April 12, 2000

The following CSSAB Members were present:

The following Department of Environmental Protection Staff were present:

Guests Present:

Call to Order

Tom Fidler informed the Board that final revisions were made to the Chapter 250 reg package and they are on the way and scheduled for presentation to the EQB in May. Many of the comments that the Board suggested were incorporated in that package.

Kevin Reinert was unable to attend the meeting but he did provide comments on the Safe Fill Policy, and also Dr. Ron Neufeld was unable to attend but was available by phone.

Jim Snyder welcomed everyone in attendance, and stated that there will be other Safe Fill Policy presentations around the state. Our Deputy Secretary, Denise Chamberlain made a presentation at the Environmental Law Forum, another presentation to the Pennsylvania Chamber, meetings with the Environmental Subcommittee, three public meetings and hearings are scheduled. Jim stated that the reason they have to come up with a policy of this nature is that we’ve continued to get comments and questions from people from the banking institutions, from developers, from the scientific community, from a variety of folks asking how clean is clean, and where do we draw the line, what do we do if we really want to sample it. They also ask, what happens if our business transaction depends upon a judgment made by someone as to whether or not the fill material in this particular case is suitable for movement or placement on my property. So we tried to provide a response to those issues. The recent existing policy that we started with was drafted in 1996; there is a current published policy that is on the books that we basically provided in 1997 and this is a revision to that. That is the reason why we are here and are very interested in the Board’s comments and also their recommendations in terms of how we can correct perhaps what you believe is either too liberal or too conservative or modify that.

Jim Snyder asked that everyone introduce themselves. The following is an overview of Bill Pounds presentation on the Safe Fill Policy. He stated that they determined months ago that in order to address all the concerns that were raised, primarily in August 97, when we put out a draft of this we could not address all these concerns in one document, it just wasn’t possible. After considering a number of issues that came up that after thinking about it we decided that the best way to address it was through a series of documents as well as some regulatory changes. There were at least several issues that could only be addressed through regulatory changes, and that is what we are going to be talking about today, the whole package itself which contains the fill policy and the management guidelines which essentially will turn into a fact sheet. The regulatory changes consist of a proposed Permit By Rule which would be under Chapter 287.102 and a general permit similar to the basic General Permit used since 1992 for the beneficial use of residual waste. The General Permit will allow contaminated soil to move from one site to another. A permit waiver – there were a number of issues raised regards to what about waste, what do you do when you encounter waste. We felt that the perfect way to address that was to go out and move it around on site without having to go through stringent permit requirements applying standards that were protective of public health and safety and the environment. The other change is the change to the waste definition. Once we started to look into these things we felt that one of the ways of dealing with some of these historic contaminations, would be to come up with some way of excluding that material to be regulated as a waste by not defining it as a waste.

Bill Pounds stated that the development of numeric values was the most difficult thing that we had to deal with. He explained how the numbers were developed. We tried to use Act 2 – Statewide Health Standards (used aquifer, TDS<2500 mg/1). This is the more conservative approach but we are talking about moving material from one site to another. We clearly wanted to come up with something that would allow soil to move from one site to another and ascending numeric values as soil management moves from uncontaminated to historic release to recent spill/release. The way that works is to move from fill that would only apply to soils where there is no evidence of a spill or release of contamination to soils affected by a release but managed under a permit by rule or a general permit. Remediation soils can qualify for General Permits or Permit By Rule (PBR), but not as fill. One of the things that was stressed is that fill standards are based on soils that have no evidence of a spill or release. Bill stated that the safe fill policy is voluntary, and we are focusing on land development not on contaminated sites. We get numerous questions from people stating that they have a soil analysis, what can I do with the soil? Or someone asking if they can take this soil and place it on my property or we have a property that we need to bring fill to, the contract says the material must be clean and what do Pennsylvanians use for clean fill? As Jim Snyder stated, we have a policy that is several years old and the numbers are extremely conservative; it was never meant to last this long. It was supposed to be an interim policy and that’s why we are anxious to change it. One of the biggest concerns we have had on the document itself is that moving <500 cubic yards per project is excluded. We will have to find a better way to explain that. We were trying to address small landscaping projects and trenches for utilities. The 500 cubic yards was essentially suggested from a focus group. 500 cubic yards is roughly someone wanting to add an addition to their house or a garage to their house. We may decide that 1000 may be a better number or that there may be a better way to look at exclusions. There was a previous suggestion that we exclude residential sites less than an acre. But we are trying to find some way to deal with that issue. As far as the numbers, essentially what we tried to do in Safe Fill with numbers for both metals and organics, the earlier draft had default numbers and tables, but we felt you would realize there are areas in the Commonwealth where background levels might be above the default numbers and there should be more ways where you can look at more detailed evaluation of the site where you are taking the materials to and that is why we came up with Criteria I and Criteria II. Criteria II are numbers that are established in tables and in Table 1 you are looking at the lower of estimated natural background or residential direct contact. The natural background numbers will take you to the number of sources, all the tables have footnotes. The background numbers for metals are numbers that can be derived from various research that has been done on Pennsylvania soil. There was some work done by Penn State, the Geologic Survey and others. This is not a very detailed or very comprehensive sampling of the entire Commonwealth but it does give you some idea what the natural background levels are for metals in the Commonwealth. We added pesticides to the table and also were concerned about lead and arsenic. Criteria II allows you to do a background determination if you do not meet the default number. Safe Fill Organics is the most controversial. There are a lot of concerns about the statement in the fact sheet that organics do not occur in the environment. We will revise this line to say that organics normally do not occur in the environment. Bill stated that we would look for a better way to address that statement. We did decide however on the fill that we did not need the long list of organics that is currently found in some of the Act 2 tables. We are looking at the short list of petroleum hydrocarbons, which says that it should not exceed the EQL. We tried to come up with a sample number or protection number. We tried to come up with a number of different ways of calculating this number but they just weren’t successful. We are looking at petroleum hydrocarbons as well as five pesticides (aldrin, dieldrin, DDD, DDE, DDT). For organics we will allow for Criteria II background determination the same as they would for metals. Another change is a regulatory modification of the waste definition. There was an exclusion in the waste definition for slag used as aggregate on site. We would exclude a conglomeration of soil and materials historically used as fill such as fly ash, slag, or other materials that were dumped behind a plant over a number of years. The criteria or definition would say that material used prior to 1980 to bring an area to grade is not waste if it remains on site and site-specific cleanup is performed, and exclude landfills, waste piles, and impoundments. There was some discussion and questions on the waste definition and historic fill.

Another regulatory change we felt was necessary is the management of fill under Permit By Rule. PBR is essentially a permit that is granted by a regulation if you are in compliance with the conditions found under the section that is related to the specific Permit By Rule. We have used PBR for a number of things. We used Permit By Rule for this issue on contaminated soil & dredge material. Soil/residuals covered under the proposed PBR include pre 80 waste include soils that were contaminated by urban air pollution, authorized pesticides use, those materials that exceed fill policy levels, and remediation soil. Each one of these reg changes as well as the fill policy has separate tables that explain by footnotes how the numbers were derived and also how the numbers are included.

Essentially the PBR allows the material to be used on a site to bring an area to grade to natural contours and allow the materials to be used as construction material on a site, control subsidence and reclaim abandoned mines. Bill Pounds stated that they are allowing materials to come from one site to another under the Permit By Rule. Craig Robertson raised the issue of where does the liability exist. What liability do you have under your laws and regulations when moving that soil around? The program has to make that choice on site movement. Bill Pounds stated that we are focusing more on off site removal and bringing materials from one site to another. Jim Snyder explained that we haven’t drawn this issue of liability to closure. Another thing that we did write in the PBR chapter was that material remaining in place can be dewasted. But once again we are trying to get at dewasting some of these materials if they remain in place, but if moved, they will be considered waste. You don’t have to apply for the PBR, there are no stringent requirements but we did set some minimal siting restrictions, you can’t dump it in the waters of the Commonwealth, you can’t dump within 100 feet of a stream or within 100 feet of a sink hole. One thing that was added was that Act 2 looked at a number of things in regards to health, safety and the environment. Probably there are some concerns that it may not go far enough in looking at the kinds of things that we are required to look at under Act 97 such as nuisance, odors, and material smell that have free liquids. The PBR will address these nuisance issues through conditions such as no odor/no free liquids, zoned and exclusively used in commercial or industrial activities.

Bill next explained the proposed general permit process and standard derivation. Bill stated that a General Permit –WMGR058 currently authorizes the beneficial use of waste material under Act 97. We have been doing this since 1992 for a number of reasons. The General Permit restricts the movement of contaminated media to Act 2 sites undergoing remediation. The remediation of contaminated media will be to Statewide health standards and Notice of Intent to Remediate (NIR) will be submitted to the Department. The numbers were taken right out of Act 2. Criteria vary only in stringency applied to contaminants.

Craig Robertson asked Bill to clarify the words to and from, is this moving soil to an Act 2 site or from an Act 2 site or both. Bill answered both. You can move it from a non Act 2 site to an Act 2 site. Jim Mattern suggested that we define the term site. Michele stated that the receiving location under the General Permit has to be something that is already undergoing an Act 2 Cleanup. There was some discussion on fill numbers. Act 2 residential organics – looking at the lower of RDC compared to higher of S/GW options (no 10%). All these are explained in the footnotes. For Act 2 nonresidential: metals- we are looking at nonresidential direct contact. The same is true for organics. The General Permit can be issued for beneficial uses such as bringing an area to grade; limit infiltration of rainfall; facilitate runoff. Conditions to note with a permit are: excavating/receiving at a site similarly contaminated, eco-screening, no free liquids/no odor, cumulative effects, promptly vegetate and dewasting.

The next issue was Permit Waiver; this came up in a number of discussions. Such as what happens if I encounter waste as part of a site remediation. This permit waiver will allow you to handle that material onsite and wouldn’t require a permit from the Department. We would be looking at a cleanup under the site-specific standard, NIR required, performance standards that would apply, and contaminated media cleanup under Act 2.

Development of Numeric Values – we are looking at Statewide health standards used aquifer, ascending values as soil management moves from uncontaminated to contaminated (uncontaminated to historic to spill/release), remediation soils can qualify for General Permits or Permit By Rule, not for site fill. Development of numeric values for metals – Safe Fill Policy takes under consideration natural occurrence but we allow for it to demonstrate background, Permit By Rule, essentially the upper level from the upper limit from current General Permit – the upper limit from residential or nonresidential, direct contact Statewide health standards. SPLP leach analysis s required for Permit By Rule and General Permit except safe fill (GW protection). Bill Pounds stated that we are recommending that 10 samples are taken and if over 50% of those samples exceed the default number we recommend that you do a leaching analysis but it is not a requirement, since they are not looking at anything other than meeting certain numbers to protect groundwater as far as a spill is concerned. Development of Numeric Values – safe fill policy –EQL, Permit By Rule – lower of residential direct contact compared to lower of soil to groundwater pathway –10% (protect ecological receptors). General Permit, residential site – lower of RDC compared to higher of soil to groundwater pathway (Act 2 process), General Permit, nonresidential site – NRDC.

Bill Pounds explained that General Permits, whether they are department initiated or whether it is something the industry applies for, require a 60-day comment period. Since the Department is proposing regulatory changes and would like to incorporate those changes as part of the residual waste regulations that are currently in the mill we will hopefully be going back to the Environmental Quality Board at the July meeting. There will be public information meetings and hearings scheduled for western PA on April 27, South Central Regional Office on May 2, and Conshohocken Regional Office on May 4^th. They will also be making presentations to various numbers of groups, SWAC, CAC, and the PA Chamber.

Craig Robertson questioned the following statements found in the guidelines on page 2 of 6: Although DEP does not require that your soil or other materials be tested to determine if it exceeds specific contaminant levels, you may want to have the soil tested if you suspect it may be contaminated. The result from the soil test will determine whether the soil is contaminated and if it must be managed according to certain DEP regulations. The fill material less than 500 cubic yards such as soil used in small landscaping projects and soil moved to construct residential basement on soil from trenches for installing utilities are exempt from the fill policy requirements. Craig asked what is it exempt from? The first bit of language he read said you make nobody test, and all this fill policy has in it is really guidelines for testing and numbers to compare the test result to. If I say that this policy doesn’t apply to those excluded sites I am essentially saying they don’t have the advantage of testing. They are excluded from the numbers that are from the testing guidelines that are listed. What would be meaningful is if they would be excluded from the liability which we talked about before, and you can’t exclude this from the liability. Craig questioned the fact that with the exclusion from liability for less than 500 cubic yards, all he gets is the exclusion from no requirements to do anything. There is no requirements to sample or compare. He also stated that he knows that the community asked for an exclusion and they did not get one. Michele asked Craig if he recommended that they do away with the exclusion. Craig suggested that perhaps they put a more meaningful one there. He stated that you cannot release people from liability. Craig explained that Act 2 deals with cleanup of storage tanks and other kinds of soil, and the numbers break at 125 cubic yards going from one sampling level to another. A 500 cubic yard excavation is a pretty big excavation. What would you have to do if it was more than 500 cubic yards? Michele explained to Craig that there would be a higher level of concern and as sampling is required; and it’s about the sampling not about liability. Bill Pounds suggested that they would have to find a better way to address this issue or take it out. Michele read comments from a work group (ad hoc) showing how the 500 yards originated.

Ron Buchanan asked the question why worry about natural occurring concentrations in soils if you are really focused on remediation under Act 2. Remediation soils should be the focus point and then concentrate on that. We don’t have to develop a whole set of numbers outside of Act 2. It adds to the confusion and trying to bring those two together.

Bill Pounds stated that the soil is not regulated from some restricted use and it is naturally occurring. Michele explained that they are trying to draw a line between what is naturally occurring and what is not.

Craig Robertson questioned the definition of contaminated soil. Part of the issue is that there are categories of safe fill, Permit By Rule, and General Permit, and clearly if you had a release or a spill subject to some environmental statue you don’t have available to you certain options. Contaminated soil is defined under Permit By Rule with a number of written categories. Where does Act 2 begin and where do Clean fill/safe fill policy end. This seems to be where it is going to be cleaned, its safe fill, and Permit By Rule which could be Act 2 soils after they are cleaned up, and then the General Permit soils which are Act 2 soils. And one of the keys here including the question we just struggled with is can I get Act 2 soil down to clean fill if they are subject to a spill or release. You can’t. Bill Pounds answered by stating that if they weren’t subject to a spill or release they are looking at that as something that they should be able to deal with. Craig questioned which of the five categories that are listed are subject to cleanup liability under the clean stream law and all the other laws that you have to create liability for which I have to do an Act 2 cleanup. There was some clarification under conditions to note in the General Permit section for eco-screening. Jim Mattern stated that both he and Kevin Reinert read the policy and felt that there was only a partial amount of screening being done. Tom Fidler agreed that basically it indicates that this is a partial process. Eco screening is on the receiving site and part of the eco screening you do on the receiving site has to anticipate this material once you bring on the site. Craig Robertson asked the question about General Permit isn’t that the one that says you can’t bring soil on that has constituents in it that aren’t part of the release and current on the Act 2 site. Michele answered yes. Craig also asked if it was a non Act 2 site he was bringing it to could he do that if he met Permit By Rule numbers? Jim Snyder explained to Craig that you have to get into more detail and the assumption is that your final report you would be submitting recognizes the fact that different constituents coming to the site and therefore your technical analysis recognize the fact that its ok for a new constituent to come to that Act 2 site. So what they did is took a step back and said if its like materials that the client or consultant would address during the technical evaluation of the site, then bring soil on with like contaminants. Jim also explained that right now the way the policy has been drafted they took the conservative way.

Jim Snyder explained to the Board that we are trying to provide you with some ability to make an informed judgment, and an opportunity to basically say that the agency has made some informed policy decisions. Jim also stated that policy is only an indication of what we are thinking and how we are going to react. What we tried to do was use some of our permitting and enforcement mechanisms to accomplish this. We used the permitting piece to legitimatize moving some of these materials regardless if you agreed with the concentrations or not, then once you have it in place, and you met the set back distances it becomes dewasted so then you are no longer regulated. The other option is to use potential pollution applications, but there you have some DEP people trying to determine whether or not its potential pollution or not so we said we’ll take that kind of subjective judgmental way, we will put it under a permit make sure that its not something that you need to get in writing and then drop you out of the program process once you get it right, and you did it according to the guidance so therefore you wouldn’t have to incur the kind of liability damage you are talking about. We could take the PBR and say its all potential pollution and I guarantee you will get around 17 answers from 16 people, because it’s just that subjective. So we tried to make it somewhat objective.

Craig Robertson explained that there are ways to dovetail Act 2 and the clean fill policy. Clearly there are conditions you get an Act 2 relief that would not be conducive to hauling soil offsite. 1). Site-specific cleanup, 2). Pathway elimination under site specific or either risk base numbers under site specific. When you get to statewide however, unless you are in a non-use aquifer determination situation which is also specific now to the environment of that site, because you have done a specific analysis for that site. Unless you are in that condition in used aquifer standards, those standards are to be protective of human health and the environment as generic numbers any where in the state of Pennsylvania so therefore any where I pick that up and carry it, that should not be a human health hazard, the additional concern, which is why you had ecological receptors in your slide, is everyone said yes but on the property you are taking it to you haven’t done an eco-screen, and that originally when they talked was the lynch pin of this whole need to get to 1/10 the numbers, and I guess the EQL. Craig also stated that the committee went through so much to come up with an excellent program based on health considerations and risk considerations so that they could have generic standards which means you all have generic standards, and now that essentially undercut when you can give great benefits out of it under in this safe fill policy.

Bill Pounds asked the Board if they could come up with a screen that says if you don’t exceed this number then you don’t have to look at these other twenty-three petroleum hydrocarbons. Craig Robertson stated that its knowledge of the material, that this is the biggest part of the determination whether its under an exclusion or not under an exclusion it’s got to be. But what he doesn’t see in there other than the exclusion is guidelines on how you apply your knowledge of the waste other than in those limited circumstances.

The Board expressed their concern on the issue of soil sampling and safe fill. Mark Urbassik stated that the Board was jumping from safe fill and PBR, and he asked if the Board had any concerns with regards to the General Permit and how those materials are to be handled. Michele stated that the clean fill policy was updated after Act 2 was passed. The one that they currently have has been in place in response to Act 2 and the reasons why they are updating it is because the numbers are outdated in that policy, those numbers were based on proposed Act 2 regulations.

Craig Robertson stated that there is no Table 1 in the Permit By Rule section, Permit By Rule is AA and you have a reference to Table 1, need to make that correction. The Board also recommended the possible use of Synthetic Precipitation Leaching Procedure (SPLP) as an alternative for STG (organic). Bill Pounds asked the Board if they were asking if it would be possible to use an SPLP test for the Permit By Rule organic numbers in lieu of soil to ground water standards. The other thing is to try to understand the significance of the two columns under Permit By Rule. One is called a higher the other the lower. Which one are you using? Michele stated that they use both for different purposes. The lower row is under consideration by the Department. Jim Snyder stated that they were there for comparison purposes.

Craig Robertson noted that they need to consider an attainment criteria, there is no basis for developing sampling analysis plan and demonstrating attainment.

There was more discussion on Permit By Rule. Craig Robertson made the comment on Permit By Rule, performance of background demonstration. It states that fill that contains different chemicals constituent both identified and those to be remediated will not be used in an Act 2 site. Why is that in the safe fill portion of the policy? Michele explained that this should have been removed.

The Department asked the CSSAB for their comments. The comment period would end in May. Ron Buchanan would be the chairperson, and Mark made a suggestion to take one week to look over the Fill Policy and each Board member would forward comments to Ron.

Meeting was adjourned. The next scheduled CSSAB meeting is June 22^nd.