PRINTER'S NO. 2
No. 1 Session of 1995
INTRODUCED BY BRIGHTBILL, PORTERFIELD, SHAFFER, LAVALLE, MUSTO, STEWART, BELAN, JUBELIRER, LOEPER, ROBBINS, STAPLETON, STOUT, WAGNER, BAKER, AFFLERBACH, BELL, ANDREZESKI, CORMAN, BODACK, FISHER, FUMO, GERLACH, JONES, GREENLEAF, KASUNIC, HART, MELLOW, O'PAKE, HELFRICK, HOLL, TARTAGLIONE, LEMMOND, PETERSON, PUNT, RHOADES, SALVATORE, SHUMAKER, TILGHMAN, ULIANA, WENGER AND MADIGAN, JANUARY 17, 1995
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 17, 1995
AN ACT 1 Providing for the recycling of existing industrial and 2 commercial sites; further defining the cleanup liability of 3 new industries and tenants; establishing a framework for 4 setting environmental remediation standards; establishing the 5 Voluntary Cleanup Loan Fund and the Industrial Land Recycling 6 Fund to aid industrial site cleanups; assigning powers and 7 duties to the Environmental Quality Board and the Department 8 of Environmental Resources; and making repeals. 9 TABLE OF CONTENTS 10 Chapter 1. General Provisions 11 Section 101. Short title. 12 Section 102. Declaration of policy. 13 Section 103. Definitions. 14 Section 104. Powers and duties. 15 Section 105. Cleanup Standards Scientific Advisory Board. 16 Section 106. Scope. 17 Section 107. Existing standards. 18 Chapter 3. Remediation Standards and Review Procedures
1 Section 301. Remediation standards. 2 Section 302. Background standard. 3 Section 303. Statewide health standard. 4 Section 304. Site-specific standard. 5 Section 305. Special industrial areas. 6 Section 306. Privatization. 7 Section 307. Local land development controls. 8 Section 308. Immediate response. 9 Section 309. Appealable actions. 10 Chapter 5. Cleanup Liability Protection 11 Section 501. Cleanup liability protection. 12 Section 502. Special industrial sites. 13 Section 503. Existing exclusions. 14 Section 504. New liability. 15 Section 505. Reopeners. 16 Section 506. Authority reserved. 17 Chapter 7. Industrial Land Recycling Fund 18 Section 701. Industrial Land Recycling Fund. 19 Section 702. Voluntary Cleanup Loan Program. 20 Section 703. Fees. 21 Chapter 9. Miscellaneous Provisions 22 Section 901. Plain language. 23 Section 902. Permits. 24 Section 903. Future actions. 25 Section 904. Relationship to Federal and State programs. 26 Section 905. Enforcement. 27 Section 906. Past penalties. 28 Section 907. Repeals. 29 Section 908. Effective date. 30 The General Assembly of the Commonwealth of Pennsylvania 19950S0001B0002 - 2 -
1 hereby enacts as follows: 2 CHAPTER 1 3 GENERAL PROVISIONS 4 Section 101. Short title. 5 This act shall be known and may be cited as the Land 6 Recycling and Environmental Remediation Standards Act. 7 Section 102. Declaration of policy. 8 The General Assembly finds and declares as follows: 9 (1) The elimination of public health and environmental 10 hazards on existing commercial and industrial land across 11 this Commonwealth is vital to their use and reuse as sources 12 of employment, housing, recreation and open-space areas. The 13 reuse of industrial land is an important component of a sound 14 land-use policy that will help prevent the needless 15 development of prime farmland, open-space areas and natural 16 areas and reduce public costs for installing new water, sewer 17 and highway infrastructure. 18 (2) Incentives should be put in place to encourage 19 responsible persons to voluntarily develop and implement 20 cleanup plans without the use of taxpayer funds or the need 21 for adversarial enforcement actions by the Department of 22 Environmental Resources which frequently only serve to delay 23 cleanups and increase their cost. 24 (3) Public health and environmental hazards cannot be 25 eliminated without clear, predictable environmental 26 remediation standards and a process for developing those 27 standards. Any remediation standards adopted by this 28 Commonwealth must provide for the protection of public health 29 and the environment. 30 (4) It is necessary for the General Assembly to adopt a 19950S0001B0002 - 3 -
1 statute which sets environmental remediation standards to 2 provide a uniform framework for cleanup decisions because few 3 environmental statutes set cleanup standards and to avoid 4 potentially conflicting and confusing environmental 5 standards. The General Assembly also has a duty to implement 6 the provisions of section 27 of Article I of the Constitution 7 of Pennsylvania with respect to environmental remediation 8 activities. 9 (5) Cleanup plans should be based on the actual risk 10 that contamination on the site may pose to public health and 11 the environment, taking into account its future use and the 12 degree to which contamination can spread offsite and expose 13 the public or the environment to risk, not on cleanup 14 policies requiring every site in this Commonwealth to be 15 returned to a pristine condition. 16 (6) The Department of Environmental Resources now 17 routinely through its permitting policies determines when 18 contamination will and will not pose a significant risk to 19 public health or the environment. Similar concepts should be 20 used in establishing cleanup policies. 21 (7) The public is entitled to understand how remediation 22 standards are applied to a site through a plain language 23 description of contamination present on a site, the risk it 24 poses to public health and the environment and any proposed 25 cleanup measure. 26 Section 103. Definitions. 27 The following words and phrases when used in this act shall 28 have the meanings given to them in this section unless the 29 context clearly indicates otherwise: 30 "Agricultural chemical." A substance defined as a 19950S0001B0002 - 4 -
1 fertilizer, soil conditioner or plant growth substance under the 2 act of May 29, 1956 (P.L.1795, No.598), known as the 3 Pennsylvania Fertilizer, Soil Conditioner and Plant Growth 4 Substance Law, or a substance regulated under the act of March 5 1, 1974 (P.L.90, No.24), known as the Pennsylvania Pesticide 6 Control Act of 1973. 7 "Agricultural chemical facility." A facility where 8 agricultural chemicals are held, stored, blended, formulated, 9 sold or distributed. The term does not include facilities 10 identified by SIC 2879 where agricultural chemicals are 11 manufactured. 12 "Aquifer." A geologic formation, group of formations or part 13 of a formation capable of a sustainable yield of significant 14 amount of water to a well or spring. 15 "Background." The concentration of a regulated substance 16 determined by appropriate statistical methods that is present on 17 the site, but is not related to the release of regulated 18 substances at the site. 19 "BADCT" or "Best Available Demonstrated Control Technology." 20 The commercially available engineering technology which has 21 demonstrated at full scale on a consistent basis that it most 22 effectively achieves the standard for a remediation action for a 23 regulated substance at a contaminated site under similar 24 applications. 25 "Board." The Cleanup Standards Scientific Advisory Board 26 established in section 105. 27 "Carcinogen." A chemical, biological or physical agent 28 defined by the Environmental Protection Agency as a human 29 carcinogen. 30 "Contaminant." A regulated substance released into the 19950S0001B0002 - 5 -
1 environment. 2 "Control." To apply engineering measures, such as capping or 3 treatment, or institutional measures, such as deed restrictions, 4 to sites with contaminated media. 5 "Department." The Department of Environmental Resources of 6 the Commonwealth or its successor agency. 7 "Engineering controls." Remedial actions directed 8 exclusively toward containing or controlling the migration of 9 regulated substances through the environment. These include, but 10 are not limited to, slurry walls, liner systems, caps, leachate 11 collection systems and groundwater recovery trenches. 12 "EPA." The Environmental Protection Agency or its successor 13 agency. 14 "Fate and transport." A term used to describe the 15 degradation of a chemical over time, and where chemicals are 16 likely to move given their physical and other properties and the 17 environmental medium they are moving through. 18 "Groundwater." Water below the land surface in a zone of 19 saturation. 20 "Hazard index." The sum of more than one hazard quotient for 21 multiple substances and multiple exposure pathways. The hazard 22 index is calculated separately for chronic, subchronic and 23 shorter duration exposures. 24 "Hazard quotient." The ratio of a single substance exposure 25 level over a specified period, e.g. subchronic, to a reference 26 dose for that substance derived from a similar exposure period. 27 "Hazardous Sites Cleanup Fund." The fund established under 28 the act of October 18, 1988 (P.L.756, No.108), known as the 29 Hazardous Sites Cleanup Act. 30 "Health advisory levels" or "HALs." The health advisory 19950S0001B0002 - 6 -
1 levels published by the United States Environmental Protection 2 Agency for particular substances. 3 "Industrial activity." Commercial, manufacturing, public 4 utility, mining or any other activity done to further either the 5 development, manufacturing or distribution of goods and 6 services, including, but not limited to, administration of 7 business activities, research and development, warehousing, 8 shipping, transport, remanufacturing, stockpiling, storage, 9 solid waste management, repair and maintenance of raw materials, 10 intermediate and final products and solid waste created during 11 such activities, commercial machinery and equipment. 12 "Institutional controls." A measure undertaken to limit or 13 prohibit certain activities that may interfere with the 14 integrity of a remedial action or result in exposure to 15 regulated substances at a site. These include, but are not 16 limited to, fencing or restrictions on the future use of the 17 site. 18 "Medium-specific concentration." The concentration 19 associated with a specified environmental medium for potential 20 risk exposures. 21 "Mitigation measures." Any remediation action performed by a 22 person prior to or during implementation of a remediation plan 23 with the intent to protect human health and the environment. 24 "Municipality." A township, borough, city, incorporated 25 village or home rule municipality. This term shall not include a 26 county. 27 "Nonresidential property." Any real property on which 28 commercial, industrial, manufacturing or any other activity is 29 done to further either the development, manufacturing or 30 distribution of goods and services, including, but not limited 19950S0001B0002 - 7 -
1 to, administration of business activities, research and 2 development, warehousing, shipping, transport, remanufacturing, 3 stockpiling of raw materials, storage, repair and maintenance of 4 commercial machinery and equipment or intermediate and final 5 products and solid waste management. This term shall not include 6 schools, nursing homes or other residential-style facilities. 7 "Person." An individual, firm, corporation, association, 8 partnership, consortium, joint venture, commercial entity, 9 authority, nonprofit corporation, interstate body or other legal 10 entity which is recognized by law as the subject of rights and 11 duties. The term includes the Federal Government, State 12 government, political subdivisions and Commonwealth 13 instrumentalities. 14 "Point of compliance." For the purposes of determining 15 compliance with groundwater standards, the property boundary at 16 the time the area of contamination is defined or such point 17 beyond the property boundary as the Department of Environmental 18 Resources may determine to be appropriate. 19 "Practical quantitation limit." The lowest limit that can be 20 reliably achieved within specified limits of precision and 21 accuracy under routine laboratory conditions for a specified 22 matrix and based on quantitation, precision and accuracy, normal 23 operation of a laboratory and the practical need in a 24 compliance-monitoring program to have a sufficient number of 25 laboratories available to conduct the analyses. 26 "Public utility." The term shall have the same meaning as 27 given to it in 66 Pa.C.S. (relating to public utilities). 28 "Regulated substance." The term shall include hazardous 29 substances regulated under the act of October 18, 1988 (P.L.756, 30 No.108), known as the Hazardous Sites Cleanup Act, and 19950S0001B0002 - 8 -
1 substances covered by the act of June 22, 1937 (P.L.1987, 2 No.394), known as The Clean Streams Law, the act of January 8, 3 1960 (1959 P.L.2119, No.787), known as the Air Pollution Control 4 Act, the act of July 7, 1980 (P.L.380, No.97), known as the 5 Solid Waste Management Act, the act of July 13, 1988 (P.L.525, 6 No.93), referred to as the Infectious and Chemotherapeutic Waste 7 Law, and the act of July 6, 1989 (P.L.169, No.32), known as the 8 Storage Tank and Spill Prevention Act. 9 "Release." Spilling, leaking, pumping, pouring, emitting, 10 emptying, discharging, injecting, escaping, leaching, dumping or 11 disposing of a regulated substance into the environment in a 12 manner not authorized by the Department of Environmental 13 Resources. The term includes the abandonment or discarding of 14 barrels, containers, vessels and other receptacles containing a 15 regulated substance. 16 "Remediation." To clean up, mitigate, correct, abate, 17 minimize, eliminate, control or prevent a release of a regulated 18 substance into the environment in order to protect the present 19 or future public health, safety, welfare or the environment, 20 including preliminary actions to study or assess the release. 21 "Residential property." Any property or portion of the 22 property which does not meet the definition of "nonresidential 23 property." 24 "Responsible person." The term shall have the same meaning 25 as given to it in the act of October 18, 1988 (P.L.756, No.108), 26 known as the Hazardous Sites Cleanup Act, and shall include a 27 person subject to enforcement actions for substances covered by 28 the act of June 22, 1937 (P.L.1987, No.394), known as The Clean 29 Streams Law, the act of January 8, 1960 (1959 P.L.2119, No.787), 30 known as the Air Pollution Control Act, the act of July 7, 1980 19950S0001B0002 - 9 -
1 (P.L.380, No.97), known as the Solid Waste Management Act, the 2 act of July 13, 1988 (P.L.525, No.93), referred to as the 3 Infectious and Chemotherapeutic Waste Law, and the act of July 4 6, 1989 (P.L.169, No.32), known as the Storage Tank and Spill 5 Prevention Act. 6 "Secretary." The Secretary of Environmental Resources of the 7 Commonwealth. 8 "Site." The extent of contamination originating within the 9 property boundaries and all areas in close proximity to the 10 contamination necessary for the implementation of remediation 11 activities to be conducted under this act. 12 "Systemic toxicant." A material that manifests its toxic 13 effect in humans in a form other than cancer. 14 "Treatment." The term shall have the same meaning as given 15 to it in the act of October 18, 1988 (P.L.756, No.108), known as 16 the Hazardous Sites Cleanup Act. 17 Section 104. Powers and duties. 18 (a) Environmental Quality Board.--The Environmental Quality 19 Board shall have the power and its duty shall be to adopt by 20 regulation Statewide health standards, appropriate 21 mathematically valid statistical tests to define compliance with 22 this act and other regulations that may be needed to implement 23 the provisions of this act. Any regulations needed to implement 24 this act shall be proposed by the department no later than 12 25 months after the effective date of this act and shall be 26 finalized no later than 24 months after the effective date of 27 this act, unless otherwise specified in this act. 28 (b) Department.--The department shall have the power and its 29 duty shall be to implement the provisions of this act. 30 Section 105. Cleanup Standards Scientific Advisory Board. 19950S0001B0002 - 10 -
1 (a) Establishment.--There is hereby created a 13-member 2 Cleanup Standards Scientific Advisory Board for the purpose of 3 assisting the department and the Environmental Quality Board in 4 developing Statewide health standards, determining the 5 appropriate statistically and scientifically valid procedures to 6 be used, determining the appropriate risk factors and providing 7 other technical and scientific advice as needed to implement the 8 provisions of this act. 9 (b) Membership.--Five members shall be appointed by the 10 secretary and two members each by the President pro tempore of 11 the Senate, the Minority Leader of the Senate, the Speaker of 12 the House of Representatives and the Minority Leader of the 13 House of Representatives. Members shall have a background in 14 engineering, biology, hydrogeology, statistics, medicine, 15 chemistry, toxicology or other related scientific education or 16 experience that relates to problems and issues likely to be 17 encountered in developing health-based cleanup standards and 18 other procedures needed to implement the provisions of this act. 19 The board membership shall include representatives of local 20 government, the public, the academic community, professionals 21 with the appropriate background and the regulated community 22 (manufacturing, small business and other members of the business 23 community). The members shall serve for a period of four years. 24 The initial terms of the members shall be staggered so that at 25 least one-half of the members' terms expire in two years. 26 (c) Organization.--The board shall elect a chairperson by 27 majority vote and may adopt any bylaws or procedures it deems 28 necessary to accomplish its purpose. Recommendations, positions 29 or other actions of the board shall be by a majority of its 30 members. 19950S0001B0002 - 11 -
1 (d) Expenses.--Members of the board shall be reimbursed for 2 their travel expenses to attend meetings as authorized by the 3 executive board. 4 (e) Support.--The department shall provide the appropriate 5 administrative and technical support needed by the board in 6 order to accomplish its purpose, including support for surveys 7 and technical studies the board may wish to undertake. The 8 department shall publish a notice of meeting dates, times and 9 locations and a list of topics to be discussed at any meeting no 10 less than 14 days prior to the meeting, published in the same 11 manner as required by the act of July 3, 1986 (P.L.388, No.84), 12 known as the Sunshine Act. 13 (f) Interested persons list.--The department shall maintain 14 a mailing list of persons interested in receiving notice of 15 meetings and the activities of the board. The department shall 16 name a contact person to be responsible for board meetings and 17 to serve as a contact for the public to ask questions and get 18 information about the board. 19 (g) Access to documents.--The board shall have access to all 20 policies and procedures, draft proposed or final regulations or 21 issue papers which the board determines are necessary to 22 achieving its purpose. 23 Section 106. Scope. 24 The environmental remediation standards established under 25 this act shall be used whenever site remediation and cleanup is 26 conducted under the act of June 22, 1937 (P.L.1987, No.394), 27 known as The Clean Streams Law, the act of January 8, 1960 (1959 28 P.L.2119, No.787), known as the Air Pollution Control Act, the 29 act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste 30 Management Act, the act of July 13, 1988 (P.L.525, No.93), 19950S0001B0002 - 12 -
1 referred to as the Infectious and Chemotherapeutic Waste Law, 2 the act of October 18, 1988 (P.L.756, No.108), known as the 3 Hazardous Sites Cleanup Act, and the act of July 6, 1989 4 (P.L.169, No.32), known as the Storage Tank and Spill Prevention 5 Act, to be eligible for cleanup liability protection under 6 Chapter 5. 7 Section 107. Existing standards. 8 (a) General rule.--The department may continue to use 9 cleanup standards not adopted under the provisions of this act 10 for a period of up to three years after the effective date of 11 this act, unless such existing standards are revised or replaced 12 by regulations adopted under this act. All regulations, 13 policies, guidance documents and procedures relating to 14 remediation which were not adopted under the provisions of this 15 act shall expire three years after the effective date of this 16 act. The standards established in sections 302, 303(b)(3) and 17 304 shall be available for use on the effective date of this act 18 and shall supersede existing regulations, policies, guidance 19 documents and procedures. 20 (b) Agreements and consent orders.--The standards 21 established under this act are not intended to impose more 22 stringent cleanup standards than those which are contained in 23 any prior administrative consent order, consent adjudication, 24 judicially approved consent order, or other settlement agreement 25 entered into with the department under the authority of any of 26 the statutes referred to in section 104 and which were entered 27 into with the department on or before the effective date of this 28 act, unless all parties thereto agree to such change. 29 CHAPTER 3 30 REMEDIATION STANDARDS AND REVIEW PROCEDURES 19950S0001B0002 - 13 -
1 Section 301. Remediation standards. 2 (a) Standards.--Any person who proposes to respond to the 3 release of a regulated substance at a site and to be eligible 4 for the cleanup liability protection under Chapter 5 shall 5 select and attain compliance with one or more of the following 6 environmental standards when conducting remediation activities: 7 (1) a background standard which achieves background or 8 the practical quantitation limit as further specified in 9 section 302; 10 (2) a Statewide health standard adopted by the 11 Environmental Quality Board which achieves a uniform 12 Statewide health-based level so that any substantial present 13 or probable future risk to human health and the environment 14 is eliminated as specified in section 303; or 15 (3) a site-specific standard which achieves remediation 16 levels based on a site-specific risk assessment so that any 17 substantial present or probable future risk to human health 18 and the environment is eliminated or reduced to protective 19 levels based upon the present or currently planned future use 20 of the property comprising the site as specified in section 21 304. 22 (b) Combination of standards.--A person may use a 23 combination of the remediation standards to implement a site 24 remediation plan and may propose to use the site-specific 25 standard whether or not efforts have been made to attain the 26 background or Statewide health standard. 27 Section 302. Background standard. 28 (a) Standard.--Persons selecting the background standard 29 shall meet a standard that is the greater of either of the 30 following concentrations for each regulated substance in each 19950S0001B0002 - 14 -
1 environmental medium: 2 (1) background as represented by the results of analyses 3 of representative samples; or 4 (2) the achievable practical quantitation limit. 5 (b) Attainment.--Final certification that a site or portion 6 of a site meets the background standard shall be documented in 7 the following manner: 8 (1) Attainment of the background standard shall be 9 demonstrated by collection and analysis of representative 10 samples from environmental media of concern, including soils 11 and groundwater in aquifers in the area where the 12 contamination occurs through the application of statistical 13 tests set forth in regulation or, if no regulations have been 14 adopted, in a demonstration of a mathematically valid 15 application of statistical tests. The Department of 16 Environmental Resources shall also recognize those methods of 17 attainment demonstration generally recognized as appropriate 18 for that particular remediation. 19 (2) A final report that documents attainment of the 20 background standard shall be submitted to the department 21 which includes, as appropriate: 22 (i) The descriptions of procedures and conclusions 23 of the site investigation to characterize the nature, 24 extent, direction, volume and composition. 25 (ii) The basis for selecting environmental media of 26 concern, descriptions of removal or decontamination 27 procedures performed in remediation, summaries of 28 sampling methodology and analytical results which 29 demonstrate that remediation has attained the background 30 standard. 19950S0001B0002 - 15 -
1 (3) Where remediation measures do not involve removal or 2 treatment of a contaminant to the background standard, the 3 final report shall demonstrate that any remaining 4 contaminants on the site will meet Statewide health standards 5 and show compliance with any postremediation care 6 requirements that may be needed to maintain compliance with 7 the Statewide health standards. 8 (4) Institutional controls such as fencing and future 9 land use restrictions on a site may not be used to attain the 10 background standard. Institutional controls may be used to 11 maintain the background standard after remediation occurs. 12 (c) Authority reserved.--If a person fails to demonstrate 13 attainment of the background standard, the department may 14 require that additional remediation measures be taken in order 15 to meet the background standard or the person may select to meet 16 the requirements of section 303 or 304. 17 (d) Deed notice.--Persons attaining and demonstrating 18 compliance with the background standard for all regulated 19 substances throughout a site shall not be subject to the deed 20 acknowledgment requirements of the act of July 7, 1980 (P.L.380, 21 No.97), known as the Solid Waste Management Act, or the act of 22 October 18, 1988 (P.L.756, No.108), known as the Hazardous Sites 23 Cleanup Act. An existing acknowledgment contained in a deed 24 prior to demonstrating compliance with the background standard 25 may be removed. 26 (e) Notice and review provisions.--Persons utilizing the 27 background standard shall comply with the following requirements 28 for notifying the public and the department of planned 29 remediation activities: 30 (1) Notice of intent to initiate remediation activities 19950S0001B0002 - 16 -
1 shall be made in the following manner: 2 (i) A notice of intent to remediate a site shall be 3 submitted to the department which, to the extent known, 4 provides a brief description of the location of the site, 5 a listing of the contaminant or contaminants involved, a 6 description of the intended future use of the property 7 for employment opportunities, housing, open space, 8 recreation or other uses, and the proposed remediation 9 measures. The department shall publish an acknowledgment 10 noting receipt of the notice of intent in the 11 Pennsylvania Bulletin. 12 (ii) At the same time a notice of intent to 13 remediate a site is submitted to the department, a copy 14 of the notice shall be provided to the municipality in 15 which the site is located and a summary of the notice of 16 intent shall be published in a newspaper of general 17 circulation serving the area in which the site is 18 located. 19 (2) Notice of the submission of the final report 20 demonstrating attainment of the background standard shall be 21 given to the municipality in which the remediation site is 22 located, published in a newspaper of general circulation 23 serving the area and in the Pennsylvania Bulletin. 24 (3) The department shall review the final report 25 demonstrating attainment of the background standard within 60 26 days of its receipt or notify the person submitting the 27 report of substantive deficiencies. If the department does 28 not respond with deficiencies within 60 days, the final 29 report shall be deemed approved. 30 (4) The notices provided for in paragraphs (1) and (2) 19950S0001B0002 - 17 -
1 are not required to be made or published if the person 2 conducting the remediation submits the final report 3 demonstrating attainment of the background standard as 4 required by this section within 90 days of the release. If 5 the final report demonstrating attainment is not submitted to 6 the department within 90 days of the release, all notices and 7 procedures required by this section shall apply. This 8 paragraph is only applicable to releases occurring after the 9 effective date of this act. 10 Section 303. Statewide health standard. 11 (a) Standard.--The Environmental Quality Board shall 12 promulgate Statewide health standards for regulated substances 13 for each environmental medium. The standards shall include any 14 existing numerical residential and nonresidential health-based 15 standards adopted by the department and by the Federal 16 Government, including health advisory levels, by regulation or 17 statute. For those health-based standards not already 18 established by regulation, the department shall, by regulation, 19 propose residential and nonresidential medium-specific 20 concentrations within 12 months of the effective date of this 21 act. The Environmental Quality Board shall also promulgate, 22 along with the standards, the methods used to calculate the 23 standards. Standards adopted under this section shall be no more 24 stringent than those standards adopted by the Federal 25 Government. 26 (b) Medium-specific requirements.--The following 27 requirements shall be used in defining a medium-specific 28 concentration limit: 29 (1) Any discharge or release into surface water 30 occurring during or after attainment of the Statewide health 19950S0001B0002 - 18 -
1 standard shall comply with applicable laws and regulations 2 relating to surface water discharges. 3 (2) Any emissions to the outdoor air occurring during or 4 after attainment of the Statewide health standard shall 5 comply with applicable laws and regulations relating to 6 emissions into the outdoor air. 7 (3) The concentration of a regulated substance in 8 groundwater in aquifers used or currently planned to be used 9 for drinking water or for agricultural purposes shall comply 10 with the maximum contaminant level or health advisory level 11 established for drinking water. Where no maximum contaminant 12 level or health advisory level has been established, the 13 ingestion medium-specific concentration level for residential 14 exposure shall be used. If the groundwater at the site has 15 naturally occurring background total dissolved solids 16 concentrations greater than 2,500 milligrams per liter, the 17 remediation standard for a regulated substance dissolved in 18 the groundwater may be adjusted by multiplying the medium- 19 specific concentration for groundwater in aquifers by 100. 20 The resulting value becomes the maximum contaminant level for 21 groundwater. 22 (4) For the residential standard, the concentration of a 23 regulated substance in soil shall not exceed either the 24 direct contact soil medium-specific concentration based on 25 residential exposure factors within a depth of 15 feet from 26 the existing ground surface, or the soil-to-groundwater 27 pathway numeric value throughout the soil column, the latter 28 to be determined by any one of the following methods: 29 (i) A value which is 100 times the medium-specific 30 concentration for groundwater. 19950S0001B0002 - 19 -
1 (ii) A concentration in soil at the site that does 2 not produce a leachate in excess of the medium-specific 3 concentrations for groundwater in the aquifer when 4 subjected to the Synthetic Precipitation Leaching 5 Procedures, Method 1312 of SW 846, Test Methods for 6 Evaluating Solid Waste, promulgated by the United States 7 Environmental Protection Agency. 8 (iii) A generic value determined not to produce a 9 concentration in groundwater in the aquifer in excess of 10 the medium-specific concentration for groundwater based 11 on a valid, peer-reviewed scientific method which 12 properly accounts for factors affecting the fate, 13 transport and attenuation of the regulated substance 14 throughout the soil column. 15 (5) For the nonresidential standard, the concentration 16 of a regulated substance in soil within a depth of 15 feet 17 from the existing ground surface shall not exceed either the 18 direct contact soil medium-specific concentration based on 19 nonresidential exposure factors using valid scientific 20 methods reflecting worker exposure or the soil to groundwater 21 pathway numeric value determined in accordance with paragraph 22 (4). 23 (6) The concentration of a regulated substance 24 throughout the soil column shall not exceed the lower of the 25 soil medium-specific concentration based on residential 26 exposure factors or the soil-to-groundwater pathway numeric 27 value determined by the following: 28 (i) A value which is 100 times the medium-specific 29 concentration for groundwater. 30 (ii) A concentration in soil that does not produce a 19950S0001B0002 - 20 -
1 leachate in excess of medium-specific concentrations for 2 groundwater when subjected to the Synthetic Precipitation 3 Leaching Procedures, Method 1312 of SW 846, Test Methods 4 for Evaluating Solid Waste, promulgated by EPA. Other 5 test methods that accurately simulate conditions at the 6 site may be used in the demonstration in place of this 7 method. 8 (7) Exposure scenarios for medium-specific 9 concentrations for nonresidential conditions shall be 10 established using valid scientific methods reflecting worker 11 exposure. 12 (c) Additional limits.--For those regulated substances where 13 medium-specific concentration limits cannot be established using 14 the procedures in subsection (b), the medium-specific 15 concentration limits for the ingestion of groundwater, 16 inhalation of soils, ingestion and inhalation of volatiles and 17 particulates from the soils shall be calculated by the 18 department using valid scientific methods, reasonable exposure 19 pathway assumptions and exposure factors for residential and 20 nonresidential land use which are no more stringent than the 21 standard default exposure factors established by EPA based on 22 the following levels of risk: 23 (1) For a regulated substance which is a carcinogen, the 24 medium-specific concentration is the concentration which 25 represents an excess upper bound lifetime cancer target risk 26 of between 1 in 10,000 and 1 in 1,000,000 due to continuous 27 lifetime exposure for residential scenarios and a 28 noncontinuous exposure for nonresidential exposure scenarios. 29 (2) For a regulated substance which is a systemic 30 toxicant, the medium-specific concentration is the 19950S0001B0002 - 21 -
1 concentration to which human populations could be exposed by 2 direct ingestion or inhalation on a daily basis without 3 appreciable risk of deleterious effects for the exposed 4 population. 5 (d) Relationship to background.--The concentration of a 6 regulated substance in an environmental media of concern on a 7 site where the Statewide health standard has been selected shall 8 not be required to meet the Statewide health standard if the 9 Statewide health standard is numerically less than the 10 achievable practical quantitative limit. In such cases, the 11 achievable practical quantitative limit shall apply. 12 (e) Attainment.--Final certification that a site or portion 13 of a site meets the Statewide health standard shall be 14 documented in the following manner: 15 (1) Attainment of cleanup levels shall be demonstrated 16 by collection and analysis of representative samples from the 17 environmental medium of concern, including soils, and 18 groundwater in aquifers at the point of compliance through 19 the application of statistical tests set forth in regulation 20 or, if no regulations have been adopted, in a demonstration 21 of a mathematically valid application of statistical tests. 22 The Department of Environmental Resources shall also 23 recognize those methods of attainment demonstration generally 24 recognized as appropriate for that particular remediation. 25 (2) A final report that documents attainment of the 26 Statewide health standard shall be submitted to the 27 department which includes the descriptions of procedures and 28 conclusions of the site investigation to characterize the 29 nature, extent, direction, rate of movement off the site and 30 cumulative effects, if any, volume, composition, 19950S0001B0002 - 22 -
1 concentration of contaminants in environmental media, the 2 basis for selecting environmental media of concern, 3 documentation supporting the selection of residential or 4 nonresidential exposure factors, descriptions of removal or 5 decontamination procedures performed in remediation, 6 summaries of sampling methodology and analytical results 7 which demonstrate that contaminants have been removed or 8 decontaminated to applicable levels and documentation of 9 compliance with postremediation care requirements if they are 10 needed to maintain the Statewide health standard. 11 (3) Institutional controls such as fencing and future 12 land use restrictions on a site may not be used to attain the 13 Statewide health standard. Institutional controls may be used 14 to maintain the Statewide health standard after remediation 15 occurs. 16 (f) Authority reserved.--If a person fails to demonstrate 17 attainment of the Statewide health standard, the department may 18 require that additional remediation measures be taken in order 19 to meet the health standard or the person may select to meet the 20 requirements of section 302 or 304. 21 (g) Deed notice.--Persons attaining and demonstrating 22 compliance with the Statewide health standard considering 23 residential exposure factors for a regulated substance on the 24 entire site shall not be subject to the deed acknowledgment 25 requirements of the act of July 7, 1980 (P.L.380, No.97), known 26 as the Solid Waste Management Act, or the act of October 18, 27 1988 (P.L.756, No.108), known as the Hazardous Sites Cleanup 28 Act. An existing acknowledgment contained in a deed prior to 29 demonstrating compliance with the residential Statewide health 30 standard may be removed. The deed acknowledgment requirements 19950S0001B0002 - 23 -
1 shall apply where nonresidential exposure factors were used to 2 comply with the Statewide health standard. 3 (h) Notice and review provisions.--Persons utilizing the 4 Statewide health standard shall comply with the following 5 requirements for notifying the public and the department of 6 planned remediation activities: 7 (1) Notice of intent to initiate remediation activities 8 shall be made in the following manner: 9 (i) A notice of intent to remediate a site shall be 10 submitted to the department which provides, to the extent 11 known, a brief description of the location of the site, a 12 listing of the contaminant or contaminants involved, a 13 description of the intended future use of the property 14 for employment opportunities, housing, open space, 15 recreation or other uses and the proposed remediation 16 measures. The department shall publish an acknowledgment 17 noting receipt of the notice of intent in the 18 Pennsylvania Bulletin. 19 (ii) At the same time a notice of intent to 20 remediate a site is submitted to the department, a copy 21 of the notice shall be provided to the municipality in 22 which the site is located and a summary of the notice of 23 intent shall be published in a newspaper of general 24 circulation serving the area in which the site is 25 located. 26 (2) Notice of the submission of the final report 27 demonstrating attainment of the Statewide health standard 28 shall be given to the municipality in which the remediation 29 site is located, published in a newspaper of general 30 circulation serving the area and in the Pennsylvania 19950S0001B0002 - 24 -
1 Bulletin. 2 (3) The department shall review the final report 3 demonstrating attainment of the Statewide health standard 4 within 60 days of its receipt or notify the person submitting 5 the report of substantive deficiencies. If the department 6 does not respond with deficiencies within 60 days, the final 7 report shall be deemed approved. 8 (4) The notices provided for in paragraphs (1) and (2) 9 are not required to be made or published if the person 10 conducting the remediation submits the final report 11 demonstrating attainment of the Statewide health standard as 12 required by this section within 90 days of the release. If 13 the final report demonstrating attainment is not submitted to 14 the department within 90 days of the release, all notices and 15 procedures required by this section shall apply. This 16 paragraph is only applicable to releases occurring after the 17 effective date of this act. 18 Section 304. Site-specific standard. 19 (a) General.--Where a site-specific standard is selected as 20 the environmental remediation standard or where the background 21 or Statewide health standard is selected but not achieved, site 22 investigation, risk assessment, cleanup plans and final reports 23 shall be developed using the procedures and factors established 24 by this section. 25 (b) Carcinogens.--For known or suspected carcinogens, soil 26 and groundwater cleanup standards shall be established at 27 exposures which represent an excess upper-bound lifetime risk of 28 between 1 in 10,000 and 1 in 1,000,000. The cumulative excess 29 risk to exposed populations, including sensitive subgroups, 30 shall not be greater than 1 in 10,000. 19950S0001B0002 - 25 -
1 (c) Systemic toxicants.--For systemic toxicants, soil and 2 groundwater cleanup standards shall represent levels to which 3 the human population could be exposed on a daily basis without 4 appreciable risk of deleterious effect to the exposed 5 population. Where several systemic toxicants affect the same 6 target organ or act by the same method of toxicity, the hazard 7 index shall not exceed one. The hazard index is the sum of the 8 hazard quotients for multiple systemic toxicants acting through 9 a single-medium exposure pathway or through multiple-media 10 exposure pathways. 11 (d) Groundwater.--Cleanup standards for groundwater shall be 12 established using the following considerations: 13 (1) For groundwater in aquifers, site-specific standards 14 shall be established using the following procedures: 15 (i) The current and probable future use of 16 groundwater shall be identified and protected. 17 Groundwater that has a background total dissolved solids 18 content greater than 2,500 milligrams per liter or is not 19 capable of transmitting water to a pumping well in usable 20 and sustainable quantities shall not be considered a 21 current or potential source of drinking water. 22 (ii) Site-specific sources of contaminants and 23 potential receptors shall be identified. 24 (iii) Natural environmental conditions affecting the 25 fate and transport of contaminants, such as natural 26 attenuation, shall be determined by appropriate 27 scientific methods. 28 (2) Groundwater not in aquifers shall be evaluated using 29 current or probable future exposure scenarios. Appropriate 30 management actions shall be instituted at the point of 19950S0001B0002 - 26 -
1 exposure where a person is exposed to groundwater by 2 ingestion or other avenues to protect human health and the 3 environment. This shall not preclude taking appropriate 4 source management actions by the responsible party to achieve 5 the equivalent level of protection. 6 (e) Soil.--Concentrations of regulated substances in soil 7 shall not exceed: values calculated in accordance with 8 subsections (b) and (c) based on human ingestion of soil where 9 direct contact exposure to the soil may reasonably occur; values 10 calculated to protect groundwater in aquifers at levels 11 determined in accordance with subsections (b), (c) and (d); and 12 values calculated to satisfy the requirements of subsection (g) 13 with respect to discharges or releases to surface water or 14 emissions to the outdoor air. Such determinations shall take 15 into account the effects of institutional and engineering 16 controls, if any, and shall be based on sound scientific 17 principles, including fate and transport analysis of the 18 migration of a regulated substance in relation to receptor 19 exposures. 20 (f) Factors.--In determining soil and groundwater cleanup 21 standards under subsections (d) and (e), the following factors 22 shall also be considered: 23 (1) Use of appropriate standard exposure factors for the 24 land use of the site with reference to current and currently 25 planned future land use and the effectiveness of 26 institutional or legal controls placed on the future use of 27 the land. 28 (2) Use of appropriate statistical techniques, 29 including, but not limited to, Monte Carlo simulations, to 30 establish statistically valid cleanup standards. 19950S0001B0002 - 27 -
1 (3) The potential of human ingestion of regulated 2 substances in surface water or other site-specific surface 3 water exposure pathways, if applicable. 4 (4) The potential of human inhalation of regulated 5 substances from the outdoor air and other site-specific air 6 exposure pathways, if applicable. 7 (g) Air and surface water.--Any discharge into surface water 8 or any emissions to the outdoor air which occur during or after 9 attainment of the site-specific standard shall comply with 10 applicable laws and regulations relating to surface water 11 discharges or emissions into the outdoor air, unless the site 12 investigation and site assessment demonstrate, using the latest 13 peer-reviewed toxicological data, that a standard other than 14 those in applicable laws and regulations would protect public 15 health and the environment. 16 (h) Relationship to background.--The concentration of a 17 regulated substance in an environmental medium of concern on a 18 site where the site-specific standard has been selected shall 19 not be required to meet the site-specific standard if the site- 20 specific standard is numerically less than the achievable 21 practical quantitative limit. In such cases, the achievable 22 practical quantitative limit shall apply. 23 (i) Combination of measures.--The standards may be attained 24 through a combination of remediation activities that can include 25 treatment, removal, engineering or institutional controls and 26 can include innovative or other demonstrated measures. 27 (j) Remedy evaluation.--The final remediation plan for a 28 site submitted to the department shall include remediation 29 alternatives and a final remedy which consider each of the 30 following factors: 19950S0001B0002 - 28 -
1 (1) Long-term risks and effectiveness of the proposed 2 remedy that includes an evaluation of: 3 (i) The magnitude of risks remaining after 4 completion of the remedial action. 5 (ii) The type, degree and duration of 6 postremediation care required, including, but not limited 7 to, operation and maintenance, monitoring, inspections 8 and reports and their frequencies or other activities 9 which will be necessary to protect human health and the 10 environment. 11 (iii) Potential for exposure of human and 12 environmental receptors to regulated substances remaining 13 at the site. 14 (iv) Long-term reliability of any engineering and 15 voluntary institutional controls. 16 (v) Potential need for repair, maintenance or 17 replacement of components of the remedy. 18 (vi) Time to achieve cleanup standards. 19 (2) Reduction of the toxicity, mobility or volume of 20 regulated substances, including the amount of regulated 21 substances that will be removed, contained, treated or 22 destroyed, the degree of expected reduction in toxicity, 23 mobility or volume and the type, quantity, toxicity and 24 mobility of regulated substances remaining after 25 implementation of the remedy. 26 (3) Short-term risks and effectiveness of the remedy, 27 including the short-term risks that may be posed to the 28 community, workers or the environment during implementation 29 of the remedy and the effectiveness and reliability of 30 protective measures to address short-term risks. 19950S0001B0002 - 29 -
1 (4) The ease or difficulty of implementing the proposed 2 remedy, including commercially available remedial measures 3 which are BADCT, degree of difficulty associated with 4 constructing the remedy, expected operational reliability, 5 available capacity and location of needed treatment, storage 6 and disposal services for wastes, time to initiate remedial 7 efforts and approvals necessary to implement the remedial 8 efforts. 9 (5) The cost of the remediation measure, including 10 capital costs, operation and maintenance costs, net present 11 value of capital and operation and maintenance costs and the 12 total costs and effectiveness of the system. 13 (6) The incremental health and economic benefits shall 14 be evaluated by comparing those benefits to the incremental 15 health and economic costs associated with implementation of 16 remedial measures. 17 (k) Attainment.--Compliance with the site-specific standard 18 is attained for a site or portion of a site when a remedy 19 approved by the department has been implemented in compliance 20 with the following criteria: 21 (1) Soil, groundwater, surface water and air emission 22 standards as determined under subsections (a) through (h) 23 have been attained. 24 (2) Attainment of the site-specific standard shall be 25 demonstrated by collection and analysis of samples from 26 affected media, as applicable, such as surface water, soil, 27 groundwater in aquifers at the point of compliance through 28 the application of statistical tests set forth in regulation 29 or, if no regulations have been adopted, in a demonstration 30 of a mathematically valid application of statistical tests. 19950S0001B0002 - 30 -
1 The Department of Environmental Resources shall also 2 recognize those methods of attainment demonstration generally 3 recognized as appropriate for that particular remediation. 4 (l) Site investigation and remedy selection.--Any person 5 selecting to comply with site-specific standards established by 6 this section shall submit the following reports and evaluations, 7 as required under this section, for review and approval by the 8 department: 9 (1) A remedial investigation report shall be submitted 10 which includes: 11 (i) Documentation and descriptions of procedures and 12 conclusions from the site investigation to characterize 13 the nature, extent, direction, rate of movement, volume 14 and composition of regulated substances. 15 (ii) The concentration of regulated substances in 16 environmental media of concern, including summaries of 17 sampling methodology and analytical results, and 18 information obtained from attempts to comply with the 19 background or Statewide health standards, if any. 20 (iii) A description of the existing or potential 21 public benefits of the use or reuse of the property for 22 employment opportunities, housing, open space, recreation 23 or other uses. 24 (iv) A fate and transport analysis may be included 25 in the report to demonstrate that no present or future 26 exposure pathways exist. 27 (v) If no exposure pathways exist, a risk assessment 28 report and cleanup plan are not required and no remedy is 29 required to be proposed or completed. 30 (2) If required, a risk assessment report shall describe 19950S0001B0002 - 31 -
1 the potential adverse effects under both current and planned 2 future conditions caused by the presence of a regulated 3 substance in the absence of any further control, remediation 4 or mitigation measures. A baseline risk assessment report is 5 not required where it is determined that a specific 6 remediation measure can be implemented to attain the site- 7 specific standard. 8 (3) A cleanup plan shall evaluate the relative abilities 9 and effectiveness of potential remedies to achieve the 10 requirements for remedies described in subsection (k) when 11 considering the evaluation factors described in subsection 12 (j). The plan shall select a remedy which achieves the 13 requirements for remedies described in subsection (k). The 14 department may require a further evaluation of the selected 15 remedy or an evaluation of one or more additional remedies in 16 response to comments received from the community surrounding 17 the site as a result of the community involvement plan 18 established in subsection (o) which are based on the factors 19 described in subsection (j) or as a result of its own 20 analysis which are based on the evaluation factors described 21 in subsection (j). 22 (4) A final report demonstrating that the approved 23 remedy has been completed in accordance with the cleanup plan 24 shall be submitted to the department. 25 (5) Nothing in this section shall preclude a person from 26 submitting a remedial investigation report, risk assessment 27 report and cleanup plan at one time to the department for 28 review. 29 (m) Deed notice.--Persons attaining and demonstrating 30 compliance with site-specific standards for a regulated 19950S0001B0002 - 32 -
1 substance on a site shall be subject to the deed acknowledgment 2 requirements of the act of July 7, 1980 (P.L.380, No.97), known 3 as the Solid Waste Management Act, or the act of October 18, 4 1988 (P.L.756, No.108), known as the Hazardous Sites Cleanup 5 Act. The notice shall include whether residential or 6 nonresidential exposure factors were used to comply with the 7 site-specific standard. 8 (n) Notice and review provisions.--Persons utilizing the 9 site-specific standard shall comply with the following 10 requirements for notifying the public and the department of 11 planned remediation activities: 12 (1) (i) A notice of intent to remediate a site shall be 13 submitted to the department which provides, to the extent 14 known, a brief description of the location of the site, a 15 listing of the contaminant or contaminants involved and 16 the proposed remediation measures. The department shall 17 publish an acknowledgment noting receipt of the notice of 18 intent in the Pennsylvania Bulletin. At the same time a 19 notice of intent to remediate a site is submitted to the 20 department, a copy of the notice shall be provided to the 21 municipality in which the site is located and a summary 22 of the notice of intent shall be published in a newspaper 23 of general circulation serving the area in which the site 24 is located. 25 (ii) The notices required by this paragraph shall 26 include a 30-day public and municipal comment period 27 during which the municipality can request to be involved 28 in the development of the remediation and reuse plans for 29 the site. If requested by the municipality, the person 30 undertaking the remediation shall develop and implement a 19950S0001B0002 - 33 -
1 public involvement program plan which meets the 2 requirements of subsection (o). Persons undertaking the 3 remediation are encouraged to develop a proactive 4 approach to working with the municipality in developing 5 and implementing remediation and reuse plans. 6 (2) The following notice and review provisions apply 7 each time a remedial investigation report, risk assessment 8 report, cleanup plan and final report demonstrating 9 compliance with the site-specific standard is submitted to 10 the department: 11 (i) When the report or plan is submitted to the 12 department, a notice of its submission shall be provided 13 to the municipality in which the site is located and a 14 notice summarizing the findings and recommendations of 15 the report or plan shall be published in a newspaper of 16 general circulation serving the area in which the site is 17 located. If the municipality requested to be involved in 18 the development of the remediation and reuse plans, the 19 reports and plans shall also include the comments 20 submitted by the municipality, the public and the 21 responses from the persons preparing the reports and 22 plans. 23 (ii) The department shall review the report or plan 24 within no more than 45 days of its receipt or notify the 25 person submitting the report of deficiencies. If the 26 department does not respond with deficiencies within 45 27 days, the report shall be deemed approved. 28 (3) If the remedial investigation report, risk 29 assessment report and cleanup plan are submitted at the same 30 time to the department, the department shall notify persons 19950S0001B0002 - 34 -
1 of any deficiencies in 90 days. If the department does not 2 respond with deficiencies within 90 days, the reports are 3 deemed approved. 4 (o) Community involvement.--Persons using site-specific 5 standards are required to develop a public involvement plan 6 which involves the public in the cleanup and use of the property 7 if the municipality requests to be involved in the remediation 8 and reuse plans for the site. The plan shall propose measures to 9 involve the public in the development and review of the remedial 10 investigation report, risk assessment report, cleanup plan and 11 final report. Depending on the site involved, techniques such as 12 developing a proactive community information and consultation 13 program that includes door step notice of activities related to 14 remediation, public meetings and roundtable discussions, 15 convenient locations where documents related to a remediation 16 can be made available to the public and designating a single 17 contact person to whom community residents can ask questions; 18 the formation of a community-based group which is used to 19 solicit suggestions and comments on the various reports required 20 by this section; if needed, the retention of trained, 21 independent third parties to facilitate meetings and discussions 22 and perform mediation services. 23 Section 305. Special industrial areas. 24 (a) Special sites.--For property used for industrial 25 activities where there is now no financially viable responsible 26 person to clean up contamination or for land located within 27 enterprise zones designated pursuant to the requirements of the 28 Department of Community Affairs, the review procedures of this 29 section shall apply for persons conducting remediation 30 activities who are not responsible for contamination on the 19950S0001B0002 - 35 -
1 property. Any environmental remediation undertaken pursuant to 2 this section shall comply with one or more of the standards 3 established in this chapter. 4 (b) Baseline report.--A baseline environmental report shall 5 be conducted on the property based on a work plan approved by 6 the department to establish a reference point showing existing 7 contamination on the site. The report shall describe the 8 proposed remediation measures to be undertaken within the limits 9 of cleanup liability found in section 502. The report shall also 10 include a description of the existing or potential public 11 benefits of the use or reuse of the property for employment 12 opportunities, housing, open space, recreation or other use. 13 (c) Public review.--Persons undertaking the cleanup and 14 reuse of sites under this section shall comply with the 15 following public notice and review requirements: 16 (1) A notice of intent to remediate a site shall be 17 submitted to the department which provides, to the extent 18 known, a brief description of the location of the site, a 19 listing of the contaminant or contaminants involved and the 20 proposed remediation measures. The department shall publish 21 an acknowledgment noting receipt of the notice of intent in 22 the Pennsylvania Bulletin. At the same time a notice of 23 intent to remediate a site is submitted to the department, a 24 copy of the notice shall be provided to the municipality in 25 which the site is located and a summary of the notice of 26 intent shall be published in a newspaper of general 27 circulation serving the area in which the site is located. 28 (2) The notices required by this subsection shall 29 include a 30-day public and municipal comment period during 30 which the municipality can request to be involved in the 19950S0001B0002 - 36 -
1 development of the remediation and reuse plans for the site. 2 If requested by the municipality, the person undertaking the 3 remediation shall develop and implement a public involvement 4 program plan which meets the requirements of section 304(o). 5 Persons undertaking the remediation are encouraged to develop 6 a proactive approach to working with the municipality in 7 developing and implementing remediation and reuse plans. 8 (d) Department review.--No later than 90 days after the 9 completed environmental report is submitted for review, the 10 department shall determine whether the report adequately 11 identifies the environmental hazards and risks posed by the 12 site. The comments obtained as a result of a public involvement 13 plan developed under section 304(o) shall also be considered by 14 the department. The department shall notify the person 15 submitting the report of deficiencies within 90 days. If the 16 department does not respond within 90 days, the study is 17 considered approved. 18 (e) Agreement.--The department and the person undertaking 19 the reuse of a special industrial site shall enter into an 20 agreement based on the environmental report which outlines 21 cleanup liability for the property. 22 (f) Department actions.--A person entering into an agreement 23 pursuant to this section shall not interfere with any subsequent 24 remediation efforts by the department or others to deal with 25 contamination identified in the baseline environmental report so 26 long as it does not disrupt the use of the property. 27 (g) Deed notice.--Persons entering into agreements pursuant 28 to this section shall be subject to the deed acknowledgment 29 requirements of the act of July 7, 1980 (P.L.380, No.97), known 30 as the Solid Waste Management Act, or the act of October 18, 19950S0001B0002 - 37 -
1 1988 (P.L.756, No.108), known as the Hazardous Sites Cleanup 2 Act, where applicable. 3 Section 306. Privatization. 4 (a) General.--The department shall develop a program to use 5 private firms to undertake a portion of the technical reviews 6 required under this act. As part of the program, the department 7 may: 8 (1) Develop a system of prequalified firms which 9 supervise the development and implementation of cleanup plans 10 and certify properties as meeting the environmental 11 remediation standards established in this chapter. 12 (2) Develop programs in which private firms perform the 13 technical review of remedial investigation reports, risk 14 assessment reports, cleanup plans and final reports required 15 to be submitted under this chapter. 16 (b) Audits.--The department shall develop an auditing 17 program sufficient to insure that private firms meet the 18 requirements of the program. 19 (c) Report.--The department shall on October 1 of each year 20 report to the General Assembly on the activities the department 21 has undertaken pursuant to this section. 22 Section 307. Local land development controls. 23 This act shall not affect the ability of local governments to 24 regulate land development under the act of July 31, 1968 25 (P.L.805, No.247), known as the Pennsylvania Municipalities 26 Planning Code. The use of the identified property and any deed 27 restrictions used as part of a remediation plan shall comply 28 with local land development controls adopted under the 29 Pennsylvania Municipalities Planning Code. 30 Section 308. Immediate response. 19950S0001B0002 - 38 -
1 (a) Emergency response.--The provisions of this chapter 2 shall not prevent or impede the immediate response of the 3 department or responsible person to an emergency which involves 4 an imminent or actual release of a regulated substance which 5 threatens public health or the environment. The final 6 remediation of the site shall comply with the provisions of this 7 chapter which shall not be prejudiced by the mitigation measures 8 undertaken to that point. 9 (b) Interim response.--The provisions of this chapter shall 10 not prevent or impede a responsible person from undertaking 11 mitigation measures to prevent significant impacts on human 12 health or the environment. Those mitigation measures may include 13 limiting public access to the release area, installing drainage 14 controls to prevent runoff, stabilization and maintenance of 15 containment structures, actions to prevent the migration of 16 regulated substances, on-site treatment or other measures not 17 prohibited by the department. The final remediation of the site 18 shall comply with the provisions of this chapter which shall not 19 be prejudiced by the mitigation measures undertaken to that 20 point. 21 Section 309. Appealable actions. 22 Decisions by the department involving the reports and 23 evaluations required under this chapter shall be considered 24 appealable actions under the act of July 13, 1988 (P.L.530, 25 No.94), known as the Environmental Hearing Board Act. 26 CHAPTER 5 27 CLEANUP LIABILITY PROTECTION 28 Section 501. Cleanup liability protection. 29 (a) General.--Any person demonstrating compliance with the 30 environmental remediation standards established in Chapter 3 19950S0001B0002 - 39 -
1 shall be relieved of further liability for the remediation of 2 the site under the statutes outlined in section 106 for any 3 contamination identified in reports submitted to and approved by 4 the department to demonstrate compliance with these standards 5 and shall not be subject to citizen suits or other contribution 6 actions brought by responsible persons. The cleanup liability 7 protection provided by this chapter applies to the following 8 persons: 9 (1) The current or future owner of the identified 10 property, who participated in the remediation of the site. 11 (2) A person who develops or otherwise occupies the 12 identified site. 13 (3) A successor or assign of any person to whom the 14 liability protection applies. 15 (4) A public utility to the extent the public utility 16 performs activities on the identified site. 17 (b) Assessments.--A person shall not be considered a person 18 responsible for a release or a threatened release of a regulated 19 substance simply by virtue of conducting an environmental 20 assessment or transaction screen on a property. Nothing in this 21 section relieves a person of any liability for failure to 22 exercise due diligence in performing an environmental assessment 23 or transaction screen. 24 (c) Illegal activities.--The provisions of this chapter do 25 not create a defense against the imposition of criminal and 26 civil fines and penalties or administrative penalties otherwise 27 authorized by law and imposed as the result of the illegal 28 disposal of waste or for the pollution of the land, air or 29 waters of this Commonwealth on the identified site. 30 Section 502. Special industrial sites. 19950S0001B0002 - 40 -
1 (a) Agreement.--The department and the person undertaking 2 the reuse of an abandoned industrial site under section 305 3 shall enter into an agreement based on the environmental report 4 which outlines cleanup liability for the site. Any person 5 included in such an agreement shall not be subject to a citizen 6 suit, other contribution actions brought by responsible persons 7 not participating in the remediation of the site or other 8 actions brought by the department with respect to the site 9 except those which may be necessary to enforce the terms of the 10 agreement. 11 (b) Liability.--The cleanup liabilities for the person 12 undertaking the reuse of the site shall include the following: 13 (1) The person shall only be responsible for remediation 14 of any immediate, direct or imminent threats to public health 15 or the environment, such as drummed waste, which would 16 prevent the site from being occupied for its intended 17 purpose. 18 (2) The person shall not be held responsible for the 19 remediation of any contamination identified in the 20 environmental report, other than the contamination noted in 21 paragraph (1). 22 (3) Nothing in this act shall relieve the person from 23 any cleanup liability for contamination later caused by that 24 person on the site. 25 (c) Developer or occupier.--A person who develops or 26 occupies the site shall not be considered a responsible person 27 for purposes of assigning cleanup liability. 28 (d) Successor or assign.--A successor or assign of any 29 person to whom cleanup liability protection applies for a site 30 shall not be considered a responsible person for purposes of 19950S0001B0002 - 41 -
1 assigning cleanup liability, provided the successor or assign is 2 not a person responsible for contamination on the site who did 3 not participate in the environmental remediation action. 4 (e) Public utility.--A public utility shall not be 5 considered a responsible person for purposes of assigning 6 cleanup liability to the extent the public utility performs 7 activities on the identified site, provided the public utility 8 is not a person responsible for contamination on the property. 9 Section 503. Existing exclusions. 10 The protection from cleanup liability afforded under this act 11 shall be in addition to the exclusions from being a responsible 12 person under the statutes listed in section 106. 13 Section 504. New liability. 14 Nothing in this act shall relieve a person receiving 15 protection from cleanup liability under this chapter from any 16 cleanup liability for contamination later caused by that person 17 on a site which has demonstrated compliance with one or more of 18 the environmental remediation standards established in Chapter 19 3. 20 Section 505. Reopeners. 21 Any person who completes remediation in compliance with this 22 act shall not be required to undertake additional remediation 23 actions unless the department demonstrates that: 24 (1) fraud was committed in the certification of the site 25 that resulted in avoiding the need for further cleanup of the 26 site; 27 (2) new information confirms the existence of an area of 28 previously unknown contamination; 29 (3) the remediation method failed to meet one or a 30 combination of the three cleanup standards; or 19950S0001B0002 - 42 -
1 (4) the level of risk is increased beyond the acceptable 2 risk range at a site due to substantial changes in exposure 3 conditions, such as in a change in land use from 4 nonresidential to a residential use, or new information is 5 obtained about a regulated substance associated with the site 6 which revises exposure assumptions beyond the acceptable 7 range. Any person who changes the use of the property causing 8 the level of risk to increase beyond the acceptable risk 9 range shall be required by the department to undertake 10 additional remediation measures under the provisions of this 11 act. 12 Section 506. Authority reserved. 13 Except for the performance of further remediation of the 14 site, nothing in this act shall affect the ability or authority 15 of any person to seek any relief available against any party who 16 may have liability with respect to this site. This act shall not 17 affect the ability or authority to seek a contribution from any 18 person who may have liability with respect to the site and did 19 not receive cleanup liability protection under this chapter. 20 CHAPTER 7 21 INDUSTRIAL LAND RECYCLING FUND 22 Section 701. Industrial Land Recycling Fund. 23 (a) Fund.--There is hereby established a separate account in 24 the State Treasury, to be known as the Industrial Land Recycling 25 Land, which shall be a special fund administered by the 26 department. 27 (b) Purpose.--The moneys deposited in this fund shall be 28 used by the department for the purpose of implementing the 29 provisions of this act. 30 (c) Funds.--In addition to any funds appropriated by the 19950S0001B0002 - 43 -
1 General Assembly, Federal funds and private contributions and 2 any fines and penalties assessed under this act shall be 3 deposited into the fund. 4 (d) Annual report.--The department shall on October 1 of 5 each year report to the General Assembly on the expenditures and 6 commitments made from the Industrial Land Recycling Fund. 7 Section 702. Voluntary Cleanup Loan Program. 8 (a) Establishment.--There is hereby established a separate 9 account in the State Treasury, to be known as the Voluntary 10 Cleanup Loan Fund, which shall be a special fund administered by 11 the Department of Commerce. Within 60 days of the effective date 12 of this act, the Department of Commerce shall finalize 13 guidelines and issue application forms to administer this fund. 14 The Department of Commerce, in conjunction with the Department 15 of Environmental Resources may establish funding priorities 16 under this program. 17 (b) Purpose.--The Voluntary Cleanup Loan Fund is to help 18 provide funding to persons undertaking the voluntary remediation 19 of a property. The funding shall be in the form of low-interest 20 loans and grants for up to 75% of the costs incurred for 21 completing an environmental study and for implementing a cleanup 22 plan for the following categories of applicants: 23 (1) Local economic development agencies, public agencies 24 and local governments and persons not responsible for 25 contamination on a site shall be eligible for grants for the 26 purpose of completing environmental studies and implementing 27 cleanup plans. 28 (2) Low-interest loans shall be available at a rate of 29 not more than 2% for the purpose of completing environmental 30 studies and implementing cleanup plans to local governments, 19950S0001B0002 - 44 -
1 public agencies and persons undertaking site remediation 2 under this act. 3 (c) Funds.--In addition to any funds appropriated by the 4 General Assembly, at least $5,000,000 shall be transferred on 5 July 1 of each year from the Hazardous Sites Cleanup Fund 6 established by the act of October 18, 1988 (P.L.756, No.108), 7 known as the Hazardous Sites Cleanup Act, to the Voluntary 8 Cleanup Loan Fund for the purpose of implementing the program 9 established in this section. Moneys received by the Department 10 of Commerce as repayment of outstanding loans shall be deposited 11 in the fund. Any interest earned by moneys in the fund shall 12 remain in the fund. The first transfer of funds from the 13 Hazardous Sites Cleanup Fund required by this subsection shall 14 occur within 60 days of the effective date of this act. 15 (d) Annual report.--The Department of Commerce shall on 16 October 1 of each year report to the General Assembly on the 17 grants, loans, expenditures and commitments made from the fund. 18 Section 703. Fees. 19 (a) Amount.--The department shall collect the following fees 20 for the review of reports required to be submitted to implement 21 the provisions of this act: 22 (1) A person utilizing the background or Statewide 23 health standards for environmental remediation shall pay a 24 fee of $250 upon submission of the report certifying 25 compliance with the standards. 26 (2) A person utilizing site-specific standards for 27 environmental remediation shall pay a fee of $250 each upon 28 the submission of a remedial investigation, risk assessment 29 and cleanup plan and an additional $500 at the time of 30 submission of the final report certifying compliance with the 19950S0001B0002 - 45 -
1 standards. 2 (3) A person utilizing a combination of background, 3 Statewide and site-specific standards shall pay the fees 4 required by paragraphs (1) and (2), as applicable. 5 (4) No fee shall be charged for corrective actions 6 undertaken under the act of July 6, 1989 (P.L.169, No.32), 7 known as the Storage Tank and Spill Prevention Act. 8 (b) Deposit.--Fees imposed under this section shall be 9 deposited in the Industrial Land Recycling Fund established 10 under section 701. 11 CHAPTER 9 12 MISCELLANEOUS PROVISIONS 13 Section 901. Plain language. 14 Remedial investigation, risk assessment, cleanup plans and 15 other reports and notices required to be submitted to implement 16 the provisions of this act shall contain a summary or special 17 section that includes a plain language description of the 18 information included in the report in order to enhance the 19 opportunity for public involvement and understanding of the 20 remediation process. 21 Section 902. Permits. 22 A State or local permit or permit revision shall not be 23 required for remediation activities undertaken entirely on the 24 site if they are undertaken pursuant to the requirements of this 25 act. 26 Section 903. Future actions. 27 At any time, a request may be made to the department to 28 change the land use of the site from nonresidential to 29 residential. The department shall only approve the request upon 30 a demonstration that the site meets all the applicable cleanup 19950S0001B0002 - 46 -
1 standards for residential use of the property. Any existing deed 2 acknowledgment contained in the deed prior to the demonstrating 3 compliance with the residential use standard may be removed. 4 Section 904. Relationship to Federal and State programs. 5 (a) Federal.--The provisions of this act shall not prevent 6 the Commonwealth from enforcing specific numerical cleanup 7 standards, monitoring or compliance requirements specifically 8 required to be enforced by the Federal Government as a condition 9 of primacy or to receive Federal funds. 10 (b) State priority list.--Any remediation undertaken on a 11 site included on the State priority list established under the 12 act of October 18, 1988 (P.L.756, No.108), known as the 13 Hazardous Sites Cleanup Act, shall attain the site-specific 14 standard established in section 304 and shall be performed in 15 compliance with the administrative record and other procedural 16 and public review requirements of Chapter 5 of the Hazardous 17 Sites Cleanup Act. 18 (c) Storage tanks.--The environmental remediation standards 19 established under this act shall be used in corrective actions 20 undertaken pursuant to the act of July 6, 1989 (P.L.169, No.32), 21 known as the Storage Tank and Spill Prevention Act. However, the 22 procedures in the Storage Tank and Spill Prevention Act for 23 reviewing and approving corrective actions shall be used in lieu 24 of the procedures and reviews required by this act. 25 (d) Agricultural chemical facilities.--The environmental 26 remediation standards and procedures established under this act 27 shall be used in any remediation undertaken at an agricultural 28 chemical facility. The Department of Agriculture shall have the 29 power and its duty shall be to promulgate regulations providing 30 for the option of safely reusing soil and groundwater 19950S0001B0002 - 47 -
1 contaminated with agricultural chemicals generated as a result 2 of remediation activities at agricultural chemical facilities 3 through the land application of these materials on agricultural 4 lands. Such regulations shall provide for the appropriate 5 application rates of such materials, either alone or in the 6 combination with other agricultural chemicals, prescribe 7 appropriate operations controls and practices to protect the 8 public health, safety and welfare and the environment at the 9 site of land application. 10 (e) Oil spill response.--This act shall not apply to the 11 removal of a discharge under section 4201 of the Oil Pollution 12 Act of 1990 (Public Law 101-380, 104 Stat. 484) or the act of 13 June 11, 1992 (P.L.303, No.52), known as the Oil Spill Responder 14 Liability Act. 15 Section 905. Enforcement. 16 (a) General.--The department is authorized to use the 17 enforcement and penalty provisions applicable to the 18 environmental medium or activity of concern, as appropriate, 19 established under the act of June 22, 1937 (P.L.1987, No.394), 20 known as The Clean Streams Law, the act of January 8, 1960 (1959 21 P.L.2119, No.787), known as the Air Pollution Control Act, the 22 act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste 23 Management Act, the act of July 13, 1988 (P.L.525, No.93), 24 referred to as the Infectious and Chemotherapeutic Waste Law, 25 the act of October 18, 1988 (P.L.756, No.108), known as the 26 Hazardous Sites Cleanup Act, or the act of July 6, 1989 27 (P.L.169, No.32), known as the Storage Tank and Spill Prevention 28 Act, to enforce the provisions of this act. 29 (b) Fraud.--Any person who willfully commits fraud 30 demonstrating attainment with one or more standards established 19950S0001B0002 - 48 -
1 under this act shall, upon conviction, be subject to an 2 additional penalty of $50,000 for each separate offense or to 3 imprisonment for a period of not more than one year for each 4 separate offense, or both. Each day shall be a separate offense. 5 Section 906. Past penalties. 6 Persons who have no responsibility for contamination on a 7 site and participate in environmental remediation activities 8 under this act shall not be responsible for paying any fines or 9 penalties levied against any person responsible for 10 contamination on the property. 11 Section 907. Repeals. 12 (a) Absolute.--Section 504(b) through (f) and (h) of the act 13 of October 18, 1988 (P.L.756, No.108), known as the Hazardous 14 Sites Cleanup Act, are repealed. 15 (b) General.--All other acts and parts of acts are repealed 16 insofar as they are inconsistent with this act and related to 17 environmental remediation. 18 Section 908. Effective date. 19 This act shall take effect in 60 days. A9L27SFG/19950S0001B0002 - 49 -