Cleanup Standards Scientific Advisory Board Meeting

February 3, 2000

 

 

The following CSSAB Members were present:

Dr. Ronald Buchanan Dr. Kevin Reinert
Donald Goodman Craig Robertson
James Mattern Dr. Mark Urbassik
Dr. Ronald Neufeld

Dr. Thomas Yohe

Timothy Rea  

The following Department of Environmental Protection staff were present:

David Crownover Bill Pounds
Samuel Fang Randy Rousch
Thomas Fidler Edgar Shaw
Lou Guerra, Jr.

James Shaw

David Hess John Stephenson
Kurt Klapkowski

Justina Wasicek

Guests Present:

William Cluck  
Chuck Campbell  
Steve Rhoads  

Call to order

Mark Urbassik announced that Ronald Buchanan, Dupont, has been named to the Board.

Review minutes from October 14th meeting

Chapter 250 Regulations

Mark Urbassik stated that the DEP wanted to have final discussion on the regulation package and is asking the Board to provide a recommendation on the package. Tom Fidler explained that no version since the October 14th CSSAB meeting version has been made available because the changes were minor and in the form of deletions rather than additional wording. One of the handouts for the meeting was a one page outline of the changes since the October 14th version. Tom Fidler reviewed those changes.

Several of the new definitions have now been deleted as a part of how the DEP is implementing it's policy on waste interface with Act 2, including the Fill Policy. To provide the Board with the status of the Fill Policy, Tom asked Bill Pounds, DEP make a presentation at this meeting.

Bill Pounds introduced himself as working for the Bureau of Land Recycling and Waste Management. He explained that the Fill Policy will be presented together with other waste management changes as a "package", which will consist of a Fact Sheet which will explain "what" and "why", a Fill Policy which deals with uncontaminated soils (applies to soils where there is no reason to expect that there is contamination), a proposed change to the residual waste regulations to allow for Permit by Rule to allow certain contaminated soils and "historically contaminated fill material" (definition includes slag, foundry sand, incinerator ash, fly ash, which were commonly used to bring land up to grade prior to September 7, 1980) to be moved around on-site and moved from one site to another if it meets some constituents standards (covered under Permit by Rule). The Permit by Rule would provide for minimal requirements, such as not depositing directly into a stream, certain distances from a stream, and other performance oriented standards. Jim Mattern asked for clarification that the Permit by Rule would allow for movement of materials from one industrial site to another. Bill's response was yes, if you meet the cut off standards for the listed constituents. There are respective cut-off standards which apply to the fill policy, the Permit by Rule and the general permit. The cut-off standards for the general permit correspond to the Act 2 Statewide health residential and non-residential standards. Therefore one could move materials from one Act 2 site to another provided that the material is used for construction material or bring land up to grade. The Department does not want this provision to be used to create new landfills. Also being considered for addition to the residual waste regulations is a permit wavier for movement of waste in cases where it is encountered during a remediation project. What is currently being considered is allowing the movement of waste from one part of the site to the other if they meet Act 2 standards, and it was approved by the Department.

Ronald Neufeld asked for clarification as to whether these materials which could be moved were limited to industrial sites, since Bill had mentioned residential Statewide health standards. Bill clarified that part of the Permit by Rule applies to contaminated soil. The proposed definition of contaminated soil includes historically contaminated material that is a conglomeration of soil and residual material such as slag, fly ash and incinerator ash commonly used prior to September 7, 1980 to bring an area to grade. For example, if a building is torn down, the material which comes under the definition of contaminated soil existing under it would be regulated by the Permit by Rule under the residual waste regulations. When there is material which is exclusively waste, such as slag, or in the clear case of a landfill, movement could not be done under the above described general permit, which deals with contaminated materials (versus waste). Such waste could be moved under a different general permit.

Ron Neufeld related a situation he was aware of in Pittsburgh where a residential home was built on such contaminated soil (mixture including coal ash) and he wondered how it would be dealt with under this new policy. Bill Pounds thought that the current writing of the policy would allow this material to be moved to an industrial site. He was not sure how the policy would deal with the material which would be left on the residential property.

Mark Urbassik asked for clarification that the Permit by Rule would apply to slag which was used for historical fill and be contaminated by something else. Bill said it had to be a mixture of slag other materials so as to make it difficult to distinguish what all the mixture was made up of. Pure slag piles would be regulated as waste. Therefore to be covered by the Permit by Rule, the slag would have to be a part of a mixture of material. Bill also mentioned that the Department plans to make modification to the changes to the definition of waste which would exclude slag which was used as aggregate onsite. He said that a number of issues are being addressed by the series of changes coming out with this Fill Package which will all be available during the 60 day comment period for the general permit. The Department will also have hearings across the state to explain the package and take testimony on it.

Bill Pounds explained that he has heard rumors that the Department was going to regulate all soil, which is not true, and he is anxious to get the Fill Package out to clear the air about what is being proposed. The purpose of this package is not to make anyone sample, but if they do sample they need guidance to direct them where the material could be moved. This is an attempt to come up with reasonable changes. Further he noted that in cases where there are less than 500 cubic yards or for material being moved on an Act 2 site, the policy does not apply. Also doesn’t apply to small landscaping, or utility trenches. Craig Robertson asked that in the cases where Bill Pounds said the policy didn't apply, was there any liability for cleanup? [Yes] Craig Robertson postulated that there was nothing to prevent him from taking 1000 cubic yards of general soil and moving it on an industrial facility and not sample it, but he does have liability for what is moved. That's correct, said Bill. The issue, then, is not is DEP requiring sampling, it's that the person accept liability for moving it. Any cut off of 500 cubic yards not needing sampling is meaningless because it doesn't eliminate the liability that one has. Bill Pounds said it only means that the policy doesn't apply to it. Craig asserted that the law does apply to that material. What law would apply to a person moving material as part of construction of a building? As the earlier example of the site in Squirrel Hill in Pittsburgh where residential buildings were atop coal ash, if 500 cubic yards are moved to another property . Is this material then dewasted? [No] Then the liability doesn't go away because DEP doesn't make a person sample it, said Craig. The real issue he feels is at what point could a person be able to move any amount of material, not knowing if it is technically a waste and not have liability for that action. Bill clarified that the Fill Policy does not apply to areas where there has been a known spill or release.

Jim Mattern stated that this policy, by having these cut-off standards, has created a new industry in Pennsylvania. Because whether or not the Department wants a person to sample a soil, now that there is a standard out there which defines clean fill, everyone who is accepting soil on their property will now want to have the soil certified as clean to these standards. Bill explained that the pressure to sample soils existed before, the only difference now is they have to compare to these Fill Policy standards instead of the Act 2 standards. He went on to say that although the background numbers [standards] under the Fill Policy may be lower than some people would like, they have included a provision to allow for demonstrating, by sampling, that the material being taken to a new area is no higher than what exists at that area now.

Craig Robertson made a parallel to the "Don't ask Don't tell" policy of the military.

Craig - You don't want to ask the domestic homeowner to sample, and you don't want them to tell you there is a problem, but they retain the liability for contamination. There is no release from liability, and liability is the issue. If you publish these numbers you make the liability more certain not less certain. You create more of an impetus to go out and worry about these materials than there exists right now under your current "don't ask don't tell" policy.

A provision of this would be if, for instance for domestic basements and excavations, it would be de-wasted. There is no issue then, if you are excavating soil in an area to put in a domestic facility, basement, etc. Pounds - How can I de-waste something when it is not a waste to begin with? Justina Wasicek commented that if it is waste…if you have an area where you have radium tailings throughout the neighborhood… you don't want an exception that doesn't look into the nature of what you are moving around. You want to know that when you move something, if it is truly waste, you want to know that you are disposing of waste in a way that will not cause harm.

Bill Pounds - As a condition of the Permit by Rule language, as well as a condition of the General Permit, there is a de-wasting provision. It basically says if the materials are deposited in accordance with the Permit by Rule language and are left in place, they are de-wasted. If the materials are deposited in accordance with the General Permit and remain in place they are de-wasted. So we have done that. Where there is some semblance of regulation over the materials is because they are waste or because they are contaminated soil. But if they are fill and are not contaminated why would we de-waste something that was not regulated to begin with?

There was a general question as to the reason for the 500 cubic yard cutoff.

Need to define level of due diligence necessary to prove that material meets Fill Policy and how liability is defined. Wasicek - if people want relief from liability, they must sample and go through the Act 2 process. That's what gives you liability relief. For waste, you don't get relief from liability; for waste you say "Here is how I disposed of it in accordance with the Solid Waste Management Act and it is not going to cause a problem."

Jim Mattern doesn't understand why we went through so much effort to develop standards that are "safe" (the Act 2 residential standards) that we can build Day Care Centers on and now I have lower standards to move my soil. Why is there another standard out there? Craig Robertson responded that the only answer given before is the ecoreceptors issue. Bill Pounds added that there are other issues that the CSSAB probably didn't look at like public nuisance type issues. Under Act 97 we are required to look at those. If you are a property owner whose soil is 50 ppm lead, and someone wants to dump soil with 500 ppm next to you, there is something there that science doesn't address, and that is "How do you deal with it?". Now I can do a risk assessment and tell you that I can put a hazardous waste incinerator on this property and based on the best science information available and risk assessments, it is not going to harm you. But the citizens don't want it. We have done a good job in looking at pure science but what we have to deal with is citizens that don't want it.

Tom Fidler - I think we have come a long way in dealing with what we call historic fill.

Tom Fidler asked how the Board wanted to handle the review of the regs to facilitate coming to the point of getting the position of the Board. Mark Urbassik remarked that there are 4 or 5 issues, some of which can be disposed of quickly, and then there are a couple that need to be discussed.

Tom Fidler asked if there were any comments or concerns about the addition of the definition for agricultural purposes. Tom Yohe asked if we took out all the definitions of aquifer. Craig said only the definitions that were proposed at the last meeting. Taking out the definitions for environmental media, soil matrix, and we did have a definition for historic fill. Those have been taken out (Tom Fidler).

Tom Fidler remarked in Section 250.5 regarding public notice, we are drawing the non-use aquifer determination process into the public notice requirements of the regulations. It sets up a process for notice that is very similar to cleanups that would occur under site-specific standards or SIAs.

Craig: If Act 2 had specific requirements spelled out for public notice and public participation and specifically said that for background or statewide health what is required, and then said for site-specific what's required, which is something more than is specified for the statewide…is the responsible party actually liable ….

Jim Mattern asked what was the impetus for this public participation request on non-use aquifers. Dave Hess replied that the Regional Offices suggested it would be a good idea. Tom Fidler said it may not be any more specific than that the non-use designation provides a lot more latitude and the attainment of much higher concentrations at the end of the cleanup than the other standards. We wanted to be sure that there was not some plan that the municipality had in place that may be in some way impacted by a cleanup to the non-use aquifer standard rather than the used aquifer standard. Granted, the criteria in place right now require that plans for future use be analyzed and explored as part of the screening process, but operationally, field staff felt more comfortable providing a letter to the municipality pointing out that a cleanup to this standard was occurring and providing an opportunity for some comment.

Jim Mattern says he is looking at this as a positive development. He supports this if it represents a way to get a technical discussion of the merits of the request and not a purely political decision. Dave Hess stated that the way this was written the decision would be based on technical merits and whether it meets Act 2 standards, not on politics.

Jim Mattern would like to see something in the regs that states this is a technical plan.

Jim Mattern also commented on the timing of what the public participation plan is requesting. After the NIR is submitted, or after all the work of proving the criteria are met. As far as practicality in the field, I am not submitting my NIR until I am pretty sure , and the burden of proof is substantial that all downgradient properties are connected to public water, etc. I have to go through all of that, then I go to the public and have then dispute your data.

Concern was expressed regarding the time increase that the public participation plan causes. The statewide health standard was envisioned to be streamlined and easy to implement. Now the Department is adding requirements that will slow down the process. Craig thinks it could add several months to the process.

Tom Fidler asked the Board if this proposal is one that should be put out for comment with the regulatory package.

Mark Urbassik summarized what is being asked of the CSSAB by DEP on this issue.

Tom Fidler asks for finalization.

Jim Mattern proposes that the DEP adopt the current unofficial policy of contacting the municipality, without going through public comment. And the remediator would be responsible for responding to the technical comments of the municipality and the water purveyor.

break for lunch. Presentation on e-commerce.

Discussion on small excavation characterization and attainment. Discussion centered on when a statistical test (mainly the 75%/10x rule) can be used to demonstrate attainment when full characterization has not been done.

Jim Mattern questioned if the language provides flexibility that if a remediator digs as he is remediating and discovers that the contamination extends a little bit beyond localized contamination and he realizes he is getting into something extensive and decides to go back in and characterize. Can he use 75%/10x here? Once he does a characterization, he can use 75%/10x.

A proposal was made by Justina to have non-exceedance apply in cases where excavation is the remedial method and no full characterization is done prior/during /after .

A point was made by Jim Mattern that Act 2 sets standards for the tank program and that the 75%/10x test is intimately tied to Act 2.

Jim Mattern made a point of need for the gw wells….a grab sample from water in the bottom of a pit is not a representative groundwater sample. If water is in the pit, then the remediator needs to install a properly constructed monitoring well. Stephenson says the point that if there is water in the pit and no obvious contamination, and the water samples come back non-detect or below the standard, then the tanks program is satisfied. If those samples are contaminated, then he agrees that a proper well is needed.

Jim Mattern makde the point that he is uncomfortable with the Department allowing the tanks program to do things differently than other Act 2 sites. He does not agree that the tank program can be independent except for the numeric standards. He feels there is an intimate connection between the numeric standard and the method and the attainment sampling.

Jim Mattern has no objection to allowing, for localized tank releases, the use of excavation and the non-exceedance demonstration of attainment. For any other situation, then the remediator must go through the full Act 2 procedures.

Jim Mattern summarized the proposal that the non-exceedance testing could be used in cases where petroleum causes more than localized contamination and use excavation without site characterization.

Mark Urbassik requested that persons have the option of doing full characterization together with excavation and be allowed to apply 75%/10x. He does not see why it should be limited to sites with petroleum contamination.

Stephenson has a problem with allowing 75%/10x in an excavation where a portion has significant obvious contamination (e.g., visual or odor). That's why the tank program uses biased sampling.

Jim Mattern, makes the point that the proposed section, as written, can optionally apply to all contaminants- It is good to limit this to petroleum cases where there is excavation and no characterization.

Dave Hess suggested that changing "prior to" to "in association with" will solve the problem. That will allow one the option of doing a full characterization at any point in the process. And having done the full characterization, they now have the option of using 75%/10x. Strike first sentence on end of page 12.

Jim Mattern suggested that this should only apply to petroleum sites where characterization is not done. It should not be an option for non-petroleum tanks.

Justina suggests that we clarify 703 "volume of contamination" attainment methods apply to base of excavation which was determined by volume….. (represented by the volume of soil). Applied to area below that volume. The regulations were modified to state in Section 703(b) that if soil is to be excavated, the attainment is done at the bottom and sidewalls of the excavation.

Motion by Jim Mattern for changes: Strike sentence p. 12 bottom 1st sentence. Strike "prior to" and replace with "in association with". Change (B) (page 13) replace "other sites" with "not covered by (A) above." Cull (C) out of that, because it can be applied to other sites. Move (C) out before (2) and make it (b)(1)(iv) and make it for all sites and (D) becomes (C). Motion carried.

Motion for non-use

250.5 bottom of page 3 and on page 4, strike all proposed changes.

250.5 (d) should state something to the effect that… upon receipt of an NIR, indicating a non-use aquifer remediation or non-use aquifer determination request, the Department will notify the municipality of such request or intent. The municipality will have 30 days, to indicate to DEP and the RP facts that indicate that the provisions of 250.303 [have not been met]

New (e) "if the municipality presents such facts as specified in (b), the RP will have to respond to the comments in the original or revised non-use aquifer determination request."

Coupled with this is a change in 303 (c). Before the colon add "By methods which will include door to door surveys, verifying purveyor billing records and interviewing purveyors with regard to their currently planned future groundwater use."

Give them a definite time frame to respond. 30 or 45 days.

That's the motion. The intent is that the Department notifies the municipality, the municipality has a certain amount of time to respond so that they have facts that say that 303 (c) is not being met, if that's the case. It would be in the regulations that the remediator has to check with the water purveyors on their plans.

Tom Fidler said that he has been hearing from this discussion that we need to recognize that there should be some sort of public participation, probably more than some sort of notice that is provided, but we should also be drawing a distinction between what we may be requiring for participation and notice under a non-use scenario that should be different - at least a little bit different - than what we require under site-specific. Jim Mattern agreed.

Tom Fidler never really envisioned the development of a public participation plan as a part of this. He just wanted to be sure that the municipality has some input, that they were brought into the process, and that in fact the purveyor also did a check to be sure that this would not impact their flexibility at some point in the future.

Discussion ensued on the merits of various levels of detail in the regulations for the public participation process.

The board's feeling is that as the Department provides for increased public participation in the determination of non-use aquifers, it is making use of that designation much less attractive than the site-specific standard.

The DEP removed the provision dealing with determination of saturated soils from the regulations. This will be addressed in guidance. Part of the Board's proposal was to allow a default soil zone extending upwards to two feet above a measured water level. Subsequent work by the Department found that the average water level fluctuation in wells was about 3 feet, and varied widely. Later in the meeting, John Stephenson will make a presentation on the new DEP approach. Jim Mattern stated for the record that the Department's analysis of historic water level measurements included wells which where completed in bedrock, not soil.

When the fill management policy is out and in final form it will be pulled into the manual. We are in the process of drafting some language to discuss waste interface issues, similar to what Bill Pounds discussed earlier in the meeting.

Dave Hess reviewed issues that will be addressed in guidance rather than in regulation and the Board assigned subcommittees for oversight:

Further clarification of the administrative process for how the pre-certification of non-use aquifer area would work.

Clarifying that the term "currently planned use" in non-use aquifers refers to public water supplies, not private supplies. Applicability and Attainment Subcommittee will oversee

Clarification that the Statewide health standard cannot be used when separate phase liquid is present at the POC. This is ties to where sampling is to be done. One straightforward approach is to say that if there is SPL present at the POC at the time of attainment demonstration, then the Statewide health standard cannot be attained.

Determination of saturated soils as discussed above. Standards Subcommittee

No probable future use determination under site-specific is applicable when a remediator would want to make the determination that there is no pathway. What does it take to demonstrate no probable future use? This seems straightforward, but there are some in the Department that say it requires deed restrictions. The Risk Assessment Subcommittee can provide support in guidance language for this determination. This issue has many legal implications, so we may need to have legal counsel involved.

Solid waste interface section needs to be written. Ron Buchanan (new subcommittee?)

Guidance on small excavation cleanups to go along with the discussion earlier in this meeting. Maybe this has been covered sufficiently in regulation (Dave Hess)

What is acceptable to the Department for fate and transport analysis. Applicability and Attainment

Attainment items:

Because the asbestos soil standard has been deleted from the table, the Department will be proposing guidance on air sampling for asbestos at relevant sites. Jim Mattern commented that there are already guidances available for this. Dave Hess remarked that something needs to be in the TGM. Just say it will be done in accordance with existing regs and guidances.

Jim Mattern commented that the Department should check the standards tables to be sure there is a groundwater MSC for hexavalent chromium. The "blue book" only lists a standard for trivalent.