Travel in the Environment?

The chemical characteristics of these compounds make them highly soluble in groundwater and persistent in the environment, as they do not hydrolyze, photolyze, or biodegrade. As a result, PFCs can migrate long distances through groundwater, and have been documented in contaminant plumes extending over one mile from the source area. Environmental release mechanisms have been documented to include direct discharge to the ground from extinguishing fires or in fire safety training areas, discharge of waste water to soils or drainage lines, land application of contaminated sludges, and dispersion from industrial air or vapor emissions. Once discharged to the surface soils, the soluble compounds migrate down to the groundwater with infiltrating precipitation, and disperse from there.

How Do They Impact Environmental Due Diligence?

PFOA and PFOS present special challenges for the Environmental Professional when conducting Phase I and Phase II Environmental Ste Assessments (ESAs). It is essential to stay up-to-date with both Federal and State regulations and advisories, which are continuously being updated for these compounds, as more is understood. Interim standards and advisory levels vary from state to state, and are often not included in a state’s published list of cleanup standards.

Consider a typical Phase I ESA for a commercial or industrial property transaction. As part of All Appropriate Inquiry, as defined by the EPA, the Environmental Professional typically follows specific protocols outlined in ASTM’s Standard Practice for Phase I Environmental Site Assessments, to evaluate whether potential environmental liabilities are present. Standard practice includes inquiry of reasonably available public records sources, to gather readily available information for the subject property and surrounding area.

This records search and review is typically accomplished through the acquisition and review of a Regulatory Database Report, which is available through specialized database providers; But due to the lack of published health standards and the short period of time since the publication of the EPA health advisory, there can be a lag time before even the known PFC sites make it onto these databases.

As a result, it is essential that the Environmental Professional keeps up-to-date with both the regulatory and technical landscape, as both are continuously evolving. They will need to rely on their specialized knowledge and experience to know when to dig deeper, and what questions to ask, to determine whether a property may have a greater potential for PFOA or PFOS liabilities.  In a Phase I ESA, this carries through the interview process, the site reconnaissance, and the historical research of the property and neighboring properties. For a manufacturing site, the Environmental Professional needs to consider whether PFCs were ever part of the onsite manufacturing process. For commercial sites, we need to consider all potential offsite sources, current or historic, and evaluate the potential for the PFCs to have migrated onto the property from those offsite sources; And, of course, if fire-fighting foams were used onsite or on nearby properties.

The next set of challenges comes when there is a recommendation to collect groundwater or soil samples for PFOA and PFOS analyses. Specialized sampling equipment and techniques are required to prevent “false positive” detections, due to cross-contamination from sampling equipment, bottleware, lab equipment, or any number of other sources. Thus, in addition to a top-notch laboratory, an experienced Hydrogeologist and a solid QA/QC team are crucial for assuring accurate analytical results.

If you would like to know more about PFCs and other emerging contaminants, please contact one of our experienced Hydrogeologists at Brickhouse Environmental. We will be glad to assist you in any way that we can.