PRINTER'S NO. 3530
No. 2700 Session of 1994
INTRODUCED BY LESCOVITZ, GEORGE, HASAY, ALLEN, DeWEESE, ITKIN,
BATTISTO, ROBERTS, WOZNIAK, STURLA, MUNDY, M. COHEN, GRUITZA,
MIHALICH, MICHLOVIC, GORDNER, THOMAS, ROONEY, RITTER AND
MASLAND, APRIL 13, 1994
REFERRED TO COMMITTEE ON CONSERVATION, APRIL 13, 1994
AN ACT
1 Establishing environmental cleanup requirements for response
2 actions taken to address contaminated media; providing for
3 powers and duties of the Department of Environmental
4 Resources and the Environmental Quality Board; and imposing a
5 penalty.
6 TABLE OF CONTENTS
7 Chapter 1. General Provisions
8 Section 101. Short title.
9 Section 102. Declaration of policy.
10 Section 103. Definitions.
11 Section 104. Scope.
12 Chapter 3. Powers and Duties
13 Section 301. Powers and duties of department.
14 Section 302. Powers and duties of board.
15 Chapter 5. Response Action Requirements
16 Section 501. Response action requirements.
17 Section 502. Requirements for soil contaminated with regulated
18 substances.
1 Section 503. Requirements for groundwater contaminated with
2 regulated substances.
3 Section 504. Requirements for sediment contaminated with
4 regulated substances.
5 Section 505. Protection of ecological receptors.
6 Section 506. Feasibility determinations.
7 Section 507. Permits.
8 Section 508. Applicable requirements of other statutes.
9 Section 509. Appeals.
10 Chapter 7. Special Requirements for Voluntary Response Actions
11 at Industrial Land Use Properties
12 Section 701. General provisions.
13 Section 702. Requirements for soils at industrial land use
14 properties.
15 Section 703. Requirements for groundwater at industrial land
16 use properties.
17 Section 704. Land use determinations.
18 Chapter 9. Implementation and Transition
19 Section 901. Development of generic cleanup standards.
20 Section 902. Development of methodology for specific response
21 actions.
22 Section 903. Development of methodologies in absence of generic
23 standards.
24 Section 904. Designations of industrial land uses.
25 Section 905. Authority for additional and equivalent standards
26 and alternative methodology.
27 Section 906. Interim requirements for response actions.
28 Section 907. Site characterization and response action reports.
29 Chapter 11. Future Obligations
30 Section 1101. Deed notice and restriction.
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1 Section 1102. Future obligations for regulated substances in
2 soil.
3 Section 1103. Future obligations for regulated substances in
4 groundwater.
5 Section 1104. Future obligations for regulated substances in
6 sediment.
7 Section 1105. Burden of proof.
8 Chapter 13. Certification
9 Section 1301. Certification requests.
10 Section 1302. Certification for response action in soil.
11 Section 1303. Certification for response action in groundwater.
12 Section 1304. Certification for response action in sediment.
13 Section 1305. Denial of request for certification.
14 Section 1306. Deemed certification.
15 Section 1307. Review of certification requests.
16 Section 1308. Revocation, suspension or modification of
17 certification.
18 Section 1309. Investigation by department.
19 Section 1310. Fees for certification.
20 Chapter 15. Miscellaneous Provisions
21 Section 1501. Public notice.
22 Section 1502. Enforcement.
23 Section 1503. Relation to other laws.
24 Section 1504. Relation to permitting.
25 Section 1505. Repeals.
26 Section 1506. Effective date.
27 The General Assembly of the Commonwealth of Pennsylvania
28 hereby enacts as follows:
29 CHAPTER 1
30 GENERAL PROVISIONS
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1 Section 101. Short title.
2 This act shall be known and may be cited as the Response
3 Action Requirements Act.
4 Section 102. Declaration of policy.
5 The General Assembly finds and declares as follows:
6 (1) The citizens of this Commonwealth have a right to
7 pure water and a healthy environment, as established in
8 section 27 of Article I of the Constitution of Pennsylvania
9 and the General Assembly has a responsibility to ensure
10 protection of that right.
11 (2) The cleanup of regulated substances in this
12 Commonwealth is a matter of significant public policy with
13 serious economic and environmental consequences.
14 (3) Few environmental statutes set response action
15 requirements.
16 (4) The prompt establishment of clear and uniform
17 cleanup standards will facilitate the reuse of existing
18 developed properties by defining the legal obligations and
19 liabilities associated with the redevelopment of these
20 properties. The reuse of developed properties is an important
21 component of a sound land use policy that will help prevent
22 the needless development of prime farmland, open space and
23 natural areas.
24 (5) The public interest will be advanced by the
25 establishment of uniform requirements for response actions
26 conducted pursuant to existing environmental laws.
27 (6) Response actions should be protective of human
28 health, safety and welfare and the environment and must
29 consider historical, current and reasonably expected future
30 land use.
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1 (7) Voluntary response actions at industrial land use
2 properties should be encouraged.
3 (8) The science and technology relating to cleanup
4 standards are continually evolving, and the Commonwealth's
5 cleanup standards should keep pace with emerging
6 developments.
7 (9) The following are the purposes of this act:
8 (i) to protect the public health, safety and welfare
9 and the environment, including natural resources of this
10 Commonwealth, from the short-term and long-term effects
11 of the release of regulated substances into the
12 environment;
13 (ii) to implement section 27 of Article I of the
14 Constitution of Pennsylvania;
15 (iii) to encourage the reuse of developed
16 properties;
17 (iv) to authorize prompt development of generic
18 cleanup standards;
19 (v) to authorize prompt development of criteria,
20 methodologies and factors for calculation of site-
21 specific cleanup standards;
22 (vi) to authorize the Department of Environmental
23 Resources to collect fees for certifying the results of
24 response actions; and
25 (vii) to authorize the Department of Environmental
26 Resources to publish guidance for development of site
27 characterization and response action reports.
28 Section 103. Definitions.
29 The following words and phrases when used in this act shall
30 have the meanings given to them in this section unless the
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1 context clearly indicates otherwise:
2 "Area of pervasive groundwater contamination." An area where
3 hydrologically connected groundwater beneath a property proposed
4 for a voluntary response action and beneath contiguous or nearby
5 properties contains one or more regulated substances at levels
6 greater than background and where at least one source of the
7 elevated levels is not located on the property proposed for the
8 voluntary response action. Restoration of groundwater to
9 concentrations lower than those beneath contiguous or nearby
10 properties is not feasible in areas of pervasive groundwater
11 contamination.
12 "Background level." Concentration of a regulated substance
13 at the site prior to any human activity. For regulated
14 substances not naturally occurring, background shall be any
15 concentration below the minimum level which can be detected with
16 reliability. For regulated substances naturally occurring,
17 background shall be the minimum level which can be quantified
18 with reliability or the actual value, whichever is higher.
19 "Board." The Environmental Quality Board.
20 "Carcinogen." A substance known or suspected to be capable
21 of inducing a cancer response, including, but not limited to,
22 Class A and Class B carcinogens as specified in the United
23 States Environmental Protection Agency's Integrated Risk
24 Information System (IRIS) or its successor.
25 "Cleanup Standard." Concentration of a regulated substance,
26 expressed as a numerical value, which satisfies one or more
27 requirements of section 502, 503 or 504.
28 "Cost effective." The least costly response action among
29 alternatives that achieve the response action requirements of
30 section 501(a)(1) through (5). These costs include both short-
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1 term and long-term costs.
2 "Department." The Department of Environmental Resources of
3 the Commonwealth.
4 "Ecological receptors." Aquatic and terrestrial biota and
5 their habitats. This term does not include humans.
6 "Emergency measures." Response actions taken in a timely
7 manner to abate imminent and substantial threats to human health
8 and safety and the environment.
9 "Engineered controls." Response actions directed exclusively
10 toward containing or controlling the migration of regulated
11 substances through the environment. These include, but are not
12 limited to, slurry walls, liner systems, caps, leachate
13 collection systems and groundwater recovery trenches.
14 "Generic cleanup standards." Cleanup standards established
15 under Chapter 9 that may be used in a response action at a site
16 in this Commonwealth.
17 "Groundwater." Water beneath the surface of the ground that
18 exists in a zone of saturation. The term does not include water
19 trapped within an oil or gas pool which has no potential
20 drinking water value or water which has a natural concentration
21 of total dissolved solids greater than 10,000 milligrams per
22 liter.
23 "Hazard index." An index which establishes the systemic risk
24 or toxicity of one, or any combination of more than one,
25 regulated substance. The hazard index is equal to the sum of the
26 ratios of the exposure to each substance to the reference dose
27 for that substance.
28 "Historic groundwater contamination." The presence of one or
29 more regulated substances in groundwater beneath a property at
30 concentrations greater than background which was caused by
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1 numerous or continuing releases of regulated substances over an
2 extended period of years by one or more prior owners of the
3 property.
4 "Industrial land use." Use of land, after completion of a
5 response action, for industrial purposes designated under
6 Chapter 9 which typically restrict or limit access by the public
7 to areas where regulated substances may be present in soil,
8 which present lower likelihood of human exposure to regulated
9 substances in soil and for which the use of risk assessment
10 based upon potential occupational exposure assumptions in the
11 calculation of cleanup standards is appropriate.
12 "Institutional controls." Response actions directed
13 exclusively toward actual or potentially exposed receptors of
14 regulated substances in soil, sediment or groundwater which are
15 taken to eliminate or prevent such exposure. These include, but
16 are not limited to, relocation of residents, businesses or
17 community facilities, provision of alternate water supplies,
18 restrictions on future use of the property, fencing or other
19 security measures used to prevent exposure to regulated
20 substances.
21 "Institutional or engineered controls." Institutional or
22 engineered controls, or both.
23 "Local agency." The local or county governmental agency
24 having jurisdiction over land use decisions.
25 "Most effective feasible technology." Treatment or removal
26 technology which is feasible and which achieves in a timely
27 manner the greatest reduction in concentration, toxicity, volume
28 and mobility of a regulated substance in soil, groundwater or
29 sediment.
30 "Nonthreshold effect." An adverse impact, including cancer,
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1 for which no exposure greater than zero assures protection to
2 the exposed individual. The term includes adverse impacts from
3 regulated substances for which there is no reference dose or
4 cancer potency slope factor.
5 "Person." An individual, firm, corporation, association,
6 partnership, consortium, joint venture, commercial entity,
7 authority, nonprofit corporation, interstate body or other legal
8 entity which is recognized by law as the subject of rights and
9 duties. The term includes the Federal Government, State
10 government, political subdivisions and Commonwealth
11 instrumentalities.
12 "Regulated substances." Hazardous substances regulated under
13 the act of October 18, 1988 (P.L.756, No.108), known as the
14 Hazardous Sites Cleanup Act, regulated substances under the act
15 of July 6, 1989 (P.L.169, No.32), known as the Storage Tank and
16 Spill Prevention Act, and substances covered by the act of June
17 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law, the
18 act of January 8, 1960 (1959 P.L.2119, No.787), known as the Air
19 Pollution Control Act, the act of July 7, 1980 (P.L.380, No.97),
20 known as the Solid Waste Management Act, the act of July 13,
21 1988 (P.L.525, No.93), known as the Infectious and
22 Chemotherapeutic Waste Law, and the Storage Tank and Spill
23 Prevention Act.
24 "Release." Spilling, leaking, pumping, pouring, emitting,
25 emptying, discharging, injecting, escaping, leaching, dumping,
26 placing or disposal of any regulated substances into the
27 environment. The term includes the abandonment or discarding of
28 barrels, containers, vessels or other receptacles containing or
29 which previously contained a regulated substance; the migration
30 of landfill gas from a waste management area in a manner or
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1 direction causing a potential hazard to human health and safety
2 or the environment; and the migration of regulated substances
3 from soil to groundwater and surface water.
4 "Removal." Transporting of regulated substances offsite for
5 the purposes of treatment or disposal.
6 "Response action." An action taken to clean up, mitigate,
7 remediate, correct, contain, control, abate, minimize, eliminate
8 or prevent a release or threat of a release or exposure to a
9 regulated substance into the environment in order to protect the
10 present or future public health, safety and welfare and the
11 environment.
12 "Responsible person." This term shall have the same meaning
13 as given to it in the act of October 18, 1988 (P.L.756, No.108),
14 known as the Hazardous Sites Cleanup Act, and shall include
15 persons subject to enforcement actions for substances covered by
16 the act of June 22, 1937 (P.L.1987, No.394), known as The Clean
17 Streams Law, the act of July 6, 1989 (P.L.169, No.32), known as
18 the Storage Tank and Spill Prevention Act, the act of January 8,
19 1960 (1959 P.L.2119, No.787), known as the Air Pollution Control
20 Act, the act of July 7, 1980 (P.L.380, No.97), known as the
21 Solid Waste Management Act, and the act of July 13, 1988
22 (P.L.525, No.93), known as the Infectious and Chemotherapeutic
23 Waste Law.
24 "Risk assessment." The characterization of the actual or
25 potential effects of exposure to regulated substances and other
26 environmental hazards. The term includes hazard identification,
27 dose response assessment, exposure assessment and risk
28 characterization.
29 "Secretary." The Secretary of Environmental Resources of the
30 Commonwealth.
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1 "Sediment." Solid material which is associated with a
2 drainage area, swale, channel or stream or other aquatic regime
3 and is or has been transported by, suspended in or deposited by
4 water and which forms or formed on the earth's surface in a
5 loose, unconsolidated form such as sand, gravel, silt and mud.
6 "Site." The area of the release of the regulated substance
7 and all locations in close proximity necessary for the
8 implementation of response actions.
9 "Soil." Solid fragmental material or a mass of such
10 material, either inorganic or organic, that originates from
11 weathering of rocks and is located over bedrock.
12 "Threshold effect." An adverse impact that occurs in the
13 exposed individual only after the individual's protective
14 mechanisms are overcome. The term includes most systemic effects
15 and developmental toxicity, including birth defects.
16 "Treatment." An in situ or extractive method, technique or
17 process which is designed to change the physical, chemical or
18 biological character or composition of a regulated substance and
19 which results in the reduction in concentration, toxicity,
20 mobility or volume of regulated substances in soil, groundwater
21 or sediment.
22 "Treatment or removal." Treatment or removal, or both.
23 "Unrestricted land use." Use of land, after completion of a
24 response action, for any purpose and for which the use of risk
25 assessment based upon potential occupational exposure
26 assumptions in the calculation of cleanup standards is not
27 appropriate.
28 "Voluntary response action." A response action which is
29 commenced by a landowner or occupier prior to an enforcement
30 action by the Department of Environmental Resources, or which is
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1 agreed to in a legally binding document executed no later than
2 120 days after the initiation of an enforcement action by the
3 Department of Environmental Resources. For purposes of this
4 definition, a response action shall be considered commenced if a
5 responsible person has made substantial and legally binding
6 commitments for the conduct of a response action satisfying the
7 requirements of this act. For purposes of this definition,
8 enforcement action shall mean the issuance of an administrative
9 order or the initiation of any proceeding in a court of record
10 by the Department of Environmental Resources for site
11 characterization or response action.
12 Section 104. Scope.
13 The requirements for regulated substances established under
14 this act shall be applicable whenever a response action is
15 conducted under the act of October 18, 1988 (P.L.756, No.108),
16 known as the Hazardous Sites Cleanup Act, the act of June 22,
17 1937 (P.L.1987, No.394), known as The Clean Streams Law, the act
18 of July 6, 1989 (P.L.169, No.32), known as the Storage Tank and
19 Spill Prevention Act, the act of January 8, 1960 (1959 P.L.2119,
20 No.787), known as the Air Pollution Control Act, the act of July
21 7, 1980 (P.L.380, No.97), known as the Solid Waste Management
22 Act, and the act of July 13, 1988 (P.L.525, No.93) known as the
23 Infectious and Chemotherapeutic Waste Law.
24 CHAPTER 3
25 POWERS AND DUTIES
26 Section 301. Powers and duties of department.
27 The Department of Environmental Resources shall have the
28 power and its duties shall be to:
29 (1) Appoint or utilize such advisory committees as the
30 Secretary of Environmental Resources deems necessary and
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1 proper to assist the department in carrying out this act. The
2 secretary is authorized to pay reasonable and necessary
3 expenses incurred by the members of the advisory committees
4 in carrying out their functions.
5 (2) Cooperate with appropriate Federal, State,
6 interstate and local government agencies in carrying out its
7 duties under this act.
8 (3) Require the payment of fees for submission or
9 resubmission of requests for certification.
10 (4) Initiate, conduct and support research,
11 demonstration projects and investigations and coordinate all
12 State agency research programs pertaining to technologies
13 that can be used in the cleanup of regulated substance
14 releases.
15 (5) Issue, deny, modify, suspend or revoke
16 certifications regarding future obligations after completion
17 of a response action.
18 (6) Waive State permitting or other applicable
19 requirements.
20 (7) Do any and all other acts and things not
21 inconsistent with any provision of this act which it may deem
22 necessary or proper for the effective implementation of this
23 act.
24 Section 302. Powers and duties of board.
25 The Environmental Quality Board shall have the power and duty
26 to promulgate regulations of the Department of Environmental
27 Resources to accomplish the purposes and to carry out the
28 provisions of this act, including, but not limited to,
29 regulations relating to generic cleanup standards, criteria,
30 methodologies and factors for the calculation of standards for a
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1 specific response action, the designation of industrial land
2 uses, the use of an alternative methodology for determining
3 equivalent protective levels for regulated substances having
4 threshold effects or other appropriate requirements for response
5 actions.
6 CHAPTER 5
7 RESPONSE ACTION REQUIREMENTS
8 Section 501. Response action requirements.
9 (a) Responsibility of responsible person.--Unless a
10 responsible person can demonstrate that compliance with the
11 following would cause more environmental harm than not
12 conducting a response action in whole or in part, a responsible
13 person shall conduct a response action which:
14 (1) complies with the requirements for soils
15 contaminated with regulated substances as described in
16 section 502;
17 (2) complies with the requirements for groundwater
18 contaminated with regulated substances as described in
19 section 503;
20 (3) complies with the requirements for sediment
21 contaminated with regulated substances as described in
22 section 504;
23 (4) complies with the requirements of section 505 to
24 protect ecological receptors;
25 (5) complies with all applicable standards,
26 requirements, criteria and limitations unless waived by the
27 Department of Environmental Resources under sections 507 and
28 508; and
29 (6) is cost effective.
30 (b) Emergency measures authorized.--Nothing in this act
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1 shall prevent the use of emergency measures in a timely manner
2 to abate imminent and substantial threats to human health and
3 safety and the environment, nor affect existing obligations
4 under other laws or regulations relating to such imminent and
5 substantial threats. To the extent practicable, the measures
6 should be selected to attain the requirements established in
7 subsection (a).
8 Section 502. Requirements for soil contaminated with regulated
9 substances.
10 (a) General rule.--Response actions for regulated substances
11 in soil shall use treatment or removal, except as provided in
12 subsection (b), to:
13 (1) ensure that the hazard index does not exceed a value
14 of 1.0 for regulated substances that affect the same target
15 organ or act by the same method of toxicity, or an equivalent
16 protective level which is established by an alternate
17 methodology for evaluating adverse impacts caused by
18 regulated substances that have threshold effects and which is
19 developed or approved by the Department of Environmental
20 Resources under section 905(c);
21 (2) ensure that cumulative carcinogenic risk does not
22 exceed a one in one million excess cancer risk;
23 (3) prevent adverse impacts to humans caused by
24 regulated substances which have nonthreshold effects; and
25 (4) prevent new or continuing degradation of
26 groundwater.
27 (b) Response actions.--Response actions shall achieve the
28 requirements of subsection (a)(2) by one of the following
29 methods:
30 (1) utilizing treatment or removal that directly
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1 prevents the excess cancer risk level from exceeding one in
2 one million; or
3 (2) utilizing treatment or removal that prevents the
4 excess cancer risk level from exceeding one in ten thousand
5 and which is supplemented by institutional or engineered
6 controls which in combination prevent the excess cancer risk
7 level from exceeding one in one million.
8 (c) Nonfeasibility.--If a responsible person demonstrates
9 that it is not feasible to achieve the requirements of section
10 502(a) and (b) through the use of treatment or removal, response
11 actions shall, prior to the implementation of institutional or
12 engineered controls necessary to meet the requirements of
13 section 502(a), implement the most effective feasible technology
14 in order to minimize the level of institutional or engineered
15 controls.
16 (d) Alternate standards.--In lieu of using the generic soil
17 cleanup standards developed pursuant to section 901(1), a
18 responsible person may demonstrate to the department's
19 satisfaction that alternate levels of regulated substances in
20 soil, based upon applicable regulations developed pursuant to
21 section 902(1), satisfy the requirements of section 502(a)(4)
22 for a particular site.
23 (e) Voluntary response actions.--Nothing shall prevent
24 landowners or occupiers conducting voluntary response actions
25 for soil at industrial land use properties from meeting the
26 special requirements set forth in Chapter 7.
27 Section 503. Requirements for groundwater contaminated with
28 regulated substances.
29 (a) General rule.--Response actions for regulated substances
30 in groundwater shall prevent new or ongoing degradation of
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1 groundwater and restore groundwater quality to background
2 levels.
3 (b) Required response action.--If a responsible person
4 demonstrates that it is not feasible to restore groundwater
5 quality to background levels, response actions for regulated
6 substances in groundwater shall through full implementation of
7 most effective feasible technology:
8 (1) ensure that the hazard index does not exceed a value
9 of 1.0 for regulated substances that affect the same target
10 organ or act by the same method of toxicity, or an equivalent
11 protective level which is established by an alternate
12 methodology for evaluating adverse impacts caused by
13 regulated substances that have threshold effects and which is
14 developed or approved by the Department of Environmental
15 Resources under section 905(c);
16 (2) ensure that cumulative carcinogenic risk does not
17 exceed a one in one million excess cancer risk;
18 (3) prevent adverse impacts to humans caused by
19 regulated substances which have nonthreshold effects;
20 (4) prevent new and continuing degradation of
21 groundwater; and
22 (5) restore groundwater quality as close to background
23 as possible.
24 (c) Response action where treatment or removal not
25 feasible.--If a responsible person demonstrates that it is not
26 feasible to meet either subsection (a) or (b) through treatment
27 or removal of regulated substances in groundwater, response
28 actions shall:
29 (1) through full implementation of most effective
30 feasible technology, restore groundwater as close to
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1 background as possible; and
2 (2) meet the requirements of subsection (b)(1) through
3 (4) by the implementation of institutional and engineered
4 controls.
5 (d) Voluntary response actions.--Nothing shall prevent
6 landowners or occupiers conducting voluntary response actions
7 for groundwater at industrial land use properties from meeting
8 the special requirements set forth in Chapter 7.
9 Section 504. Requirements for sediment contaminated with
10 regulated substances.
11 (a) General rule.--Response actions for regulated substances
12 in sediment shall, based on risk assessment of a specific site
13 or generic sediment cleanup standards promulgated by the
14 Environmental Quality Board:
15 (1) ensure that the hazard index does not exceed a value
16 of 1.0 for regulated substances that affect the same target
17 organ or that act by the same method of toxicity, or an
18 equivalent protective level which is established by an
19 alternate methodology for evaluating adverse impacts caused
20 by regulated substances that have threshold effects and which
21 is developed or approved by the Department of Environmental
22 Resources under section 905(c);
23 (2) ensure that cumulative carcinogenic risk does not
24 exceed a one in one million excess cancer risk;
25 (3) prevent adverse impacts to humans caused by
26 regulated substances which have nonthreshold effects;
27 (4) prevent new or continuing degradation of
28 groundwater; and
29 (5) prevent new or continuing degradation of surface
30 water quality.
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1 (b) Regulated substances affecting food chain.--For
2 regulated substances in sediment that bioaccumulate or
3 biomagnify through the food chain, response actions shall
4 achieve background levels.
5 Section 505. Protection of ecological receptors.
6 (a) Consideration of adverse effects to ecological
7 receptors.--Response actions shall ensure that regulated
8 substances in soil, groundwater and sediment do not cause
9 significant adverse effects to ecological receptors. Particular
10 consideration shall be given to the following:
11 (1) Rare, threatened or endangered species and their
12 habitats, as defined by the United States Department of the
13 Interior, Fish and Wildlife Service and by the Commonwealth.
14 (2) Species of special concern as identified by the
15 Pennsylvania Game Commission, the Pennsylvania Fish and Boat
16 Commission or the Department of Environmental Resources.
17 (3) Populations of ecological receptors.
18 (4) Important habitats of ecological receptors.
19 (5) Regulated substances that bioaccumulate or
20 biomagnify through the food chain.
21 (b) Ecological risk assessment.--Response actions shall be
22 based upon an ecological risk assessment conducted using
23 methodologies developed or approved by the department.
24 Section 506. Feasibility determinations.
25 (a) General rule.--In determining whether it is feasible to
26 meet a requirement of this act through the implementation of a
27 particular technology at a given site, the following factors
28 shall be considered:
29 (1) the degree of reduction in concentration, toxicity,
30 volume or mobility of a regulated substance in soil,
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1 groundwater or sediment that the technology can be expected
2 to achieve based on physical and chemical properties of soil
3 and groundwater at the site;
4 (2) demonstrated performance of the technology in bench
5 scale or pilot testing or field application;
6 (3) reduction of risk to human health, safety and
7 welfare and the environment posed by regulated substances in
8 soil, groundwater or sediment at the site that the technology
9 can be expected to achieve;
10 (4) whether cost of the technology is grossly
11 disproportionate to benefits of reduction in concentration,
12 toxicity, volume, mobility or risk to human health, safety
13 and welfare and the environment; and
14 (5) whether cost of the technology is or becomes grossly
15 disproportionate to benefits of additional reduction in
16 concentration, toxicity, volume, mobility or risk to human
17 health, safety and welfare and the environment.
18 (b) In determining whether it is feasible to meet a
19 requirement of this act through the implementation of a
20 particular technology at a given site, the ability of a
21 particular person to afford the technology shall not be a
22 factor.
23 Section 507. Permits.
24 No person shall initiate an activity subject to permitting by
25 the Department of Environmental Resources without a permit
26 unless otherwise approved by the department under this section.
27 The department may, upon request, grant written approval to
28 initiate without a permit treatment, processing, storage,
29 discharge or disposal of regulated substances. Requests for
30 approval shall include the site characterization report and a
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1 description of the proposed response action, a listing of those
2 actions for which approval to proceed is being sought and shall
3 be publicly noticed under section 1501. The department may
4 condition approvals to proceed without a permit. Persons granted
5 approval to proceed without a permit shall comply with
6 substantive protective measures defined by applicable laws.
7 Section 508. Applicable requirements of other statutes.
8 (a) General rule.--No person shall implement a response
9 action which does not comply with the requirements established
10 under other environmental statutes and regulations unless the
11 Department of Environmental Resources has approved a waiver of
12 the requirements under this section. The department may not
13 waive the requirements of sections 502, 503 and 504. The
14 department may waive or modify, in writing, otherwise applicable
15 requirements where responsible persons demonstrate that any of
16 the following apply:
17 (1) Compliance with a requirement at a site will result
18 in greater risk to human health, safety and welfare and the
19 environment than alternative options.
20 (2) Compliance with a requirement at a site will
21 substantially interfere with natural or artificial structures
22 or features.
23 (3) The proposed response action will attain a standard
24 of performance that is equivalent to that required under the
25 otherwise applicable requirement through the use of an
26 alternative method or approach.
27 (b) Public notice of waiver request.--The department may at
28 its discretion require a responsible person to provide public
29 notice of a request for a waiver under this section. The public
30 notice shall be provided in accordance with section 1501.
19940H2700B3530 - 21 -
1 Section 509. Appeals.
2 An approval of a request made under section 507 or 508 is
3 appealable to the Environmental Hearing Board by an aggrieved
4 person.
5 CHAPTER 7
6 SPECIAL REQUIREMENTS FOR VOLUNTARY RESPONSE
7 ACTIONS AT INDUSTRIAL LAND USE PROPERTIES
8 Section 701. General provisions.
9 Landowners or occupiers who conduct voluntary response
10 actions at industrial land use properties may satisfy the
11 requirements of sections 502 and 503 by meeting the requirements
12 of this chapter.
13 Section 702. Requirements for soils at industrial land use
14 properties.
15 Voluntary response actions under this chapter for regulated
16 substances in soil conducted by a landowner or occupier of
17 industrial land use property shall be conducted so as to prevent
18 new or continuing degradation of groundwater and shall satisfy
19 the other applicable requirements of section 502(a) through (c)
20 by meeting cleanup standards promulgated for industrial land use
21 properties. Voluntary response actions may utilize alternate
22 levels to prevent new or continuing degradation of groundwater
23 pursuant to the procedures described in section 502(d).
24 Section 703. Requirements for groundwater at industrial land
25 use properties.
26 (a) Historic groundwater contamination.--Voluntary response
27 actions under this chapter for regulated substances in
28 groundwater conducted by a landowner or occupier of industrial
29 land use property with historic groundwater contamination who
30 did not in any way cause or contribute, by omission or
19940H2700B3530 - 22 -
1 commission, to the release of regulated substances in
2 groundwater shall prevent, to the maximum extent feasible,
3 migration of regulated substances at greater than background
4 concentrations at the property boundary as the boundary existed
5 on the effective date of this act. Landowners or occupiers
6 proceeding under this section shall provide notice to all other
7 property owners whose groundwater has been affected by
8 contamination migrating from the industrial land use property.
9 (b) Pervasive groundwater contamination.--Voluntary response
10 actions under this chapter for regulated substances in
11 groundwater conducted by a landowner or occupier of industrial
12 land use property in an area of pervasive groundwater
13 contamination shall be subject to the following:
14 (1) A landowner or occupier who did not in any way cause
15 or contribute, by omission or commission, to the release of
16 regulated substances in groundwater shall prevent migration,
17 to the maximum extent feasible, beyond the property boundary
18 of regulated substances in groundwater at concentrations
19 greater than the representative concentration of regulated
20 substances in groundwater immediately upgradient or
21 immediately downgradient of the property, whichever is less.
22 (2) A landowner or occupier who caused or contributed to
23 the release of regulated substances in groundwater shall
24 prevent, to the maximum extent feasible, the concentration of
25 regulated substances in groundwater anywhere on the property
26 from exceeding the representative concentration of the
27 regulated substances in groundwater immediately upgradient or
28 immediately downgradient of the property, whichever is less.
29 (c) Voluntary response action.--A landowner or occupier
30 conducting a voluntary response action for regulated substances
19940H2700B3530 - 23 -
1 in groundwater at an industrial use property pursuant to this
2 chapter shall have the burden of demonstrating the existence of
3 historic groundwater contamination at the property or that the
4 property is in an area of pervasive groundwater contamination.
5 Section 704. Land use determinations.
6 (a) Voluntary response action.--No voluntary response action
7 by a landowner or occupier under this chapter shall satisfy the
8 requirements of section 502 or 503 unless the local agency
9 determines that land use designated as industrial pursuant to
10 regulations promulgated under section 904 is consistent with
11 historical, current and reasonably expected future land use of
12 the property and land use plans and zoning ordinances, where
13 existing.
14 (b) Final determination.--
15 (1) The local agency shall render a final determination
16 under subsection (a) no later than 90 days after receiving
17 from any person a written request for determination, which
18 request shall be accompanied by supporting analysis and
19 information.
20 (2) In the event that a local agency fails to render a
21 decision upon a request within 90 days of receipt, the person
22 requesting the final determination may file an action in
23 mandamus in the court of common pleas to compel the local
24 agency to act. If the person making the request prevails in
25 the mandamus action, the local agency shall pay the person's
26 fees and costs.
27 (c) Public notice.--Persons requesting determinations under
28 this chapter shall provide public notice pursuant to section
29 1501.
30 (d) Judicial review.--Judicial review of a local agency
19940H2700B3530 - 24 -
1 determination shall be sought in accordance with the procedures
2 of 2 Pa.C.S. Ch. 5 Subch. B. Any appeal shall be taken within 30
3 days after receipt of notice of the determination.
4 CHAPTER 9
5 IMPLEMENTATION AND TRANSITION
6 Section 901. Development of generic cleanup standards.
7 Within 180 days of the effective date of this act, the
8 Environmental Quality Board will publish a notice of proposed
9 rulemaking in the Pennsylvania Bulletin containing:
10 (1) generic cleanup standards for regulated substances
11 in soil which meet the requirements of section 502(a) for
12 exposure assumptions based upon both unrestricted and
13 industrial land uses; and
14 (2) generic cleanup standards for regulated substances
15 in groundwater which meet the requirements of section
16 503(b)(1) through (3).
17 Section 902. Development of methodology for specific response
18 actions.
19 Within 180 days of the effective date of this act, the
20 Environmental Quality Board will publish a notice of proposed
21 rulemaking in the Pennsylvania Bulletin containing:
22 (1) criteria, methodologies or factors for developing
23 cleanup standards for regulated substances in soil for a
24 specific response action which meet the requirements of
25 section 502(a)(4); and
26 (2) criteria, methodologies and factors for developing
27 cleanup standards for regulated substances in groundwater for
28 a specific response action at an industrial land use property
29 which meet the requirements of section 703.
30 Section 903. Development of methodologies in absence of generic
19940H2700B3530 - 25 -
1 standards.
2 Within 180 days of the effective date of this act, the
3 Environmental Quality Board will publish a notice of proposed
4 rulemaking in the Pennsylvania Bulletin containing criteria,
5 methodologies or factors for developing cleanup standards for
6 regulated substances in soil or groundwater for which no generic
7 cleanup standards have been developed pursuant to this chapter.
8 Section 904. Designations of industrial land uses.
9 Within 180 days of the effective date of this act, the
10 Environmental Quality Board will publish a notice of proposed
11 rulemaking in the Pennsylvania Bulletin designating industrial
12 land uses, which shall be those business uses which typically
13 restrict or prohibit access by the public to areas with
14 regulated substances in soil, and at which only employees are
15 exposed to regulated substances in soil.
16 Section 905. Authority for additional and equivalent standards
17 and alternative methodology.
18 (a) General rule.--The Environmental Quality Board is
19 authorized to promulgate, by regulation, such cleanup standards,
20 criteria, methodologies or factors, as necessary, to meet the
21 requirements of this act.
22 (b) Content of regulations.--The regulations promulgated
23 under this chapter may contain, as appropriate, a procedure to
24 approve equivalent criteria, methodologies or factors developed
25 by a responsible person for establishing equivalent cleanup
26 standards for soil, groundwater and sediment for a specific
27 response action, provided the responsible person demonstrates by
28 clear and convincing evidence that the equivalent criteria,
29 methodologies or factors meet the requirements of Chapter 5.
30 (c) Alternative methodology.--The board is authorized to
19940H2700B3530 - 26 -
1 promulgate, by regulation, an acceptable alternative methodology
2 for evaluating adverse impacts caused by regulated substances
3 having threshold effects. The alternative methodology shall
4 provide an equivalent protective level to that provided by the
5 hazard index value of 1.0.
6 Section 906. Interim requirements for response actions.
7 (a) General rule.--Until the notice of proposed rulemaking
8 is published in the Pennsylvania Bulletin pursuant to sections
9 901 through 905, response actions shall use existing Department
10 of Environmental Resources guidance or department cleanup
11 standards or other standards approved by the department on for a
12 specific response action for regulated substances in soil,
13 groundwater and sediment.
14 (b) Proposed regulations.--
15 (1) Proposed regulations published pursuant to sections
16 901 through 905 shall be effective and shall establish
17 enforceable and binding legal requirements 30 days after
18 publication in the Pennsylvania Bulletin as proposed
19 rulemaking.
20 (2) The proposed regulations shall have no effect after
21 adoption of the final regulations or after the expiration of
22 the time period established under section 5(b.4) of the act
23 of June 25, 1982 (P.L.633 No.181), known as the Regulatory
24 Review Act.
25 (c) Final regulations.--Notwithstanding the provisions of
26 subsection (b), the Environmental Quality Board shall
27 expeditiously promulgate final regulations after the close of
28 the public comment period.
29 Section 907. Site characterization and response action reports.
30 (a) Site characterization.--Within 180 days of the effective
19940H2700B3530 - 27 -
1 date of this act, the Department of Environmental Resources will
2 publish a notice of proposed guidance in the Pennsylvania
3 Bulletin containing requirements for site characterization
4 reports. The guidance shall define those activities which are
5 necessary to determine an appropriate response action,
6 including, but not limited to, the collection, evaluation and
7 interpretation of:
8 (1) physical site characteristic information;
9 (2) environmental data in order to determine the degree
10 and location of released regulated substances;
11 (3) data in order to determine the actual and potential
12 pathways of exposure to the environment;
13 (4) human and ecological receptors and the risk posed by
14 exposure through identified pathways; and
15 (5) evaluation of alternative response actions that meet
16 the requirements of section 501.
17 (b) Response action.--Within 180 days of the effective date
18 of this act, the department will publish a notice of proposed
19 guidance in the Pennsylvania Bulletin containing requirements
20 for response action reports. The guidance shall define those
21 activities which are necessary to describe a response action
22 which meets the requirements of section 501, including, but not
23 limited to:
24 (1) a description of each phase of the response action;
25 (2) representative sampling and analytical data that
26 demonstrate compliance with sections 501(a)(1) through (4);
27 and
28 (3) a description and schedule for relevant post-
29 response requirements.
30 CHAPTER 11
19940H2700B3530 - 28 -
1 FUTURE OBLIGATIONS
2 Section 1101. Deed notice and restriction.
3 (a) Requirements of other laws unaffected.--Nothing in this
4 act shall alter or otherwise affect the applicable deed
5 acknowledgment requirements of the act of July 7, 1980 (P.L.380,
6 No.97), known as the Solid Waste Management Act, or the act of
7 October 18, 1988 (P.L.756, No.108), known as the Hazardous Sites
8 Cleanup Act.
9 (b) Deed restriction requirements.--
10 (1) The following deed restriction requirements shall
11 apply to response actions commenced or completed after the
12 effective date of this act:
13 (i) The grantor, in every deed of conveyance of
14 property at which institutional or engineered controls
15 are employed in a response action, shall include in the
16 property description section of the deed a description of
17 the controls employed and limitations placed on the use
18 of the property. The deed shall state that the property
19 shall not be put to a use which would disturb or be
20 inconsistent with the use of these controls.
21 (ii) The grantor, in every deed for conveyance of
22 property at which a response action pursuant to Chapter 7
23 has been conducted, shall include in the property
24 description section of the deed a description of the
25 industrial land use determined by the local agency or the
26 Department of Environmental Resources to be consistent
27 with applicable land use plans, zoning ordinances and
28 historical, current and reasonably expected future use of
29 the property. The deed shall state that the property
30 shall not be put to a use for which the risk assessment
19940H2700B3530 - 29 -
1 based on potential occupational exposure assumptions in
2 the calculation of cleanup standards is inappropriate.
3 (2) Nothing in this subsection shall alter or otherwise
4 affect existing deed restriction requirements imposed by law
5 or agreement.
6 Section 1102. Future obligations for regulated substances in
7 soil.
8 (a) Satisfaction of section 501(a)(5).--If a response action
9 which satisfies the requirements of section 501(a)(5) and which
10 results in no regulated substances remaining in soil above
11 background levels has been implemented at the site, no further
12 response action for soil will be required unless subsequent
13 samples disclose the presence of regulated substances in the
14 soil at levels greater than background at the site.
15 (b) Satisfaction of sections 501(a)(5), 502(a) and 505.--If
16 a response action which satisfies the requirements of sections
17 501(a)(5), 502(a) and 505 (including a response action which
18 utilizes alternate levels under section 502(d)) has been
19 implemented at the site, no further response action for soil
20 will be required unless:
21 (1) subsequent samples disclose the presence of
22 regulated substances in the soil at the site at levels which
23 do not meet the requirements of sections 501(a)(5) and
24 502(a);
25 (2) the response action no longer satisfies the
26 requirements of sections 501(a)(5), 502(a) and 505;
27 (3) new toxicological information reveals that the
28 response action does not satisfy the requirements of sections
29 501(a)(5) and 502(a); or
30 (4) institutional or engineered controls are not
19940H2700B3530 - 30 -
1 operated or maintained.
2 (c) Satisfaction of sections 501(a)(5), 502(c) and 505.--If
3 a response action which satisfies the requirements of sections
4 501(a)(5), 502(c) and 505 (including a response action which
5 utilizes alternate levels under section 502(d)) has been
6 implemented at the site, no further response action for soil
7 will be required unless:
8 (1) subsequent samples disclose the presence of
9 regulated substances in the soil at the site at levels which
10 do not meet the requirements of sections 501(a)(5) and
11 502(c);
12 (2) the response action no longer satisfies the
13 requirements of sections 501(a)(5), 502(c) and 505;
14 (3) new toxicological information reveals that the
15 response action does not satisfy the requirements of sections
16 501(a)(5) and 502(c);
17 (4) institutional or engineered controls are not
18 operated or maintained; or
19 (5) technology which would achieve the requirements of
20 section 502(a) becomes feasible.
21 (d) Response action under Chapter 7; satisfaction of
22 sections 501(a)(5), 502(a) and 505.--A landowner or occupier who
23 implements a response action for regulated substances in soil
24 pursuant to Chapter 7 which satisfies the requirements of
25 sections 501(a)(5), 502(a) and 505 will not be required to
26 conduct a further response action unless:
27 (1) subsequent samples disclose the presence of
28 regulated substances in the soil at the property at levels
29 which do not meet the requirements of sections 501(a)(5) and
30 502(a);
19940H2700B3530 - 31 -
1 (2) the response action no longer satisfies the
2 requirements of sections 501(a)(5), 502(a) and 505;
3 (3) new toxicological information reveals that the
4 response action does not satisfy the requirements of sections
5 501(a)(5) and 502(a);
6 (4) institutional or engineered controls are not
7 operated or maintained; or
8 (5) the use of the property changes and the response
9 action no longer satisfies the requirements of sections
10 501(a)(5) and 502(a).
11 (e) Response action under Chapter 7; satisfaction of
12 sections 501(a)(5), 502(c) and 505.--A landowner or occupier who
13 implements a response action for regulated substances in soil
14 pursuant to Chapter 7 which satisfies the requirements of
15 sections 501(a)(5), 502(c) and 505 will not be required to
16 conduct a further response action unless:
17 (1) subsequent samples disclose the presence of
18 regulated substances in the soil at the property at levels
19 which do not meet the requirements of sections 501(a)(5) and
20 502(c);
21 (2) the response action no longer satisfies the
22 requirements of sections 501(a)(5), 502(c) and 505;
23 (3) new toxicological information reveals that the
24 response action does not satisfy the requirements of sections
25 501(a)(5) and 502(c);
26 (4) institutional or engineered controls are not
27 operated or maintained;
28 (5) the use of the property changes and the response
29 action no longer satisfies the requirements of sections
30 501(a)(5) and 502(c); or
19940H2700B3530 - 32 -
1 (6) technology which would achieve the requirements of
2 section 502(a) becomes feasible.
3 Section 1103. Future obligations for regulated substances in
4 groundwater.
5 (a) Satisfaction of sections 501(a)(5), 503(a) and 505.--If
6 a response action which satisfies the requirements of sections
7 501(a)(5), 503(a) and 505 is implemented at the site, no further
8 response action for groundwater will be required unless
9 subsequent samples disclose the presence of regulated substances
10 in the groundwater at levels greater than background at the
11 site.
12 (b) Satisfaction of sections 501(a)(5), 503(b) and 505.--If
13 a response action which satisfies the requirements of sections
14 501(a)(5), 503(b) and 505 has been implemented at the site, no
15 further response action for groundwater will be required unless:
16 (1) subsequent samples disclose the presence of
17 regulated substances in the water at the site at levels which
18 do not meet the requirements of sections 501(a)(5) and
19 503(b);
20 (2) the response action no longer satisfies the
21 requirements of sections 501(a)(5), 503(b) and 505;
22 (3) new toxicological information reveals that a
23 response action does not satisfy the requirements of sections
24 501(a)(5) and 503(b); or
25 (4) technology which would achieve the requirements of
26 section 503(a) becomes significantly more feasible.
27 (c) Satisfaction of sections 501(a)(5), 503(c) and 505.--If
28 a response action which satisfies the requirements of sections
29 501(a)(5), 503(c) and 505 has been implemented at the site, no
30 further response action for groundwater will be required unless:
19940H2700B3530 - 33 -
1 (1) subsequent samples disclose the presence of
2 regulated substances in the water at the site at levels which
3 do not meet the requirements of sections 501(a)(5) and
4 503(c);
5 (2) the response action no longer satisfies the
6 requirements of sections 501(a)(5), 503(c) and 505;
7 (3) new toxicological information reveals that a
8 response action does not satisfy the requirements of sections
9 501(a)(5) and 503(c);
10 (4) institutional or engineered controls are not
11 operated or maintained; or
12 (5) technology which would achieve the requirements of
13 section 503(b), or better, becomes feasible.
14 (d) Response action by landowner or occupier.--If a
15 landowner or occupier who implements a response action for
16 regulated substances in groundwater which satisfies and
17 continues to satisfy sections 501(a)(5) and 505, one of the
18 following shall apply:
19 (1) If the requirements of section 703(a) are also
20 satisfied, the landowner or occupier will not be required to
21 conduct a further response action for regulated substances in
22 groundwater unless regulated substances in concentrations
23 greater than background have migrated off the property onto
24 contiguous properties.
25 (2) If the requirements of section 703(b)(1) are also
26 satisfied, the landowner or occupier will not be required to
27 conduct a further response action for regulated substances in
28 groundwater unless regulated substances in groundwater
29 migrating off the property are present in concentrations
30 greater than either the representative concentration of
19940H2700B3530 - 34 -
1 regulated substances in groundwater immediately upgradient or
2 immediately downgradient of the property.
3 (3) If the requirements of section 703(b)(2) are also
4 satisfied, the landowner or occupier will not be required to
5 conduct a further response action for regulated substances in
6 groundwater unless regulated substances in groundwater are
7 present in concentrations greater than either the
8 representative concentration of regulated substances in
9 groundwater immediately upgradient or immediately
10 downgradient of the property.
11 Section 1104. Future obligations for regulated substances in
12 sediment.
13 (a) Satisfaction of section 501(a)(5).--If a response action
14 which satisfies the requirements of section 501(a)(5) and which
15 results in no regulated substances remaining in sediment above
16 background levels has been implemented at the site, no further
17 response action for sediment will be required unless subsequent
18 samples disclose the presence of regulated substances in the
19 sediment at levels greater than background at the site.
20 (b) Satisfaction of sections 501(a)(5), 504(a) or (b) and
21 505.--If a response action which satisfies the requirements of
22 section 501(a)(5), either section 504(a) or (b), as applicable,
23 and section 505 has been implemented at the site, no further
24 response action for sediment will be required unless:
25 (1) subsequent samples disclose the presence of a
26 regulated substance in sediment at the site at levels which
27 do not meet the requirements of sections 501(a)(5) and 504(a)
28 or (b);
29 (2) the response action no longer satisfies the
30 requirements of sections 501(a)(5), either section 504(a) or
19940H2700B3530 - 35 -
1 (b), and section 505;
2 (3) new toxicological information reveals that the
3 response action does not satisfy the requirements of sections
4 501(a)(5) and either section 504(a) or (b); or
5 (4) institutional or engineered controls are not
6 operated or maintained.
7 Section 1105. Burden of proof.
8 The Department of Environmental Resources shall have the
9 burden of proof to establish that a further response action is
10 required for regulated substances in soil, groundwater and
11 sediment under sections 1102, 1103 and 1104.
12 CHAPTER 13
13 CERTIFICATION
14 Section 1301. Certification requests.
15 (a) Certification of future obligations.--After completion
16 of a response action, a person may seek certification from the
17 Department of Environmental Resources of future obligations, if
18 any, remaining under law.
19 (b) Reports required.--Each request for certification shall
20 include a complete site characterization report and a complete
21 response action report which are consistent with the guidance
22 for such documents developed by the department under section
23 907.
24 (c) Affidavit required.--Each request for certification
25 shall contain, on a form provided by the department, a statement
26 under oath from the person or from a registered professional
27 engineer or a registered professional geologist who rendered
28 services in connection with the request for certification that
29 the information supporting the request is complete and accurate.
30 (d) Proposed certifications regarding response actions.--
19940H2700B3530 - 36 -
1 Each request shall contain, on forms provided by the department,
2 proposed certifications under sections 1302, 1303 and 1304.
3 (e) Public notice of request.--Persons seeking certification
4 shall provide public notice of each request pursuant to section
5 1501.
6 Section 1302. Certification for response action in soil.
7 (a) Satisfaction of section 501(a)(5).--Where a request for
8 certification for a site demonstrates through soil samples and
9 other supporting information, all of which appear to be
10 representative of site conditions, that a response action
11 satisfies the requirements of section 501(a)(5) and results in
12 no regulated substance remaining in soil above background
13 levels, the Department of Environmental Resources shall issue a
14 certification that no further response action will be required
15 for soil at the site unless subsequent samples disclose the
16 presence of regulated substances in the soil at levels greater
17 than background at the site.
18 (b) Satisfaction of sections 501(a)(5), 502(a) and 505.--
19 Where a request for certification demonstrates through soil
20 samples and other supporting information, all of which appear to
21 be representative of site conditions, that a response action
22 satisfies the requirements of sections 501(a)(5), 502(a) and
23 505, including a response action which utilizes alternate levels
24 pursuant to Section 502(d), the department shall issue a
25 certification that no further response action will be required
26 for soil at the site unless:
27 (1) subsequent samples disclose the presence of
28 regulated substances in the soil at the site at levels which
29 do not meet the requirements of sections 501(a)(5) and
30 502(a);
19940H2700B3530 - 37 -
1 (2) the response action no longer satisfies the
2 requirements of sections 501(a)(5), 502(a) and 505;
3 (3) new toxicological information reveals that the
4 response action does not satisfy the requirements of sections
5 501(a)(5) and 502(a); or
6 (4) institutional or engineered controls are not
7 operated or maintained.
8 (c) Satisfaction of sections 501(a)(5), 502(c) and 505.--
9 Where a request for certification demonstrates through soil
10 samples and other supporting information, all of which appear to
11 be representative of site conditions, that a response action
12 satisfies the requirements of sections 501(a)(5), 502(c) and 505
13 (including a response action which utilizes alternate levels
14 pursuant to section 502(d)), the department shall issue a
15 certification that no further response action will be required
16 for soil at the site unless:
17 (1) subsequent samples disclose the presence of
18 regulated substances in the soil at the site at levels which
19 do not meet the requirements of sections 501(a)(5) and
20 502(c);
21 (2) the response action no longer satisfies the
22 requirements of sections 501(a)(5), 502(c) and 505;
23 (3) new toxicological information reveals that the
24 response action does not satisfy the requirements of sections
25 501(a)(5) and 502(c);
26 (4) institutional or engineered controls are not
27 operated or maintained; or
28 (5) technology which would achieve the requirements of
29 section 502(a) becomes feasible.
30 (d) Satisfaction by landowner or occupier of sections
19940H2700B3530 - 38 -
1 501(a)(5), 502(a) and 505.--Where a request for certification is
2 made by a landowner or occupier who demonstrates through soil
3 samples and other supporting information, all of which appear to
4 be representative of site conditions, that a response action
5 pursuant to Chapter 9 satisfies the requirements of sections
6 501(a)(5), 502(a) and 505, the department shall issue a
7 certification that no further response action by the landowner
8 or occupier will be required for soil at the property unless:
9 (1) subsequent samples disclose the presence of
10 regulated substances in the soil at the property at levels
11 which do not meet the requirements of sections 501(a)(5) and
12 502(a);
13 (2) the response action no longer satisfies the
14 requirements of sections 501(a)(5), 502(a) and 505;
15 (3) new toxicological information reveals that the
16 response action does not satisfy the requirements of sections
17 501(a)(5) and 502(a);
18 (4) institutional or engineered controls are not
19 operated or maintained; or
20 (5) the use of the property changes and the response
21 action no longer satisfies the requirements of sections
22 501(a)(5) and 502(a).
23 (e) Satisfaction by landowner or occupier of sections
24 501(a)(5), 502(c) and 505.--Where a request for certification is
25 made by a landowner or occupier who demonstrates through soil
26 samples and other supporting information, all of which appears
27 to be representative of site conditions, that a response action
28 pursuant to Chapter 9 satisfies the requirements of sections
29 501(a)(5), 502(c) and 505, the department shall issue a
30 certification that no further response action by the landowner
19940H2700B3530 - 39 -
1 or occupier will be required for soil at the property unless:
2 (1) subsequent samples disclose the presence of
3 regulated substances in the soil at the property at levels
4 which do not meet the requirements of sections 501(a)(5) and
5 502(c);
6 (2) the response action no longer satisfies the
7 requirements of sections 501(a)(5), 502(c) and 505;
8 (3) new toxicological information reveals that the
9 response action does not satisfy the requirements of sections
10 501(a)(5) and 502(c);
11 (4) institutional or engineered controls where utilized
12 in the remedy, are not operated or maintained;
13 (5) the use of the property changes and the response
14 action no longer satisfies the requirements of sections
15 501(a)(5) and 502(c); or
16 (6) technology which would achieve the requirements of
17 section 502(a) becomes feasible.
18 Section 1303. Certification for response action in groundwater.
19 (a) Satisfaction of sections 501(a)(5), 503(a) and 505.--
20 Where a request for certification for a site demonstrates
21 through groundwater samples and other supporting information,
22 all of which appear to be representative of site conditions,
23 that a response action satisfies the requirements of sections
24 501(a)(5), 503(a) and 505, the Department of Environmental
25 Resources shall issue a certification that no further response
26 action will be required for groundwater at the site unless
27 subsequent samples disclose the presence of regulated substances
28 in the groundwater at levels greater than background at the
29 site.
30 (b) Satisfaction of sections 501(a)(5), 503(b) and 505.--
19940H2700B3530 - 40 -
1 Where a request for certification demonstrates through
2 groundwater samples and other supporting information, all of
3 which appear to be representative of site conditions, that a
4 response action satisfies the requirements of sections
5 501(a)(5), 503(b) and 505, the department shall issue a
6 certification that no further response action for groundwater
7 will be required at the site unless:
8 (1) subsequent samples disclose the presence of
9 regulated substances in the water at the site at levels which
10 do not meet the requirements of sections 501(a)(5) and
11 503(b);
12 (2) the response action no longer satisfies the
13 requirements of sections 501(a)(5), 503(b) and 505;
14 (3) new toxicological information reveals that a
15 response action does not satisfy the requirements of sections
16 501(a)(5) and 503(b); or
17 (4) technology which would achieve the requirements of
18 section 503(a) becomes significantly more feasible.
19 (c) Satisfaction of sections 501(a)(5), 503(c) and 505.--
20 Where a request for certification demonstrates through
21 groundwater samples and other supporting information, all of
22 which appear to be representative of site conditions, that a
23 response action satisfies the requirements of sections
24 501(a)(5), 503(c) and 505, the department shall issue a
25 certification that no further response action for groundwater
26 will be required at the site unless:
27 (1) subsequent samples disclose the presence of
28 regulated substances in the water at the site at levels which
29 do not meet the requirements of sections 501(a)(5) and
30 503(c);
19940H2700B3530 - 41 -
1 (2) the response action no longer satisfies the
2 requirements of sections 501(a)(5), 503(c) and 505;
3 (3) new toxicological information reveals that a
4 response action does not satisfy the requirements of sections
5 501(a)(5) and 503(c);
6 (4) institutional or engineered controls are not
7 operated or maintained; or
8 (5) technology which would achieve the requirements of
9 section 503(b), or better, becomes feasible.
10 (d) Request by landowner or occupier.--Where a request for
11 certification is made by a landowner or occupier who
12 demonstrates through groundwater samples and other supporting
13 information, all of which appear to be representative of site
14 conditions, that a response action which satisfies and continues
15 to satisfy sections 501(a)(5) and 505, one of the following
16 shall apply:
17 (1) If the requirements of section 703(a) are also
18 satisfied, the department shall issue a certification that no
19 further response action for regulated substances in
20 groundwater by the landowner or occupier will be required
21 unless regulated substances in concentrations greater than
22 background have migrated off the property onto contiguous
23 properties.
24 (2) If the requirements of section 703(b)(1) are also
25 satisfied, the department shall issue a certification that no
26 further response action for regulated substances in
27 groundwater by the landowner or occupier will be required
28 unless regulated substances are migrating off the property in
29 concentrations greater than either the representative
30 concentration of regulated substances in groundwater
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1 immediately upgradient or immediately downgradient of the
2 property.
3 (3) If the requirements of section 703(b)(2) are also
4 satisfied, the department shall issue a certification that no
5 further response action for regulated substances in
6 groundwater by the landowner or occupier will be required
7 unless regulated substances in groundwater are present in
8 concentrations greater than either the representative
9 concentration of regulated substances in groundwater
10 immediately upgradient or immediately downgradient of the
11 property.
12 Section 1304. Certification for response action in sediment.
13 (a) Satisfaction of section 501(a)(5).--Where a request for
14 certification for a site demonstrates through sediment samples
15 and other supporting information, all of which appear to be
16 representative of site conditions, that a response action
17 satisfies the requirements of section 501(a)(5) and that no
18 regulated substances are present in sediment above background
19 levels, the Department of Environmental Resources shall issue a
20 certification that no further response action will be required
21 for sediment at the site unless subsequent samples disclose the
22 presence of regulated substances in the sediment at levels
23 greater than background at the site.
24 (b) Satisfaction of section 501(a)(5), 504(a) or (b) and
25 505.--Where a request for certification for a site demonstrates
26 through sediment samples and other supporting information, all
27 of which appear to be representative of site conditions, that a
28 response action satisfies the requirements of sections
29 501(a)(5), either 504(a) or (b), as applicable, and 505 the
30 department shall issue a certification that no further response
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1 action will be required for sediment at the site unless:
2 (1) subsequent samples disclose the presence of a
3 regulated substance in sediment at the site at levels which
4 do not meet the requirements of sections 501(a)(5) and 504(a)
5 or (b);
6 (2) the response action no longer satisfies the
7 requirements of sections 501(a)(5), either 504(a) or (b), as
8 applicable, and 505;
9 (3) new toxicological information reveals that the
10 response action does not satisfy the requirements of sections
11 501(a)(5) and 504(a) or (b); or
12 (4) institutional or engineered controls are not
13 operated or maintained.
14 Section 1305. Denial of request for certification.
15 (a) Denial in whole or in part.--The Department of
16 Environmental Resources may deny all or part of a request for
17 certification under this chapter.
18 (b) Denial not subject to review.--The denial of all or part
19 of a request for certification of a site for no further response
20 action shall not be a final administrative action and shall not
21 be subject to review by or appeal to the Environmental Hearing
22 Board or a court.
23 (c) Exception.--If the department denies a request
24 resubmitted pursuant to section 1307(c) using as a reason
25 failure to demonstrate that it was not feasible to achieve the
26 requirements of Chapter 5 or the special requirements of Chapter
27 9, the person requesting the certification may appeal that
28 reason for denial to the Environmental Hearing Board. In any
29 such appeal, the sole issue will be whether the person
30 demonstrated that it was not feasible to achieve the
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1 requirements of Chapter 5 or the special requirements of Chapter
2 9. The person who has filed the appeal shall have the burden of
3 proof.
4 (d) Denial inadmissible in subsequent proceedings.--Except
5 where an appeal is taken pursuant to subsection (e), the denial
6 of certification of a site for no further response action shall
7 not be admissible in any subsequent proceeding concerning a
8 response action at such site and shall not preclude the
9 department or any person from raising any factual or legal
10 claims or defenses regarding response action requirements for
11 such site.
12 Section 1306. Deemed certification.
13 (a) Time for department action.--Each request for proposed
14 certification under sections 1302, 1303 and 1304 shall be deemed
15 certified under these sections, unless the Department of
16 Environmental Resources within 60 days from receipt, notifies in
17 writing the person requesting the certification that the
18 department plans to conduct a review of the request in whole or
19 in part.
20 (b) The department shall periodically publish notice in the
21 Pennsylvania Bulletin for each request deemed certified pursuant
22 to subsection (a).
23 Section 1307. Review of certification requests.
24 (a) Time for department action.--Unless a request is deemed
25 certified pursuant to section 1306, the Department of
26 Environmental Resources shall approve or deny the initial
27 request within 270 days from receipt.
28 (b) Denial of request.--If the department denies all or part
29 of a request in accordance with section 1305, it shall state in
30 writing the reasons for denial and identify additional or
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1 revised information, if any, required for approval.
2 (c) Resubmission of request.--A person whose initial request
3 has been denied may resubmit, within 90 days, the request
4 accompanied by additional or revised information. The department
5 shall approve or deny the resubmitted request within 60 days
6 from receipt.
7 (d) Late submissions.--Requests for certification submitted
8 later than 90 days after an initial denial pursuant to
9 subsection (b) or after denial of a resubmission pursuant to
10 subsection (c) shall be treated as an initial request under this
11 chapter.
12 Section 1308. Revocation, suspension or modification of
13 certification.
14 The Department of Environmental Resources may revoke, suspend
15 or modify a certification if the department determines that a
16 person has knowingly submitted inaccurate, incomplete,
17 unrepresentative or otherwise misleading information as part of
18 its request for certification.
19 Section 1309. Investigation by department.
20 Nothing in this chapter shall preclude the Department of
21 Environmental Resources from conducting an independent inquiry,
22 including the collection of samples for analysis, as part of its
23 review of a request for certification or pursuant to other
24 applicable law.
25 Section 1310. Fees for certification.
26 (a) General rule.--The Department of Environmental Resources
27 shall collect fees for review of requests for certification.
28 Fees shall be submitted with the request.
29 (b) Fee schedule.--The Secretary of Environmental Resources
30 shall establish and revise as necessary a fee schedule that
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1 provides sufficient funds to implement the requirements of this
2 act. The proposed schedule and any revisions shall be published
3 as a notice in the Pennsylvania Bulletin for review and comment.
4 (c) Deposit of fees.--Fees collected shall be deposited into
5 the Hazardous Sites Cleanup Fund and may be expended to
6 implement this act.
7 CHAPTER 15
8 MISCELLANEOUS PROVISIONS
9 Section 1501. Public notice.
10 (a) Documentation.--Within ten days of submission of a
11 request under section 507 or 1301, or a request by the
12 Department of Environmental Resources under section 508(b),
13 persons shall document that the required public notice has been
14 provided.
15 (b) Manner of giving notice.--Public notice shall be
16 published in a newspaper of general circulation in the
17 geographical area of the response action. The notice shall
18 include a summary of the information contained in the request to
19 the department.
20 Section 1502. Enforcement.
21 (a) Criminal penalty.--Any person who willfully submits a
22 false or misleading information as part of a request for
23 certification under this act commits a misdemeanor of the second
24 degree and shall, upon conviction, be sentenced to pay a fine of
25 not less than $2,500 nor more than $50,000 or to imprisonment
26 for not less than two years nor more than 20 years for each
27 separate offense, or both. Any penalties collected under this
28 section shall be deposited in the Hazardous Sites Cleanup Fund.
29 (b) Other remedies unaffected.--Nothing in this act shall
30 limit the Department of Environmental Resources' authority under
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1 applicable statutes and regulations to order or otherwise direct
2 a responsible person to conduct a response action on a site or
3 to pursue enforcement actions against responsible persons,
4 including injunctive actions and civil and criminal penalties.
5 Section 1503. Relation to other laws.
6 (a) Federal laws.--The provisions of this act shall not
7 prevent the Commonwealth from enforcing specific cleanup
8 standards or technical performance standards required to be
9 enforced by the Federal Government as a condition of primacy or
10 to receive Federal funds.
11 (b) State response actions.--This act establishes
12 requirements for response actions undertaken under the statutes
13 identified in section 104. Nothing in this act shall repeal,
14 amend or otherwise modify any provision in any other statute
15 unless expressly inconsistent with the provisions of this act.
16 Section 1504. Relation to permitting.
17 Nothing in this act shall limit or otherwise affect the
18 Department of Environmental Resources' authority under
19 applicable environmental statutes and regulations to establish
20 new or maintain or revise permitting standards and limitations
21 intended to minimize, prevent or otherwise control the release
22 of regulated substances into the waters, air, sediment and soil
23 of this Commonwealth.
24 Section 1505. Repeals.
25 The following acts and parts of acts are repealed insofar as
26 they are inconsistent with this act:
27 Section 208 of the act of July 31, 1968 (P.L.769, No.240),
28 referred to as the Commonwealth Documents Law.
29 42 Pa.C.S. § 5571(b).
30 Section 1506. Effective date.
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1 This act shall take effect in 60 days.
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