Brownfields and Voluntary Cleanup (Act 2) Program
On February 15, 2020, Pennsylvania’s Environmental Quality Board (EQB) published proposed amendments to Pennsylvania’s Land Recycling and Remediation Standards (Act 2) Regulations.
The proposed amendments, published in the Pennsylvania Bulletin, include the following:
- PFAS: Statewide Health Standards (SHS) will be added for Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), and Perfluorobutane Sulfonate (PFBS). Previously unregulated, Pennsylvania will now adopt the USEPA Health Advisory Limit of 70 ng/L for PFOA and PFOS combined.
- Other Statewide Health Standards: The SHS for many organic and inorganic compounds will be updated based on the latest scientific information. Most notably, the Ingestion Factor for groundwater has been increased by 20% for both residential and non-residential exposure scenarios, due to people’s increased desire to hydrate. Groundwater ingestion factors have been increased from 2.0 L/day to 4 L/day for residential intake, and 1.0 to 1.2 L/day for non-residential intake, resulting in lower SHSs for many compounds.
- Total PCBs in Soil: Numeric values would be calculated for total polychlorinated biphenyls in soil. PCPG reports that the Department agrees with the Cleanup Standards Science Advisory Board’s suggestion to keep the individual Aroclors in all of the tables, including Table 5A. Unfortunately, the incorrect version of Table 5A was provided to, and approved by, the EQB and the correction will be made prior to publication of the Final Rulemaking and an explanation for the correction will be provided in the Comment Response document.
- Professional Seals: This proposed new section mirrors language from § 245.314 (relating to professional seals) of the storage tank regulations, requiring that reports submitted to the Department which include professional geologic or engineering work be sealed by a professional geologist or engineer.
The 60-day public comment period for this proposed rulemaking ends on April 14, 2020.
Although the new standards have not yet been formally adopted, they should already be taken into consideration during Phase I and Phase II environmental due diligence assessments.
Act 2 Technical Guidance Manual – The Use of Caps as Engineering Controls
PADEP plans to finalize and publish an Appendix to the Act 2 TGM providing guidance for the use of caps as engineering controls. The planned release date is March 2020. The document will apply solely to the use of caps in attaining an Act 2 standard. It will be guidance, not regulation, and will be provided to inform remediators of recommended best practices.
The document will include guidance on cap design, construction materials, demarcation layers, documentation, maintenance, inspections, and reporting.
Look for this guidance policy to be published soon in the Pennsylvania Bulletin, followed by a 30-day public notice period for comment. Upon approval, the policy will be appended to the Act 2 TGM. For those who can’t wait, click this link…Environmental Cleanup Brownfields
Management of Fill Policy
As discussed in our January 2020 Newsletter, the PADEP’s new Management of Fill Policy went into effect on January 1, 2020. Some important take-aways include:
- The new Policy eliminates the previous numeric standards (Table GP-1), which were developed in 2004. It replaces them with Act 2 Statewide Health Standards – the lower of the current residential direct contact numeric values for soils and the residential generic soil-to-groundwater numeric values. Consequently, the clean fill standards will automatically be updated when the Act 2 regulations are next amended (see update above).
- The amount of lab testing required for “Clean Fill” determinations can be significantly reduced through “due diligence”. Your trusted environmental professional can help you to determine how much due diligence is needed, how much it can potentially save in lab costs and time, and whether it’s worth it.
- Once it is determined that fill material meets the definition of “clean fill”, a Certification of Clean Fill form (FP-001) (hot link ? attached form) must be filed electronically with PADEP (for informational purposes but not approval) before the fill material is transported to the receiving site. Beware – PADEP can review your FP-001 submission, after the fact, and come back to you if they don’t think that it’s sufficient. Therefore, it’s important to properly cover your bases before sending fill offsite.
- A clean fill determination can be made if it is shown that the concentrations of analytes exceeding the relevant Act 2 standards are actually below background concentrations in soils in the area of the site. However, not only must the fill material be shown to meet background concentrations from the donor site, they must also be shown to meet background concentrations for the receiving site in order to send the material to that property.
Regulated Fill – PADEP General Permit No. WMGR096.
If fill material is determined to not meet clean fill standards, it may still meet “regulated fill” standards, which can still provide significant project cost savings when compared to sending the material to a landfill.
Since the material contains compounds above clean fill standards, regulated fill is still classified as a residual waste. Therefore, it must be managed properly – in accordance with General Permit No. WMGR096 (hot link?). This general permit was scheduled to expire on December 23, 2019 but couldn’t be modified for reissuance until after the new Management of Fill Policy was finalized. Therefore, WMGR096 was extended in its existing form until June 23, 2021.
PADEP says that they plan to release proposed modifications to General Permit No. WMGR096 in the 2nd Quarter of 2020. Stay tuned…