Mark Mummert agreed to chair this subcommittee. All members were present except Annette Guiseppi-Elie.

2.     Identify the circumstances when sampling could be permitted to supplement PENTOX or in lieu of modeling.

3.           Identify appropriate sampling protocol(s).

The subcommittee members identified a fourth goal, that of identifying those situations where PENTOX is or is not appropriate. This is an issue of characterization. A remediator would need to determine if groundwater is actually discharging to the stream, and if it is, how it is entering and is the mode of entry appropriately modeled by PENTOX. Certain situations were pointed out as appropriate for sampling, such as for small streams, or when the discharge is well defined, such as in a seep. It was suggested that a limit on the size of stream appropriate for sampling be considered, possibly expressed as the groundwater contribution being a certain percentage of total stream flow.

1.      Does the PQL limit of Act 2 apply to surface water attainment demonstration?

2.      Does it make sense to split the guidance into different considerations for Statewide health and site-specific cleanups?

3.     Should sampling be required over time to account for seasonal variations in stream flow?

4.     Differences in the surface water program and the Land Recycling Program cause difficulty in demonstrating attainment; e.g., the water program does not allow instream sampling to validate PENTOX, while the Land Recycling Program does. More importantly, the surface water program has a non-degradation rule, while the Land Recycling Program is a risk-based program.

5.     Does the Chapter 250 regulations meet federal requirements? If a remediator complies with Act 2 requirements, are the state and federal surface water regulations being met?

6.     Is back calculating from PENTOX results to derive a site-specific standard for surface water permitted under the Chapter 250 regulations? Some regional offices do not allow the use of PENTOX for back-calculating a site-specific groundwater standard. The Subcommittee members and Dave Hess thought that the Act 2 regulations permit this.

7.    Does surface water characterization provide Act 2 liability relief for surface water, or only for site soil and groundwater contamination as it affects surface water? Dave Hess stated that he thought liability protection included surface water. He cited Section 501(a) of Act 2 by paraphrasing the language that states that a person is relieved of liability for additional remediation of the site when he has complied with the remediation requirements of Act 2. Also, does liability relief under Act 2 trump the federal obligation to comply with a TMDL (total maximum daily load)?

8.     Does surface water compliance apply under the Statewide health standard? Some regional offices say that if MSCs are exceeded at the property line stream, then the site must attain the site-specific standard. Dave Hess stated that groundwater standards need to be attained in addition to surface water compliance, but that surface water compliance is applicable for sites under the Statewide health standard.

9.     Is surface water sampling part of characterization or part of a remedy? Some regional offices only provide property access assistance to sites going through the assessment phase, not the remediation stage.

10.   Sampling may be appropriate for larger streams, per an example described.

11.   It would be helpful if the Technical Guidance Manual defined where wetlands end and surface water begins.

1.    Define the size of stream (or stream flow characteristics) where it makes sense to use sampling to show compliance. Colleen Costello will investigate this issue. Jim Shaw is the DEP contact.

2.      Develop appropriate sampling protocol(s). Cullen Flanders will investigate; Jim Shaw is the DEP contact. Dave Hess will ask the water program to be involved in this effort (either directly or on a staff level with Jim Shaw).

3.      Investigate the legal issue of interface between the Chapter 250 regulations and the anti-degradation regulations of the Office of Water Management. Mark Mummert and Colleen Costello will discuss this with Dave Hess and Michelle Moses of DEP. In addition, this group will examine the legal issue of whether PQLs can serve as the minimum requirement for establishing compliance with surface water requirements.

The next meeting will be held Wednesday, July 9, 2003 at 9:30 am in the Rachel Carson State Office Building. A conference call hookup will be provided for those unable to attend in person.