ENVIRONMENTAL QUALITY BOARD [ 25 PA. CODE CH. 250 ] Administration of the Land Recycling Program [41 Pa.B. 230]
[Saturday, January 8, 2011]The Environmental Quality Board (Board) amends Chapter 250 (relating to administration of Land Recycling Program). The final-form rulemaking updates the Statewide health standards (SHS) by using current United States Environmental Protection Agency (EPA) guidance and updated toxicological information. The final-form rulemaking also corrects errors and codifies certain established policies into regulation.
This order was adopted by the Board at its meeting of August 30, 2010.
A. Effective Date
The final-form rulemaking go into effect upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Troy Conrad, Director, Land Recycling 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 Pennsylvania AT&T Relay Service, (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) web site: http://www.dep.state.pa.us.
C. Statutory Authority
This final-form rulemaking is being made under the authority of sections 104(a) and 303(a) of the Land Recycling and Environmental Remediation Standards Act (Land Recycling 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 Land Recycling Act authorizes the Board to adopt SHS, appropriate mathematically valid statistical tests to define compliance with the Land Recycling Act and other regulations that may be needed to implement the provisions of the Land Recycling Act. Section 303(a) of the Land Recycling Act authorizes the Board to promulgate SHS 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 of the Final-Form Rulemaking
The primary purpose of this final-form rulemaking is to update the standards related to cleanup of contaminated sites under the Land Recycling Act. The Land Recycling Act requires the Board to establish by regulation uniform Statewide health-based standards so that any substantial present or probable future risk to human health and the environment is eliminated. The original standards were promulgated in 1997 and codified in Chapter 250. Section 104(a) of the Land Recycling Act explicitly recognizes that the standards would need to be updated over time as better science became available and as the need for clarification or enhancement of the Land Recycling Program (Program) became apparent. Updating the standards serves the public as the Department is able to use the most up-to-date health and scientific information to establish the cleanup standards. In addition, the changes in standards serve both the public and the regulated community as they provide clear information on what is or will be done at contaminated sites. This gives the public notice and provides remediators with a clear endpoint to the remediation process. Several amendments are currently part of guidance, but are being added to Chapter 250 to give the requirements the legal status of a binding norm, which should lead to greater consistency and clarity across this Commonwealth.
E. Summary of Changes to and Comments and Responses on the Proposed Rulemaking
The Board received comments on the proposed rulemaking from six commentators. Five individuals submitted comments during the 30-day public comment period, subsequent to the publication of proposed rulemaking at 40 Pa.B. 1297 (March 6, 2010). The Department provided the Independent Regulatory Review Commission (IRRC) with all comments received during the public comment period. On May 5, 2010, IRRC submitted written comments to the Board. Based on the comments received, several changes have been made in the final-form rulemaking.
§ 250.1. Definitions
One commentator pointed out that regulations have the full force and effect of law and establish a binding norm that is applicable to all that fall under its jurisdiction and, therefore, regulations must be clear and unambiguous. The commentator felt that the first sentence of the definition for ''EQL—estimated quantitation limit'' accomplishes this goal, but that the remaining sentences lack the clarity needed to establish a binding norm and should be deleted. The Board accepts this comment and deleted all but the first sentence of this definition.
§ 250.11. Periodic review of MSCs
Two commentators felt that the Board should clarify how the Department will implement this section and the effects that changes to the medium-specific concentrations (MSCs) might have on remediation projects that are either in the planning stages or have already begun. The Board believes that it is sufficient to state that any revised standards will become effective upon publication in the Pennsylvania Bulletin. Future changes will be administered in the same manner as with previous amendments to the regulations and the current rulemaking. This means that the new standards must be met in any final report submitted after the day the final-form rulemaking is published. The entire rulemaking process, from the time the initial draft rules are first publicly available, through the proposal of the rules and the official comment period, until the final rules are promulgated, typically takes over 2 years. This provides licensed professionals working on remediation projects sufficient notice of likely changes.
§ 250.304. MSCs for groundwater
§ 250.305. MSCs for soil
In § 250.304(c), the Board is amending a reference to an EPA Office of Water publication. One commentator felt that, as required under § 1.6 of the Pennsylvania Code & Bulletin Style Manual (relating to incorporation by reference), the year or edition of the document being incorporated by reference should be included in the final-form regulation. The Board agrees and has added the year of publication of the document.
In both sections, the Board proposed to add language that would require remediators using the SHS under the Land Recycling Act to address vapor intrusion exposure pathways in one of two ways. One commentator believed that the Department lacks statutory authority under the Land Recycling Act to require evaluation of the vapor intrusion pathway through the MSC formulas or otherwise under the SHS. The Board does not agree with the position of the commentator. Section 303(c) of the Land Recycling Act requires that when establishing an MSC for groundwater and soils that the calculation shall address the ingestion and inhalation of volatiles and particulates. The Land Recycling Act provides authority for the Board to promulgate SHS MSCs that address the vapor intrusion pathway. This can be done directly through promulgation of MSCs that directly address the vapor intrusion pathway, or indirectly through promulgation of MSCs that do not directly address the vapor intrusion pathway but are supplemented by assessment and remediation procedures that otherwise address the vapor intrusion pathway.
One commentator felt that the reference to technical guidance published by the Department is vague. Another commentator felt that it is inappropriate to incorporate technical guidance by reference because it would give the document the authority of a duly promulgated regulation without the benefit of formal notice and a public comment period. The commentator also suggested that the Board consider including the full language of the guidance document in these regulations. In its final-form, the rulemaking does not include any reference to the technical guidance document.
Appendix A, Table 1. Medium-specific concentrations (MSCs) for organic regulated substances in groundwater
The proposal to leave the MSCs for methyl tertiary-butyl ether (MTBE) unchanged generated the most comment on the proposed rulemaking. To the extent possible, the Board consolidated the concerns expressed over this decision in this discussion. A commentator raised a unique concern relating to MTBE that is included as a separate comment.
In its discussion of the treatment of this MSC in the preamble to the proposed rulemaking, the Board included the following statement: ''The Department has decided that the previously considered revisions for MTBE included in the September 1, 2009 draft, which allowed for higher concentrations of MTBE based on health based calculations, would have resulted in unacceptable taste and odor impacts on groundwater used for drinking water.'' Public commentators are concerned with the Board's decision to retain the existing numeric value for MTBE. As noted in the preamble to the proposed rulemaking, the Department's Cleanup Standards Scientific Advisory Board also has concerns ''because they do not reflect specific health-based criteria from the Land Recycling Act.''
Aside from the debate on the underlying science of the MSC for MTBE, a commentator expressed concerns with the process used by the Board. First, as noted by a commentator, ''In the absence of an maximum contaminant level (MCL) or a health advisory level (HAL), the Department is statutorily required to calculate the MSC using valid scientific methods that are not more stringent than the health-based criteria set forth in Section 303 of the Land Recycling Act.''
One commentator questioned the Board's statutory authority for basing any MSC on unacceptable taste and odor impacts and how the decision to retain the MSC for MTBE at 20 micrograms per liter (µg/L) fit into the General Assembly's declaration of policy in section 102 of the Land Recycling Act (35 P. S. § 6026.102).
In the Chapter 250 regulations as adopted at 27 Pa.B. 4181 (August 16, 1997), the Board promulgated a groundwater MSC for MTBE of 20 µg/L based on a draft lifetime health advisory level (HAL) published by the EPA. In reviewing the basis for the MSC for MTBE in preparation for this final-form rulemaking, it was determined that the draft HAL had been deleted from the EPA tables of drinking water standards. In the most recent publication of the EPA drinking water standards, MTBE is listed under a separate table titled Drinking Water Advisories with an advisory level of 20 µg/L. Early drafts of the revised tables for this final-form rulemaking used the toxicity data in Table 5 and the standard formulas to calculate a groundwater MSC. Upon further consideration of the issue, the Board decided not to propose a change in the MSC for MTBE for this final-form rulemaking because, although the draft HAL was not finalized by the EPA, the new EPA drinking water advisory level reflects no change in the degree of protectiveness.
In other, separate comments, one commentator suggested that the Board adopt two separate standards for MTBE—risk-based MSCs and a separate secondary maximum contaminant level (SMCL) based on taste and odor concerns for MTBE. SMCLs are included in the rules already for several metals based on similar reasons. The Board has not accepted this suggestion because the EPA has not promulgated an SMCL level for MTBE.
One commentator related that when there are detectable (that is, above the laboratory detection limits or practical quantitation limits) levels of MTBE in groundwater but the levels are below the SHS of 20 µg/L, it is the need to remove potential liability issues and deter lawsuits, and not the actual MTBE concentration, that drives the installation of a treatment system on the homeowner's water supply well, and this would still be the case if the standard was changed to 190/960 µg/L, particularly if concentrations were below these numbers yet above the odor threshold of 20 µg/L. However, MSCs apply at the point of compliance independent of actual use of the groundwater. Remediators would not necessarily have an incentive to remediate contaminated groundwater that was below the published MSC levels.
Appendix A, Table 2. Medium-specific concentrations (MSCs) for inorganic regulated substances in ground- water
This table includes a reference that indicates that the MSC for sulfate is a primary maximum contaminant level (MCL). The EPA does not currently have a finalized MCL for sulfate. One commentator suggests that the Department remove sulfate from having a proposed risk-based MSC and rely on the SMCL established by the EPA (250 mg/L). In the original 1997 regulations, sulfate appeared on the main Table 2, with an MSC of 500,000 µg/L based upon a draft MCL published by the EPA in its publication ''Drinking Water Regulations and Health Advisories'' (EPA 822-R-96-001, February, 1996). In subsequent versions of this document, the draft MCL is deleted. The MSC for sulfates has been revised in Table 2 to indicate that the new value is based upon the SMCL of 250,000 µg/L which is published in the 1996 EPA document as well as all subsequent versions of that document. Since the revised MSC is based upon an SMCL, the value for sulfates has been moved from the main body of the table to the table of secondary contaminants. This move is indicated as a deletion of sulfates from the main body of the table and the addition of sulfates to the secondary contaminant portion of the table.
Preamble—compliance costs
One commentator felt that when the MSCs are lowered based on toxicological data for chemicals that can be ubiquitous in the environment, the regulated community may be forced to expend additional funds to conduct background studies on these chemicals. Therefore, it may be inappropriate for the Department to state in the preamble that the proposed changes are not expected to add significant costs to the cleanup of contaminated sites. The Board determined that some cleanup standard concentration values will be lower (and therefore their costs will be higher) and some will be higher (resulting in costs that will be lower). The Board is not asserting that the costs for some individual cleanups might not be higher, especially if the individual cleanup involved large volumes of a substance that has a new significantly lower concentration number. The finding of the Board was that the net effect should be negligible.
F. Benefits, Costs and Compliance
Benefits
The Department and the Board are required to update the cleanup standard concentration values and the associated toxicological data in a timely manner to assure that environmental response actions at contaminated sites are remediated based on the current EPA guidance and current toxicological information.
Meeting this responsibility in these amended regulations assures the protection of the public health and environment relating to exposure to regulated substances when it has been determined that lower concentrations of a regulated substances are required to meet the standards established by the Land Recycling Act.
These amended regulations also avoid unnecessary expense for remediators when remediating contaminated property when it has been determined that higher concentrations of regulated substances are protective and meet the standards established by the Land Recycling Act.
Compliance Costs
These technical amendments to the land recycling regulations will affect owners, operators and purchasers of properties and facilities who volunteer or are required to perform remediation of contaminated sites.
These changes are not expected to add any significant costs to the cleanup of contaminated sites under this Program. Some cleanup standard concentration values will be lower and some will be higher. The net cost should be negligible.
Compliance Assistance Plan
The Department regularly provided the regulated public with workshops to explain new regulations, guidance and policy. These are conducted on an average of every 1 to 2 years. Workshops will be planned to coincide with this final-form rulemaking.
Paperwork Requirements
No forms or reports are required beyond those established by the Land Recycling Act.
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 or 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. This final-form rulemaking has incorporated the following pollution prevention provisions and incentives:
As this Program assumes pollution has taken place, minimizing the release is not an option. However, in remediating a site, potential sources of pollution are often removed to attain the standards in the Land Recycling Act, thus eliminating or minimizing the potential for future exposure to regulated substances.
H. Sunset Review
These 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.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 24, 2010, the Department submitted a copy of the notice of proposed rulemaking, published at 40 Pa.B. 1297, to 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 House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 20, 2010, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 21, 2010, and approved the final-form rulemaking.
J. 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, 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) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 40 Pa.B. 1297.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this preamble.
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 §§ 250.301, 250.303, 250.306—250.308, 250.407, 250.605, 250.704, 250.707 and Appendix A, Tables 1—6 and by adding § 250.11 to read as set forth at 40 Pa.B. 1297; and by amending §§ 250.1, 250.304 and 250.312 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(Editor's Note: The proposal to amend § 250.305 has been withdrawn. The amendment of § 250.312 was not included in the proposal at 40 Pa.B. 1297.)
(b) The Chairperson of the Board shall submit this order, 40 Pa.B. 1297 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, 40 Pa.B. 1297 and Annex A to IRRC and the Senate and House Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order, 40 Pa.B. 1297 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately.
JOHN HANGER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 6487 (November 6, 2011).)
Fiscal Note: Fiscal Note 7-453 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:
* * * * * EQL—Estimated quantitation limit—The lowest concentration that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions.
Enterprise zone—An area specially designated as an enterprise zone under requirements determined by the Department of Community and Economic Development.
Environmental covenant—A servitude, as set forth in a document prepared under 27 Pa.C.S. Chapter 65 (relating to Uniform Environmental Covenants Act), arising under an environmental response project which imposes activity and use limitations.
* * * * * NPDES—National Pollutant Discharge Elimination System—The National system for the issuance of permits under section 402 of the Federal Clean Water Act (33 U.S.C.A. § 1342) including a state or interstate program which has been approved in whole or in part by the EPA.
PQL—Practical quantitation limit—The lowest limit that can be reliably achieved within specified limits of precision and accuracy under routine laboratory conditions for a specified matrix and based on quantitation, precision and accuracy, normal operation of a laboratory and the practical need in a compliance-monitoring program to have a sufficient number of laboratories available to conduct the analyses.
* * * * * Subchapter C. STATEWIDE HEALTH STANDARDS § 250.304. MSCs for groundwater.
* * * * * (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 as established in § 109.202 (relating to state MCLs, MRDLs and treatment technique requirements) and Health Advisory Levels (HALs) set forth in Drinking Water Standards and Health Advisories, EPA Office of Water Publication No. EPA 822-R-09-011 (October, 2009). For a regulated substance where no MCL has been established, the MSC is the lifetime HAL for that compound. For a regulated substance where neither an MCL nor a lifetime HAL has been 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). New or revised MCLs or HALs promulgated by the Department or the EPA shall become effective immediately for any demonstration of attainment completed after the date the new or revised MCLs or HALs become effective.
* * * * * § 250.312. Final report.
(a) For sites remediated under the Statewide health standard, the person conducting the remediation shall submit a final report to the Department which documents attainment of the selected standard. This final report must include site characterization information identified in § 250.204(b)—(e) (relating to final report). The site characterization shall be conducted in accordance with scientifically recognized principles, standards and procedures. The level of detail in the investigation, and the selected methods and analyses, that may include models, must sufficiently define the rate of movement and the present and future extent and fate of contaminants to ensure continued attainment of the remediation standard. The final report must include, as appropriate, an assessment that addresses the vapor intrusion exposure pathway. Interpretations of geologic and hydrogeologic data shall be prepared by a professional geologist licensed in this Commonwealth.
* * * * * [Pa.B. Doc. No. 11-39. Filed for public inspection January 7, 2011, 9:00 a.m.]
