Act 2 Changes Anticipated in 2023

January 18, 2023
Jonathan H. Spergel, Esq. and Technical Consultant Will Hitchcock,
MGKF Special Alert - Pennsylvania Forecast 2023

The Pennsylvania Department of Environmental Protection (PADEP) is working on several programmatic and regulatory changes to its Land Recycling Program, commonly known as Act 2.  Some of these efforts will take effect in 2023, while others will likely not become effective until 2024. 

Based on feedback received from the regulated community, PADEP is working to improve Act 2 report review times by hiring additional toxicologists, risk assessors, and chemists to assist with report review.  Although Act 2 has specified statutory review periods, many in the regulated community have observed that, in recent years, the vast majority of report review times take nearly the entire statutory review period, often resulting in the issuance of technical deficiency or denial letters.   PADEP is also working to improve consistency and standardize regulatory interpretation across regions by developing additional training materials, as well as a Q&A database that should be a helpful resource to remediators and regulators alike.  Our firm will likely be involved in development of the Q&A database through participation in the Cleanup Standards Scientific Advisory Board (CSSAB), so if there is an issue you would like clarified, please contact us to discuss.

There are many anticipated changes to the Medium-Specific Concentrations (MSCs) that serve as cleanup targets for Act 2 Statewide Health Standards.  First, the much-anticipated increase to the vanadium MSC is likely to take effect in the second quarter of 2023.  The residential soil MSC for vanadium has been set at 15 mg/kg for several years, a concentration that is often below the naturally occurring content of vanadium in soils throughout Pennsylvania.  This has created significant difficulties for Act 2 projects as well as other construction projects involving the movement of fill under the Clean Fill Policy.  The proposed rulemaking has already been approved by the Environmental Quality Board and no adverse public comments were received.  When the final rulemaking takes effect, the residential soil MSC will increase to 1,100 mg/kg, providing substantial relief to many project sponsors.

PADEP and the CSSAB have been working on several other changes to Act 2 MSCs that will likely take effect in mid-2024.  The interim Heath Advisory Limits (HALs) for PFOA and PFOS in drinking water that were published by EPA in June 2022 are not anticipated to replace the current groundwater MSCs until they are published as final HALs.  Until that time, the groundwater MSCs for PFOA and PFOS are likely to remain at 0.07 µg/L (for used and nonuse aquifers with TDS ≤ 2,500 µg/L).  The final HALs for GenX and PFBS (0.01 and 2 µg/L, respectively) will be incorporated as Act 2 groundwater MSCs (for used and nonuse aquifers with TDS ≤ 2,500 µg/L).

As a result of updated biokinetic models for lead exposures to children, the current residential soil MSC for lead is likely to decrease significantly in mid-2024, from 500 to 200 mg/kg.  However, the PADEP and CSSAB have recommended the use of an arithmetic average soil concentration to demonstrate attainment of the Statewide Health Standard, which is consistent with the intended use of the biokinetic model.

Other anticipated changes include a significant decrease to the soil MSC for cadmium due to updated toxicity information, slight changes to the MSCs for several Polynuclear Aromatic Hydrocarbons (PAHs) whose toxicity is benchmarked to that of benzo[a]pyrene, and a few other MSCs changes to compounds where EPA has recommended the use of sub-chronic instead of chronic toxicity values.  At this time, PADEP is finalizing the regulatory text for presentation to the EQB, public comment, and adoption. Once a regulatory package is presented to the EQB, it often takes more than one year before it becomes an effective regulation.