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PA Bulletin, Doc. No. 01-2169

RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA.CODE CH. 245]

Storage Tank and Spill Prevention

[31 Pa.B. 6615]

   The Environmental Quality Board (Board) by this order amends Chapter 245 (relating to administration of the storage tank and spill prevention program). This final-form rulemaking mainly concerns amendments to Subchapter D (relating to corrective action process for owners and operators of storage tanks and storage tank facilities and other responsible parties). This subchapter is commonly known as the ''Corrective Action Process regulation'' (CAP regulation). The CAP regulation was originally adopted at 23 Pa.B. 4033 (August 21, 1993). This final-form rulemaking contains changes necessary to update the CAP regulation because of several developments since its adoption in 1993. This final-form rulemaking also adds, modifies or deletes several definitions in Subchapter A (relating to general provisions) and makes a minor technical change in Subchapter E (relating to technical standards for underground storage tanks).

   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 Charles Swokel, Chief, Storage Tanks and Hazardous Sites Corrective Action Section, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 783-7509; or Kurt E. 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 final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state. pa.us).

C.  Statutory Authority

   This final-form rulemaking is being made under the authority of section 106 of the Storage Tank and Spill Prevention Act (Storage Tank Act) (35 P. S. § 6021.106), which authorizes the Board to adopt rules and regulations governing aboveground and underground storage tanks to accomplish the purposes and carry out the provisions of the Storage Tank Act; sections 301(a)(5) and 501(a)(5) of the Storage Tank Act (35 P. S. §§ 6021.301(a)(5) and 6021.501(a)(5)), which direct the Department to adopt regulations governing corrective action by responsible parties for releases from aboveground and underground storage tanks, respectively; sections 301(a)(6) and 501(a)(6) of the Storage Tank Act, which direct the Department to adopt regulations governing reporting of releases and corrective actions taken in response to releases from aboveground and underground storage tanks, respectively; section 501(a)(2) and (3) of the Storage Tank Act, which directs the Department to adopt regulations concerning release detection system operation and recordkeeping for underground storage tanks; section 501(a)(13)--(15) of the Storage Tank Act, which directs the Department to adopt regulations concerning the handling of soil and subsurface material affected by a release of a regulated substance; section 5(b)(1) of The Clean Streams Law (35 P. S. § 691.5(b)(1)), which authorizes the Department to formulate, adopt and promulgate rules and regulations that are necessary to implement the provisions of that act; section 105(a) of the Solid Waste Management Act (35 P. S. § 6018.105(a)), which requires the Board to adopt the rules and regulations of the Department to accomplish the purposes and carry out the provisions of that act; and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the Board to formulate, adopt and promulgate rules and regulations that may be determined by the Board to be for the proper performance of the work of the Department.

D.  Background and Purpose

   Releases of regulated substances have occurred from thousands of storage tanks in this Commonwealth. These releases have resulted in substantial quantities of regulated substances entering the environment, including contamination of numerous public and private water supplies. The CAP regulation establishes a process under which these releases are to be reported and remediated.

   As noted, the CAP regulation was originally promulgated over 8 years ago. Since that time, several developments have occurred which necessitated amending these regulations. First and foremost is the passage in 1995 of the Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101--6026.909) (Act 2), and the promulgation of regulations under that statute in 1997, codified in Chapter 250 (relating to administration of land recycling program). See 27 Pa.B. 4181 (August 16, 1997). Act 2's environmental remediation standards expressly apply to the remediation of releases under section 106(a) of Act 2 (35 P. S. § 6026.106(a)). Therefore, changes to the CAP regulation were needed to harmonize the two programs' approach to remediation of releases.

   It should be noted, however, that section 904(c) of Act 2 (35 P. S. § 6026.904(c)) states:

The environmental remediation standards established under this act shall be used in corrective actions undertaken pursuant to the [Storage Tank Act]. However, the procedures in the [Storage Tank Act] for reviewing and approving corrective actions shall be used in lieu of the procedures and reviews required by this act. (emphasis added).

Because of this provision in Act 2, the final-form rulemaking amends the CAP regulation to harmonize its provisions with those of Act 2, while maintaining a separate procedural system for corrective actions at regulated storage tank facilities.

   Additional changes to the CAP regulation were identified by the Department as necessary as part of its review of all regulations under the commands of the Department's Regulatory Basics Initiative (RBI) and Executive Order 1996-1. Because there are counterpart Federal regulations regarding corrective actions for releases from regulated underground storage tanks at 40 CFR Part 280 (relating to technical standards and corrective action requirements for owners and operators of underground storage tanks (UST)), the Department reviewed the CAP regulation for consistency with those provisions, along with the other factors identified in the Executive Order and the RBI. Several of the changes reflect the conclusions of that review.

   Third, several changes to the CAP regulation were required to harmonize the CAP regulation with Legislative changes to the Storage Tank Act (primarily the act of June 26, 1995 (P. L. 79, No. 16) (Act 16 of 1995)).

   Finally, several changes in this rulemaking are simply the result of the experience of carrying out the corrective action program in this Commonwealth over the past 8 years. As the program has matured, the Department and the regulated community have worked on overcoming obstacles and identifying opportunities for improving the operation of the corrective action program. Several of these changes reflect that experience.

   Comments received on the proposed rulemaking and draft final regulatory language were reviewed by the Storage Tank Advisory Committee (STAC) at its meetings on March 6, 2001, and June 6, 2001, and reviewed by a subcommittee of STAC at meetings on April 30, 2001, and May 11, 2001. STAC, which was established by section 105 of the Storage Tank Act, consists of persons representing a cross-section of organizations having a direct interest in the regulation of storage tanks in this Commonwealth. As required by section 105 of the Storage Tank Act, STAC has been given the opportunity to review and comment on these final-form regulations. Following its June 2001 meeting, STAC prepared a report indicating its support of this final-form rulemaking. A list of members of STAC may be obtained from the agency contacts identified in Section B of this Preamble.

E.  Summary of Regulatory Requirements and Changes to the Proposed Rulemaking

   A brief description of the rulemaking is as follows:

Subchapter A.  General Provisions

1.  Section 245.1. Definitions.

   The final-form regulations add, modify or delete several definitions. Definitions for the terms ''background,'' ''cleanup or remediation,'' ''contaminant,'' ''property,'' ''remediation standard'' and ''risk assessment'' have been added as those terms are defined in either Act 2 or Chapter 250. Definitions for the terms ''aquifer,'' ''free product,'' ''groundwater,'' ''site'' and ''survey'' have been modified to match the definitions for those terms in Act 2 or Chapter 250. The Board is deleting the term ''groundwater degradation,'' as the term is no longer necessary after the passage of Act 2.

   The definition of the term ''reportable release'' is modified to match the Federal definition of the term in 40 CFR Part 280, in accordance with the Department's RBI and Executive Order 1996-1. Although there is no direct definition for the term in 40 CFR 280.12 (relating to definitions), the substance of the term is outlined in 40 CFR 280.53(a)(1) (relating to reporting and cleanup of spills and overfills). The final-form regulations replace the hierarchical approach to spill or overfill amounts requiring reporting with a straight 25 gallon cutoff for petroleum releases and the CERCLA reportable quantity for hazardous substance releases. It should be noted that these amounts do not apply to underground releases, which must be reported regardless of the amount released. Also, for all releases from regulated storage tanks, the requirements of § 245.305(a) (relating to reporting releases) supersede the requirements of § 91.33 (relating to incidents causing or threatening pollution).

   Two new definitions have been added in the final-form regulations at the suggestion of STAC. ''Environmental media'' is defined as soil, sediment, surface water, groundwater, bedrock and air. Because of multiple uses of the term in § 245.305, efficiencies of space are achieved by defining and using this single term rather than listing each environmental medium separately. This term is necessary because of the enhanced reporting requirements that have been added to the final-form rulemaking. These are discussed in this Preamble at § 245.305. The term ''potential to be affected'' is used in §§ 245.306 and 245.309 (relating to interim remedial actions; and site characterization) in connection with water supplies that might be impacted by a release. The term has been defined to clarify the intended target population of water supplies, and the factors that should be evaluated in identifying these water supplies for sampling during both the interim remedial action and site characterization phase of the corrective action.

   Finally, the term ''responsible party'' is revised in accordance with amendments made to the Storage Tank Act by Act 16 of 1995. Section 503(b) of the Storage Tank Act (35 P. S. § 6021.503(b)) originally held any person who filled an unregistered storage tank potentially liable for a release from that tank. Act 16 of 1995 amended this section by limiting this ''delivery liability'' to tanks that never held a valid registration in any prior year. Section 303(b) of the Storage Tank Act (35 P. S. § 6021.303(b)) contains a similar provision regarding ''delivery liability'' for filling aboveground tanks that do not possess a current valid registration; that section was not changed by Act 16.

Subchapter D.  Corrective Action Process for Owners and Operators of Storage Tanks and Storage Tank Facilities and Other Responsible Parties

1.  Section 245.304. Investigation of suspected releases.

   The amendments clarify subsection (c) to indicate that in addition to ''reporting'' a reportable release, corrective action must be initiated.

2.  Section 245.305. Reporting releases.

   Subsection (a) currently requires the owner or operator to verbally notify the Department of a reportable release as soon as practicable but in no case more than 2 hours after confirming a release. At 40 CFR 280.50 (relating to reporting of suspected releases), the Federal regulation allows 24 hours to notify, but requires reporting of both suspected and confirmed releases. In accordance with the RBI and Executive Order 1996-1, this subsection is modified to conform to the Federal requirement for timely reporting of releases and requires owners and operators to verbally notify the Department of reportable releases as soon as practicable but in no case more than 24 hours after the release is confirmed. For these tank releases, the requirements of § 245.305(a) supersede the requirements of § 91.33(a). The Department believes that 24 hours is a reasonable time for the initial report of a confirmed release, and does not believe that this change will result in environmental harm since interim remedial actions must be initiated immediately upon release confirmation.

   In subsection (c), the phrase ''. . . the contamination of surface water, groundwater, soil or sediment . . .'' has been replaced with the term ''affected environmental media.'' Environmental media is now defined in § 245.1 as ''soil, sediment, surface water, groundwater, bedrock and air.'' Subsection (c) has been revised to require reporting of affected environmental media and also to require reporting of impacts to water supplies, buildings, sewer or other utility lines. Impacts to water supplies and buildings, sewer or other utility lines were not specifically identified in the existing regulation. These important impacts of a release, if identified, must now be reported in the verbal and subsequent written notifications.

   Subsection (d) has been modified in the final-form regulations to indicate that the initial written notification that is due within 15 days of the release confirmation must be sent to each municipality in which impacts of the release have been identified, not just the Department and the municipality in which the release itself occurred, as was previously the case.

   Subsection (e) has been added to the final-form regulations and requires the responsible party to notify the Department and impacted municipality, in writing, upon discovery of a new impact. The notification is required within 15 days of discovery of the new impact. The Department's experience is that not all impacts of a release are known or evident within 15 days of the verbal notification when the initial written notification is due. The purpose of this subsection is to assure that the Department and municipal officials in impacted municipalities are updated on a more continuous basis about the impacts of a release that become known during the interim remedial action and site characterization phases of the corrective action. Only the first occurrence of an impact to a specific environmental medium, water supply, building, sewer or other utility line in each municipality needs to be reported. For example, if contamination of groundwater is discovered in a monitoring well drilled in a municipality, the Department and that municipality must be notified, in writing, of the impact to groundwater. If another well is drilled in that municipality and contaminated groundwater is also discovered, additional notification that groundwater is impacted in that particular municipality is not required. The Department is planning to revise form 2530-FM-LRWM0082 to facilitate compliance with the new reporting requirements. The revised form will be available on the Department's website or can be obtained from the persons listed in Section B of this Preamble.

   Subsection (f) has been modified to indicate that each written notification required by § 245.305 must include the same information as required by subsection (c).

   Subsection (g) is a new section in the final-form rulemaking and provides for an additional mechanism to assure that details of releases that pose an immediate threat to public heath and safety are communicated to the general public. The dissemination of information concerning the release may, at a minimum, take the form of a notice in a newspaper of general circulation serving the area or may involve other means of keeping the public informed on a regular basis depending on the level of severity and general public interest in details of the release. The Department could undertake this public notice, or the Department could work with the responsible party to provide this notice.

   Existing subsections (e) and (f) are renumbered in the final-form rulemaking as (h) and (i), respectively.

3.  Section 245.306. Interim remedial actions.

   A new subsection (a)(4) has been added to this section of the final-form rulemaking. This subsection requires that the identification and sampling of affected water supplies and water supplies with the potential to be affected be initiated immediately as an interim remedial action. In the existing regulation, this activity is listed as an element of the site characterization. Initiation of this activity was subject to unnecessary delay until well into the site characterization phase of the corrective action. By including initiation of this activity as an interim remedial action, the identification and sampling of affected water supplies and water supplies with the potential to be affected is elevated to a more appropriate level of urgency and importance. This section also requires that a copy of the sample results must be provided to the Department and the water supply owner within 5 days of receipt by the responsible party, and emphasizes that all water supplies determined to be affected or diminished must be restored or replaced in accordance with § 245.307 (relating to affected or dimished water supplies). A definition of the term ''potential to be affected'' has been added to § 245.1 to help clarify how wells with the potential to be affected are defined and identified.

   Act 16 of 1995 amended the Storage Tank Act to add the requirement that the Department develop regulations regarding the proper handling of soil and subsurface material affected by a release. The final-form rulemaking amends § 245.306 to reflect those statutory amendments.

   First, section 501(a)(13) of the Storage Tank Act requires the minimization of the amount of soil and subsurface material affected by a release by segregating the unaffected soil and subsurface material during removal of an underground storage tank from the material affected by a release. The amendments add this requirement in subsection (b)(4).

   Second, section 501(a)(15) of the Storage Tank Act requires that the person removing the material affected by a release provide to the responsible party a receipt documenting acceptance of the material at a permitted treatment or disposal facility. The amendments add a new subsection (d) to reflect this requirement.

4.  Section 245.309. Site characterization.

   The Department has changed this section to bring storage tank site characterizations into line with the requirements of Act 2.

   Subsection (b) outlines the objectives of a site characterization. Paragraph (5) is added to have the responsible party determine more site-specific information during the site characterization for use in fate and transport analysis. Heavy reliance on fate and transport analysis in demonstrating attainment of certain Act 2 standards necessitates this change.

   Paragraph (6) is added to indicate that the site characterization must provide sufficient information to allow selection of an Act 2 remediation standard.

   Paragraph (7) has been deleted in the final-form rulemaking in response to comments.

   Subsection (c) provides a list of potential tasks to satisfy the site characterization objectives. The Board has made the following amendments to subsection (c):

   a.  Paragraph (4) has been modified in the final-form rulemaking to mirror the requirements of § 245.306(a)(4) to emphasize that the identification and sampling of affected water supplies and water supplies with the potential to be affected must continue, as necessary, throughout the site characterization phase of the corrective action as new information is gathered and evaluated regarding the current and projected extent of contaminant migration.

   b.  Existing paragraphs (5) and (6) involve identifying affected populations and sensitive environmental receptors and populations and sensitive environmental receptors with the potential to be affected. Some examples are provided. The amendments replace these two activities with the single activity in paragraph (5) of ''determining the location of the ecological receptors identified in § 250.311(a)'' of the Act 2 regulations. Only direct impacts to the four specific receptors listed in § 250.311(a) (relating to remedial action plan) need to be assessed and addressed.

   c.  Added a new paragraph (11) to provide for a demonstration that groundwater is not used or currently planned to be used. This activity is necessary where the remediator intends to use the Act 2 nonuse aquifer standards.

   d.  Paragraph (15) currently requires the remediator to identify and apply appropriate groundwater modeling methodologies to characterize the site. The amendments rephrase this activity as ''developing a conceptual site model that describes the sources of contamination, fate and transport of contaminants and potential receptors'' in order to be more consistent with the terms used in Act 2. Use and discussion of groundwater models comes later in the corrective action process.

   e.  Deleted paragraph (18) in response to comments.

   f.  Added new activities in paragraph (19), ''selection of a remediation standard,'' and paragraph (20), ''if the site-specific standard is selected, performance of a risk assessment in accordance with §§ 250.601--250.606.'' These additions are necessary to bring the CAP regulation site characterization requirements into line with Act 2.

5.  Section 245.310. Site characterization report.

   The Board has amended this section to bring storage tank site characterization reports into line with the requirements of Act 2.

   Subsection (a) provides a list of potential elements for an acceptable site characterization report. The Board has made the following changes to subsection (a):

   a.  Amended subsection (a)(4)(v)(C) to implement the requirements of Act 16 of 1995. This mirrors the requirement added to § 245.306(d).

   b.  Subsection (a)(4)(v)(F) is required to demonstrate attainment; however, the Department has deleted this subsection and addresses this requirement under § 245.310(b).

   c.  Moved and rewrote paragraphs (11) and (12). The impacts to ecological receptors and surface water are now reported under new paragraphs (28) and (29), respectively.

   d.  Revised paragraph (23) to read ''a conceptual site model describing the sources of contamination, fate and transport of contaminants and potential receptors.''

   e.  Added a new paragraph (26) to establish that the site characterization report should identify the Act 2 remediation standard that has been chosen.

   f.  Added a new paragraph (27) to include the Department's written determination under § 250.303 (relating to general requirements) that groundwater is not used or currently planned to be used. This should be included in the report when the nonuse aquifer standards are being utilized under the Act 2 Statewide health standard (SHS).

   g.  Deleted existing paragraph (28). The Board believes that the discussion of the remedial action options selected is sufficient (paragraph (30)). A new paragraph (28) has been added to identify the impacts to ecological receptors as a result of the receptor evaluation conducted in accordance with §§ 250.311 or 250.402(d) (relating to evaluation of ecological receptors; and human health and environmental protection goals).

   h. Added a new paragraph (29) to identify the impacts to surface water as a result of the evaluation conducted in accordance with § 250.309 or § 250.406 (relating to MSCs for surface water; and relationship to surface water quality requirements).

   i.  Revised paragraph (30) to indicate that a site must be remediated as opposed to completely recovering or removing the regulated substance that was released.

   j.  Added a new paragraph (31) to include a risk assessment report in accordance with § 250.409 (relating to risk assessment report).

   k.  Added a new paragraph (32) to require demonstration that no current or future exposure pathways exist.

   Subsection (b) affords the responsible party the opportunity to submit a site characterization report as the ''final report,'' where soil is the only media of concern and all contaminated soil has been excavated as an interim remedial action. Further, this subsection is intended to allow a ''closure report'' to serve as the final report in localized contamination situations. This § 245.310(b) report is intended to be applicable only for use with the SHS. With this rationale in mind, the Board has made the following revisions to subsection (b):

   a.  Amended subsection (b), in response to comments, to clarify that this report is appropriate where soil is the only media of concern, in lieu of the proposed language ''that groundwater is not a media of concern.''

   b.  Revised subsection (b) to indicate that a site must be remediated as opposed to completely recovering or removing the regulated substance that was released.

   c.  In response to comments, added language to clarify that if submission of a site characterization report satisfying the requirements of § 245.310(b) is acceptable, a site characterization report satisfying the requirements of § 245.310(a) is not required.

   d.  With respect to the items for inclusion in the report, revised paragraph (2) to indicate that data demonstrating attainment with the SHS should be provided in accordance with Chapter 250, Subchapter G (relating to demonstration of attainment).

   e.  Added paragraph (3) to require explanation of the basis for selecting residential or nonresidential SHSs.

   f. Added paragraph (4) to require reporting the results of the evaluation of ecological receptors conducted in accordance with § 250.311.

   Subsection (c) has been changed in a significant way from both the existing and proposed regulation. In response to comments, the Department has incorporated a process for review time frames and ''deemed approvals'' into Chapter 245 for site characterization reports, remedial action plans and remedial action completion reports. These time frames will apply only to original reports received after the effective date of the regulation. The time frames will also apply to the review of resubmissions received in response to deficiency letters generated by the Department for these reports. This process includes review time frames for site characterization reports submitted under § 245.310(b), and for site characterization reports where the site-specific standard is selected. All other site characterization reports which elect the background or SHS will be subject to review provisions upon receipt of and in conjunction with review of the remedial action plan designed to attain those standards.

   Subsection (c) has therefore been amended to restrict the list of Department actions to site characterization reports submitted under § 245.310(b) or to site characterization reports where the site-specific standard is selected. The subsection has also been amended to indicate that the Department shall take one or more of the actions listed in subsection (c). One option, paragraph (3), which allows the Department to review and disapprove the report, citing deficiencies, has been added. Existing section (c)(5) has been deleted as no longer necessary since paragraph (1) provides for the same review and approval. Subsection (c)(6) has been modified to indicate that one option available to the Department is to review the site characterization report without further action. This would be the case with a report that became deemed approved.

   The amendments delete existing subsection (d). Under Act 2 and Chapter 250, a responsible party is entitled to choose the remediation standard it will use when remediating a release from a storage tank.

   A new subsection (d) has been added to the final-form rulemaking which sets out the review time frames that apply to site characterization reports meeting the requirements of subsection (b) or to site characterization reports where the site-specific standard is selected. Reports submitted in accordance with subsection (b) will be reviewed or deemed approved by the Department within 60 days of receipt and a site characterization report where the site-specific standard is selected will be reviewed or deemed approved within 90 days of receipt.

   An important additional provision of subsection (d) is that an automatic ''deemed approval'' can be overridden if the Department and the responsible party agree, in writing, to an alternate time frame for review of the report. This provision has been added to accommodate responsible parties who would prefer not to receive a deemed approval, even if some extra time on the part of the Department was necessary for completing the review.

6.  Section 245.311. Remedial action plan.

   Subsection (a) has been amended to require submission of a remedial action plan within 45 days of submission of the site characterization report only in cases where the background or SHS has been selected in the site characterization report. In these cases, the site characterization report and remedial action plan will be reviewed and acted upon by the Department as one package. In cases where the site-specific standard has been selected, the remedial action plan is not due until 45 days after the responsible party has either received a written approval of the site characterization report or it has been deemed approved. This provision assures that the responsible party is not obligated to submit a remedial action plan for the site-specific standard until action on the site characterization report has occurred.

   Subsection (a) also provides a list of potential elements for the remedial action plan. The Board has made the following revisions to subsection (a):

   a.  Revised paragraph (4) to provide for a discussion of how the remedial action will attain the selected remediation standard for the site, as opposed to how the remedial action will completely recover or remove the regulated substance that was released.

   b.  Added a new paragraph (5) to provide for the results of treatability, bench scale or pilot scale studies or other data collected to support the remedial action.

   c.  Revised paragraph (11) to provide for a description of the methodology that will be utilized to demonstrate attainment of the selected remediation standard (as opposed to the methodology that will be utilized to completely recover or remove the regulated substance that was released).

   d.  Added a new paragraph (12) to provide for a description of any proposed postremediation care that may be required.

   The final-form rulemaking deletes subsection (b). Under Act 2 and Chapter 250, a responsible party is entitled to choose the remediation standard it will use when remediating a release from a storage tank.

   The final-form rulemaking includes revisions to subsection (c), now subsection (b), which lists the Department's options upon receiving site characterization reports and remedial action plans that have selected the background or SHS. The Department's actions here mirror those in § 245.310(c), except that the options apply to both the site characterization report and remedial action plan, which will be subject to review as a single package.

   A new subsection (c) has been added which, in a fashion similar to (b), specifies the Department's alternatives upon receiving a remedial action plan, which is designed to attain the site-specific standard. This separate subsection is needed here to distinguish between remedial action plans that select the background and SHS and those selecting the site-specific standard. In the latter case, the site characterization report would have already been submitted and approved, so the wording of subsection (b) would not be applicable.

   A new subsection (d) has been added to indicate that where the site-specific standard is chosen, a remedial action plan is not required and no cleanup is required to be proposed or completed if no current or future exposure pathways exist.

   A new subsection (e) has been added in the final-form rulemaking, which specifies that the time frame for the Department's review of a remedial action plan where the background or SHS has been selected is 60 days and 90 days for a remedial action plan where the site-specific standard has been selected. If the Department fails to approve or disapprove the plan, in writing, within the designated time, the report and plan or plan will be deemed approved. As in the case of site characterization reports, these time frames will apply only to original reports received after the effective date of the regulation. The time frames will also apply to the review of resubmissions received in response to deficiency letters generated by the Department for these reports. The ''deemed approval'' can be overridden if the Department and responsible party agree, in writing, to an alternate time frame for reviewing the report.

   A new subsection (f) has been added at final-form rulemaking to address the Department's review time frames if site characterization reports and remedial action plans are submitted at the same time. Site characterization reports and remedial action plans selecting the background and SHS will be reviewed in 60 days, and combined reports selecting the site-specific standard will be reviewed in 90 days. If the Department does not respond in writing within the given time frame, the report and plan shall be deemed approved.

7.  Section 245.312. Remedial action.

   The amendments revise subsection (c) to indicate that remedial action progress reports are to show the progress toward attainment of the selected remediation standard (as opposed to cleanup levels established by the Department). A new paragraph (6) has been added to require specific information to be provided for fate and transport analyses. An incorrect reference that appeared in the proposed rulemaking has also been corrected.

   In response to comments, the final-form rulemaking revises subsection (d) to clarify that the final remedial action progress report is to be submitted as part of the remedial action completion report.

   The final-form rulemaking changes the process in subsection (e) for terminating a remedial action plan when the responsible party decides to change it for any reason. First, subsection (e)(1) of the existing regulation is deleted, as it no longer applies. Subsection (e)(1) was an option under the defunct Groundwater Quality Protection Strategy and allowed a remedial action completion report to be submitted where the cleanup levels would not be achieved.

   In the proposed rulemaking, subsection (e) required the responsible party to request and receive approval from the Department prior to terminating their remedial action plan, and to submit a new or modified plan selecting a new remediation standard. In response to comments, subsection (e) has been revised in this final-form rulemaking. Subsection (e) now simply requires that the responsible party submit a new remedial action plan for review if and when a decision is made to change it. The time frames established in § 245.311(e) will apply to the review of the new plan. The approved remedial action plan may be terminated upon approval of the new plan. The new remedial action plan need only identify a new remediation standard if a different one is selected. Selection of a new remediation standard alone does not require submission of a new remedial action plan.

   Subsection (f) is revised to establish the process for suspending remedial action if continued implementation of the remedial action plan will cause additional environmental harm. Subsection (f)(1), which allowed for submission of a remedial action completion report, has been deleted since it was an option under the defunct Groundwater Quality Protection Strategy.

   In response to comments, subsection (f) of the proposed rulemaking has been modified to clarify that the verbal notification that the remedial action plan has been suspended is due within 24 hours of the suspension. The requirement in the proposed rulemaking that the Department must approve the suspension has been eliminated. The responsible party is now only obligated to submit a new or modified remedial action plan in accordance with § 245.311, and identify a new remediation standard, if applicable.

   As originally adopted in 1993, subsection (g) required that when groundwater contamination occurred and the level of cleanup had been achieved, that groundwater be sampled quarterly for 1 year to demonstrate ''attainment.'' Since this is an ''attainment'' requirement and has been superseded by the attainment requirements of the Act 2 remediation standards, this subsection has been deleted. The attainment requirements are now addressed in § 245.310(b) and § 245.313(b) (relating to remedial action completion report).

   Subsection (h) is related to and follows the requirements of subsection (g). Accordingly, the Board has also deleted subsection (h).

8.  Section 245.313. Remedial action completion report.

   Subsection (a) provided for the submission of a remedial action completion report upon achieving the level of cleanup established by the remedial action plan and indicated that the report must demonstrate that the remedial goals have been achieved. This subsection is still appropriate, but it has been revised to delete the terms ''level of cleanup'' and ''remedial goals.'' These terms have been replaced with ''selected remediation standard'' in accordance with Act 2.

   The amendments delete the existing subsection (b) since it no longer applies. Subsection (b) was an option under the defunct Groundwater Quality Protection Strategy and allowed a remedial action completion report to be submitted where the cleanup levels were not achieved. The subsection has been replaced with the required contents of the remedial action completion report, including references to the specific and relevant attainment demonstration sections from Chapter 250 that must be addressed depending on which of the Act 2 remediation standards was used by the remediator. In addition, since a heavy reliance is placed on fate and transport analyses in demonstrating attainment of certain Act 2 standards, specific requirements with regard to this information have been added.

   Subsection (c) lists the actions available to the Department upon submission of a remedial action completion report. The Board has changed ''may'' to ''shall'' to indicate that the Department will act on all remedial action completion reports, providing final resolution to remedial actions, or they will be deemed approved. A new paragraph (3) has been added that allows the Department to review and disapprove the remedial action completion report, citing deficiencies. Paragraph (5) has been deleted, since it does not result in a final remedial action determination by the Department. A new paragraph (6) has been added at final that allows the Department to review the remedial action completion report without further action, as would be the case if the report were deemed approved.

   New subsection (d) has been added to specify the time frames for the Department's review of remedial action completion reports. Remedial action completion reports demonstrating attainment of the background or SHS will be reviewed within 60 days of receipt. Remedial action completion reports demonstrating attainment of the site-specific standard will be reviewed within 90 days of receipt. If the responsible party does not receive a written approval or disapproval of the report within the specified time frame, the report will be deemed approved. As in the case of site characterization reports and remedial action plans, these time frames will apply only to original reports submitted after the effective date of the final-form regulations. The time frames will also apply to the review of resubmissions received in response to deficiency letters generated by the Department for these reports. The ''deemed approval'' can be superseded if the responsible party and Department agree, in writing, to an alternative time frame for review.

9.  Section 245.314. Professional seals.

   This section has been added to require report submittals to be sealed by appropriate registered professionals where the practice of geology or engineering is performed. This requirement is in accordance with the Engineer, Land Surveyor and Geologist Registration Law (63 P. S. §§ 148--158.2).

Subchapter E.  Technical Standards for Underground Storage Tanks

   1.  Section 245.444. Methods of release detection for tanks.

   Section 245.444(8) provides procedures and reporting requirements for conducting leak detection on underground storage tanks using the Statistical Inventory Reconciliation (SIR) method. Section 245.444(8)(ii)(A) currently requires final reports from SIR vendors to be available within 7 days of the end of the monitoring period. The regulated community and SIR vendors have expressed an inability to thoroughly process SIR data and provide reports within this period. Operation of these rules since their adoption in October 1997 has shown that this reporting requirement simply does not allow enough time to complete the necessary SIR analysis and return the report. In addition, other states that have established reporting time periods for SIR have set this reporting requirement at 20 days. The amendments change the reporting requirement to 20 days, which should be achievable in this Commonwealth and is in line with other states' regulations.

F.  Summary of Comments and Responses on the Proposed Rulemaking

   There were four commentators to the proposed rulemaking. In general, the commentators supported the proposed rulemaking and welcomed the integration of Chapters 245 and 250.

   The most significant issue raised during the public comment period was the incorporation of mandatory review times and deemed approved provisions for site characterization reports and remedial action plans. In response, the Board has amended the proposed rulemaking to include mandatory review time frames and deemed approved provisions for all of the corrective action process reports. The time frame and deemed approved provisions will apply only to new reports submitted after the effective date of the final-form regulations. Deemed approved provisions may be superseded if the Department and the responsible party agree in writing to an alternative time frame. The review time frames are as follows:

   The Department will review a site characterization report submitted under § 245.310(b) within 60 days of receipt or a site characterization report submitted under § 245.310(a) selecting the site-specific standard within 90 days of receipt.

   Site characterization reports submitted under § 245.310(a) for the background or SHS will be reviewed within 60 days of receipt of a remedial action plan designed to attain those standards. The review will include the remedial action plan.

   Site characterization reports and remedial action plans for the background or SHS which are submitted together will be reviewed within 60 days of receipt.

   The Department will review a remedial action plan designed to attain the site-specific standard within 90 days of receipt.

   Remedial action completion reports for the background and SHS will be reviewed within 60 days of receipt. A remedial action completion report demonstrating attainment of the site-specific standard will be reviewed within 90 days of receipt.

Definitions--§ 245.1

   In response to concerns that the proposed definition of ''reportable release'' might include reporting a release of petroleum of less than 25 gallons to a synthetic surface, the Board has changed the term ''to the surface of the ground'' to ''to an aboveground surface.''

   The Board has not excluded a ''de minimis'' thickness of 1/8 inch or less from the definition of ''free product'' as suggested by one commentator. The definition was revised solely for consistency with terminology used in Chapter 250. Further, the Board is concerned that the suggested change would exclude accumulations of this thickness or less from any requirements for removing free product to the maximum extent practicable, which based on site-specific considerations, may be more or less than 1/8 inch, for example, on surface water.

   One commentator requested defining the word ''contamination'' or ''contaminated soil'' to mean the presence of constituents exceeding the applicable Act 2 SHS levels. The Board has not made this change. Meeting the applicable Act 2 SHS levels means that contaminants have been reduced to within an acceptable risk range. It does not mean that contamination has been eliminated in its entirety. Therefore, soil, for example, which meets SHS levels, must be managed in accordance with the Department's residual waste management regulations.

   One commentator suggested referencing the definitions of ''aquifer,'' ''background,'' ''cleanup or remediation,'' ''contaminant'' and ''groundwater'' in section 103 of Act 2 (35 P. S. § 6026.103) rather than reiterate the definitions in the regulations. The Board considered making this change. However, the full definitions have been included to make it less cumbersome for the user who would otherwise need to consult the other reference cited.

   One commentator requested explanation of the term ''sufficient level of detail'' as used in the definition of ''survey.'' The Board included the phrase ''at a sufficient level of detail'' in the existing definition of survey to emphasize the importance of the study to the owner or operator. However, since § 245.304(d) (relating to investigation of suspected releases) begins by saying that ''To overcome the presumption of liability established in § 245.303(c), the owner or operator shall affirmatively prove, by clear and convincing evidence . . .'', the Board believes that the phrase ''at a sufficient level of detail'' is not necessary in the definition of ''survey.'' Therefore, the phrase has been deleted.

Reporting releases--§ 245.305

   One commentator requested a definition of the word ''confirmation'' as used in the context of ''confirming'' a reportable release in order to make it clear when the 24-hour reporting period begins. The question was asked: ''Is it when the release is discovered by the operator or by someone walking by who reports it?''

   ''Confirmation'' of a reportable release has been widely understood in the program to mean ''verification'' by the owner or operator that a release meeting the definition of a reportable release has occurred. The confirmation may be made in a number of ways including through the investigation of a suspected release, by the direct observation of a release by the owner/operator, or conceivably, by verifying a report of a release made by someone walking by. In this latter case, the 24-hour period would begin when the release was confirmed by the owner/operator, not the time it was noticed by the person walking by. The Board does not believe that it is necessary to define ''confirmation,'' as clarity in this area has not been an issue.

   Two of the commentators wanted to know how the new reporting requirement in § 245.305(a) related to The Clean Streams Law reporting requirement in § 91.33, and one requested that the § 245.305(a) requirement apply to all discharges, including those subject to The Clean Streams Law. The time frame in § 245.305(a) is applicable to releases of regulated substances from storage tanks regulated under the Storage Tank Act. For these tank releases, the requirements of § 245.305(a) supersede the requirements of § 91.33. As stated in § 245.302 (relating to scope), the scope of Chapter 245, Subchapter D, is restricted to releases of regulated substances from storage tanks regulated under the Storage Tank Act. To mandate that all spills, discharges or releases subject to The Clean Streams Law be subject to the notification requirements of § 245.305(a) would expand the regulation beyond its authorized scope.

   One commentator requested that the word ''regulated'' be inserted before ''storage tanks'' in § 245.304(a) to better clarify the intent and scope of the provision. The Board does not believe the suggestion is necessary. The scope of all provisions of Chapter 245, Subchapter D, is clearly stated in § 245.302 to be storage tanks regulated by the Storage Tank Act.

Site characterization--§ 245.309

   Two of the commentators were concerned with proposed § 245.309(b)(5). This objective lists certain kinds of physical data that might be needed for later use in fate and transport analysis to demonstrate attainment of an Act 2 standard. One commentator felt that the objective erroneously assumed that a fate and transport analysis would be needed in every case, and another questioned the availability of the data and the detail required.

   The final-form rulemaking does not amend this paragraph. One clear objective of a site characterization in a risk-based corrective action program is to anticipate and collect the kind of field data that may be needed to support conclusions made at the end of an investigation. Further, fate and transport analysis is required in demonstrating attainment of any Act 2 standard, although the method and form of fate and transport analysis selected will vary depending on the complexity of the release.

   The primary purpose of the data is to establish reliable and accurate input parameters for mathematical models that may be used or required to support demonstrations of attainment of Act 2 standards. The number of samples collected and measurements made is site-specific and proportional to the hydrogeologic complexity of the site being characterized and the data requirements of the fate and transport analysis method chosen. Where mathematical models are not used or necessary, the importance of some parameters will be diminished.

   One commentator suggested that to be consistent with harmonizing these regulations with Act 2, § 245.309(c) (18) should not be amended (as proposed), but should be deleted in its entirety. The proposed language has been deleted as suggested.

   One commentator questioned what constituted ''sufficient information'' for selecting a remediation standard as required by § 245.309(b)(6) and (7).

   Subsection (b)(6) states that one of the objectives of a site characterization is to provide the responsible party with sufficient information to select a remediation standard. What is ''sufficient'' is a determination to be made by the responsible party, not the Department. The responsible party gets to select the remediation standard. Failure to meet this objective could result in the selection of an unattainable or inappropriate standard for the site by the responsible party.

   Subsection (b)(7) states that one of the objectives of a site characterization is to collect enough information to define and assess the relative merits of the remedial action options. To be consistent with the deletion of the proposed language in § 245.309(c)(18), the Department has deleted this objective. While a responsible party may choose to conduct this exercise, it is not required as the responsible party may choose a remediation standard without an analysis of alternatives.

Site characterization report--§ 245.310

   One commentator requested assurance that changes in the proposed rulemaking would be effective only on a going-forward basis. The changes to site characterization report submissions, as well as all revisions to this regulation, will be effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.

   One commentator asked that the regulation define the consequences if a responsible party does not meet the objectives of a site characterization report. The commentator asked whether the Department would add provisions addressing a deficient site characterization report and whether the Department would notify a responsible party of any deficiencies and the procedure to correct them.

   Existing § 245.310(c) lists the actions the Department may take following submission of a site characterization report. In general, site characterization reports are evaluated in terms of the validity and completeness of the elements listed in § 245.310(a), based upon the complexity of the release, rather than an evaluation of the objectives. If a responsible party fails to consider or satisfy a relevant objective, it will very likely be reflected as a deficiency in one or more of the elements necessary in the site characterization report. The Board has added a new § 245.310(c)(3), which allows the Department to disapprove the site characterization report, citing deficiencies, as one of its options.

   One commentator requested clarification that if a site characterization report meeting the conditions and requirements of § 245.310(b) was submitted, a report meeting the requirements of § 245.310(a) was not needed. The Department has added wording to § 245.310(b) to clarify this concern. A site characterization is not required to be submitted under both subsections.

   Two commentators requested that a cross reference be added to § 245.310(b)(4) to indicate that the evaluation of ecological receptors should be done in accordance with § 250.311. The cross reference has been added.

   One commentator requested that § 245.310(b) be amended to delete the condition that a remediator prove that groundwater is not a media of concern, and insert language which applies this paragraph to sites where soil is the only media of concern. While the proposed language was not intended to imply that the responsible party must prove that groundwater is not a media of concern in every case, the language has been changed as suggested to clarify this concern.

   One commentator requested that additional revisions to § 245.310(b) be made to allow a site characterization report to be submitted as a final report where groundwater can be demonstrated to achieve the SHS and increase the period of time required for submission of the site characterization report from 180 days to 1 year where a remediator chooses to achieve SHS for groundwater.

   Demonstrating attainment of the SHS in groundwater normally requires 8 quarters of monitoring. Less than 8 quarters of monitoring may be allowed with written approval of the Department in accordance with § 250.704(d) (relating to general attainment requirements for groundwater). Deviation from the attainment requirements as set out in Chapter 250 is beyond the scope of this amendment.

   In cases when a site characterization shows that groundwater meets SHS, a remedial action plan requesting less than 8 quarters of monitoring to demonstrate attainment can be submitted with the site characterization report. Section 245.303(e) currently provides for this combining of reports/plans. Monitoring data would then be submitted in quarterly (or at an alternative interval) progress reports with the final remedial action progress report being submitted as part of the remedial action completion report.

   One commentator requested deletion or amendment of § 245.310(a) to eliminate interim site characterization reports as a generic requirement. The commentator indicated that a report might be appropriate once all remedial action is completed or, in those few cases where applicable, in conjunction with remedial action progress reports, but believed that these are special cases and should be handled as such.

   On a somewhat related note, the commentator also suggested that site characterization reports and remedial action plans should be combined into a single report subject to a single Department review.

   No change has been made. Section 245.303(e) already provides that the Department can accept a combined site characterization report and remedial action plan. However, the Department does not believe that the combined submission of this report/plan should be mandatory. Unlike the Act 2 program, which is largely voluntary, the CAP regulation implements a mandatory regulatory program that requires responsible parties to conduct cleanup and attain an Act 2 remediation standard. To help assure that the selected standard will be attained through the remedial action, the remedial action plan is reviewed and approved by the Department prior to its implementation. Allowing the submission of one report at the completion of remedial action would preclude the Department's review of the remedial action plan and quarterly progress reports which the Department feels is needed to fulfill its oversight role under the Storage Tank Act and assure that a cleanup standard is being attained.

Remedial action plan--§ 245.311

   One commentator questioned the need and burden imposed on responsible parties by § 245.311(a)(5), which requires ''the results of treatability, bench scale or pilot scale studies or other data collected to support remedial action.''

   Treatability studies, bench scale and pilot scale studies are generally used to evaluate experimental or innovative technologies that have little or no history of application at the field scale. The purpose of the studies is to demonstrate the feasibility or effectiveness of a new technology by testing it at a laboratory or on a small field-scale before applying the technology to the larger field problem. In some cases, these studies are reported in the scientific literature. In other cases, especially with pilot scale studies, the consultant for the responsible party or a subcontractor marketing the new technology would complete the studies. The Department believes it is important not to close the door on innovative technology, but at the same time be able to require some demonstration or documentation that the innovative technologies have merit prior to their application. In most cases, this element of the remedial action plan will not be necessary, since most remediations rely on well-established technologies.

   One commentator asked whether a remedial action plan is required when the SHS is selected and no current or future exposure pathways exist. The SHS is a numeric standard. Attainment of the numeric SHS must be demonstrated regardless of whether pathways exist or not, in accordance with Chapter 250, Subchapter G.

   Two commentators asked whether a remedial action plan could be denied based on which remediation standard the remediator selected. The regulations do not specify under what circumstances the Department can deny the remedial action plan.

   Existing § 245.311(c), (§ 245.311(b) in the final-form rulemaking), lists the actions the Department may take upon submission of a remedial action plan. Basically, the Department looks to see if the remedy has a reasonable chance of attaining the selected standard. With conventional technologies, this should be straightforward. Since the responsible party has the option of selecting the remediation standard, the Department will not disapprove a remedial action plan based solely on the selected remediation standard.

   One commentator questioned how a responsible party could show attainment of the selected standard. Attainment requirements for each remediation standard under Act 2 are set out in Chapter 250, Subchapter G. Demonstration of attainment for the remediation standard selected will be reported in the remedial action completion report as described in § 245.313(b).

   One commentator stated that because Act 2 leaves the choice of remedial action to the responsible party, not to Department approval, proposed § 245.311(a)(5) should be discarded from further consideration, and existing § 245.31l(a)(5) should be deleted in its entirety.

   While it is true that the responsible party chooses the remediation standard, unlike the Act 2 administrative process, the CAP regulation requires the remedial action plan to be approved by the Department prior to its implementation. Therefore, the Board believes both elements to be necessary, where appropriate. Treatability studies, bench scale and pilot scale studies are generally used to evaluate experimental or innovative technologies that have little or no history of application at the field scale. In most cases, this element of the remedial action plan will not be necessary, since most remediations rely on well-established technologies. Design and construction details are important in reviewing a remedial action plan to determine the effectiveness of the remedy.

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