Historic Fill

Over the last twenty years, more and more states have started to implement regulations related to the handling and management of historic fill. While the presence of historic fill appears to be centered around densely developed urban areas, contaminants have been discovered which can also be attributed to agricultural operations. Studies thus far have been primarily of an academic nature; however, as trends are identified, regulations are gradually implemented either at a state or city level, depending on regulatory agency oversight requirements.

Since historic fill is not federally regulated, the terminology tends to differ between regulatory agencies and has led to some confusion regarding management and remediation. States that have more robust regulations on historic fill include New Jersey, New York and Pennsylvania. States like Oregon and Ohio have established either internal directives (OR) or have developed published definitions and permitting (OH) in an effort to help agency employees and state residents. In areas where there is no state regulatory guidance, such as the San Francisco Bay Area in California, ordinances have been developed to assist local government agencies in dealing with historic fill.

Below are definitions related to historic fill as documented by various regulatory agencies:

New Jersey

Historic Fill is non-indigenous material placed on a site in order to raise the topographic elevation of the site. No representation is made as to the composition of the fill or presence of contamination in the fill. The "Brownfield and Contaminated Site Remediation Act" (N.J.S.A. 58:10B-1 et seq.) requires the Department of Environmental Protection to map regions of the state where large areas of historic fill exist and make this information available to the public. As currently defined in statute, historic fill meets the definition of a discharge within the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11) and therefore requires remediation.

Historic Fill Material means non-indigenous material, deposited to raise the topographic elevation of the site, which was contaminated prior to emplacement, and is in no way connected with the operations at the location of emplacement and which includes, without limitation, construction debris, dredge spoils, incinerator residue, demolition debris, fly ash, or non-hazardous solid waste. Historic fill material does not include any material which is substantially chromate chemical production waste or any other chemical production waste or waste from processing of metal or mineral ores, residues, slag or tailings. In addition, historic fill material does not include a municipal solid waste landfill site. (N.J.A.C. 7:26E-1.8). Historic Fill Material was used extensively throughout the state, particularly along industrialized water front areas in North-Eastern and South-Western New Jersey. The NJDEP considers historic fill material an Area of Concern (AOC) pursuant to the Technical Requirements.

Pennsylvania

Historic fill is material (excluding landfills, waste piles and impoundments) used to bring an area to grade prior to 1988 that is a conglomeration of soil and residuals, such as ashes from the residential burning of wood and coal, incinerator ash, coal ash, slag, dredged material and construction and demolition waste. The term does not include iron or steel slag that is separate from residuals if it meets the coproduct definition and the requirements of 25 Pa. Code § 287.8. The term does not include coal ash that is separate from residuals if it is beneficially used in accordance with 25 Pa. Code § 287.661 - 287.666.

Regulated fill is soil, rock, stone, dredged material, used asphalt, historic fill, and brick, block or concrete from construction and demolition activities that is separate from other waste and recognizable as such that has been affected by a spill or release of a regulated substance and the concentrations of regulated substances exceed the values in Appendix B, Tables FP-1a (Organic Constituents) and FP-1b (Metals and Inorganic Constituents).

New York

Historic fill material means non-indigenous or non-native material, historically deposited or disposed in the general area of, or on, a site to create useable land by filling water bodies, wetlands or topographic depressions, which is in no way connected with the subsequent operations at the location of the emplacement, and which was contaminated prior to emplacement. Historic fill may be solid waste including, but not limited to, coal ash, wood ash, municipal solid waste incinerator ash, construction and demolition debris, dredged sediments, railroad ballast, refuse and land clearing debris, which was used prior to October 10, 1962. Any soil or soil-like wastes from any area which was operated by a municipality or other person as a landfill is not considered historic fill. For purposes of a remedial program, historic fill does not include any material which is chemical production waste or waste produced on the site from processing of metal or mineral ores, residues, slag or tailings. [see 6 NYCRR 375-1.2(x)]

It is important to note that historic fill, as defined above, does not include landfills or municipal solid waste. This distinction is important since some states (eg. Wisconsin DNR RR-683, 684 and 685) use the term “historic fill” specifically to describe landfills.

With increased urban renewal projects and redevelopment of densely populated areas on the rise, it seems logical that regulatory guidance for historic fill will continue to be developed. Regulatory agencies will be prompted to develop new guidance to assess historic fill as contamination is identified. This was the case in Boston, where more than 5,000 acres of man-made land was created since the city’s founding (MassDEP guidance is currently in draft format and available for public comment).

The remediation of historic fill has been problematic due to the lack of consistency in regulatory compliance requirements. Some states have established flexible policies, which might include managing the historic fill in place and implementing use restrictions. Other states may require more stringent cleanup compliance or, in some instances, have no regulations at all.

It is important for anyone desiring to redevelop a property, to be aware of the regulatory requirements (or lack thereof) as they assess possible uses for a facility impacted by historic fill.