May 10, 2000

Ms. Khatija Swaroop
Pennsylvania Department of Environmental Protection
Bureau of Land Recycling and Waste Management
Rachel Carson State Office Building
400 Market Street, 14^th Floor
P.O. Box 8472
Harrisburg, Pennsylvania 17105-8472

Re: CSSAB Alternative to the Safe Fill Policy

Dear Ms. Swaroop:

Attached please find the Cleanup Standards Scientific Advisory Board’s alternative to the Safe Fill Policy published for comment by your department. The development of this alternative proposal arose from the Department’s request that the CSSAB provide assistance in revising the Safe Fill Policy. After careful review of that policy, the CSSAB concluded that it could support neither the structure nor the concentration limits contained in that draft policy. This position derives primarily from our conclusion that the draft policy is inconsistent with the risk-based approach of Act 2 and it misapplies concentration limits established in the Act 2 regulations. We have therefore developed the attached alternative proposal in a manner that we believe is consistent with the Act 2 risk-based approach and the challenge presented to us by the Department.

The following points highlight important elements of the CSSAB Alternative:

1. Our alternative eliminates the need for the policy and the General Permit by combining all requirements into a set of Fill Regulations. The first step in applying these regulations is to determine whether or not the material being moved complies with limits that permit it to be managed as "Unregulated Fill." If the material meets these limits, the remainder of the regulations do not apply to that material.
2. The proposed alternative applies to only soil or soil-like material, not to waste. The soil materials are grouped into six categories that include the five categories listed in the definition of "Contaminated Soil" in the DEP’s draft PBR rule and a sixth category that is comprised of all soil and soil-like material not included in the first five categories. Testing is required for each of the first five categories, while knowledge of the material can be used to determine the unregulated status of Category 6 material. Materials in all categories can be demonstrated to meet the Unregulated Fill limits and be used off-property.
3. The "Upper Limit For Unregulated Fill" is determined by first selecting the higher of the Act 2 natural or areawide background concentration for the receiving property and the residential soil-to-groundwater generic value published in the Chapter 250 regulations. The generic value is used because it is based on a scientifically derived leaching equation, which will be protective for material moved to a receiving site where no groundwater investigations have been performed. This generic value may be replaced by the alternate soil-to-groundwater standard determined by SPLP analysis of soil from the site. The value from this first comparison is then compared to the residential direct contact standard, also as published in Chapter 250, and the lower of the two is selected as the Upper Limit For Unregulated Fill. This limit is applicable to all regulated substances, including inorganics and organics.
4. Exemptions from testing are provided for all Category 6 materials, for removal of 1000 cubic yards of certain materials from existing residential properties of one acre or less for all materials excavated during trenching for public utilities, and for any de minimis quantities equal to or less than 12 cubic yards (excluding soil impacted by a known release or spill).
5. The Upper Limit for Permit-By-Rule material corresponds to the lower of the non-residential surface soil direct contact standard published in Chapter 250 and the total concentration that yields an acceptable SPLP leachate concentration when compared to the Chapter 287 leachate limits or, in the absence of such limits, the nonresidential groundwater standards published in Chapter 250. This total concentration is to be determined using the same method employed in Act 2 to determine the soil-to-groundwater standard by SPLP.
6. Specific requirements are provided for the number of samples to be collected for testing based on the volume of soil. These requirements are entirely compatible with the Chapter 250 regulations, however, they provide the opportunity for compositing samples for analyses other than for VOCs to greatly reduce the analytical costs.

The CSSAB believes that the alternative we have developed is highly compatible with the Act 2 program in that it uses the same published limits and methodologies and recognizes the protectiveness of the generic health-based standards developed under Act 2 without the application of unnecessary "safety factors." Our alternative also recognizes that any soil that can be demonstrated to meet these limits can be used in an unregulated manner for off-property fill.

The CSSAB appreciates the opportunity to provide this recommended alternative to the Department. We will continue to work on refinements to this alternative as the regulatory development process unfolds. We welcome comments and suggestions and, as always, we are open to participation in our work and deliberations by any interested parties.

Very truly yours,

Mark Urbassik
Chairperson

Attachment