Significant Changes Coming to Act 2 Cleanup Standards

January 11, 2021
Michael M. Meloy, Esq. and William Hitchcock, Technical Consultant
MGKF Special Alert - Pennsylvania Forecast 2021

Throughout 2020, PADEP and the Cleanup Standards Scientific Advisory Board (CSSAB) have been working through issues regarding changes to the regulations implementing the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2).   Those changes were proposed for public comment on February 15, 2020 and included extensive modifications to cleanup standards to be used under Act 2.  Significant changes to the cleanup standards include the addition of standards for certain perfluoroalkyl substances (PFAS) as well as a standard for total polychlorinated biphenyls (PCBs) in addition to the aroclor-specific values.  The soil cleanup standards for benzo[a]pyrene, a ubiquitous contaminant that is commonly encountered in populous areas of Pennsylvania, is proposed to increase substantially.  Two of the most significant issues with the rulemaking, however, are the proposed changes to the soil cleanup standards for lead and PADEP's failure to correct the vanadium cleanup standards that were revised in 2016.

In the proposed regulations, PADEP included soil cleanup values for lead by using complex dose-response models developed by EPA in conjunction with a target blood lead level (TBLL) of 10 µg/dL.  As proposed, these models generated direct contact numeric standards for lead that are slightly lower than existing values for residential properties but substantially higher for nonresidential properties.  Based on public comments that it received, PADEP is now considering lowering the TBLL to 5 µg/dL even though that change was not included in the proposed regulations.  Although the CDC has recommended the use of the lower TBLL since 2012, EPA has continued to use a value of 10 µg/dL and the regulations implementing Act 2 do not allow PADEP to use more stringent exposure factors than EPA.  The effect of changing the TBLL to 5 µg/dL will be to lower the cleanup standard for lead in soils at residential properties to approximately one-third of its current value while leaving the direct contact numeric standard for lead in soils at nonresidential properties approximately where it is currently.  The changes that PADEP is contemplating are further complicated by the fact that the models that PADEP is relying upon utilize average concentration values as inputs but thus far, PADEP has not made necessary corollary changes in the attainment requirements to reflect this fact.   

The cleanup standards for vanadium were significantly reduced during the last round of revisions to the cleanup standards in 2016.  The current residential soil cleanup standards are far below naturally-occurring concentrations of vanadium in soils throughout Pennsylvania, and as such, have created significant but artificial hurdles for Act 2 soil remediation projects, as well as projects governed by the Management of Fill Policy.  The CSSAB has raised concerns since 2018 with the approach that PADEP has taken.  At the request of PADEP, the CSSAB has provided several scientifically supported recommendations that are in use by EPA and other states to rectify the problems that were created in 2016 while still being protective of human health and the environment.  However, PADEP has thus far refused to implement any of these recommendations based largely on procedural grounds.  It appears that PADEP may require that changes to cleanup standards for vanadium be addressed in a separate rulemaking even though there were in fact modifications to certain of the numeric standards for vanadium proposed in the pending regulations. 

Based on the most recent discussions with PADEP, it appears that PADEP plans to finalize the amendments to the regulations in time for submission to the Environmental Quality Board in April 2021.  If the regulations are approved, they would likely take effect sometime in the summer of 2021.  Through our continued involvement with the CSSAB, we will continue to track these proposed changes until they are finalized and go into effect later in 2021.