Environmental Law

SHORT LIST FOR PETROLEUM PRODUCTS GETTING LONGER

By M. Joel Bolstein

As many of you know, Act 2 was signed into law on May 19, 1995.  The statute gave PADEP two years to promulgate regulations implementing Act 2.  I worked with a dedicated team to put those brownfield regulations together and, in fact, I had the great fortune of presenting the proposed and final brownfield regulations to the Environmental Quality Board.  In addition to the brownfield regulations, the Department uses its Technical Guidance Manual (referred to as the TGM) to provide more detailed and specific guidance to remediators on taking sites through the Act 2 process.  One of the innovative tools developed by PADEP and included in the TGM is the Short List of Petroleum Products (See TGM p. I-10).  The Short List can be used whenever a remediation addresses releases of specific petroleum products (e.g., gasoline, diesel fuel, heating oil) that are uncontaminated from other sources.  The benefit of the short list is that it allows remediators to sample for a much smaller subset of substances than would otherwise be required.  For example, the Short List requires sampling for only 8 substances when remediating a gasoline spill, while technically the remediator might have had to sample for all 24 substances that might be found in gasoline.   When you use the short list, the Act 2 liability protection covers the substances on the short list and PADEP will not require any further remediation or sampling.

Earlier this month, PADEP announced that it was seeking comments on a proposal to add  additional substances to the Short List.   According to PADEP's notice accompanying the announcement, the Department's experience with the current Short List has shown that even when attainment is demonstrated for the substances on the list, other substances contained in select  petroleum products may still exist in the environment at concentrations exceeding the established statewide health standards.  As a result, the Department is proposing the following changes to the petroleum short list:

• Add both 1,3,4-trimethyl benzene and 1,3,5-trimethyl benzene to the leaded gasoline, aviation gasoline and jet fuel category; the unleaded gasoline category; the kerosene and fuel oil No.1 category; the diesel fuel and fuel oil No.2 category; and the mineral insulating oil category.
• Add MTBE to the kerosene and fuel oil No.1 category; and the diesel fuel and fuel oil No.2 category.

The Department is also proposing to add language to the TGM providing a transition process  allowing sites currently in the Corrective Action Process or for which a Notice of Intent to Remediate has been filed prior to the date the revised list becomes effective to use the current Short List.  Sites that come into the program after the effective date of the revised Short List will have to use the new list for characterization and attainment demonstration purposes.

The question is whether these changes are likely to have a real impact on persons conducting site remediations at sites that are contaminated with petroleum products.  For some added insight, I asked Bill Butler, Ron Fender and Peter Beyer at Environmental Resources Management (ERM) for their thoughts and this is what they told me: 

• For most petroleum hydrocarbon sites, the addition of 1,3,4-trimethyl benzene and 1,3,5-trimethyl benzene should not increase the cost associated with investigation since these constituents will be detected by the same analytical methods used for the current list of constituents.  ERM's experience suggests that these constituents posses toxicity and fate/transport characteristics similar to the other petroleum constituents already on the short list, so the likelihood of them driving the need for additional delineation and/or corrective action by themselves is low.
• MTBE is an existing analyte for unleaded gasoline and can be a driver for additional delineation and/or corrective action because of its potential mobility and persistence in the subsurface.  The addition of MTBE to the analyte list for other petroleum products should not increase the cost associated with investigation since it will be detected by the same analytical methods used for the current list of constituents. ERM's experience suggests that MTBE is typically not a remediation driver at sites where a petroleum product other than unleaded gasoline has been released since it is not typically present in other petroleum products.  Thus, the likelihood of MTBE driving the need for additional delineation and/or corrective action at other than unleaded gasoline release sites is low.
• PADEP also added the Mineral Insulating Oil category.  The cost for investigation could actually be lower than previous investigations involving this oil, because responsible parties would analyze soil and ground water samples associated with releases of this oil for a wide variety of constituents to be conservative.  The proposed list is focused on PCBs and the two trimethyl benzene isomers.

It sounds like the changes are unlikely to have a significant substantive impact on brownfield remediation work in PA, but only time will tell.  With that said, I would urge everyone to take a look at the Department's proposal and come to your own conclusions.  You can access the proposal by going to PADEP's website.  Click on "Public Participation", then "Final Guidance", then within the DEP eLibrary click on "Technical Guidance Draft Documents" then select "Land Recycling Program Technical Guidance Manual". The Petroleum Short List is included in the Land Recycling Program Technical Guidance Manual (TGM) as Table IV-9, page IV-94. The associated transition language is added in TGM Section IV.E.3, page IV-94.  The comment period will remain open until September 4.  Once the comment period closes, I'll try to get my hands on the comments submitted and we'll see if there are any objections to the proposal.          

Full post as published by PA Brownfields Environmental Law on August 17, 2007 (boomark / email).