§ 250.311. Evaluation of ecological receptors.
(a) In addition to any protection afforded under other requirements for meeting surface water and air quality standards and MSCs under this chapter, based on the screening process in this section, direct impacts from regulated substances to the following receptors shall be assessed and addressed to implement a remedy that is protective of the environment:
(1) Individuals of threatened or endangered species as designated by the United States Fish and Wildlife Service under the Endangered Species Act (16 U.S.C.A. § § 1531—1544).
(2) Exceptional value wetlands as defined in § 105.17 (relating to wetlands).
(3) Habitats of concern.
(4) Species of concern.
(b) For purposes of determining impacts on ecological receptors, no additional evaluation is required if the remediation attains a level equal to 1/10th of the value in Appendix A, Tables 3 and 4 or, for substances identified in § 250.305(g) (relating to MSCs for soil), 1/10th of the physical limitation identified in § 250.305(b), except for constituents of potential ecological concern identified in Table 8, or if the criteria in paragraph (1), (2) or (3) are met. Information that supports a determination that no additional evaluation is required shall be documented in the final report.
(1) Jet fuel, gasoline, kerosene, number two fuel oil or diesel fuel are the only constituents detected onsite.
(2) The area of contaminated soil is less than 2 acres and the area of contaminated sediment is less than 1,000 square feet.
(3) The site has features, such as buildings, parking lots or graveled paved areas, which would obviously eliminate the specific exposure pathways, such as soils exposure.
(c) If none of the criteria in subsection (b) are met and if no Constituents of Potential Ecological Concern (CPECs) associated with the release being addressed as part of an NIR at the site, as identified in Appendix A, Table 8, are detected onsite, an onsite evaluation shall be conducted to document any indications of ecological impact. Ecological impacts requiring more detailed evaluation exist if there are differences of greater than 50% in the density or diversity of species or habitats of concern when compared with nearby reference areas representing equivalent ecological areas without contamination, if available. This evaluation shall also document the presence of threatened and endangered species and exceptional value wetlands. If no ecological impacts requiring further evaluation are identified, and no threatened and endangered species exist within a 2,500-foot radius of the site and no exceptional value wetlands exist on the site, no further evaluation is required and that determination shall be documented in the final report.
(d) If none of the criteria in subsection (b) are met and if CPECs associated with the release being addressed as part of an NIR at the site are detected onsite or ecological impacts requiring more detailed evaluation, threatened and endangered species, or exceptional value wetlands as identified in subsection (c) exist, a detailed onsite evaluation shall be conducted by a person qualified to perform environmental risk assessments to document any substantial ecological impacts. Substantial ecological impacts exist if there are differences of greater than 20% in the density of species of concern or greater than 50% in the diversity and extent of habitats of concern when compared with nearby reference areas representing equivalent ecological areas without contamination, if available. If there are no substantial ecological impacts identified and there are no threatened or endangered species on or within a 2,500-foot radius of the site and no exceptional value wetlands on the site, that determination shall be provided in the final report.
(e) If the person cannot demonstrate that they meet the criteria in subsection (b), and cannot demonstrate that the evaluation performed under subsection (c) identified no ecological impacts requiring more detailed evaluation under subsection (d), or cannot demonstrate that the evaluation performed under subsection (d) identified no substantial ecological impacts, or threatened or endangered species or exceptional value wetlands, one of the following shall be met:
(1) A person shall demonstrate in the final report that attainment of the Statewide health standard MSCs are protective of the ecological receptors.
(2) If a demonstration cannot be made that the Statewide health standard MSCs are protective of ecological receptors, a person shall demonstrate in the final report that postremedy use will eliminate complete exposure pathways at the time of the final report or in accordance with a postremediation care plan, or that mitigative measures identified in subsection (f) have been instituted and are subject to postremediation care plan requirements as described in § 250.312(b) (relating to final report).
(3) A person shall demonstrate attainment of the background standard.
(4) A person shall follow the procedures in § § 250.402(c) and 250.409 (relating to human health and environmental protection goals; and risk assessment report) and demonstrate attainment of the site-specific standard for protection of ecological receptors.
(f) Mitigation measures to restore or replace equivalent ecological resources in the local area of the site may be applied if the following are met:
(1) No exceptional value wetlands have been identified by the screening process.
(2) No Federal or State laws and regulations prohibit or restrict the elimination of habitats or species identified by the screening process.
(3) A mitigation measure is selected based on the following hierarchy:
(i) Restoration onsite of species and habitats identified in the screening process.
(ii) Replacement onsite of species and habitats identified in the screening process.
(iii) Replacement on an adjacent area to the site of species and habitats identified in the screening process.
(iv) Replacement at a location within the municipality where the site is located of species and habitats identified in the screening process.
(4) The Department will review and approve mitigation measures prior to implementation to ensure that the proposed remedy and intended use of the property minimize the impacts to ecological receptors identified in the screening procedure.
(5) The postremediation care plan requirements in § 250.312(e) or § 250.411(f) (relating to final report) are implemented.
Source The provisions of this § 250.311 amended November 23, 2001, effective November 24, 2001, 31 Pa.B. 6395; amended November 19, 2021, effective November 20, 2021, 51 Pa.B. 7173. Immediately preceding text appears at serial pages (355292) to (355294).
Cross References This section cited in 25 Pa. Code § 245.309 (relating to site characterization); 25 Pa. Code § 245.310 (relating to site characterization report); 25 Pa. Code § 250.303 (relating to aquifer determination; current use and currently planned use of aquifer groundwater); 25 Pa. Code § 250.305 (relating to MSCs for soil); 25 Pa. Code § 250.312 (relating to final report); 25 Pa. Code § 250.402 (relating to human health and environmental protection goals); 25 Pa. Code § 250.411 (relating to final report); and 25 Pa. Code § 250.606 (relating to development of site-specific standards).
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