Updated DEP Fill Material Guidance To Facilitate Redevelopment
Developers of brownfields and sites regulated by the New Jersey Department of Environmental Protection’s (“DEP”) Site Remediation Program (“SRP”) often struggle with the issue of testing quarry/mine material used as fill. Suppliers of quarry/mine material are typically reluctant to and often will not allow testing prior to delivery of the material, leaving developers at risk of enhanced remediation obligations if fill material contains hazardous substances above applicable cleanup standards, even if those substances are naturally occurring at the point of origin. Testing quarry/mine fill materials also increases the cost of development compared to development at sites that are not regulated under the SRP, as quarry/mine material may be freely used as fill without testing and is not regulated at sites that are not under SRP jurisdiction.
This dilemma has been effectively addressed with DEP’s May 1, 2015 release of revised Fill Material Guidance for SRP Sites dated April 2015. The guidance clarifies that certified quarry/mine material from a licensed quarry/mine facility may be used as fill at an SRP site without sampling and testing. There may be case-specific circumstances that trigger a need to test quarry/mine fill material, including if the material comes from a quarry/mine that is not licensed or when the fill material comes from a licensed facility but lacks a certification by the licensed quarry/mine operator that the material has not been subject to a discharge of hazardous substances. Additionally, the Guidance clarifies that a Licensed Site Remediation Professional has the discretion to evaluate certifications given by a licensed quarry/mine operator and has the discretion to require testing. However, absent some evidence calling the fill material certification into question, as a general rule, testing of certified quarry fill material should not be required.
DEP’s updated Fill Material Guidance should facilitate and reduce the cost of development and redevelopment while limiting the risk of remediation obligations being triggered by potential naturally occurring conditions associated with the quarry/mine source material. The Guidance clarifies that certified quarry/mine material is a distinct class of material separate from “clean fill”. Accordingly, developers and land owners should carefully review their contracts, development agreements, and other transactional documents to ensure they are updated to appropriately account for this distinction.