Changes Coming to Act 2 Requirements and Cleanup Standards

January 21, 2020
Michael M. Meloy, Esq. and Will Hitchcock, Technical Consultant
MGKF Special Alert - Pennsylvania Forecast 2020

On November 19, 2019, the Pennsylvania Environmental Quality Board (EQB) adopted in proposed form changes to the regulations that implement the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2). The changes include revisions to the medium-specific concentrations (MSCs) that the Pennsylvania Department of Environmental Protection (PADEP) has developed to implement the statewide health standard under Act 2, as well as various changes to the administrative requirements of the Act 2 program. By regulation, updates to the MSCs are to occur approximately every three years. The last set of updates to the MSCs were finalized and became effective in August 2016.

Proposed changes to the MSCs include new values for emerging contaminants known as per- and polyfluoroalkyl substances (PFAS), optional soil numeric values for total concentrations of polychlorinated biphenyls (PCBs) in addition to the existing aroclor-specific values for PCBs, a broad reduction to all of the ingestion-based groundwater MSCs based on increased groundwater ingestion estimates, and other changes based on the availability of updated chemical toxicity information. Contrary to the recommendation of the Cleanup Standards Scientific Advisory Board, PADEP chose not to revise the MSCs for vanadium. The MSCs for vanadium in soils were reduced by two orders of magnitude in 2016 to levels that are below typical naturally-occurring background levels in Pennsylvania. The MSCs for vanadium have created extensive issues for remediators since 2016. These issues recently have become even more acute with the new Management of Fill Policy taking effect on January 1, 2020 and incorporating by reference the very low numeric values for vanadium under the Act 2 program as “clean fill” concentration limits.

Proposed changes to the administrative requirements include a new definition of a “volatile compound” which matches the definition used by U.S. Environmental Protection Agency, updates to the procedures for determining the practical quantitation limit for a chemical analysis, increased public involvement in certain stages of the Act 2 process, clarifications regarding the appropriate sequence of reports and handling of combined reports, and other clarifying changes.

Following publication of the proposed changes to the regulations in the Pennsylvania Bulletin and consideration of public comments that are submitted, PADEP will likely make any final adjustments to the regulations and submit them to the EQB for approval in final form. We anticipate that the changes are likely to take effect in late 2020 or early 2021.