RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 250 ]
Administration of the Land Recycling Program
[48 Pa.B. 1503]
[Saturday, March 17, 2018]The Environmental Quality Board (Board) amends Chapter 250 (relating to administration of Land Recycling Program) to correct transcription errors for Aldrin in Appendix A, Table 1, and toxicity values for beryllium and cadmium in Appendix A, Table 5B. These corrections affect the calculated medium-specific concentrations (MSC) for beryllium and cadmium in Appendix A, Table 4A, which are also corrected. These corrections are set forth in Annex A.
Notice of proposed rulemaking is omitted under section 204 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. § 1204), known as the Commonwealth Documents Law (CDL). Section 204(3) of the CDL provides that an agency may omit the notice of proposed rulemaking if ''the agency for good cause finds. . .that procedures specified in sections 201 and 202 are in the circumstances impracticable, unnecessary, or contrary to the public interest.'' Public notice and comment are unnecessary and contrary to the public interest for the amendments in this final-omitted rulemaking. The relevant MSCs are a product of a standard method of calculation in Chapter 250. The Board sought comments on this method during the prior rulemaking and no comments were received on this method. See 46 Pa.B. 5655 (August 27, 2016). This final-omitted rulemaking does not change the method by which the calculation is made. Instead, this final-omitted rulemaking corrects an error that the Department of Environmental Protection (Department) made in the transcription of the result of the Aldrin calculation and corrects the inputs to the beryllium and cadmium calculations. Additional pubic notice and comment would not alter the need to correct these errors and is therefore unnecessary. In addition, these corrections will ensure that any remediation of Aldrin, beryllium or cadmium conforms to current science regarding the protection of human health and is consistent with Chapter 250, which is in the public interest.
This final-omitted rulemaking was adopted by the Board at its meeting of December 12, 2017.
A. Effective Date
This final-omitted rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information contact Troy Conrad, Program Manager, Land Recycling Program, P.O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 783-7816; or Keith Salador, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 783-8075. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-omitted rulemaking is available on the Department's web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board (EQB)'').
C. Statutory Authority
This final-omitted rulemaking is being made under the authority of sections 104(a) and 303(a) of the Land Recycling and Environmental Remediation Standards Act (act) (35 P.S. §§ 6026.104(a) and 6026.303(a)) and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20). Section 104(a) of the act authorizes the Board to adopt Statewide health standards and appropriate mathematically valid statistical tests to define compliance with the act. Section 303(a) of the act authorizes the Board to promulgate Statewide health standards for regulated substances for each environmental medium and methods used to calculate the standards. Section 1920-A of The Administrative Code of 1929 authorizes the Board to formulate, adopt and promulgate rules and regulations that are necessary for the proper work of the Department.
D. Background and Purpose
The Statewide health standard MSCs are in Appendix A. Three errors in MSC values were discovered after the most recent amendments became effective on August 27, 2016.
Aldrin
Toxicity values and physical/chemical properties in Appendix A, Tables 5A and 5B are used along with ingestion and inhalation exposure parameters presented in §§ 250.306 and 250.307 (relating to ingestion numeric values; and inhalation numeric values) to calculate the numeric values presented in Appendix A, Tables 1—4. The equations and methodology used to calculate ingestion and inhalation numeric values are also provided in §§ 250.306 and 250.307, respectively. The equations have been converted to formulas in an Excel spreadsheet which is used to calculate the numeric values in Appendix A, Tables 1—4. The calculated numeric values are transcribed from the Excel spreadsheet into Word tables which are used for rulemaking.
The MSC for Aldrin in groundwater for an aquifer with total dissolved solids (TDS) of less than or equal to 2,500 milligrams per liter used for residential purposes is 0.043 microgram per liter (µ/L), but was incorrectly transcribed as 0.43 µ/L. The Aldrin MSC for groundwater under ''Used Aquifers, TDS ≤ 2500, R'' in Appendix A, Table 1 has been corrected.
Beryllium and cadmium
Section 303(c) of the act requires the Department to develop risk-based Statewide health standards using valid scientific methods, reasonable exposure pathways assumptions, and exposure factors for residential and nonresidential land use that are no more stringent than the standard default exposure factors established by the United States Environmental Protection Agency. The Department calculates MSCs based on Nationally recognized, peer-reviewed toxicological data from the sources in § 250.605 (relating to sources of toxicity information). The toxicity value sources in § 250.605 are presented in a hierarchy of tiers where the first-tier source is preferred over the second-tier source and the second-tier source is preferred over the third-tier source. The third tier consists of multiple sources which all have the same level of preference. The toxicity values are used along with the physical/chemical properties from Appendix A, Tables 5A and 5B and the ingestion and inhalation exposure parameters and equations from §§ 250.306 and 250.307 to calculate the numeric values. The same procedure described for Aldrin using the Excel spreadsheet is used to calculate the numeric values for beryllium and cadmium. The calculated numeric values are transcribed from the Excel spreadsheet into Word tables which are used for rulemaking.
The toxicity value used for the ingestion model is the Oral Cancer Slope Factor (CSFo), and the toxicity value used for the inhalation model is the Inhalation Unit Risk (IUR). IUR is calculated using an Inhalation Cancer Slope Factor (CSFi) and accounts for the inhalation rate of a receptor. CSFo values are based on oral exposure (ingestion) while CSFi values are based on exposure from inhalation. These toxicity values are used along with current exposure parameters to calculate numeric values used to determine the MSCs. Exposure parameters, such as exposure frequency, soil and groundwater ingestion rates, body weight, and the like, are specific to soil or groundwater exposure and to residential or nonresidential exposure scenarios. The equations and methodology used to calculate ingestion and inhalation numeric values are provided in §§ 250.306 and 250.307, respectively.
During the development of the MSCs for soil in the amendments to Chapter 250 published at 46 Pa.B. 5655, the CSFi values were incorrectly interpreted as CSFo values for both beryllium and cadmium. This error resulted in the incorrect toxicity values to be posted in Appendix A, Table 5B, which resulted in the direct contact soil MSCs for these compounds to be artificially low.
Thus, the CSFo values of 8.4 (mg/kg/day)-1 and 15 (mg/kg/day)-1 for beryllium and cadmium, respectively, have been deleted from Appendix A, Table 5B because they are not actually oral toxicity values. Changes to Appendix A, Table 4A, regarding direct contact numeric values for inorganic regulated substances in soil, include correcting the beryllium residential MSC value from 2 milligrams per kilogram (mg/kg) to 440 mg/kg and the nonresidential surface soil MSC value from 11 mg/kg to 6,400 mg/kg. The cadmium residential MSC value changed from 1.2 mg/kg to 110 mg/kg, and the nonresidential surface soil MSC value changed from 6 mg/kg to 1,600 mg/kg.
This final-omitted rulemaking was discussed with, and received the support of, the Cleanup Standards Scientific Advisory Board at its November 16, 2016, meeting.
E. Summary of the Final-Omitted Rulemaking
Appendix A, Tables 1, 4A and 5B
The Aldrin MSC for groundwater under ''Used Aquifers, TDS ≤ 2500, R'' in Appendix A, Table 1 has been changed from 0.43 µ/L to 0.043 µ/L. Changes to Appendix A, Table 4A include correcting the beryllium residential MSC value from 2 mg/kg to 440 mg/kg and the nonresidential surface soil MSC value from 11 mg/kg to 6,400 mg/kg. The cadmium residential MSC value changed from 1.2 mg/kg to 110 mg/kg, and the nonresidential surface soil MSC value changed from 6 mg/kg to 1,600 mg/kg. The CSFo values of 8.4 (mg/kg/day)-1 and 15 (mg/kg/day)-1 for beryllium and cadmium, respectively, have been deleted from Appendix A, Table 5B.
F. Benefits, Costs and Compliance
Benefits
Correcting errors in the toxicity values and the MSCs in Chapter 250 serve the public and the regulated community as they provide accurate information needed for remediating contaminated sites. Having access to that information allows the public to know the acceptable level of contamination at a site based on the intended use of the property, and it provides remediators with a uniform endpoint to the remediation process.
Compliance costs
This final-omitted rulemaking is not expected to add costs, overall, to the cleanup of contaminated sites under the Land Recycling Program. The decrease in the Aldrin MSC will only impact ten sites. Remediators of these sites can use either the background standard or the site-specific standard if the reduction in the Aldrin MSC impacts their project. The beryllium and cadmium corrections result in increases in their respective MSC values and are not anticipated to have an adverse impact on the regulated community.
Compliance assistance plan
The Land Recycling Program will disseminate information concerning these corrections using the Department's web site and e-mails to environmental consultants involved in the Land Recycling Program.
Paperwork requirements
This final-omitted rulemaking does not require forms or reports.
G. Pollution Prevention
The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance requirements.
During remediation of a contaminated site, potential sources of pollution are often removed to attain the standards in the act, thus eliminating or minimizing the potential for continued migration.
H. Sunset Review
The Board is not establishing a sunset date for these regulations since they are needed for the Department to carry out its statutory authority. The Department will continue to closely monitor these regulations for their effectiveness and recommend updates to the Board as necessary.
I. Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P.S. § 745.5a(c)), on January 22, 2018, the Department submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P.S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on February 21, 2018, the final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on February 22, 2018, and approved the final-omitted rulemaking.
J. Findings
The Board finds that:
(1) The amendments are appropriate to implement the Land Recycling Program.
(2) Use of the omission of notice of proposed rulemaking procedure is appropriate because the proposed rulemaking procedures in sections 201 and 202 of the CDL (45 P.S. §§ 1201 and 1202) are, in this instance, unnecessary and contrary to the public interest.
(3) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this preamble and in the public interest.
K. 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 Appendix A, Tables 1, 4A and 5B to read as set forth in Annex A, with ellipses referring to the existing text of the tables.
(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 of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required under the Regulatory Review Act (71 P.S. §§ 745.1—745.14).
(d) The Chairperson of the Board shall certify this order and Annex A, as approved for legality and form, 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.
PATRICK McDONNELL,
Chairperson(Editor's Note: See 48 Pa.B. 1482 (March 10, 2018) for IRRC's approval order.)
Fiscal Note: 7-538. No fiscal impact; (8) recommends adoption.
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
Appendix A
[Pa.B. Doc. No. 18-392. Filed for public inspection March 16, 2018, 9:00 a.m.]
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