RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 250]
Administration of the Land Recycling Program (Act 2)
[27 Pa.B. 4181] The Environmental Quality Board (Board) by this order adopts Chapter 250 (relating to the administration of the Land Recycling Program). The regulations implement the Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101--6026.909) by creating subchapters to establish general provisions, cleanup standards, requirements for special industrial areas, risk assessment requirements and requirements for demonstrating attainment of cleanup standards.
This order was adopted by the Board at its meeting of June 17, 1997.
A. Effective Date
These regulations will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Thomas K. Fidler, Chief, Division of Land Recycling and Cleanup Program, Rachel Carson State Office Building, P.O. Box 8471, Harrisburg, PA 17105-8471, (717) 783-7816; or Michelle M. Moses, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, P.O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. 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 rulemaking is available electronically through the Department of Environmental Protection's (Department) rulemaking Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This final rulemaking is being made under the authority of sections 104(a), 301(c) and 303(a) of Act 2 (35 P. S. §§ 6026.104(a), 6026.301(c) and 303(a)). Section 104(a) of Act 2 authorizes the Board to adopt Statewide health standards, 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 authorizes the Department to establish by regulation procedures for determining attainment of remediation standards when practical quantitation 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 authorizes the Board to promulgate Statewide health standards for regulated substances for each environmental medium and methods used to calculate the Statewide health standards. This rulemaking also is being made under the authority of section 105(a) of the Solid Waste Management Act (SWMA) (35 P. S. § 6018.105(a)). Section 105(a) grants the Board the power and duty to adopt the rules and regulations of the Department to carry out the provisions of SWMA. In addition, this rulemaking is being made under the authority of section 1917-A of The Administrative Code of 1929 (71 P. S. § 510-17). Section 1917-A of The Administrative Code of 1929 authorizes the Department to protect the public from nuisances.
D. Background and Summary
The final-form regulations were developed to implement Act 2, which became effective July 18, 1995. Act 2 establishes a framework for developing remediation standards that can be applied to any release of regulated substances. Regulated substances include hazardous substances and contaminants regulated under the SWMA (35 P. S. §§ 6018.101--6018.1003), the Hazardous Sites Cleanup Act (HSCA) (35 P. S. §§6020.101--6020.1305), the Air Pollution Control Act (APCA) (35 P. S. §§ 4001--4005), The Clean Streams Law (CSL) (35 P. S. §§ 691.1--691.1001), the Storage Tank and Spill Prevention Act (STSPA) (35 P. S. §§ 6020.101--6020.2105) and the Infectious and Chemotherapeutic Waste Act (ICWA) (35 P. S. §§ 6019.1--6019.6). The environmental remediation standards established under Act 2 must be used whenever a site remediation is voluntarily conducted or is required to be conducted under one of the laws stated in this paragraph, to qualify for a release of liability. The final-form regulations encourage the recycling and redevelopment of industrial sites, preserving existing uses of land, and encourage persons to perform cleanups by providing the opportunity for a release of liability.
A person who intends to perform a remediation in accordance with Act 2 should consult the statute, these regulations and the Land Recycling Technical Guidance Manual (Manual) developed by the Department. The regulations are not repetitive of the statute. For example, procedural requirements such as deed notices or notices of intent to remediate are addressed more directly in the statute or the Manual. The regulations do address limited issues concerning procedures, such as what must be contained in plans and reports that are submitted to the Department. Compliance with all procedural requirements in the statute and these final-form regulations is required in order to meet a remediation standard. Appropriate uses of engineering or institutional controls with regard to the specific remediation standards and permit waivers are addressed in the statute, not the regulations.
Chapter 5 of Act 2 (35 P. S. §§ 6026.501--6026.506) affords liability protection from further cleanup obligations if a person demonstrates compliance with any, or a combination, of the three environmental remediation standards: the background standard; Statewide health standard; and site-specific standard. Act 2 also affords liability protection for the remediation of special industrial areas. To receive the liability protection, a person must comply with the requirements of Act 2 and this chapter, including the administrative requirements, unless the site is placed on the Pennsylvania Priority List under the HSCA or the release is subject to the corrective action regulations of the STSPA. In these two cases, a person shall use the cleanup levels as described in Act 2 and Chapter 250 and should use the administrative requirements of the HSCA or the STSPA to qualify for liability protection. A person who is eligible for cleanup liability protection will have no further liability for remediation of the site for contamination identified in the required reports and will not be subject to citizen suits or contribution actions brought by responsible parties.
An important element of any remediation is the site characterization or remedial investigation. A thorough investigation of the site is necessary to identify specific contaminant concentrations, the extent of contamination throughout soil and groundwater media, discharges to surface water and site conditions that may pose an unacceptable human health or environmental risk. It is important to perform a thorough investigation because the liability protection only applies to contamination identified in reports submitted to and approved by the Department to demonstrate compliance with a standard. In the case of a special industrial area, the liability protection applies to any contamination identified in the baseline environmental report, other than immediate, direct and imminent threats to public health and the environment. The final-form regulations provide some performance standards that must be met to properly characterize the site. A detailed explanation of how to perform a remedial investigation, however, may be found in the Manual.
Act 2 created the Cleanup Standards Scientific Advisory Board (SAB) for the purpose of assisting the Department in developing Statewide health standards, determining the appropriate statistically and scientifically valid procedures to be used, determining the appropriate risk factors and providing other technical and scientific advice as needed to implement the act. Throughout the development of these regulations, the SAB and its subcommittees provided many significant technical recommendations. In addition, the SAB reviewed drafts of the proposed and final-form regulations and provided comments to the Department on the drafts.
E. Summary of Comments and Responses on the Proposed Rulemaking
Notice of proposed rulemaking was published at 26 Pa.B. 3985 (August 17, 1996). The proposal set forth a 60-day public comment period. The Board held three public hearings (Whitehall, Mars and York).
During the public comment period, the Board and the Department received written comments from 46 individuals or groups and 8 individuals or groups presented testimony at the public hearings.
The Board and the Department considered the comments received at the public hearings and the written comments in formulating the final-form regulations. The Department has completed a review of the comments and has prepared a comment and response document that addresses each comment on the proposed regulations.
The following is a summary of major comments received and changes which have been made to the proposed rulemaking. The summary is listed in the same order as the final-form regulations.
Subchapter A. General Provisions
On final rulemaking, three proposed sections in this subchapter were deleted. The proposed § 250.4 (relating to groundwater determinations) was deleted based on comments received. On proposed, this section was included to explain when a regulated substance that is in contact with groundwater is considered contaminated media subject to the cleanup standards of Act 2, and when it is considered waste subject to regulation under the applicable waste laws and regulations.
Commentators indicated that they believe it is beyond the statutory authority and improper to regulate nonaqueous phase liquids as waste. In addition, concern was raised about the lack of guidance in the regulations to assist in the determination of when removal would be required. The Board has deleted the section relating to groundwater determinations on final rulemaking and has incorporated information that pertains to cleanup of separate phase liquids into the Statewide health and site-specific standards. The final-form regulations treat the regulated substances that are found in separate phase liquids the same as any other regulated substance. Information regarding the feasibility of removal of separate phase liquids in a site-specific cleanup will be included in the Manual.
With regard to the final rulemaking, the regulated substances contained in separate phase liquids will be required to meet the applicable Statewide health standards in soil and groundwater, including the saturation and solubility limits, if that standard is chosen. If engineering controls are required to maintain a remediation standard, a postremediation care plan must be implemented.
Proposed § 250.5 (relating to aquifer determinations) was moved to Subchapter C, § 250.303 (relating to aquifer determination; current use and currently planned use of aquifer groundwater). On final rulemaking, this regulation was made applicable only to the Statewide health standards. Further discussion of aquifer determinations can be found under § 250.303.
The proposed § 250.6 (relating to current use and future use of aquifer groundwater) was deleted from Subchapter A and added to Subchapter C. This change was made because the section no longer discusses ''probable future use,'' a term that applies to the site-specific standard. The new section only applies to the Statewide health standard. Changes to this section are discussed in this Preamble under Subchapter C.
Section 250.1. Definitions.
This section includes definitions for terms that are not found in the statute but were needed to clarify language in the statute and the regulations. The terms included in the proposal were as follows: ''anisotropy,'' ''ASTM,'' ''enterprise zone,'' ''heterogeneity,'' ''property,'' ''risk assessment,'' ''saturated soils,'' ''special industrial area'' and ''volatile compound.'' The term ''volatile compound'' was defined to limit the universe of regulated substances that have to be evaluated for human exposure from inhalation and volatilization of regulated substances in soil and groundwater.
The Board received several comments regarding the definitions section. The comments and the Department's responses are as follows:
Commentators indicated that all statutory definitions should be included in the rulemaking for purposes of ease of understanding and compliance. The Department believes that the addition of statutory definitions is unnecessary because they are already in Act 2.
Commentators stated that with regard to the definition of ''property,'' some sites have many parcels combined from former parcels comprising a single industrial site and would be forced to target remediation at a number of different points of compliance. Act 2 uses the term ''property'' in the definition of ''point of compliance'' and it is the Department's interpretation that the intention of Act 2 was to prevent persons from purchasing tracts of land after contamination was discovered in order to move the point of compliance. However, for situations where these large tracts existed prior to the discovery of a release and were owned by the same party, the regulations will allow movement of the point of compliance under §§ 250.302 and 250.407 (relating to point of compliance; and relationship to surface water quality requirements).
One commentator suggested that the regulations should define the term ''contaminated media.'' The Department does not believe a definition for this term is necessary because several environmental statutes are affected by Act 2 and it would be difficult to capture the various materials and activities that would be included in this broad term. For example, contaminated soil that is managed at the site of remediation is considered contaminated media and subject to Act 2 while it is being managed onsite. However, if the same material is removed for off-site disposal, it is considered ''waste.''
Commentators indicated that the following terms need clarification: ''minimum threshold standards,'' ''minimum threshold values,'' ''exceptional value wetlands,'' ''important habitats,'' ''nonparametric upper tolerance limit,'' ''prediction limit'' and ''nondetect.'' It is the Department's intention to minimize the number of terms that must be defined in the regulations. These concepts will be discussed further in the Manual. With regard to exceptional value wetlands, a description of these wetlands can be found in § 105.17 (relating to wetlands). The term ''important habitats'' was not used in the proposed or final-form regulations.
On final rulemaking, changes were made to the definitions of ''VOC--volatile compound'' and ''special industrial area.'' The definition for ''VOC--volatile compound'' was changed to be consistent with the distinction made between volatile and semivolatile compounds by the analytical methodologies used in EPA's Resource Conservation and Recovery Act (RCRA) program (SW-846 methodologies). Typographical errors were corrected in the definition of ''special industrial area.'' On final rulemaking, definitions for the following terms were added for further clarification of the regulations: ''community water system,'' ''environmental protection acts,'' ''EQL,'' ''habitats of concern,'' ''regulated discharge,'' ''secondary contaminants'' and ''species of concern.''
Section 250.2. Application of remediation standards.
This section explains the requirement that remediations performed under an enforcement action meet one of the standards--background, Statewide health or site-specific. It also states that requirements and procedures under Act 2 and this chapter must be met to qualify for liability protection.
The Board received several comments regarding this section. The comments and the Department's responses are as follows:
Commentators stated that sections 102 and 301 of Act 2 (35 P. S. §§ 6026.102 and 6026.301) clearly indicate that the General Assembly intended that individuals who voluntarily remediate a site are eligible for the release from liability. The section lacks the necessary clarity to indicate this intent and it was recommended that the section be amended. The Department has incorporated the following language into a new subsection: ''This chapter provides remediation standards which shall be used whenever site remediation is voluntarily conducted or is required under environmental statutes listed in section 106 of the act.'' This language reiterates what is contained in section 106 of Act 2 (35 P. S. § 6026.106).
Commentators recommended that the Department establish procedures to allow individuals who have previously remediated a site to obtain liability protection under Act 2. The Department believes that the regulations do not prohibit any person from seeking liability protection from environmental releases which occurred in the past by complying with Act 2 and the land recycling regulations.
On final rulemaking, a cross reference in new subsection (c) was changed to reflect numbering changes in § 250.2. Also, a reference to Chapter 245, Subchapter D (relating to the corrective action process in the storage tanks program) was deleted to allow corrective actions that began prior to the effective date of Chapter 245, Subchapter D regulations to continue to use the process that was in place prior to those regulations and still qualify for a release of liability under Act 2.
Section 250.4. Limits relating to practical quantitation limits.
This section establishes the sources for identification of the practical quantitation limits (PQLs) for regulated substances in soil and groundwater. Also, PQLs are considered threshold concentration levels for establishing attainment of remediation standards. On proposed, the regulations indicated that PQLs may not be used for attainment purposes in the following instances: 1) PQLs that fall outside the maximum allowable health risk levels identified in sections 303(c) and 304(b) and (c) of Act 2 (35 P. S. §§ 6026.303(c) and 6026.304(b) and (c)) may not be used; 2) if a maximum contaminant level (MCL) has been promulgated under the Safe Drinking Water Act for the regulated substance; and 3) if a lifetime health advisory level (HAL) has been established under the Safe Drinking Water program. Under each of these circumstances, a person was required to demonstrate attainment with the MSC.
Commentators suggested that the PQL should be the floor for measurements for attainment, even when the PQL exceeds the risk range or the MCL or HAL. One commentator indicated that the Board must demonstrate a compelling public need for the establishment of quantitation limits where EPA's PQLs exceed the statutorily established maximum allowable health risk levels. It is the Board's position that the goal of any remediation is always to demonstrate attainment of the selected standard. If the limits imposed by the selected standard prevent this, then attainment may be demonstrated by attaining the limit relating to the PQL. Section 301 of Act 2 authorizes the Department to establish, by regulation, procedures for determining attainment of remediation standards when PQLs set by the EPA have a health risk that is greater than the risk levels set in sections 303(c) and 304(b) and (c) of Act 2. Commentators requested that a list of the PQLs be published in the final-form regulations. The Department intends to publish the numeric values in its update to the Manual. By publishing the numbers in the Manual, the numbers can be updated regularly, as PQLs are developed.
On final rulemaking, the title to this section was changed from ''standards'' to ''limits'' related to the PQLs because the Board wants to avoid confusion between the meaning of a cleanup standard and the use of a quantitation limit for purposes of attainment of a standard. The final-form regulations no longer provide for the use of the PQL value as a default value to meet the background standard. Also, for attainment purposes, the final-form regulations do not allow the use of a PQL if it falls outside the maximum allowable health risk levels identified in sections 303(c) and 304(b) and (c) of Act 2. Procedures to develop limits related to a PQL have been established by the Department to ensure that quantitation limits fall within the risk range.
No changes were made to subsection (a) on final rulemaking. A new subsection (b) was added on final rulemaking to ensure that for substances which have MCLs or HALs, the PQLs fall at or below the respective MCLs or HALs. The Board decided to use the same methodology for establishing PQLs for substances with an MCL or HAL as for other regulated substances, except that if the MCL or HAL is below the level of the PQL established by EPA's SW-846 methodologies, the PQL methodologies published under EPA's drinking water program must be used for those substances. Also, if a PQL determined under the drinking water program is not below a HAL, the methodologies in subsection (c)(1) or (2) must be used unless those quantitation limits are higher than the PQL determined under the drinking water program.
The use of PQLs for these substances, instead of the MCLs or HALs themselves, is important for the background standard because the PQLs may more closely represent the true site conditions than the higher MCL or HAL. For example, for xylene, the MCL is 10,000 micrograms per liter (µg/l.). The PQL is 5 µg/l, which is a closer sensoring level for determining the background conditions. By developing PQLs for substances with MCLs and HALs in this manner, the need for proposed subsection (c) was eliminated and it was deleted.
On proposed, subsection (b) required the use of the Statewide health standard, itself, if the estimated quantitation limits (EQLs established by the EPA) fell outside the risk range established in Act 2. On final rulemaking, in subsection (c), a methodology was established for developing a quantitation limit that always falls within the risk range, so the default to the Statewide health standard was eliminated. A new subsection (d) was added to indicate that if a limit related to a PQL is not available for regulated substances under the methodologies in subsection (c), the site-specific or background standard must be used to demonstrate attainment. New subsection (e) was added to clarify that quantitation limits are not applicable in the demonstration of attainment of minimum threshold medium-specific concentrations (MSCs). The minimum threshold MSCs are used because it is not known, due to the lack of toxicological data, whether the quantitation limits fall within the risk range identified in Act 2.
Section 250.5. Public notice by applicant
This section explains when the opportunity to request public participation is initiated. For cleanups under the site-specific standard and special industrial areas, the notice of intent to remediate (NIR) must include a 30-day period in which the municipality, where the remediation site is located, may request to be involved in the development of the remediation and reuse plans for the site. No plans and reports associated with the remediation may be submitted to the Department prior to the end of that 30-day period.
Commentators stated that public notice in the proposed regulations was inadequate because the method of publication in the newspaper was lacking. The Department will address procedures for notification, including publication in a newspaper of general circulation, in the Manual.
Commentators suggested that public notice requirements that cross program boundaries (that is, public notice requirements required by acts other than Act 2) should be consolidated with this rulemaking. It is the Department's position that notice requirements under Act 2 are only applicable to activities undertaken to comply with Act 2. The notice requirements under Act 2 may not be adequate to meet the requirements under other laws and regulations. For example, § 101.2 (relating to incidents causing or threatening pollution) require reporting in many circumstances, including reporting at the time of an accident. Accordingly, submitting an NIR under Act 2 when remediation is undertaken may not satisfy the requirements of § 101.2.
Commentators recommended that the regulations require the preparation of notices in plain language. Section 901 of Act 2 (35 P. S. § 6026.901) requires that notices and reports submitted to implement Act 2 contain a summary or special section that includes a plain language description of the information. The Department believes it is not necessary to repeat this requirement in the regulations.
Section 250.6. Public participation.
This section establishes the starting date for the commencement of the 30-day public and municipal comment period during which a municipality may request to be involved in the development of the remediation and reuse plans. The comment period will begin on the publication date of the summary of the NIR in a newspaper of general circulation. This section also provides minimum contents for a public involvement plan and requires submission of the plan with the first report due to the Department for either a site-specific standard or special industrial area cleanup.
Commentators suggested that the regulations clarify that an NIR is required for all cleanups under Act 2. Language has been added to subsection (a) that indicates an NIR is required for cleanups to the background, Statewide health and site-specific standards and under a special industrial area cleanup.
One commentator recommended that the regulations provide an opportunity for a community veto of a remediation measure based on various criteria. It is the Board's position that matters relating to the public's involvement are better addressed in a public involvement plan that is developed by the person performing remediation and the public. A public involvement plan can be tailored to meet the needs of the parties.
Commentators indicated the Board should clarify that subsection (b)(1) and (2) must be satisfied before a public involvement plan is necessary. The words ''both of'' have been added to the language in subsection (b).
Section 250.7. Fees.
On proposed, this section provided that resubmissions of reports and plans, except for a site-specific standard final report, require payments of the appropriate fee identified in Act 2. On final rulemaking, there are no exceptions for payments on resubmissions. The statute does not require the exception proposed.
Section 250.9. Interaction with other environmental statutes.
This section was titled ''applicability to solid waste facilities'' in the proposed regulations and was located under proposed § 250.12. The title was changed because the section is no longer limited to the application of land recycling regulations to solid waste facilities.
The proposed regulations identified several trigger dates for deciding when releases at municipal, residual and hazardous waste facilities were completely subject to Chapter 250 and Act 2 and when releases were only subject to certain elements of the cleanup standards.
Commentators indicated that proposed § 250.12(b) exceeded statutory authority since it restricted how cleanup standards and points of compliance under Act 2 would be used to address releases of regulated substances at solid waste facilities. In addition, concern was expressed that requiring cleanups to satisfy the background standard was expensive and beyond what is required to protect human health and the environment. The final-form regulations provide more flexibility than the proposed regulations by providing the option of either the Statewide health or background standard, including the points of compliance under Subchapters B and C (relating to background standards; and Statewide health standards), for abatement of releases during the operational life of the solid waste facility. In addition, the final-form regulations include the use of the site-specific standard as an option for remediations of spills or releases at closure for solid waste facilities.
Commentators recommended adding a definition of ''solid waste facility'' to the regulations. A new definition for this term is not necessary because a ''facility'' is defined within each of the municipal waste, residual waste and hazardous waste regulations. In addition, the final-form regulations clarify that if a release occurs outside a disposal or processing unit, then any of the remediation standards may be used for the remediation in accordance with this chapter and Act 2.
Commentators indicated that subsections (b) and (c) of proposed § 250.12 were inconsistent with existing regulations because solid waste monitoring points were considered the points of compliance, instead of the points of compliance under Act 2. Further, it was stated that the EPA recognizes that it may not be appropriate to set a point of compliance at a monitoring well. Since the SWMA addresses the management of wastes that would not be present but for the operation of a permitted facility, it is the intention of the Department to minimize impacts caused by an unregulated release from these facilities and to abate pollution on the property where the site is located. On final rulemaking, a release at a solid waste facility during its operational life is subject to the points of compliance under Subchapters B and C of the land recycling regulations. In limited circumstances, the point of compliance for groundwater may be extended beyond the property boundary. This position is consistent with the best available technology philosophy embodied in the Department's permitting and groundwater protection requirements. The monitoring wells required under the solid waste regulations will continue to apply as a tool to monitor compliance with performance, design and operational standards required under the solid waste regulations. At closure, a release is subject to the points of compliance under Subchapters B--D (relating to background Statewide health and site-specific standards).
On final rulemaking, subsection (a) states that facilities that did not receive waste after September 7, 1980, are subject to Chapter 250 and Act 2 in its entirety. The proposed waste-specific trigger dates were deleted on final rulemaking. New subsection (b) indicates that the permitting, performance, operation, design and closure requirements under the environmental protection acts are not affected by Chapter 250 and Act 2. The groundwater standards in Subchapters B and C apply as part of a Department-approved assessment and abatement plan that is implemented prior to closure of a solid waste facility and apply as the standards that must be demonstrated to qualify for liner and leachate system waivers or modifications as specified in Chapter 287 (relating to residual waste management--general provisions). The groundwater standards in Subchapters B--D apply to the remediation of a release at closure but may not be substituted for design and performance standards required under the solid waste management regulations. Remediations performed at hazardous waste facilities must comply with the requirements of the Federal Resource Conservation and Recovery Act (42 U.S.C.A. §§ 6091--6986). For residual waste facilities, groundwater parameters and human health environmental protection levels no longer apply to groundwater remediations.
Subsection (c) was replaced with new language that addresses unpermitted releases or spills at a permitted solid waste facility. If the release is outside a disposal or processing unit, including surface impoundments, waste storage areas, associated piping and underlying containment systems, then it must be remediated in accordance with Chapter 250 and Act 2.
Section 250.10. Measurement of regulated substances in media.
This section sets out procedures for sampling of regulated substances. To eliminate differences based on moisture content, it provides that analyses of soils and sediments be done on a dry weight basis. The proposed regulations required total metals analysis for most substances, and required field filtering and field acidification of groundwater samples for metals analysis.
Commentators supported the requirement that groundwater samples for metals analyses be field filtered. The final-form regulations establish separate requirements for groundwater when monitoring is being performed at a drinking water well. At these wells, samples for metals analyses must be unfiltered. This change was made because in a drinking water well, an unfiltered sample best represents the actual exposure of the regulated substances to humans.
Commentators requested that appropriate methodologies for surface water be added to this section. The final-form regulations include a requirement that will provide consistency in the sampling of surface water.
Subsection (f) of the final-form regulations includes a cross reference to a sampling methodology for air samples in this section.
Subchapter B. Background Standard
The background standard is one of the three cleanup standards available under Act 2. Background is defined by Act 2 as the concentration of a regulated substance determined by appropriate statistical methods that is present at the site, but is not related to the release of regulated substances at the site. The determination of a background concentration must be based on levels of naturally occurring substances and concentrations of regulated substances originating from sources on other properties. Under Act 2, persons are not responsible for abating releases originating from other properties.
Section 250.202. Establishing background concentrations.
On proposed, this section created two methods for determining background standards: the use of practical quantitation limits as the default background standard or the use of a remedial investigation to establish background. If a person is using a remedial investigation to establish background, samples must be taken in an area unaffected by a release on the property. In some cases, this may require off-property sampling. Criteria are included to determine the number of samples necessary to determine background levels in groundwater.
Commentators indicated that the word ''determined'' should be replaced with ''established'' throughout the section. This language is changed on final rulemaking.
Commentators stated that sampling and statistical methodologies should be included in this section. This information is already described in Subchapter G (relating to demonstration of attainment).
On final rulemaking, the default background concentrations were eliminated. The default background concentrations were developed for use during the interim period prior to final rulemaking. With this final rulemaking, the availability of the Statewide health numerical standards eliminates the need for default values. An additional change to this section is the replacement of the words ''a remedial investigation'' with the words ''a site characterization.'' The words ''remedial investigation'' are used as a term of art in the site-specific standards section of Act 2. To avoid confusion, the language was changed in this section of the background standard. Other minor revisions were made to this section.
Section 250.203. Points of compliance.
The point of compliance is the location in the environmental media where attainment of the standard must be met. In surface water, the proposed points of compliance for point source discharges are the points of discharge in accordance with the limits specified in a National Pollutant Discharge Elimination System (NPDES) permit. The proposed regulations also indicated that the following points of compliance apply to surface water: 1) nonpoint source or diffuse groundwater discharges to surface water were required to meet instream surface water quality standards through the use of mass balance techniques; and 2) when groundwater discharges to the surface, thus creating a spring, the point of discharge to the surface was the point of compliance. For outdoor air quality, the proposed point of compliance was cross referenced to the applicable air quality regulations.
To attain the background standard for groundwater, the point of compliance is throughout the contaminant plume, including areas of the plume that are outside the property boundary. For soil, the point of compliance is throughout the area of the soil that has become contaminated as a result of releases on the property. The final rulemaking has not changed these requirements.
Commentators indicated that the point of compliance for groundwater cannot, under Act 2, be brought inside the property boundary. They point to the definition of ''point of compliance'' in the statute which provides that the point of compliance for groundwater is at the property boundary or a point beyond the property boundary that the Department may determine to be appropriate. Section 302 of Act 2 (35 P. S. § 6026.302) states that ''attainment of the background standard shall be demonstrated . . . in the area where the contamination occurs . . .'' It is the Department's interpretation that the area where groundwater contamination occurs is throughout the plume, including areas of the plume that are outside the property boundary. Another commentator supported the application of the point of compliance throughout the plume because the landowner should be responsible for remediation of all of the contaminant plume under the background standard.
On final rulemaking, the Department deleted the points of compliance for diffuse groundwater discharges and for springs. The reason for this change is that under the definition of ''background,'' if the groundwater meets the background standard, remedial obligations to address the groundwater are satisfied under Act 2, even if surface water quality standards are not met. In addition, minor revisions were made to this section.
Section 250.204. Final report.
Under the background standard, the final report is the only report that must be submitted to and approved by the Department. The final report must document the following: site investigation activities including all laboratory results; the means for establishing background concentrations; the remediation activities; the demonstration of attainment with the standard; and any postremediation activities, such as engineering or institutional controls, that are necessary to maintain attainment.
Commentators have stated that documentation in § 250.204(f)(6) and (7) requires that the background area shall be free of contamination from any release at the site. It has been suggested that this language does not take historical releases into consideration. Act 2 defines background as the concentration that is ''not related to the release of regulated substances at the site.'' Historical contamination at the site is related to releases at the site, and cannot be considered background. The regulations do not require that background areas be free of any release, but they do require that background comparison areas be free from the effects of the releases on the subject property. No change to the section is needed in response to the comment.
A commentator has suggested the use of side-gradient locations, where no hydrogeologically upgradient points are available for determining background. If there is not a hydrogeologically upgradient release of a regulated substance, then it is not possible for a property owner to obtain a background standard release for groundwater. A person demonstrates background by showing that contamination is migrating onto their property or that levels of contaminants on the property are naturally occurring. A side-gradient concentration does not demonstrate that the contamination is migrating onto the subject property. If there are no conditions that cause contamination from an adjacent site to move onto the property or the regulated substances are naturally occurring then the background standard is not available.
On final rulemaking, changes were made in subsection (a) to provide more direction in a site investigation to the characterization of the rate of movement, extent and fate of contaminants, as required by Act 2 in a final report. A fate and transport analysis should delineate the extent of contamination over the period of its transport to ensure continued attainment of the remediation standard. In subsection (b), the words ''above the selected standard'' were deleted in paragraph (2) because it is more important to know this information at the attainment stage. A complete site characterization, prior to remediation, should include all areas where the regulated substance is present. In subsection (b)(3), the words ''and fate and transport of all contaminants'' were added to more fully describe what information is expected to be submitted for the site characterization.
In subsection (f), clarifications were made to the requirement for additional information. The methodology and analytical results used during remediation must be documented. The determination that the remediation met the cleanup standard and can be maintained must be justified with this data. Also, the types of information required to be submitted when a fate and transport analysis is used were added. The word ''reference'' was inserted in several locations within this subsection to distinguish between requirements that relate to the identification of a background ''reference'' area and requirements that apply to the area where the background standard is being implemented.
In subsection (g), additional criteria were established to determine when a postremediation care plan is required. Also, additional requirements were added to the postremediation care plan. These requirements include the following: the performance of monitoring that demonstrates the effectiveness of the remedy and periodic reporting of monitoring results and analysis; and documentation of financial ability, if requested by the Department, to implement the remedy and the postremediation care plan.
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