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Environmental Law: PA Brownfields Environmental Law
CSSAB to Provide Input on Revising Act 2 Technical Guidance Manual
By Joel Bolstein
On October 28, I was asked to chair the newly reconstituted Process Subcommittee of the PA Cleanup Standards Scientific Advisory Board (SAB), for the express purpose of helping the Department revise the Act 2 Technical Guidance Manual (TGM). I was participating in the SAB meeting as one of its newest members, having been appointed earlier this year by PADEP Secretary Michael Krancer. Back in the period between 1995 and 1997, when the Department was working on the Act 2 regulations and creating the Act 2 TGM, I attended all of the SAB's meetings in my capacity as PADEP Deputy Secretary. Now I've come full circle, participating as an SAB member, private citizen and environmental attorney, hoping to contribute some ideas for improving what is already recognized as one of the best brownfield programs in the country.
There were two matters discussed at the SAB meeting -- revising the Act 2 TGM and providing further guidance on vapor intrusion.
On revising the Act 2 TGM, as noted above, the SAB decided to reconstitute its Process Subcommittee to provide advice to the Department on this very important project. I agreed to chair the Process Subcommittee after being asked by Ron Buchanan, the chair of the SAB. I expect that the Subcommittee will be looking to form a larger group that includes SAB members, as well as people outside the SAB, including brownfield developers, environmental consultants, and representatives from economic development agencies that work with Act 2. In addition, we discussed having regional office ECP staff and counsel who work with the ECP program included as members of the subcommittee.
The idea is to help the Department identify technical and scientific areas of the Act 2 TGM that could use clarification or revision. Part of that work will be reviewing the Act 2 Q&A on the Department's website to see which of those answers should be integrated into the revised TGM. The SAB Process Subcommittee will prepare a list of recommendations for the people now in charge of the Act 2 program, Denise Brinley and Troy Conrad. I expect the Subcommittee may want to hold several stakeholder meetings to gather input. Troy Conrad said the Department's goal is to have a draft revision of the Act 2 TGM within 12 months. That draft revision would then be put out for public comment.
I am very excited to be helping the Department with this project. I was part of the team within the Department that put together the first version of the Act 2 TGM. We poured our hearts into that to make sure we had the best possible guidance document to go along with the statute and the regulations. Many of the people who worked on the initial TGM are long gone, including, among others, Karen Bassett, Ken Bowman, Joe Chnupa, Tom Fidler, Ken O'Korn and Jim Snyder. Sam Fang was the person who worked on all the statistical analysis, and it was nice to see him sitting with the PADEP folks at the SAB meeting. We still have many Act 2 veterans within the Department working on this, including Jim Shaw and Dave Crownover, along with Denise and Troy, who have both helped manage the program for many years. A number of SAB members have also been around from the very beginning and their participation on the Subcommittee will be invaluable. As I observed during the meeting, we have so much Act 2 talent around the table that I am very confident that the SAB will be able to make a meaningful contribution to the work of revising the Act 2 TGM.
Anyone with any thoughts or comments on areas of the Act 2 TGM that should be looked at by the SAB Process Subcommittee, should feel free to send me an email or post a comment.
The other matter discussed by the SAB at the October meeting was vapor intrusion. The SAB has a subcommittee chaired by Annette Guiseppi-Eli. She presented the subcommittee's report, which included a 3 page paper with issues for further discussion. Those issues included: (1) the proper place within the Act 2 TGM for the vapor intrusion guidance; (2) the difficulty using soil screening tables based on the new J&E model; (3) dealing with occupied structures and potential future structures; (4) addressing vapors on neighboring properties: (5) avoiding vapor sampling by moving directly to installation of a VI abatement system; (6) sampling guidance; (7) petroleum cases; and (8) clarification regarding the use of the term "background" in the context of dealing with vapor intrusion.
The subject of vapor intrusion is very complex and highly technical. Regardless of whether anyone thinks the risks posed by vapor intrusion are overblown, it is clear that the federal government is taking vapor intrusion very seriously and it expects the states to follow suit. There's talk of new Superfund sites being added to the NPL solely on the basis of vapor intrusion. Pennsylvania has marched to the beat of its own drummer for many years on vapor intrusion, generally having screening levels that are more lenient than EPA and many other states. That is what the SAB is wrestling with -- how does one change those screening levels without causing every Act 2 project to have to perform costly soil vapor sampling? After all, at many sites, the vapor sampling can be much more expensive than the eventual vapor remedy, which often involves installing a relatively inexpensive radon-like mitigation system. As we engaged in the discussion of sampling and screening tables, I continually brought up the question how any of this will effect sites that have already gone through the Act 2 process and received releases of liability. For example, if the screening levels are reduced significantly, will that mean reopening past liability releases to address vapor intrusion? Will Act 2 liability releases become less valuable because those sites will now require vapor sampling when the property is sold? Will banks require vapor sampling at sites being acquired, even if that site has an Act 2 release that runs with the property?
The discussion of vapor intrusion at the SAB meeting was very thoughtful and practical. Everyone is motivated to come up with solutions that will not adversely impact the program. With that said, these are not easy issues. The most practical recommendation made by the Subcommittee was that a remediator should have the option to avoid the time, effort and costs associated with implementing any of the vapor sampling and vapor screening to proceed directly to the mitigation option at any point in the process. I see that as keeping with Act 2's mandate to take cost into consideration in developing remedies that are protective of human health and the environment. Why should someone have to spend $25,000 on vapor sampling when the remedy is installing a $5,000 radon-like mitigation system? That is the kind of common sense that Pennsylvania's brownfield program has been known for and it's nice to see the SAB members applying that common sense as it works its way through these very complex issues.
Again, I'm excited to be a new member of the SAB and I am very much looking forward to chairing the Process Subcommittee and helping Denise and Troy with the important task of revising the Act 2 TGM.
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