Environmental Law

Brownfield Sites and SMCLs

By M. Joel Bolstein

There are certain substances that are considered secondary contaminants.  If you look at the Land Recycling Program's Pocket Guide of Statewide Health Standards, you notice that below the chart containing the medium specific concentrations (MSCs) for Inorganic Regulated Substances in Groundwater you see a list providing SMCLs for the following five regulated substances -- aluminum, chloride, fluoride, iron and manganese.  On occasion, you'll have a brownfield site where the only parameter of concern is one or more of these SMCLs (such as chloride, which could result from a spill of bleach).  I've had that situation come up several times.  The question is how do you approach a brownfield site in Pennsylvania where all you are dealing with is SMCLs? 

When we were writing the Act 2 regulations, we wrestled with the question of whether SMCLs should be incorporated into the Act 2 standards at all.  They aren't health-based or risk-based numbers.  At the time, we decided as a matter of policy that SMCLs weren't important to protecting human health and the environment, but they did represent parameters which affected the potability of drinking water.  We thought there might be times where the Department would have an interest in enforcing the SMCLs, but that those situations would be very limited.  We also thought that in many instances, a property owner confronted with groundwater results showing only exceedances of SMCLs might simply decide that it didn't need to obtain liability protection.  On the other hand, we thought if they wanted to obtain liability protection, we should provide a means for them to do that.  Thus was created the language that you find in 25 Pa. Code Section 250.302(a)(5) and on page II-57 of the Technical Guidance Manual (TGM).

Under Act 2, persons who undertake a voluntary cleanup have the option of demonstrating attainment with SMCLs and receiving liability protection (that is the case with sites that have only secondary contaminants or both primary and secondary contaminants).   Unlike the typical site where you have health-based or risk-based MSCs and need to demonstrate attainment of the Statewide Health Standard at the downgradient property boundary,  when all you have is SMCLs as parameters of concern, the Act 2 regulations allow you to move the point of compliance beyond the property boundary.  How far can you go?  If you read page II-57 of the Act 2 TGM, you'll see that DEP allows you to move the point of compliance to a point all the way up to the point of first use, which is typically wherever the closest drinking water well is located.  Be aware that the regulations do require that you first make a written request to move the point of compliance and the Department has to approve that request in writing.

Let me give you an example of how this works in the real world.  I had a site in which there was a release and the only parameter of concern was chloride.  Wells were installed and the chloride levels at the downgradient property boundary exceeded the SMCL of 250,000 ppb.  We filed a written request with the Department to move the point of compliance pursuant to 25 Pa. Code Section 250.302(a)(5).  The Department approved that request in writing a week later.  Our consultant performed a well inventory to determine the closest groundwater wells to the property boundary and found that the closest well was half a mile away.   It turned out that there was a stream between the site and the closest well.  As a result, we picked a hypothetical point of use just before the stream and ran a fate and transport analysis to see what the chloride levels would be at that hypothetical point of use.  The Quick Domenico model found that the maximum estimated concentration of chloride at that point before the stream would be 10,830 ppb, which was well below the SMCL of 250,000 ppb.  Just to be safe, we also ran the PENTOXSD model to see what the chloride levels would be entering the stream and found that we would be well below the applicable water quality based effluent limit.  Armed with those results, we asked DEP to reduce the quarterly sampling requirement from 8 quarters to 4 quarters as sufficient for demonstrating attainment with the SMCL.  After DEP approved that request, we filed our final report and received liability protection when the Department approved the report a few weeks later.

The lesson here is that, in Pennsylvania, you are allowed to move the point of compliance beyond the property boundary of your brownfield site when you are dealing with SMCLs and you want to obtain a release of liability under the Act 2 statewide health standard.  That can be extremely helpful.  Of course, you can also use the Site Specific Standard for secondary contaminants and show there are no impacts to users and no exposure pathways.   In either instance, you walk away with a liability release.    

Full post as published by PA Brownfields Environmental Law on October 05, 2007 (boomark / email).