RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 250]
Land Recycling Program
[31 Pa.B. 6395] The Environmental Quality Board (Board) by this order amends Chapter 250 (relating to administration of land recycling program). The amendments provide up-to-date scientific information on toxicity and other parameters of substances and corresponding changes along with corrections to the Statewide health standard medium-specific concentrations (MCS) (numeric standards). The amendments also contain policy clarifications and changes to address issues raised during implementation of the land recycling program and during the Department of Environmental Protection's (Department) 1998-99 land recycling program evaluation.
This order was adopted by the Board at its meeting of September 18, 2001.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information, contact Thomas K. Fidler, Chief, Division of Land Recycling and Cleanup Program, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 783-7816; or Kurt Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, 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's website (www.dep.state.pa.us).
C. Statutory Authority
This rulemaking is being made under the authority of sections 104(a), 301(c) and 303(a) of the Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.104(a), 6026.301(c) and 6026.303(a)) (Act 2). 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 the provisions of 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 standards.
D. Background and Purpose
Aside from minor typographical or technical corrections to the Act 2 regulations, there are two basic reasons for the changes in this regulatory proposal. One is more up-to-date scientific information on parameters that affect the calculation of the Statewide health standard MSCs. The second is policy clarifications or developments that the Board determined would improve implementation of the Statewide health standard and attainment provisions in the land recycling program. These policy amendments primarily concern the process involved in nonuse aquifer determinations and attainment demonstrations at petroleum release sites.
The Cleanup Standards Scientific Advisory Board (CSSAB) was consulted on the proposed rulemaking and this final-form rulemaking as well. In areas where they had concerns, the CSSAB suggested language that has been incorporated into this final-form rulemaking. On February 3, 2000, the CSSAB voted to recommend approval of the proposed regulation package. The CSSAB considered the final-form rulemaking at its February 22, 2001, and March 26, 2001, meetings. At the March meeting, the CSSAB voted to recommend to the Board approval of the final-form rulemaking.
E. Summary of Comments and Responses and Changes Made in the Final-Form Rulemaking
Notice of the proposed rulemaking was published at 30 Pa.B. 3946 (August 5, 2000). The proposal, as corrected at 30 Pa.B. 4356 (August 19, 2000), set forth a 60-day comment period.
During the public comment period, the Board received written comments from eight individuals or groups. The Board considered the comments received in formulating the final-form regulations. The Department has prepared a comment and response document that addresses each comment on the proposed regulations.
A copy of that document was presented to the Board along with this final-form rulemaking and is available from the contact persons listed in Section B of the Preamble.
The following is a summary of major comments received and changes that have been made to the proposed rulemaking. The summary is listed in the same order as the final-form regulations.
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 term ''agricultural purposes'' was added to clarify what they are and that they include food processing. The commentators agreed with the change.
Sections 250.5 and 250.6. Public notice by applicant; and public participation
Section 250.5 establishes requirements for public notice for a remediator of a site. Section 250.5(d) is a new subsection pertaining to areas not covered entirely by a nonuse aquifer areawide certification. The subsection requires that when a nonuse aquifer designation request under the Statewide health standard is made to the Department, the remediator shall send notice to every municipality and community water supplier servicing the area requested for nonuse aquifer designation. One commentator believed this would have the effect of deferring approval of nonuse aquifer determinations to the municipality, making the process of getting a nonuse aquifer determination even more difficult and time-consuming. The commentator recognized that it may be useful tocontact the municipality and local community water supplier regarding current and planned future use of groundwater. However, the commentator believed that the approach under this subsection would create a new requirement to obtain a nonuse aquifer determination prior to completion of the final report. The commentator recommended that a nonuse aquifer determination request might be submitted prior to submission of the final report. The commentator concluded that if the remediator could demonstrate that groundwater is not useable and that an ordinance is in place prohibiting groundwater use for drinking water, then the remediator's nonuse aquifer determination should be approved.
The amendment does not add a requirement to obtain concurrence by the municipality or community water supplier prior to nonuse aquifer determination. The conditions upon which the Department will make its determination are based solely on demonstrating compliance with the requirements of § 250.303 (relating to aquifer determination; current use and currently planned use of aquifer groundwater). Approval of use of the nonuse aquifer groundwater standards is, and will continue to be, as it is specified in that section.
Commentators had concerns with the 45-day review period proposed in § 250.5. One commentator felt the time period could be reduced or eliminated because the requirements of § 250.303(c) may be met through the use of local ordinances. The purpose of the 45-day period is to allow the municipality and water supplier to identify information relevant to § 250.303(c) that the Department may consider. During discussion with the CSSAB, it became apparent that municipalities commonly meet once a month, and a 30-day comment period may not be enough time for the nonuse aquifer proposal to be considered by boards and to have public input. The Board does, however, believe that the use of local ordinances will serve to satisfy the requirements of § 250.303(c)(1) and (2). Under this process, water suppliers would be expected to be involved as part of satisfying § 250.303(c), which provides the opportunity for water supplier input. The proposed rulemaking was modified to reflect the use of local ordinances. The purpose behind the 45-day period of review in § 250.5(e) is to allow both the municipality and water supplier to identify information relevant to § 250.303(c) that the Department may consider in making its final determination. In those cases where a local municipal ordinance prohibiting the use of groundwater does not exist, the 45-day review period is retained.
One commentator requested clarification on determining what was meant by receipt as it pertains to submission of a nonuse aquifer determination request. The phrase ''receipt of a request'' refers to the receipt by the municipality or community water supplier of a nonuse aquifer determination request. The method and procedures are specified in the technical guidance manual.
A commentator indicated that, regarding the requirements applicable to precertification requests and nonuse aquifer determinations, the proposed § 250.6(e) should be expanded to allow public involvement plans to be developed by the parties remediating a site. The commentator noted that under the proposed § 250.303(f) only municipalities and authorities could ask the Department for a nonuse determination. Only these entities would be required to develop a public involvement plan. The commentator indicated that the standards for Department approval of a remediator's request are specified in § 250.303(b), but under the proposed amendments the approval standards would include satisfaction of § 250.6, which is a set of requirements that can only be satisfied by a municipal authority or municipality. The commentator believed the disconnect between § 250.303(b), as amended, and proposed §§ 250.6(e) and 250.303(f) can be remedied by expanding § 250.6(e) to allow a public involvement plan to be developed by the party remediating a site.
The Department acknowledges that the proposed nonuse aquifer wording changes were not clear and has made clarifications in the final-form rulemaking in §§ 250.5, 250.6 and 250.303. The intent with respect to public notice and participation is that nonuse aquifer proposals made by remediators would not require a public involvement plan. Section 250.303(f) requires that a municipal ordinance prohibiting use of groundwater be in place to obtain an areawide certification. Since the process for developing an ordinance contains sufficient public notice and comment, the Department does not believe that additional public participation in connection with an areawide certification request is necessary. Consequently, the proposed § 250.6(e) has been deleted from the final-form rulemaking.
Section 250.303. Aquifer determination; current use and currently planned use of aquifer groundwater
This section identifies the criteria that must be met for a remediator to use the nonuse aquifer MSCs, and the area within which those criteria must be met; establishes a 45-day review period for municipalities and water suppliers; and establishes a process for designating nonuse aquifer areawide certification when no specific site is involved.
One commentator was concerned that the proposal to limit the on-property area to which the requirements of § 250.303(c) apply to the area of the site, rather than to the entire property, would in effect move the point of compliance inside the property boundary.
The rulemaking does not suggest that there are Points of Compliance (POC) internal to the property boundary. Section 250.303(b) does not attempt to apply standards within the property--''behind'' the POC--as determined by § 250.302 (relating to point of compliance). Instead, it establishes the geographic area within which the conditions in § 250.303(c) must be met for the site to qualify for a nonuse aquifer standard. As written in the existing version of Chapter 250, the geographic area includes the area within the property, as well as a minimum of 1,000 feet downgradient of the POC. This revision limits the geographic area within the property where the requirements of § 250.303(c) apply to only that area which is contaminated (that is, the ''site''). The Board's intention in applying § 250.303 is to assure that anywhere the contamination exists (even within the property), or may reasonably migrate (assuming a minimum of 1,000 feet), that the requirements of § 250.303(c) are met. Once the remediator is granted the use of the nonuse aquifer MSCs, the demonstration of attainment must be made at the POC (normally the property boundary), as determined by § 250.302.
Commentators were concerned that the 45-day period should be reduced to 30 days, that the requirements of § 250.303(c) may be met through the use of local ordinances and that the section imposes a requirement that the municipality and water supplier must concur in the approval of the nonuse aquifer designation.
The Board initially planned to propose a 30-day comment period for municipalities and community water suppliers to review nonuse aquifer designation requests. As noted previously, the Board recognizes that a 30-day time period may not be enough time for the nonuse aquifer proposal to be considered by municipalities and for the associated public input. Although this is not necessarily a factor with community water suppliers, the Board is declining to accept the commentators' suggestion and the final rulemaking retains the 45-day period in the final rulemaking except where municipal ordinances are in place.
The Board believes there is merit to allowing appropriate local ordinances to satisfy requirements of § 250.303(c)(1) and (2). Under this process, water suppliers should be involved as a part of satisfying § 250.303(c)(3)--(4), which provides opportunity for their input. The final rulemaking includes the use of local ordinances to demonstrate compliance with the § 250.303(c) requirements at an individual site as well as in the designation of nonuse aquifer areas in the absence of a specific cleanup.
One commentator was concerned that the proposed amendment effectively added a requirement to obtain concurrence by the municipality and water supplier prior to approval of the nonuse aquifer determination by the Department. The amendment does not add a requirement to obtain concurrence by the municipality or community water supplier prior to nonuse aquifer determination. The conditions upon which the Department will make its determination are based solely on demonstrating compliance with the requirements of § 250.303. Approval of use of the nonuse aquifer groundwater standards is and will continue to be as it is specified in that section. The purpose behind the notice and the 45-day period of review is to allow both the municipality and water supplier to identify information relevant to § 250.303(c), which the Department may consider in making its final determination. For instance, the Department believes the municipality may be a source of knowledge of the existence of wells used for drinking water, and the water supplier should be a source of information of whether all properties are connected to public water--both examples of conditions relevant to § 250.303(c) criteria.
It is true that by instituting a 45-day review period, this proposed amendment will require the remediator to wait a minimum of 45 days to receive the nonuse aquifer determination from the Department. It will be in the remediator's best interest to file the nonuse aquifer determination request at the time of, or as soon as possible after, the filing of the Notice of Intent to Remediate (NIR).
Commentators had concerns that § 250.303(f) limited the ability to request a nonuse aquifer designation to municipalities and political subdivisions, and that the 3-year sunset provision would make the designation difficult to obtain and implement. Parts of the comments are related to the misunderstanding that the proposed new subsection applied to remediators requesting a nonuse aquifer designation for a specific site. In fact, the Board intended those requirements to only apply in cases where municipalities or redevelopment authorities propose a determination, in the absence of an NIR for a specific site. This process was intended to provide a tool for use by municipalities and redevelopment authorities to encourage the remediation and reuse of contaminated properties. Section 250.303(f) has been modified to provide that a municipal authority or political subdivision can demonstrate that the conditions of § 250.303(c)(1)--(2) are satisfied by documenting that the requirements of § 250.303(c) are met in the designation area and that the local municipalities have in place an ordinance which prohibits the use of groundwater for drinking or agricultural purposes and requires the lateral connection to a public water supply for every property.
The proposed requirement that the applicant request renewal of the areawide certification every 3 years is deleted from the final-form rulemaking as the result of several commentators' concerns that it makes the process unworkable. In place of mandated renewal timeframes, the Board has revised § 250.303(d) to include a requirement that institutional controls or a postremediation care plan be included in a final report to provide documentation that the site continues to meet the requirements of the nonuse aquifer designation contained in § 250.303(c). The final-form rulemaking also provides a mechanism for determining when the postremediation care may be terminated.
Section 250.311. Evaluation of ecological receptors
Section 250.311(c) and (d) were modified to clarify that the Constituents of Potential Ecological Concern (CPECs) to be investigated by the screening process are those that are associated with the release being addressed by the current remediation, and not those that may be present as part of the site background or through historical releases at the site.
Section 250.703. General attainment requirements for soil
A minor change was made to the wording of the proposed changes to this section to clarify the Department's intent that if the contaminated soil is removed from the site, attainment samples are to be taken from the base and sides of the excavation.
Section 250.707 Statistical tests
Section 250.707(b) was amended to include a procedure for demonstrating attainment of a Statewide health standard for petroleum releases when full characterization has not been completed prior to remediation. Several commentators supported this concept as being a cost-effective method for determining attainment and suggested that the methodology be extended to include all small spills, rather than just petroleum releases. Other commentators suggested that this methodology be extended to the background standard or to restrict its use to cleanups where the final report is submitted within 90 days of the spill or release.
As originally proposed, the amendment restricted the use of this methodology to remediations of regulated storage tank spills being conducted under the Department's guidance document ''Closure Requirements for Underground Storage Tank Systems.'' In the final-form rulemaking, the use of this methodology is extended to include all releases of petroleum products, whether from regulated storage tanks or other sources. However, the Board disagrees with the idea of extending this methodology to all small spills. The Board and the CSSAB felt that it was critical to limit the concept to contaminants that could be easily detected by field observations and measurements and, therefore, could realistically be used in a biased sampling approach. Not all contaminants satisfy this condition because they do not readily exhibit properties that can be seen, smelled, and the like. The Board and the CSSAB felt that field observations and measurements could easily detect petroleum spills, and these present the bulk of the small spill cases under Act 2. Commentators also suggested extending this option to the background standard, and restricting this option to remediations being completed within 90 days of the spill or release. The Board does not agree that the suggested changes are appropriate and these options are not a part of the final-form rulemaking.
Finally, the term ''full site characterization'' was clarified by adding a reference to the requirements of § 250.204(b) (relating to final report). That section provides a detailed description of the items included in a full site characterization.
Appendix A. Statewide Health MSC Tables
Changes to the MSC values from those published in the proposed amendment occurred as the result of new toxicological values being available since the publication of that amendment and the changes to several MCL values published by the EPA in the same time period. Several commentators commented that the toxicological values as published in the final-form regulations should use the most current data available. Specifically mentioned were the oral slope factor for beryllium and reference doses for methyl methacrylate and vinyl chloride. Several commentators commented on the methodology for calculating the MSC values for PCBs.
Based upon changes made by the EPA, the MCL or lifetime Health Advisory Level (HAL) was changed for six substances: ethylene glycol, malathion, chlorobenzene, naphthalene, 1,1,2,2-tetrachloroethane and trinitrogly- cerol (nitroglycerin).
The oral slope factor for beryllium was removed since the value presented in the proposed amendment is no longer cited by any of the sources used in developing the toxicological values.
In the proposed amendment, changes to the oral and inhalation reference doses (RfDo and RfDi) were made for methyl methacrylate, but changes to the direct contact MSC for residential exposures were not. The residential direct contact value changed in the final-form regulations to 10,000 mg/kg. The proposed rulemaking did not correctly show that this value was being revised, so the MSC for methyl methacrylate was not included.
The RfDo for cobalt was revised to 0.02 mg/kg/day, and the RfDi to 0.000005 mg/kg/day.
The RfDo for 1,3-dichlorobenzene was revised to 0.03 mg/kg/day.
An oral slope factor of 0.0018 and an inhalation slope factor of 0.0018 were added for methyl tert-butyl ether.
The RfDo for 2,3,6-trichlorophenol was revised to 0.0003 mg/kg/day and an RfDi of 0.0003 mg/kg/day was added.
The RfDo for hexachlorocyclopentadiene was revised from 0.007 to 0.006 mg/kg/day and the RfDi was revised from 0.00002 to 0.00006 mg/kg/day.
For vinyl chloride, the RfDo was updated to 0.003 mg/kg/day, and the RfDi to 0.029 mg/kg/day.
In the proposed rulemaking, the groundwater MSCs for the individual PCB Aroclor formulations were removed and the MCL for total PCBs was used to provide more consistency with the requirement of Act 2 that the groundwater MSC comply with an MCL where one exists. The soil-to-groundwater numeric values for PCBs in soil were calculated using the MCL for total PCBs in groundwater as the endpoint for the generic value equation in § 250.308 (relating to soil to groundwater pathway numeric values). In consultation with the CSSAB and as the result of several comments on the proposed amendment, the Department has revised the methodology for calculat-ing MSCs for PCBs in soil and groundwater. For PCBs in groundwater, Table 1 of Appendix A now includes both the MCL for total PCBs and the Aroclor-specific values calculated according to the methodology in § 250.304. It is intended that the remediator have the choice between the MCL and the Aroclor-specific values for PCBs in groundwater. The generic value soil-to-groundwater numeric values in Table 3b of Appendix A have been calculated using the Aroclor-specific groundwater MSCs as the endpoint for the equation in § 250.308. The 100X groundwater MSC value is also based on the Aroclor-specific value.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
Remediators will benefit from the additional flexibility for demonstrating attainment on groundwater cleanups and in cases where small excavations of soil cleanups are performed. The remediators will also benefit from having information and standards that incorporate more current scientific information than was available during the previous final regulation. Local governments will benefit from their ability to provide comments on nonuse aquifer area designation decisions and from their ability to ''pre-certify'' areas in their communities as meeting the nonuse aquifer conditions of § 250.303.
Compliance Costs
There are no direct increased costs from the final-form rulemaking amendment. Indirectly, there are some increases in costs in some areas and decreases in costs in other areas. Increased costs for remediators will occur in cases where the local municipality requests a public involvement plan in the designation of a nonuse aquifer area. These costs will be related to the development of a public participation plan, interaction with the municipality and project delays related to the additional time required to have the municipality involved in the process. Decreased costs will occur associated with the demonstration of compliance with a standard in cases of minor groundwater or soil contamination.
Compliance Assistance Plan
The land recycling program regularly provides outreach in two areas: updates to the technical guidance manual supporting Chapter 250 and annual client workshops where training on the regulations, guidance and policies takes place.
Paperwork Requirements
No new paperwork is required by this final-form rulemaking. Additional paperwork will be required when an areawide certification of nonuse aquifer status is voluntarily sought under § 250.303, although a determination will ultimately lead to a reduction in paperwork for remediators who wish to use the areawide determination in future cleanups.
G. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 11, 2000, the Department sub-mitted a copy of the notice of proposed rulemaking, published at 30 Pa.B. 3946, and corrected at 30 Pa.B. 4356, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on October 11, 2001, these final-form regulations were deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 18, 2001, and approved the final-form regulations.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) These regulations do not enlarge the purpose of the proposal published at 30 Pa.B. 3946 and corrected at 30 Pa.B. 4356.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 250, are amended by amending §§ 250.1, 250.5, 250.6, 250.303, 250.304, 250.311, 250.703, 250.707 and Appendix A, to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
DAVID E. HESS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 6120 (November 3, 2001).)
Fiscal Note: Fiscal Note 7-356 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VI. GENERAL HEALTH AND SAFETY
CHAPTER 250. ADMINISTRATION OF LAND RECYCLING PROGRAM
Subchapter A. GENERAL PROVISIONS § 250.1. Definitions.
In addition to the words and terms defined in the act, the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ASTM--The American Society for Testing and Materials.
Act--The Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101--6026.909).
Agricultural purposes--Commercial agricultural activities, including, but not limited to, irrigation of crops, watering of livestock, and food production, processing or packaging.
Anisotropy--The variability of a physical property based on direction, for example, variation in permeability in relation to direction of groundwater flow.
Community water system--As defined in the Pennsylvania Safe Drinking Water Act (35 P. S. §§ 721.1--721.17), a public water system, which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.
EQL--Estimated quantitation limit.
Enterprise zone--An area specially designated as an enterprise zone under requirements determined by the Department of Community and Economic Development.
Environmental protection acts--Includes:
(i) The Clean Streams Law (35 P. S. §§ 691.1--691.1001).
(ii) The Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §§ 4001.101--4001.1904).
(iii) The Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
(iv) The Low-Level Radioactive Waste Disposal Act (35 P. S. §§ 7130.101--7130.906).
(v) The act of July 13, 1988 (35 P. S. §§ 6019.1--6019.6), known as the Infectious and Chemotherapeutic Waste Disposal Law.
(vi) The Air Pollution Control Act (35 P. S. §§ 4001--4015).
(vii) The Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.31).
(viii) The Noncoal Surface Mining Conservation and Reclamation Act (35 P. S. §§ 3301--3326).
(ix) The Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27).
(x) The Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003).
(xi) Other State or Federal statutes relating to environmental protection or the protection of public health.
Habitats of concern--A habitat defined as one of the following:
(i) Typical wetlands with identifiable function and value, except for exceptional value wetlands as defined in § 105.17 (relating to wetlands).
(ii) Breeding areas for species of concern.
(iii) Migratory stopover areas for species of concern.
(iv) Wintering areas for species of concern.
(v) Habitat for State endangered plant and animal species.
(vi) Federal, State and local parks and wilderness areas, and areas designated as wild, scenic or recreational.
(vii) Areas otherwise designated as critical or of concern by the Game Commission, the Fish and Boat Commission or the Department of Conservation and Natural Resources.
Heterogeneity--Nonhomogeneous structure, composition and physical properties.
MCL--Maximum contaminant level.
MSC--Medium-specific concentration.
NIR--Notice of Intent to Remediate.
NPDES--National Pollutant Discharge Elimination System.
PQL--Practical quantitation limit.
Property--A parcel of land defined by the metes and bounds set forth in the deed for that land.
Regulated discharge--A point or nonpoint source discharge subject to the permit or approval requirements of Chapters 91--97 and 102--105 and any diffuse surface or groundwater discharge to surface waters which has the potential to cause an exceedance of the water quality standards in Chapter 93 (relating to water quality standards).
Risk assessment--A process to quantify the risk posed by exposure of a human or ecological receptor to regulated substances. The term includes baseline risk assessment, development of site-specific standards and risk assessment of the remedial alternatives.
SIA--special industrial area--Property where there is no financially viable responsible person to perform remediation or property located within an enterprise zone, and where the property was used for industrial activity.
Secondary contaminants--A regulated substance for which a secondary MCL exists, and no lifetime health advisory level exists.
Site--The extent of contamination originating within the property boundaries and all areas in close proximity to the contamination necessary for the implementation of remediation activities to be conducted under the act.
Species of concern--Species designated as of special concern, rare, endangered, threatened or candidate by the Game Commission, the Fish and Boat Commission or the Department of Conservation and Natural Resources, if the species has not also been designated threatened or endangered by the Federal government.
TF--Transfer factor.
Volatile compound--A chemical compound with a boiling point less than 200° centigrade at 1 atmosphere.
§ 250.5. Public notice by applicant.
(a) Public notice under the background, Statewide health or site-specific standard and under a special industrial area cleanup shall be initiated by the applicant through an NIR. For remediations proposing the use of a site-specific standard or, for remediations under an SIA agreement, the public and the municipality where the site is located shall be provided a 30-day period, in the NIR, in which the municipality may request to be involved in the development of the remediation and reuse plans for the site.
(b) The remedial investigation report, the risk assessment report and the cleanup plan, prepared under a site-specific remediation, may not be submitted to the Department until after the initial 30-day public and municipal comment period following the submission of the NIR has expired.
(c) The baseline environmental report, prepared under an SIA remediation, shall be submitted after the initial 30-day public and municipal comment period has expired.
(d) For areas not covered entirely by a nonuse aquifer areawide certification granted under § 250.303(f) (relating to aquifer determination; current use and currently planned use of aquifer groundwater), at the same time a request for a nonuse aquifer designation under the Statewide health standard is made to the Department, the remediator shall send notice to every municipality and community water supplier servicing the area requested for designation as nonuse under § 250.303(b). The notice shall include a copy of the request for determination of nonuse aquifer submitted to the Department.
(e) Upon receipt of notice of a request for a nonuse aquifer designation, the municipality and community water supplier shall have 45 days to indicate to the Department and the remediator any information relevant to the requirements of § 250.303.
§ 250.6. Public participation.
(a) The publication date of the summary of the NIR in a newspaper of general circulation in the area of the site shall initiate the 30-day public and municipal comment period during which the municipality can request to be involved in the development of the remediation and reuse plans for a site being remediated to a site-specific standard or for remediation at an SIA.
(b) The person proposing remediation shall be responsible for developing and implementing a public involvement plan if both of the following circumstances exist:
(1) The remediation involves a site-specific standard or an SIA cleanup.
(2) A municipality, through its official representatives, has requested, in writing, to be involved in the development of the remediation and reuse plans within the 30-day public and municipal comment period identified in the notice to the municipality and the newspaper notice.
(c) If a public involvement plan has been initiated, the person proposing remediation shall, at a minimum, provide:
(1) Public access at convenient locations for document review.
(2) Designation of a single contact person to address questions from the community.
(3) A location near the remediation site for any public hearings and meetings that may be part of the public involvement plan.
(d) If a public involvement plan has been requested, it shall be submitted with one of the following:
(1) A remedial investigation report under a site-specific remediation.
(2) A baseline environmental report under an SIA cleanup.
Subchapter C. STATEWIDE HEALTH STANDARDS § 250.303. Aquifer determination; current use and currently planned use of aquifer groundwater.
(a) With the exception of seasonal, localized and hydrologically isolated perched systems under a property, all geologic formations or parts or groups of formations in this Commonwealth which are saturated are presumed to be aquifers for the purpose of applying the Statewide health standards. The term includes saturated residuum such as saprolite and other weathered rock strata or intervals developed from underlying bedrock and other saturated deposits overlying these formations to which the geologic formations are hydrologically connected.
(b) All groundwater in aquifers is presumed to be used or currently planned for use, unless determined otherwise by the Department under this section.
(1) The Department may determine, in writing, based on a demonstration by the person remediating a site identified in an NIR, that groundwater is not used or currently planned to be used, if:
(i) The public participation requirements of § 250.5 (relating to public notice by applicant) are met.
(ii) The requirements in subsection (c) are met within the site on the property and within a radius of 1,000 feet downgradient of the points of compliance plus any additional areas to which the contamination has migrated and might reasonably migrate at concentrations that exceed the MSC for groundwater used or currently planned to be used.
(2) Methods appropriate for determining current or currently planned future use may include door-to-door surveys, verifying community water system billing records and interviewing community water system suppliers with regard to their currently planned future groundwater use.
(c) The following requirements shall be met within the area described in subsection (b):
(1) No groundwater derived from wells or springs is used for drinking water or agricultural purposes.
(2) All downgradient properties are connected to a community water system.
(3) The area described in subsection (b) does not intersect a radius of 1/2 mile from a community water supply well source or does not intersect an area designated by the Department as a zone 2 wellhead protection area under Chapter 109 (relating to safe drinking water).
(4) At the time the nonuse aquifer determination request under subsection (b) is submitted to the Department, there are no existing documents developed by political subdivisions or community water system suppliers detailing the implementation of groundwater resources development (that is, no currently planned future uses) in the area specified in subsection (b)(1)(ii).
(d) If the Department determines that groundwater is not used or currently planned to be used, the following requirements apply within the area identified in subsection (b):
(1) The requirements in § 250.309 (relating to MSCs for surface water).
(2) The ecological screening process identified in § 250.311 (relating to evaluation of ecological receptors).
(3) The remediator shall establish institutional controls to maintain the integrity of the nonuse aquifer determination, or include a postremediation care plan in the final report detailing the process of routinely assessing and reporting to the Department compliance with subsection (c).
(i) Postremediation care plan provisions shall be acknowledged within the deed to the remediated property upon transfer of ownership to insure compliance with subsection (c).
(ii) Postremediation assessment and reporting requirements shall continue until the property owner can demonstrate that the MSC for groundwater in aquifers used or currently planned for use is not exceeded at the point of compliance, and fate and transport analysis shows that the MSC will not be exceeded at that point in the future.
(e) The MSCs for groundwater in an aquifer that is not used or currently planned for use, under § 250.304(d) (relating to MSCs for groundwater), shall be met at the points of compliance identified in § 250.302 (relating to point of compliance)
(f) A nonuse aquifer areawide certification obtained under this subsection may be used by the remediator to demonstrate that the requirements of subsection (c) are met.
(1) With or without the presence of an associated NIR, the Department may determine, in writing, based on a demonstration by a municipal authority or political subdivision, that groundwater is not used or currently planned to be used in a specific geographic area, if the following conditions exist:
(i) The municipal authority or political subdivision demonstrates that the requirements of subsection (c) are met in the specific geographic area.
(ii) Municipal ordinances are in effect that prohibit the use of groundwater from wells or springs for drinking water or agricultural purposes.
(iii) Municipal ordinances are in effect that require all water users to connect to a community water supply system.
(2) If the municipal ordinances relied upon to make the demonstration in paragraph (1) are amended or repealed, the political subdivision or municipal authority who requested the areawide designation shall notify the Department in writing within 30 days of the effective date of the amendment or repeal.
§ 250.304. MSCs for groundwater.
(a) A person shall implement a remedy under the Statewide health standard that is protective of human health and the environment.
(b) The MSCs for regulated substances in groundwater are presented in Appendix A, Tables 1 and 2. The methodology used by the Department for calculating MSCs in groundwater is detailed in subsections (c)--(f).
(c) The MSCs for regulated substances contained in groundwater in aquifers used or currently planned to be used for drinking water or for agricultural purposes is the MCL as established by the Department or the EPA (U. S. EPA, 1996. Drinking Water Regulations and Health Advisories. Office of Water. EPA 822-R-96-001). For a regulated substance where no MCL has been established, the MSC is the lifetime health advisory level (HAL) for that compound. For a regulated substance where neither an MCL nor a lifetime HAL is established, the MSC is the lowest concentration calculated using the appropriate residential and nonresidential exposure assumptions and the equations in §§ 250.306 and 250.307 (relating to ingestion numeric values; and inhalation numeric values).
(d) For regulated substances contained in aquifers not used or currently planned to be used, the MSCs in Appendix A, Tables 1 and 2 are calculated by the following:
(1) For volatile organic regulated substances with an attenuation factor of less than 20, as calculated by the methodology in paragraph (7), ten times the appropriate residential or nonresidential MSC for groundwater in aquifers used or currently planned to be used containing less than 2,500 mg/l total dissolved solids.
(2) For volatile organic regulated substances with an attenuation factor of greater than or equal to 20, as calculated by the methodology in paragraph (7), 100 times the appropriate residential or nonresidential MSC for groundwater in aquifers used or currently planned to be used containing less than 2,500 mg/l total dissolved solids.
(3) For semivolatile organic and inorganic regulated substances, regardless of the attenuation factor, 1,000 times the appropriate residential or nonresidential MSC for groundwater in aquifers used or currently planned to be used containing less than 2,500 mg/l total dissolved solids.
(4) For benzene, 100 times the appropriate residential or nonresidential MSC for groundwater in aquifers used or currently planned to be used containing less than 2,500 mg/l total dissolved solids.
(5) For regulated substances with no calculated attenuation factor because of a lack of data in Howard, P. H., R. S. Boethling, W. F. Jarais, W. M. Meylan and E. M. Michalenko. 1991. Handbook of Environmental Degradation Rates. Lewis Publishers, Inc., Chelsea, MI., the appropriate residential or nonresidential MSC for groundwater in aquifers used or currently planned to be used containing less than 2,500 mg/l total dissolved solids.
(6) For minimum threshold MSCs, 5 micrograms per liter in groundwater shall be used.
(7) The attenuation factor (AF) for an organic regulated substance shall be calculated according to the following formula:
AF = K × KOC
Where:
K = degradation coefficient =
0.693
____
T1/2
T1/2--half-life of organic regulated substance in groundwater as reported in Howard, P. H., R. S. Boethling, W. F. Jarais, W. M. Meylan and E. M. Michalenko, 1991. Handbook of Environmental Degradation Rates. Lewis Publishers, Inc., Chelsea, MI.
KOC--organic carbon partitioning coefficient (See Appendix A Table 5).
(e) If the groundwater in aquifers used or currently planned for use at the site has naturally occurring background total dissolved solids concentrations greater than 2,500 milligrams per liter, the Statewide health standard for a regulated substance dissolved in the groundwater may be adjusted by multiplying the MSC for groundwater in aquifers by 100. The adjusted Statewide health standard shall then be used in calculating the soil to groundwater pathway numeric value as specified in § 250.308 (relating to soil to groundwater pathway numeric values).
(f) In addition to the requirements in this section, the MSCs are further limited by solubility as identified in Appendix A, Table 5. The solubility limits are derived from the references in subsection (g), which are keyed to the numbers in Table 5. The following procedure was used to determine the appropriate solubility value for each regulated substance: where multiple sources are cited in Table 5, the value for the solubility limit is the median of the values in the indicated references.
(1) Using the hierarchy established in subsection (g), the first two references were consulted. If the solubility values agreed within 5%, the selected value is the lower of the two values.
(2) If the values in step (1) did not agree within 5%, the next references in order were consulted until two values that did agree within 5% were found. The selected value is then the median of all the values consulted.
(3) If none of the values in all of the references in subsection (g) agreed within 5%, the selected value is the median of all values in all references.
(g) The references referred to in subsection (f) are:
(1) Lide, D. R., ed. 1996. CRC Handbook of Chemistry and Physics, 77th Edition. CRC Press.
(2) Budavari, S., ed. 1996. The Merck Index, 12th Ed. Merck and Co.
(3) Perry, R. H., et al. 1997. Perry's Chemical Engineer's Handbook, 7th ed. McGraw-Hill, New York.
(4) Howard, P. H. 1991. Handbook of Environmental Fate and Exposure Data for Organic Chemicals. Vol. III Pesticides, Lewis Publishers.
(5) Verschueren, K. 1977, Handbook of Environmental Data on Organic Chemicals, Van Nostrand Reinhold.
(6) MacKay, D., et al. 1997, Illustrated Handbook of Physical-Chemical Properties and Environmental Fate for Organic Chemicals, 5 Volumes. Lewis Publishers, New York.
(7) Montgomery, J. H. 1991, Groundwater Chemicals Desk Reference, Vol. II. Lewis Publishers and Montgomery, J. H., and L. M. Welkom. 1990, Groundwater Chemicals Desk Reference Vol I, Louis Publishers.
(8) Milne, G.W.A., ed. 1995, CRC Handbook of Pesticides, CRC Press, Inc.
(9) National Library of Medicine (Grateful Med), Hazardous Substances Databank.
(10) EPA. 1994, Superfund Chemical Data Matrix. Office of Solid Waste and Emergency Response, EPA 540-R-94-009.
(11) Mabey, et al. 1982, Aquatic Fate Process Data for Organic Priority Pollutants, SRI. EPA Contract Nos. 68-01-3867, 68-03-2981.
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