April 12, 2000

The following CSSAB Members were present:

The following Department of Environmental Protection Staff were present:

Guests Present:

Tom Fidler informed the Board that final revisions were made to the Chapter 250 regulations package and they are scheduled for presentation to the Environmental Quality Board (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. He reported that Deputy Secretary Denise Chamberlain made a presentation at the Environmental Law Forum, another presentation to the Pennsylvania Chamber. Also, meetings with the Environmental Subcommittee, three public meetings and hearings are scheduled. Jim stated that the reason we 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 on what material may be used in an unregulated manner as fill. The existing policy was published in 1996 and this is a revision to that. The Department is very interested in the Board’s comments and also their recommendations as to how we can correct perhaps what it believes is either too liberal or too conservative.

Jim Snyder asked that everyone introduce himself or herself. He then introduced Bill Pounds to present the Department’s proposed Safe Fill Policy package. The following is a summary of the presentation he made using the attached PowerPoint slides.

The Department determined that all the concerns that were raised on the Fill Policy could not be addressed in one document. The Department decided that the best way to address the numerous issues raised was through a series of documents as well as some regulatory changes.

These documents and regulatory changes are:

• Management Guidelines Fact Sheet
• Safe Fill Policy

• Permit by Rule

• General Permit

• Permit Waiver

• Waste Definition

The Board raised the following issues/concerns:

• Craig Robertson asked for clarification under the Permit-by-Rule (PBR), that if soil is moved around on a single property, such as during regrading, what is the status of that material?. Assuming it was a property that where there was no known spill or release, and soil was moved around on the same property for regrading, what liability would that person have under DEP regulations? This is a much more common situation across the Commonwealth than moving contaminated soils off property. Bill Pounds replied that the PBR is intended to apply to material being moved from one property to another, and not soil moved around on a single property. Jim Snyder remarked that it depends on the owner/remediator/ consultant’s knowledge of the property and whether there was a spill or release that would create liability. Further he said that if that person moved the soil around, and at a later time, a third person sampled the soil and found contamination, the first person would have liability under wastes rules and regulations. This "after-the-fact" creation of liability was a concern to members of the board. All persons who move soil, no matter what their knowledge of it’s pastwhether subject to a release or not, will feel as though they have potential liability.
• Craig also asked if soil from a site where there was a known spill or release is tested and found to meet the Fill criteria could it be used as unregulated fill. Bill responded that no, since there was a spill or release, the material must be managed under either the PBR or General Permit.
• Ron Buchanan commented that it gets confusing when the Department tries to mingle the regulation of Act 2 remediation materials that are contaminated and rightfully need to be regulated, with naturally occurring soil that is not contaminated and should need no regulation. Many naturally occurring soils will not meet the Safe Fill standards.
• Craig Robertson started initiated a discussion on the definition of "contaminated soil". The issue is there arethat the policy establishes categories of Safe Fill, PBR, and General Permit and ,clearly if there is a release or spill, certain categories are unavailable. The question is where does Act 2 begin and Safe Fill Policy end? The situation is that there are materials that have had a spill or release and are remediated and get Act 2 liability relief. But materials that have no evidence of a spill or release cannot get the liability relief of Act 2. This is not just a key issue for clean fill, it is also a key issue for Act 2. If a person finds contamination on his property, with no real knowledge of how it got there, it should be subject to the Clean Streams Law and/or one of the other laws which is subject to the standards under Act 2.

Michelle Moses, DEP responded by saying that under the Residual Waste Regulations you have cleanup liability for contaminated soil because under law, right now contaminated soil is considered waste. These are married under the Act 2 regs in 250.3 by saying that in order to move contaminated soil offsite it must be managed under the solid waste program. The solid waste program is set out here in the codified rule with the General Permit and the exemptions. Craig maintained that this did not answer the question, which was what sets up the liability for those [contaminated] substances that are in the ground on-property. DEP representatives maintained that their concern [under the waste regulations] were when the material was taken off property.

• The Board questioned the exclusion of less than 500 cubic yards of material. Fill material less than 500 cubic yards such as soil from small landscaping projects, soil from construction of residential basement and from trenches for utilities are exempt from the fill policy requirements. Craig asked what is it exempt from? Craig questioned the fact that the exclusion for less than 500 cubic yards is simply an exclusion from no requirements to do any testing, but liability still exists. What would be meaningful is if such material was excluded from liability. He also stated that he knows that the regulated community asked for an exclusion [from liability] and they did not get one. In conclusion to the discussion, Bill Pounds suggested that the Department could find a better way to address this issue or take it out.
• Several members of the Board made the point that by instituting this policy, the Department is undermining Act 2 by creating another, more stringent, standard than that contained in the Act 2 Statewide health standard. It is a new default standard that a developer must meet in order to move any soil from his property to another. Mark Urbassik noted that the Act 2 generic standards apply to any site in the Commonwealth, and therefore they should also apply to any material to be used as fill. He and other Board members see no need to create another standard and another level of regulation. Mark said that policy is confusing and he doesn’t understand why the DEP is trying to create a whole other set of numbers outside of Act 2.
• James Snyder responded by saying first that when soil is moved off property it is considered waste. Secondly, that in cases where soil is being moved off property [regardless of it meeting an Act 2 standard], banks, developers and others have wanted to know what liability they have if that material is moved to some other location having lower concentrations than the transported soil. This policy addresses that issue by setting up comparative concentrations values by which these persons can be assured that they have no liability under the waste regulations. The Board’s ending point was that the "comparative levels" used by this policy are lower in many cases that what exists naturally across the Commonwealth and are unnecessarily low based on human health and environmental protection considerations.
• The Board members made the point that when the Act 2 regulations were promulgated, the old Clean Fill policy was in effect disregarded, and the regulated community was looking to Act 2 to base it’s perception of what liability they had. The development of this Fill Policy AFTER Chapter 250 promulgation does undermine the Act 2 standards. In effect, persons will be looking to this Fill Policy to determine what the true "clean" levels are regardless of what Act 2 standards say. This will create an impediment to real estate transactions.
• Tim Rea suggested that there may be value in setting up Fill policy based on aggregates of substances, such as Total Organics (TOX). Bill Pounds replied that an earlier version suggested the use of Total Recoverable Petroleum Hydrocarbons (TRPH) and the Board was opposed to that.
• Mark Urbassik spoke for the Board in saying that a concrete suggestion for the DEP is to modify the policy to make determination on liability much more dependant on a person’s knowledge of their property. In the vast number of cases of real estate transactions, a person should not have to depend on a consultant to confirm what they believe they know, that there is no evidence of a spill or release. The present policy is in effect regulating all the soil media in the commonwealth with respect to comparison numeric standards requiring sampling. James Snyder suggested one approach would be to have a general [liability] exclusion to residential properties as opposed to using a 500 cubic yard exclusion. The Board agreed that what is needed is a meaningful exclusion to liability.
• Mark Urbassik asked the Board to comment on the General Permit portion of the policy. A comment was offered objecting to a provision in the General Permit policy that did not allow soil from one Act 2 site to another Act 2 site that did not have the same general constituents present. The DEP felt that the receiving site would have to anticipate the chemicals of concern in order to properly evaluate the attributes of the site during site characterization. If unlike chemicals are brought, thatThis may expand the scope of many site characterizations may be incomplete.
• James Mattern questioned why material which was acceptable as historic background on an Act 2 site was required to be handled as site-specific if it were taken off property to another Act 2 site.
• The Board commented on the PBR tables. There was question as to why in some cases the values were so much lower than 1/10^th the statewide Health Values. Michelle Moses explained that the policy required that the LOWER of the 100x the groundwater MSC and the generic value be chosen, where as, in an Act 2 Cleanup the remediator has the choice of picking the HIGHER of the 100x or generic value. This difference causes a large variation in some cases between the 1/10^th of applicable Statewide Health standard and the PBR number. The Board was concerned that the Fill Policy was using the 100x value- which was not health based in place of the generic value which was health based. Chapter 250 was mandated by Act 2 to include the 100x option whereas the Fill policy is not. The generic value is preferable because it is health based.
• Tim Rea commented that there is no provision in the Fill policy for the PBR numbers to be compared using statistical analysis as required in Chapter 250.
• Craig also mentioned that attainment needs to be considered. The policy as written contains no basis for developing a sampling and analysis plan, or for demonstrating attainment.

The Department asked the Board for its written comments. A two week period was agreed to. The Public Comment period will end in May. Ron Buchanan is was designated the chairperson for assembling the comments. Mark Urbassik made the suggestion that the Board members take one week to look over the Fill Policy and forward their comments to Ron. The next scheduled meeting is June 22^nd.

The meeting was adjourned.