New PADEP Act 2 Statewide Health Standards Approved

September 19, 2016Articles In the Zone

On June 30, 2016, Pennsylvania’s Independent Regulatory Review Commission approved revisions to the Act 2 regulations (25 PA Code Chapter 250), that will change many of the statewide health standards applicable to remediating contaminated sites in Pennsylvania, with some being more strict and others less strict. Act 2 is Pennsylvania’s voluntary cleanup program that allows developers and remediators of brownfield properties to choose from one of three cleanup standards and obtain a release of liability from the commonwealth once the Pennsylvania Department of Environmental Protection (PADEP) approves the Act 2 Final Report for the project.

Under Act 2, the PADEP is required to update the statewide health standards every three years. The statewide health standards are the medium specific concentrations for all regulated substances, which are essentially look-up numbers in charts that provide the applicable soil and groundwater numeric cleanup concentrations based on the property use (residential or nonresidential). In looking over the newly adopted statewide health standards, the one change that could be most problematic for site developers in Pennsylvania involves changes to the soil standards for vanadium. Vanadium is a naturally occurring metal. In fact, it’s the 22nd most abundant element in the Earth’s crust according to the Agency for Toxic Substances and Disease Registry (ASTDR). Vanadium can get into the environment naturally from dust and volcanic emissions. It can also be created by the combustion of fossil fuels. It’s also found in coal and vitamin supplements.

The newly adopted Act 2 regulations will have the residential statewide health standard for vanadium in soil go from the current standard of 1,500 parts per million (ppm) all the way down to 15 ppm. That’s a significant drop. The nonresidential standard for vanadium in soil would similarly drop from 20,000 ppm to 220 ppm (for the 0-2 foot interval). One of the commenters on the proposed regulations pointed out that naturally occurring levels of vanadium in Pennsylvania soils range from 15 ppm to 150 ppm, with an average of 80 ppm, which means the residential statewide health standard will now be set below the level reflective of naturally occurring conditions in most parts of Pennsylvania. 

So, the vanadium soil standards are dropping, is that really a big deal? Will it affect my development plans? The answer is yes, it is a big deal and yes it could impact your development plans, especially if you are redeveloping a brownfield site for residential use. Let’s say you want to purchase an old industrial site in PA. You do a Phase I Assessment and the consultant recommends a Phase II, because there was a long industrial history, there were likely spills and releases of hazardous substances and the site was also built on fill material. The Phase II is likely to involve some soil borings in the areas of concern, which would test for metals, including vanadium. In the past, the likelihood of those soil sampling results exceeding the statewide health standard for vanadium was pretty low, because the standards were set much higher and greatly exceeded the naturally occurring levels in PA. Now, it wouldn’t be surprising for those results to come back above the statewide health standards for vanadium, given how much the standards have been lowered. So, say you get the results back and you have a couple exceedances for vanadium, now what do you have to do? Act 2 requires that you characterize the vertical and horizontal extent of the vanadium in the area where it exceeds the applicable standards. So you are likely to have to collect additional samples, even if there’s no obvious source of any spills or releases that could involve the use of vanadium on the site. You could try to demonstrate that the vanadium was naturally occurring and attempt to get a release of liability under the background standard, but the Act 2 Technical Guidance Manual requires that to meet the background standard for soil, a remediator has to collect 12 soil samples on-site and 12 soil samples off-site to compare. That means you’d have to get access to off-site property or properties in order to take the background samples. Alternatively, the remediator could decide to either delineate all the vanadium above the statewide health standards and remove it; or cap the contaminated area with two feet or clean dirt, asphalt or concrete and then demonstrate attainment with the Act 2 Site Specific Standard, which might require deed notices in the form of an environmental covenant.

No matter what, the significantly reduced standards for vanadium in soil could add time, costs and unnecessary complications to remediating brownfield sites in Pennsylvania. The lower standard is the result of changing toxicity values used by the U.S. Environmental Protection Agency (EPA), so there isn’t much that the PADEP could do about this. Act 2 doesn’t allow the PADEP to choose the higher of the health-based standard or the naturally occurring levels when it is setting statewide health standards for residential and nonresidential property. Developers and consultants need to be aware of the change in the vanadium standard. One idea is to be very careful in choosing what substances are being sampled for when a Phase II is needed as part of due diligence. If there is no reason to sample for vanadium, then don’t sample for vanadium. So, for example, if the Phase I reveals former USTs on the property, then the Phase II should only test for petroleum products in that area and not metals in the soil. Again, remediators and consultants dealing with brownfield sites in Pennsylvania will need to be thoughtful in their approach to due diligence and recognize that the vanadium soil standards are now so low that decisions will need to be made on whether or not to even sample for it based on the Phase I findings.