[25 PA. CODE CHS. 271 AND 287]
[32 Pa.B. 564]
The Environmental Quality Board (Board) proposes to amend Chapters 271 and 287 (relating to municipal waste--general provisions; and residual waste management--general provisions). The amendments are the result of a comprehensive reevaluation of the Department of Environmental Protection's (Department) present clean fill policy.
This proposal was adopted by the Board at its meeting of November 20, 2001.
A. Effective Date
These proposed amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact William F. Pounds, Chief of the Division of Municipal and Residual Waste, Bureau of Land Recycling and Waste Management, P. O. Box 8472, Rachel Carson State Office Building, Harrisburg, PA 17105-8472, (717) 787-7564, or Michelle M. Moses, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposal appears in Section I of this Preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department's website (http://www.dep.state.pa.us).
C. Statutory Authority
The proposed rulemaking is being made under the authority of the following:
The Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.101--6018.1003), which in section 105(a) of the SWMA (35 P. S. § 6018.105(a)) grants the Board the power and the duty to adopt the rules and regulations of the Department to carry out the provisions of the SWMA.
The Clean Streams Law (CSL) (35 P. S. §§ 691.1--691.1001), which in section 5(b) of the CSL (35 P. S. § 691.5(b)) grants the Department the authority to formulate, adopt, promulgate and repeal rules and regulations necessary to implement the CSL, and which in section 402 of the CSL (35 P. S. § 691.402) grants the Department the authority to adopt rules and regulations requiring permits or establishing conditions under which an activity shall be conducted for any activity that creates a danger of pollution of the waters of this Commonwealth or that regulation of the activity is necessary to avoid pollution.
The Municipal Waste Planning, Recycling and Waste Reduction Act (act) (53 P. S. §§ 4000.101--4000.1904), which in section 302 of the act (53 P. S. § 4000.302) gives the Board the power and duty to adopt regulations of the Department to accomplish the purposes and carry out the provisions of this act.
The Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101--6026.909), which in section 104(a) of Act 2 (35 P. S. § 6026.104(a)) authorizes the Board to adopt Statewide health standards (SHS), appropriate mathematically valid statistical tests to define compliance with Act 2 and other regulations that may be needed to implement Act 2. Section 301(c) of Act 2 (35 P. S. § 6026.301(c)) authorizes the Department to establish by regulation procedures for determining attainment of remediation standards when practical quantification limits set by the United States Environmental Protection Agency (EPA) have a health risk that is greater than the risk levels established in Act 2. Section 303(a) of Act 2 (35 P. S. § 6026.303(a)) authorizes the Board to promulgate SHSs for regulated substances for each environmental medium and the methods used to calculate the SHSs.
The Administrative Code of 1929 (code) which in section 1905-A of the code (71 P. S. § 510-5) authorizes the Department to require applicants for permits and permit revisions to provide written notice to municipalities; in section 1917-A of the code (71 P. S. § 510-17) authorizes and requires the Department to protect the people of this Commonwealth from unsanitary conditions and other nuisances, including any condition which is declared to be a nuisance by any law administered by the Department; and in section 1920-A of the code (71 P. S. § 510-20) grants the Board the power and the duty to formulate, adopt and promulgate rules and regulations determined by the Board for the proper performance of the work of the Department.
D. Background and Purpose
The residual waste program in this Commonwealth was developed under the SWMA. There are currently no comprehensive Federal regulations governing the management of nonhazardous industrial, mining and agricultural wastes (residual waste). The SWMA authorizes the Department to develop and the Board to promulgate regulations to manage residual waste. Under the SWMA, residual waste generally consists of waste from industrial, mining and agricultural operations, and includes nonhazardous sludge from an industrial, mining, or agricultural waste treatment or pollution control facility. On July 4, 1992, the Board promulgated a comprehensive set of regulations for the management of residual waste. The regulations were recently updated, on January 13, 2001, through the Regulatory Basics Initiative (RBI). Under the RBI, the Department reevaluated existing regulations based on specific criteria.
In 1996, after passage of Act 2, the Department revised its clean fill policy and updated the clean fill standards, which are currently in effect. Since that time, the Department has attempted, on two occasions, to revise the interim policy by proposing changes that were open to public comment. First, on August 28, 1997, the Department published a draft clean fill policy. Comments were received during the public comment period. Major comments raised included the following: 1) for metals, the use of 10% of the residential direct contact values from the SHSs in Chapter 250 (relating to administration of land recycling program) as clean fill standards did not take into consideration natural occurrence of the metals; 2) the Cleanup Standards Scientific Advisory Board (CSSAB) should be asked to review the scientific and technical basis for the standards; 3) soils with low concentrations of listed hazardous wastes should be allowed to be used as clean fill provided their use does not pose unacceptable risks to human health and the environment; 4) allow targeted sampling to be conducted to reduce the costs of sampling and analysis and allow the use of statistical tests in Chapter 250 to demonstrate that soil meets the clean fill standards; and 5) provide more flexibility for offsite movement and use of soils remediated under Act 2.
The second and most recent effort to update the standards occurred on March 11, 2000, when the Department developed a safe fill policy and related documents to address the safe movement and use of soil and dredged material as fill or construction material. The documents included proposed amendments to the residual waste regulations to provide flexibility for movement of contaminated soil and dredged material under a permit-by-rule (PBR), for movement of contaminated soil under a general permit for beneficial use, for use of historic fill through exemptions under the waste definition and for movement of waste materials onsite as part of a remediation conducted under Act 2 under a permit waiver. The Department held three public information meetings and hearings for the purposes of presenting and discussing the package and receiving testimony. In addition, written comments were accepted during a 60-day period.
During the public comment period for the March 11 proposal, 40 commentators provided input on the package. The Department considered the comments received at the public hearings and the written comments received on the draft safe fill package in the development of this proposed rulemaking package.
The following is a summary of major comments received on the draft safe fill package and responses indicating how the comments are addressed in this proposed rulemaking.
Draft Safe Fill Policy
Several commentators indicated that safe fill criteria, especially numeric standards, should be issued in regulation form rather than as a statement of policy. In response to these comments, the Department is proposing to include the numeric standards for safe fill in this rulemaking.
Most of the commentators opined that the numeric standards in the draft policy were too restrictive, which would result in regulating slightly contaminated soil as waste. One commentator suggested that safe fill numeric limits must be set at higher levels to be usable and workable on excavation projects. Several commentators recommended that fill should be defined by its use and not by levels of chemical constituents in the material. One commentator indicated that unless there is some evidence that the material proposed to be used as fill is contaminated by virtue of its appearance, odor or historical impacts, the presumption should be that the soil or other materials are uncontaminated and not subject to requirements of the SWMA.
The Department used certain SHSs promulgated under the Act 2 regulations to develop the numeric criteria in the draft policy and also took into account the natural occurrence of metals in soil in establishing numeric criteria for metals. In the proposed rulemaking, the Board is adopting the numeric standards suggested by the CSSAB in their recommended alternative to the safe fill policy proposal. The Board decided, however, that for copper and zinc, criteria based on the EPA Part 503 regulations for the land application of sewage sludge should be used. These criteria, promulgated in the State's municipal waste regulations in § 271.914 (relating to pollutant limits), consider plant toxicity in establishing acceptable levels for copper and zinc in soil.
The proposed safe fill numeric standards in this rulemaking are less stringent than the numeric standards proposed in the draft policy. To compensate for the numeric differences, the proposed amendments indicate that to qualify as safe fill, there must be no indication of a spill or release to the soil and there must be no visual stains, odors or other nuisances. Safe fill is, therefore, defined by impacts to the soil as well as by the numeric standards.
One commentator mentioned that the draft policy undercuts programs, including the Act 2 and residual waste program, and that the Department should seek to build on its existing programs rather than develop a new set of standards on ''how clean is clean'' in this Commonwealth. Since the SHS were developed to address cleanups at contaminated sites, they do not consider the impacts associated with the movement of soils to areas where soils are below the numeric levels used as the threshold for safe fill. In addition, unlike the land recycling program, locations where safe fill is placed are not evaluated from a geological or hydrological standpoint in advance of placement of material.
Several commentators raised concerns about using estimated quantitation limits (EQLs) as safe fill numeric standards for organic regulated substances in the draft policy. The concern expressed was that the use of EQLs would disqualify vast amounts of soil and other materials that may contain background concentrations of organic compounds resulting from airborne deposition and other mechanisms wholly independent of any particular spill or release. The Department used EQLs for organic regulated substances with the understanding that organics do not occur as natural constituents in soil. It is very likely, however, that miniscule quantities of organic substances may be generated by microbial decomposition of plants and soil. To account for this situation, the safe fill numeric standards in this proposal are based on a subset of the SHSs of Act 2. In the proposed regulations, the Board is adopting the numeric standards recommended by the CSSAB in their alternative proposal to the draft safe fill policy. The safe fill numeric value for organic regulated substances is the lower of the residential generic value (RGV) or the residential direct contact (RDC) value from the soil-to-groundwater pathway numeric values for a used aquifer and total dissolved solids (TDS) <=2500 mg/L from Chapter 250, Table 3B of Appendix A.
Commentators also raised concerns on the numeric standards for metals in the draft policy stating that selecting the lower value between the estimated background and residential direct contact values is not appropriate as the SHS are based on health risks and background is based on natural occurrence. Concerns were expressed on the limited database used to develop estimated background values for most of the metals as being too regional to be of use. It was suggested that the Department perform a more detailed study of background concentrations for inorganic regulated substances (metals) in this Commonwealth before proposing background standards for these constituents. For inorganic regulated substances, the proposed amendments include the numeric standards recommended by the CSSAB in their alternative proposal to the draft safe fill policy. The safe fill numeric value for metals is the lower of the residential generic soil-to-groundwater pathway value (RGV) and the lowest residential direct contact value (RDC). The value is further based on a used aquifer and TDS <=2500 mg/L from Chapter 250, Table 4B of Appendix A. By capping the safe fill numeric values at RDC, the proposed amendments. protect human health by controlling exposure to regulated substances that are toxic to highly toxic.
Some commentators indicated that although the draft policy stated that sampling was voluntary, sampling would probably be necessary in most cases to show that the material is not hazardous and to confirm that it meets the numeric criteria of safe fill. According to the commentators, anyone wanting to move soil around will likely need to sample the soil to avoid liability. In addition, concern was raised that sampling will be cost prohibitive and will delay construction/development projects. One commentator further stated that there was no guidance on the number of samples that would be required for safe fill determinations. The commentator recommended that the Department use the 75%/10X rule used for the SHS in the Act 2 program for sampling and analysis of safe fill. The proposed amendments include a sampling and analysis protocol recommended by the CSSAB in their alternative proposal to the draft safe fill policy; however, sampling is not required. When sampling, the number of samples necessary is tied to the volume of soil proposed for use as fill. Discrete samples must be analyzed using a 75%/2X rule--75% of the samples taken must be less than or meet the standard, and no sample may be greater than two times the standard. For composite samples, the samples must be equal to or less than 1/2 the safe fill numeric standard in order to be equivalent to the 75%/2X rule proposed for discrete sampling.
Three commentators stated that the draft policy is not clear on the onsite movement of excavated materials. The commentators recommended unrestricted onsite use of excavated material, including historic fill, without any sampling/analysis requirements. According to the commentators, sampling should be required only if the material is impacted by a spill or a release. In the proposed rulemaking, safe fill, which includes small quantities of historic fill, may be used within a right-of-way or within a property without sampling and analysis as long as the fill does not exceed nonresidential standards under the land recycling program. The safe fill definition offers three options for determining whether material meets the safe fill standards, including an option that relies on an appropriate level of due diligence and knowledge of the site that does not require sampling and analysis.
A few commentators questioned the exclusion of used asphalt from the list of materials qualifying for use as safe fill. Used asphalt is extensively used as fill and to bring areas to grade in a variety of construction projects. In the proposed regulations, the definition of safe fill includes ''uncontaminated used asphalt.'' In addition, contaminated used asphalt may qualify for beneficial use under a PBR in new § 287.102(m) (relating to permit-by-rule).
One commentator indicated that the exclusion provided to soil excavated from trenches dug for utility installation, maintenance and replacement should include water pipelines. The Department has always maintained that right-of-way projects include those activities conducted for water pipelines. In the proposed rulemaking, safe fill includes material excavated and moved within right-of-way projects.
One commentator was concerned that the standards in the draft policy for safe fill were more stringent than the requirements under the Storage Tank and Spill Prevention Act (Act 32) (35 P. S. §§ 6021.101--6021.1315). The Department maintains that the standards in Act 32 are cleanup standards that apply to contaminated sites. Safe fill defines the threshold for material that is uncontaminated and has not been subject to a spill or release.
Several commentators raised concerns that most of the river dredging operations would be negatively impacted by the stringent numeric criteria in the draft policy and that sampling/analysis would be necessary every time dredging is carried out, to avoid liability. Commentators indicated the draft policy conflicted with maintenance and construction dredging operations, that are routine and frequent and are conducted in the western part of the State to keep river docks and berths open for access. It was also pointed out that dredged material excavated from western rivers is different in its contaminants status from that excavated from the waterways in the eastern part of the State and should be regulated differently. Commentators suggested that the Department further evaluate the legal and scientific issues under which dredging takes place before establishing standards and criteria for the environmentally sound management of navigational dredged material. As a result of these concerns, the proposed amendments include uncontaminated dredged material as safe fill. In addition, dredged material that exceeds safe fill numeric standards may be used for beach nourishment or as a soil additive or substitute on lands adjacent to a dredging operation. The proposed amendments also include greater flexibility in determining whether dredged material meets the safe fill definition by allowing due diligence and knowledge when making the determination.
Several commentators took issue with the definition of contaminated soils under the PBR provision and stated that factual investigation and analysis will be required to determine which of the five PBR categories apply. The commentators recommended that only soils exceeding a set numeric criterion should be considered contaminated. The Department considers other characteristics about the soil, such as whether it has been subject to a release of a chemical or its elevated chemical levels are based on natural occurrences, to be important factors when determining whether it should be considered waste. In addition, soil may meet a numeric chemical standard but be offensive from a nuisance perspective, such as odorous. Unrestricted placement of odorous soil would be problematic.
Several commentators took issue with the Department's notification and deed notice requirements in the PBR provisions indicating that these requirements go beyond the regulatory requirements and are inconsistent with the Hazardous Sites Cleanup Act (HSCA) (35 P. S. §§ 6020.101--6020.1305) and the SWMA. The commentators indicated that sites that are cleaned up to the residential SHS under the Act 2 program get relief from deed notice requirements under that act. Deed notices in the proposed ramendments are only included in circumstances where nonresidential standards will be met. The notification requirements have been retained to provide information to the Department that includes the location of these permitted waste activities.
Some commentators did not approve of linking property use to zoning as it makes PBR unavailable to areas not subject to local zoning ordinances. Under the proposed amendments, PBR materials may be placed on unzoned properties provided the background concentration for regulated substances in unzoned properties is equal to or greater than the concentration in the soil brought to the receiving site and provided the unzoned property will be used for commercial or industrial purposes only.
One commentator requested that ''abandoned mine reclamation'' allowed under the PBR provisions should be replaced with ''surface mining'' as quarry reclamation using safe fill is a routine reclamation method approved on a case-by-case basis by the Department's Bureau of Mining and Reclamation. The proposed amendments include changes to the PBR provisions that allow contaminated soils to be used for reclamation at both active or abandoned mines.
A commentator raised issue with the dewasting restriction in the draft PBR provisions. Under the dewasting provision, a soil is dewasted as long as it remains in place at the receiving site. The commentator stated that it made no legal or technical sense and would lead to long-term uncertainty and confusion about current and future use of the property. The dewasting provisions have been retained in the proposed amendments. When contaminated soil or other materials are excavated and relocated in the future, management of the materials shall be conducted under the SWMA.
Draft General Permit
Several comments were received on the draft general permit. The draft general permit was developed for the beneficial use of contaminated soil at a remediation site to bring an area to grade, to control runoff and to limit infiltration of water.
One commentator objected to the movement of contaminated soil from one industrial site to another with the only stipulation that contaminants be similar. This commentator expressed that the Department should only allow the cleanest of soils to be received at contaminated sites, under the Growing Greener Initiative. According to this commentator, the draft general permit amounted to encouraging the polluting of a site while bringing it to grade. Several commentators indicated that the scope of the general permit was too limited and excessively restrictive as it allowed only movement of contaminated soil between Act 2 sites undergoing remediation under the SHS. The commentators recommended the Department not restrict movement to Act 2 sites only because the restriction ignores the magnitude of ongoing redevelopment projects. A few commentators wanted the general permit to apply to sites undergoing remediation using the Act 2 site-specific standard, also. Several other conditions in the draft general permit were considered too restrictive and hindered the movement of soil, such as requiring waste brought to the site being similar to contamination identified at the remediation site, requiring identification of contaminants brought to the Act 2 site in the notice of intent to remediate (NIR), requiring no exceedance of receiving site remediation standards and requiring ecological screening for organic contaminants.
The CSSAB in their alternative proposal to the draft safe fill package had suggested that the Department rescind the general permit. At this time, the Board is not proposing a general permit and, instead, is proposing a PBR in § 287.102.(o) to cover the activities described in the draft general permit.
The March 11 proposal was also reviewed by and discussed with the CSSAB on April 12, 2000, and by the Solid Waste Advisory Committee (SWAC), in advance of its notice of public release on March 9, 2000. On June 22, 2000, the CSSAB presented its alternative approach in response to the March 11 proposal. On February 22, 2001, in response to all the comments received on its previous proposal, the Department presented this regulatory proposal to the CSSAB for review and comment. In addition, the Department met twice with subcommittees of SWAC and CSSAB on March 19, 2001, and April 30, 2001, to discuss this proposal. In addition, the Department met with SWAC on March 9, 2000, and provided an overview of this proposal and some specific language. This proposed rulemaking was approved by SWAC at its May 10, 2001, meeting.
This proposed rulemaking responds to many of the comments received during the previous public comment periods and the concerns raised by the advisory committees to the Department.
Based on the extensive evaluation of the Department's proposed standards for safe fill, the Department has determined that the numeric standards referenced in proposed § 287.11(a) (relating to safe fill numeric standards) and found in Appendix A, Tables 1, 2 and 3 may be used to demonstrate that material is clean fill in accordance with the Department's guidance document titled ''Policy and Procedure Establishing Criteria for Use of Uncontaminated Soil, Rock, Stone, Unused Brick and Block, Concrete and Used Asphalt as Clean Fill'' (Doc. No. 258-2182-773).
E. Summary of Regulatory Requirements
A description of the proposed amendments is as follows:
Article VIII. Municipal Waste Management
Chapter 271. Municipal Waste Management--General Provisions
Section 271.1. Definitions.
The term ''clean fill'' has been deleted in this proposed rulemaking. A new term, ''safe fill,'' has been added to this section and will replace the use of the term ''clean fill.''
The term ''construction/demolition waste'' has been modified. First, in subparagraph (v), the word ''unsegregated'' has been deleted. Second, language that discusses ''clean fill'' has been deleted.
A new term, ''historic fill,'' has been added to describe material that was historically used in the foundations of construction projects prior to 19881, particularly in urban areas, and that is commonly found below buildings when clearing property for redevelopment. This material frequently includes mixtures of soil and various waste materials. Under the proposed amendments, historic fill is managed as waste unless it is generated in quantities less than or equal to 125 cubic yards per excavation location and it is both free of nuisance-related characteristics and free of contact with a release of a regulated substance.
The term ''safe fill'' has been added to this section with a cross reference to the residual waste regulations. The term is cross referenced here to avoid duplication. The term ''safe fill'' is discussed in more detail in this Preamble.
Section 271.2. Scope.
Subsection (c) has been modified to include a new category of material, historic fill, which shall be managed in accordance with the residual waste regulations, rather than the municipal waste regulations, regardless of where the material is generated. This modification will provide flexibility for managing the historic fill under a PBR.
Section 271.101. Permit requirement.
This section has been modified to remove the references to ''clean fill'' in subsection (b)(3). This provision is no longer necessary based on the changes to this regulatory proposal that address ''safe fill.'' Materials that qualify as safe fill, when used as fill, are no longer considered waste and a permit is not required for placement. Therefore, a permit exemption for this activity is not necessary. In addition, with respect to land clearing waste, new language was added to this section on December 22, 2000, that eliminates the need for a permit if land clearing waste is used in accordance with best management practices.
Section 271.103. Permit-by-rule for municipal waste processing facilities other than for infectious or chemotherapeutic waste; qualifying facilities; general requirements.
Under this proposed rulemaking, subsection (g) has been amended for consistency with other parts of this rulemaking. The term ''uncontaminated'' has been deleted and new language has been added to indicate that the materials shall be separated from other waste and contaminants to be eligible for processing under this PBR.
This subsection has also been amended to allow mechanical processing facilities to receive up to 350 tons per day of segregated construction/demolition waste components provided certain conditions can be met. These modifications will facilitate the processing and reuse of brick, block and concrete that is separated from construction/demolition waste.
A new PBR, subsection (i), has been added to address the beneficial use of brick, block and concrete. Presently, contaminated and segregated brick, block or concrete is managed predominantly at landfills. This new category of PBR has been added to allow the beneficial use of these materials as construction material or in active or abandoned mine or abandoned quarry reclamation activities. Two examples of contaminated brick, block or concrete are when asbestos used as insulation for piping or boilers and PCBs used in ballast for lighting fixtures become dispersed among the material.
Under this permit, contamination levels may not exceed the lower of the residential generic value of the soil-to-groundwater numeric value compared to the lowest RDC numeric value, calculated for used aquifers, and listed in Tables 5 and 6 of Appendix A in Chapter 287. In addition, brick, block and concrete may be placed in waters of this Commonwealth under this permit if Department approval has been obtained and the mine or quarry reclamation activities or under Chapter 105 (relating to dam safety and waterway management) and if certain conditions are met. Under any use, placement of waste in water may not cause a violation of water quality standards.
Under this subsection, several conditions have been developed for this PBR that include the following: 1) site restrictions; 2) implementation of erosion and sedimentation control plan requirements; 3) prohibitions on the use of hazardous waste; 4) obligations to provide written notice to the Department of the person beneficially using the material, the amount of material used at a site and the locations of use; and 5) obligations to maintain records of any analytical evaluations. Material may only be placed on properties that are zoned and exclusively used for commercial and industrial uses. For unzoned properties, material shall be used in an area where the background is equal to or greater than the concentration of contamination in the material being brought to the site, and the property must be used for commercial or industrial purposes only. In addition, waste that is placed in accordance with this permit will cease to be waste as long as the material remains in place.
Article IX. Residual Waste Management
Chapter 287. Residual Waste Management General Provisions
Section 287.1. Definitions.
The term ''clean fill'' has been deleted and replaced with the term ''safe fill'' in this proposed rulemaking.
The term ''historic fill'' has been added to the proposed amendments to clarify the management requirements that may apply to this material. The definition is consistent with the term added in § 271.1, discussed previously.
The term ''safe fill'' has been added to the proposed amendments to replace the term ''clean fill.'' ''Safe fill'' is more descriptive of the uncontaminated materials that the Department continues to exclude from the definition of waste. ''Safe fill'' is material that is uncontaminated and is one of the following: soil; dredged material; used asphalt; or segregated brick, block or concrete from construction or demolition activities from residential and commercial properties. Used asphalt is not waste under subparagraph (ii)(A) of the definition of ''waste'' in § 287.1 when used or reused as an ingredient in the asphalt production process to make a product, such as new pavement structure, or when used as a coproduct. Construction or demolition materials from an industrial site will not qualify as ''safe fill'' due to the potential of contamination resulting from industrial activities at the property. In addition, when considering whether brick, block or concrete is ''uncontaminated,'' the material should be separated from materials like lead-based paint surfaces, friable asbestos and hazardous materials such as PCB ballasts and fluorescent light bulbs.
To further qualify as ''safe fill,'' due diligence shall indicate that the material has not been subject to a release, and the material does not contain any visible staining, odor or other sensory nuisance resulting from chemical contamination associated with the material.
One of the difficult issues associated with this term is how to determine whether a material is ''uncontaminated.'' The proposed regulation offers three options. First, a person may conduct comprehensive sampling and analysis of the material to determine whether it meets numeric standards. Second, a person may use due diligence, the diligence reasonably expected, to determine whether past activity at the site had the potential to result in a release of regulated substances but there is no knowledge of a release and, based on the performance of due diligence, the material meets the numeric standards. Under this scenario, limited testing may be required to make a determination. Third, a person may use due diligence and knowledge of the site to demonstrate that the fill meets the numeric standards without sampling and analysis. In addition, the material may not be affected by a release and shall be free of visible stains, odors and other sensory nuisances.
Several exceptions for material that does not meet the numeric standards have been incorporated into this term. First, subparagraph (i) provides an exception for material moved within a right-of-way, moved offsite from residential properties and moved within a property as long as the material has not been subject to a release and is free of stains, odors and other sensory nuisances. The higher levels are capped, under subparagraph (viii), at the lower of the nonresidential direct contact numeric value or nonresidential soil-to-groundwater pathway numeric value established for aquifers used or currently planned for use under the remediation standards of the Act 2 program. With regard to the rights-of-way and movement within a property, the movement of large quantities of soil is limited to reuse within the right-of-way or within the same property, thereby limiting exposure to soils that contain higher levels of chemical substances. Due to the small likelihood that residential properties contain historical chemical contamination that might exceed the safe fill numeric standards, it is inappropriate to burden all of the properties with excessive sampling and analysis.
Second, subparagraph (iii) provides an exception for soil moved from a fruit orchard under development where pesticides were properly applied in conjunction with standard horticultural practices as long as the material has not been subject to an unauthorized release and is free of stains, odors and other sensory nuisances. This exception was incorporated to recognize that some soil on orchard properties may exceed the safe fill numeric standards even though the chemicals were applied in compliance with law. Due to the large area of acreage that may be affected, if the soil exceeds the numeric values for safe fill, it may be used for commercial or industrial purposes. When used for these purposes, the higher numeric levels are capped, under subparagraph (viii), at the lower of the nonresidential direct contact numeric value or nonresidential soil-to-groundwater pathway numeric value established for aquifers used or currently planned for use under the remediation standards of the Act 2 program. The soil may also be used for residential purposes if it is blended with other soil to meet the safe fill numeric values.
Third, subparagraph (iv) provides an exception for dredged material placed directly on land adjacent to a dredging operation for beach nourishment or as a soil conditioner or soil substitute as long as the material has not been subject to a release and is free of stains, odors and other sensory nuisances. This exception was incorporated to allow the continuation of what is considered a common practice and involves the placement of material that has eroded from a beach to be placed back near the same beach location. If the dredged material exceeds the numeric values for safe fill, it may be used for commercial or industrial purposes. When used for these purposes, the higher numeric levels are capped, under subparagraph (viii), at the lower of the nonresidential direct contact numeric value or nonresidential soil-to-groundwater pathway numeric value established for aquifers used or currently planned for use under the remediation standards of the Act 2 program. The dredged material may also be used for residential purposes if it is blended with other soil or other dredged material to meet the safe fill numeric values.
In addition to exceptions based on numeric values, subparagraph (v) provides a quantity exception for historic fill. Historic fill in quantities less than 125 cubic yards per excavation location, which is the equivalent of approximately five dump trucks full of material, is considered safe fill as long as the material has not been subject to a release and is free of stains, odors and other sensory nuisances. This exception was added to recognize that ordinary development of residential property, including the replacement or addition of utility lines, results in the movement of historic fill on a regular basis and rarely causes environmental concern.
In most cases, safe fill may not be placed in waters of this Commonwealth. However, subparagraph (vi) allows safe fill to be placed in waters of this Commonwealth under active or abandoned mine or abandoned quarry reclamation or under Chapter 105 if, among other conditions, 10% of the numeric standards for safe fill are met. This margin of safety for placement of soil in saturated conditions was developed by the CSSAB as a SHS (soil-to-groundwater pathway generic value) under the land recycling program and was endorsed by the CSSAB for use in developing standards for placement of safe fill in water. Placement of safe fill in water shall be approved by the Department. Under any use, placement of safe fill in water may not cause a violation of water quality standards.
Subparagraph (vii), which is contained in the existing regulations in § 287.101(b)(6) (relating to permit requirement), continues to place the burden of proof that material is safe fill on the person using the material. Like coproduct determinations, prior approval from the Department to use safe fill is not required. Therefore, if a problem results from the use of the material, the person who placed the material will need to prove that requirements for its use have been met.
Subparagraph (viii) provides a numerical cap for safe fill when sampling and analysis is conducted under the application of due diligence and subparagraph (i). Subparagraph (viii) does not override the decision of whether sampling and analysis is performed under subparagraph (i) to determine whether material is safe fill.
Subparagraph (ix) indicates that materials that meet the requirements under this term are not regulated as waste when used as fill. This provision was added to clarify the regulatory status of safe fill.
The term ''sediment'' has been added to this proposal to explain what material qualifies for an alternative methodology to that specified in § 287.11 for sampling and analysis. Material that is sediment is material that remains underwater when sampled and cannot be sampled and analyzed under the same methodologies as dredged material that is removed from the water and deposited in basins. Once removed for placement, sediment is managed as dredged material. The Department will develop guidance on the alternative methodology that should be applied to sediment, and it will work with the dredge industry and the United States Army Corps of Engineers to develop guidance for sampling and analysis.
The term ''site undergoing remediation activities'' has been added to provide consistency between the Act 2 program and the waste program. The term ''site'' is already a defined term in § 287.1; therefore, ''site undergoing remediation activities,'' has been added to be consistent with the use of the term ''site'' in Act 2.
Section 287.2. Scope.
In subsection (c), historic fill has been added to the list of wastes that are subject to the residual waste regulations, regardless of where the waste is generated. By adding historic fill to the list, materials generated in a residential or commercial setting may be managed in accordance with a PBR in § 287.102.
Section 287.11. Safe fill numeric standards.
This section establishes the numeric standards that shall be met for material to qualify as safe fill. In addition, this section includes a requirement that must be met if sampling and analysis are performed to demonstrate compliance with the standards.
In subsection (a), except for safe fill containing copper and zinc, material shall meet the lower of the following: the residential generic value of the soil-to-groundwater pathway numeric value, calculated in accordance with § 250.308 (relating to soil-to-groundwater pathway numeric values), or the lowest residential direct contact numeric values calculated in accordance with §§ 250.306 and 250.307 (relating to ingestion numeric values and inhalation numeric values).
For safe fill containing copper and zinc, material shall meet the concentrations identified in § 271.914(b)(3) (relating to pollutant limits) that take plant toxicity into consideration. If the material being tested is dredged material or sediment that is from tidal streams, the material shall also meet a chloride limit of 250 mg/l to protect the groundwater. This can be achieved by draining the dredged material to increase the solids content and reduce salinity.
In addition to the totals concentrations, a person shall demonstrate that dredged material will not leach either above standards that apply to unlined landfills by using the Toxicity Characteristic Leaching Procedure or above the medium-specific concentration for groundwater in used aquifers under Chapter 250 using the Synthetic Precipitation Leaching Procedure.
Subsection (b) specifies sampling and analysis procedures for determining whether safe fill meets the safe fill numeric standards. The sampling shall be random and representative of the pile of material or area of excavation. Subsection (b) provides two options for sampling: a composite and grab sampling protocol in subsection (b)(1), or a discrete sampling protocol in subsection (b)(2). Samples obtained through the discrete sampling protocol in subsection (b)(2) will be analyzed individually. To reduce the cost of sample analysis, a person may use the composite sampling protocol in subsection (b)(1) for compounds other than volatile organic compounds (VOCs). The composite sampling protocol requires that four samples be composited into one sample for analysis. For analysis of VOCs, sample compositing is not acceptable due to the potential loss of VOCs during the mixing process. Instead, a biased sampling protocol may be used to select sampling locations for the required number of grab samples. This procedure requires field screening of discrete samples first to identify the locations that are most likely to contain the highest concentrations of VOCs. Grab samples are then taken from the same sampling locations for VOC analysis. The number of samples required is based on the volume of material proposed for use as safe fill. For volumes of soil less than or equal to 125 cubic yards, eight discrete samples or two composite samples (eight samples composited into two) are required for analysis of regulated substances other than VOCs and two grab samples are required for analysis of VOCs. For volumes of soil more than 125 cubic yards but less than or equal to 3,000 cubic yards, 12 discrete samples or three composite samples are required for analysis of regulated substances other than VOCs and three grab samples are required for analysis of VOCs. For each additional 3,000 cubic yards of safe fill or part thereof over the initial 3,000 cubic yards, 12 additional discrete samples or three additional composite samples are required for analysis of regulated substances other than VOCs, and three additional grab samples are required for analysis of VOCs.
Subsections (c) and (d) describe the statistical tests that will be used to determine whether safe fill meets the safe fill numeric standards. For a composite sample, subsection (c) specifies that a safe fill numeric standard is met if the result of analysis is equal to or less than one-half the safe fill numeric standard for a regulated substance. This insures that the 2X criterion under the 75%/2X rule used for the discrete sampling protocol is validated in the composite sampling protocol.
For grab samples taken for VOCs analysis, subsection (c) requires that the analytical result for a regulated substance be less than or equal to safe fill numeric criteria for that regulated substance.
For discrete samples, subsection (d) prescribes a 75%/2X rule. This rule requires that 75% of the samples shall be equal to or less than the safe fill numeric standard with none of the samples exceeding more than twice the safe fill numeric standard for a regulated substance.
The sampling protocol in the proposed regulations is applicable for sampling of excavated materials in piles. The Board is seeking suggestions on alternative sampling methods for materials in place prior to excavation.
Section 287.101. General requirements for permits.
This section has been modified to remove the references to ''clean fill'' in subsection (b)(3). This provision is no longer necessary based on the changes to this regulatory proposal that address ''safe fill.'' Materials that qualify as safe fill, when used as fill, are no longer considered waste and a permit is not required for placement. Therefore, a permit exemption for this activity is not necessary. In addition, the references to land clearing wastes have been deleted because under § 287.2 (relating to scope), land clearing wastes are managed in accordance with Article VIII (relating to municipal waste). The use of land clearing wastes does not require a permit if waste management is performed in accordance with best management practices.
Section 287.102. Permit-by-rule.
Several new PBRs have been added to this section to allow material that does not meet safe fill standards to be beneficially used in accordance with permit conditions included in the regulations. Materials that do not meet the safe fill standards are managed as waste.
Subsection (j) has been added to provide a permit for the beneficial use of contaminated soil, from known areas of contamination, to bring an area to grade, as construction material, for control of fire and subsidence events or in reclamation of active or abandoned mines. The purpose of this permit is to allow soils impacted by authorized agricultural practices resulting in lead, arsenic and pesticide contamination to be beneficially used. Under this permit, the contamination levels may not exceed nonresidential soil-to-pathway numeric values developed for used aquifers under Chapter 250 and listed in Table 4 of Appendix A of Chapter 287. Any direct contact pathways shall be promptly and permanently eliminated.
Subsection (k) has been added to provide a permit for the beneficial use of contaminated soil, dredged material or used asphalt to bring an area to grade, as construction material, for control of fire and subsidence events or in reclamation of active or abandoned mines. Under this permit, the contamination levels may not exceed the lowest residential direct contact numeric values developed for used aquifers under Chapter 250 and listed in Tables 5 and 6 of Appendix A of Chapter 287. In addition, a leach test shall demonstrate that groundwater will be protected.
Subsection (l) has been added to provide a permit for the beneficial use of historic fill as construction material. Under this permit, the contamination levels may not exceed either residential soil-to-groundwater pathway numeric values for used aquifers, as long as direct contact pathways are eliminated, or the lowest residential direct contact numeric value for used aquifers (if higher), as long as a leach test demonstrates that groundwater will be protected.
Subsection (m) has been added to facilitate the placement of contaminated soil generated offsite and placed at a site undergoing remediation. This permit allows the beneficial use of contaminated soil to bring an area to grade, to limit infiltration of rainfall and to facilitate runoff. Under this permit, soil contamination levels may not exceed the SHS for used aquifers, based on the residential or nonresidential standard identified for attainment in an Act 2 notice of intent to remediate. Types of contaminated soil that may be accepted at a remediation site shall match the contamination found at the receiving site. For contaminated soil placed at a site undergoing remediation activities, relief from liability under Act 2 may include the material brought to the receiving site undergoing remediation activities and shall be included in the final report.
Under subsections (j)--(m), several standard conditions have been developed for these PBRs. The permits include conditions on the following: 1) site restrictions; 2) prohibitions on the placement of material in waters of this Commonwealth; 3) implementation of erosion and sedimentation control plan requirements; 4) prohibitions on the use of hazardous waste; 5) obligations to provide written notice to the Department of the person beneficially using the material, the amount of material used at a site and the locations of use; and 6) obligations to maintain records of any analytical evaluations. Under each permit, waste that is placed in accordance with this permit will cease to be waste as long as the material remains in place.
In each permit under subsections (j)--(l), material may only be placed on properties that are zoned and exclusively used for commercial and industrial uses. For unzoned properties, material shall be used in an area where the background is equal to or greater than the concentration of contamination in the material being brought to the site, and the property must be used for commercial or industrial purposes only.
(Department Note: The tables in Annex A are based on numbers that were in effect before the publication of amendments to Chapter 250 at 31 Pa.B. 6895 (November 24, 2001). On final rulemaking, all tables in Appendix A will be updated to be consistent with changes made to Chapter 250.)
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the proposed amendments.
The proposed amendments replace the current clean fill policy. Under the current policy, soil and other materials are required to meet a stricter numeric standard for regulated substances (contaminants) if they are used as clean fill. These regulations should help the onsite and offsite movement of excavated material for use as fill or as construction material. Currently, a significant portion of these excavated materials is being disposed in landfills. The term ''clean fill'' in the proposal is replaced with the term ''safe fill'' as it better describes uncontaminated materials the Department continues to exclude from the definition of waste. The exclusion of safe fill, when used as fill, from the ''waste'' definition will facilitate the reuse of these materials without applying the waste management requirements.
The proposed amendments will facilitate the movement of soil and other materials for construction activities even if the materials exceed the numeric thresholds. For example, moving soil within right-of-way projects, moving soil offsite from residential properties or within a property, placing dredged material on adjacent lands as beach nourishment and moving soil from fruit orchards where pesticides were used may be conducted free from regulation even if the material exceeds safe fill numeric limits, but are capped at nonresidential soil standards. These exceptions should benefit utility companies, specific dredging projects and development of lands where fruit orchards once stood.
The proposed amendments provide three options to determine if the material is ''uncontaminated.'' The options require site knowledge and history to determine if sampling and analysis of excavated material is necessary. One of the three options requires no sampling and analysis whereas the other two options require either detailed sampling and analysis or reduced sampling and analysis. The monetary and timesaving benefits of this multiple options approach will help many of the construction projects in this Commonwealth. In addition, the proposed regulations provide two options for sampling: composite sampling or discrete sampling. To reduce the cost of sampling, a person may use the composite sampling protocol for regulated substances other than VOCs.
There are no permit applications, permit fees or bonding requirements associated with the five new PBRs proposed. The PBRs will encourage the beneficial use of contaminated soil, contaminated used asphalt, contaminated dredged material, historic fill, contaminated and segregated brick, block and concrete and the placement of contaminated soil at a site undergoing remediation activities. Currently the contaminated materials are disposed in permitted landfills.
The current cost of disposal in a permitted landfill is estimated at $50/ton or cubic yard2. The proposed amendments will result in huge savings to the regulated community by avoiding disposal costs. Under the proposed safe fill regulations, the savings from disposal cost are estimated at $500 million if it is assumed that approximately 50% or more of the estimated 20 million cubic yards of soil and other materials generated annually in this Commonwealth will qualify for use as safe fill or used under one or more of the five permits-by-rule.
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