PROPOSAL TO REVISE DIRECT CONTACT r SWHS FOR ARSENIC IN SOIL

TABLE OF CONTENTS

Page Statement of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Measured Pennsylvania Concentrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 NJDEP Findings and Analogous PA Geology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Study of All States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 PA Has or Uses Higher Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Standards Cannot Be Set Below Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Revised Standard Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Standard is Set Too Low . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Deed Notice Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 LIST OF TABLES 1.

Soil Sample Laboratory Results Summary (Centre County Site)

LIST OF FIGURES 1. 2.

Soil Samples - No Lead/Arsenic Correlation Geologic Map of Pennsylvania

ATTACHMENTS 1. 2. 3. 4. 5.

Bioavailability Site Specific Testing Protocol NJDEP Background Demonstration Protocol AEHS Study of State Soil Arsenic Regulations NJDEP Task Force Report on “Historic Pesticide Contamination in New Jersey” PADEP Finding that 5-18.6 ppm is “Background”

Statement of the Problem

Since the promulgation of the direct contact residential Statewide Health Standard (rSHWS) for arsenic at 12 mg/kg, it has become clear that many soils have natural background concentrations which exceed 12 mg/kg. This makes it impossible to determine whether or not a spill or release has occurred or to determine whether or not the material is considered “contaminated” under DEP’s waste regulations. Most other jurisdictions automatically adjust for “background”, when considering soil sampling results for this parameter. Current procedures for clearing a site are complicated and time consuming, which is unreasonable when there is no contamination or release of further concern. The standard needs to be adjusted and made flexible to have credibility.

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Measured PA Concentrations

Concentrations measured in PA soils where there is no indication of a spill, release, or even atmospheric deposition have been found as follows: Chester County (2 sites - West Bradford Township)

•

54 samples; 10 > 12 mg/kg; Highest 100 mg/kg

•

arsenic not bioavailable

Center County (State College) •

10 samples; 80% from 12-20 mg/kg; 1 above 20 mg/kg (see Table 1)

Bucks County (Perkasie Area) •

8 samples; 75% from 12-20 mg/kg

Chester County (Highland Township) •

105 samples; 88 > 12 mg/kg; highest 31 mg/kg

•

arsenic not bioavailable

Clearfield County •

18.6 mg/kg is “Background” (PADEP)

According to the USGS, 40 mg/kg can be found in clays. In addition, it must be stated that NONE of the above sites showed evidence of vertical distribution of measured arsenic. At the Chester County sites, the sample exceedences exactly correspond with the location in the County where the Peters Creek Schist and Wissahickon Schist meet. Serpentinite materials are

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TABLE 1 LABORATORY RESULTS SUMMARY INORGANICS - mg/kg Analyte

S1

S2

S3

S4

S5

S6

S7

S8

S9

S10

MSC

Arsenic

14

17

14

N/D

17

19

15

23

13

16

12 (1)

Barium

110

120

96

82

87

110

180

94

120

120

8200 (2)

Cadmium

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

38 (2)

Chromium

25

29

24

19

21

26

22

27

29

29

94 (1)

Lead

28

33

26

29

35

30

23

23

40

27

450 (2)

Mercury

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

10 (2)

Selenium

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

26 (2)

Silver

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

N/D

84 (2)

(1)

MSC for Inorganic Related Substances in Soil - Direct Contact Residential Numeric Values

(2)

MSC for Inorganic Related Substances in Soil - Soil to Groundwater Numeric Values; Residential

N/D

Analyte Not-Detected at or above the reporting limit. Reporting limits are all below the MSC threshold for each analyte.

present here, according to the PA Geologic Service. Many areas of PA have the same or similar soil materials. It also should be noted that there is no correlation at any of these sites between measured arsenic and lead concentrations, confirming the lack of lead arsenate contamination (see Figure 1).

3

NJDEP Findings and Analagous PA Geology

Due to a 1998 Law, NJDEP is not allowed to regulate or require cleanup of background concentrations of contaminants. Data from all remediation sites is entered into a statewide database. A task force studied background concentrations of arsenic in soils. Findings are as follows: (3)

Non-Agricultural soils in rural and suburban areas contained 0.02-22.7 mg/kg of arsenic with an average of 3.25 mg/kg.

(4)

Statistical test - Samples containing clay had higher concentrations of most metals.

(5)

USGS - 40 mg/kg in clays

(6)

As high as 260 mg/kg....found when investigating glauconitic soils

New Jersey’s Geology is the same as that in central and southern PA (see Figure 2). The pink, orange, and pale orange areas in PA correspond with the areas of high reparted background arsenic concentrations in soils.

4

Study of All States

The Association for the Environmental Health of Soils studied how arsenic is regulated nationally. PADEP did not respond to the survey but 34 states responded to key parts of the survey. Findings are as follows: Cited Background Ranges are: (7)

NJ

0.02 - 350 mg/kg

(8)

OH

ND - 30 mg/kg

(9)

NY

3 - 12 mg/kg

States Citing use of “Background” as Cleanup Standard

(10)

AZ, CO, HI, IL, IA, KS, KY, ME MI, MS MO, NH, NJ, NY, ND, OH, OK, OR, SC, TN, TX, WA

27/34 States - 79%

States Citing “Site-Specific” or Realistic Standard”

(11)

CA, AK, AR

3/34 States - 9% Combined 30/34 States - 88%

New Jersey sets Standard at “20 mg/kg” - Based on background studies and the 95th percentile of background levels at sites under review. (Page 9) This last observation is critical because it means that the 12 mg/kg standard is set below the 95 percentile of background levels over a wide portion of the state. This makes the standard unusable at many sites.

6

PADEP Has or Uses Higher Standards

Review of decisions in PADEP regulations or at Remediation Sites reveals that: (12)

18 mg/kg is protoctive of Human Health and the Environment - from PA Land Application of Sewage Sludge / Penn State summary (the limit for biosolids is higher - 41 mg/kg)

(13)

At a proposed prison site in the Clearfield County, PADEP agreed that 18.6 mg/kg is “Background”.

(14)

In a Presque Island study of Remediation Options (Partly funded by PADEP), it is stated that “unpolluted soils” typically 1-40 mg/kg.

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Standards CANNOT Be Set Below Background

We could find no other jurisdictions where a clean-up standard is unconditionally set at a concentration below background. In Canada, the CCME uses a 12 mg/kg standard, but states that “where local or regional background soil concentrations of arsenic differ markedly from 12 ppm then site-specific or regional specific guidelines should be derived incorporating appropriate background soil concentrations.” In PA, the Governor’s Independent Regulatory Review Commission (IRRC), in response to PAPA’s comments on the proposed Safe Fill Regulations found that: “The regulation prescribes specific tests and specific sampling techniques. Commentators have requested various alternatives to the sampling and analysis procedures, such as including the Synthetic Precipitation Leaching Procedure in the regulation. To the extent possible, flexibility should be added to these procedures. In addition, the EQB should consider adding a process whereby a request for use of an alternate procedure could be made if the process is appropriate for the material being tested.” The PA Asphalt Pavement Association requested DEP to correct the practice of setting standards below background starting in 1998. Until the standard for arsenic is corrected, opposition to the Safe Fill Regulations will continue and developers will continue to suffer severe economic consequences even though some sites are not impacted by any spills or releases and only have natural background levels of arsenic in soils.

8

Revised Standard Proposed

Bioavailability

The current standard is set, on the presumption that all of the arsenic in soil is bioavailable. Tests on PA soils conducted so far have shown no or very limited bioavailability. Further, bioavailability testing has been used at cleanup sites to set site-specific standards. Precedents: Accepted Cleanup Goals for Arsenic in Residential Soils Default cleanup levels are typically based on background concentrations (i.e., < 20 mg/kg)

Relative Absorption Site Location

Anaconda, MT

Cleanup Goal

Accepting

(mg/kg)

Agency

Factor

0.18

250

EPA Region 8

Bartlesville, OK

0.25

80

OK DEQ

Lansing, MI

0.10

66

MI DEQ

Source: Exponent, undated

A simplified bioavailability test protocol has been developed, and has been used to set Site Specific standards in New Jersey. See Attachment 1. PA needs Bioavailability Protocol Site Specific Guidance. Background Documentation

For many years, NJDEP has used a simplified methodology to determine whether or not arsenic is a result of a spill or release, including lead arsenate application. Attachment 1 contains this protocol. If there is no vertical distribution variation in arsenic concentrations, there simply is no release and no action is required. (PA needs such a protocol as guidance.)

9

The Standard is Set Too Low

The standard should be reset to 20 mg/kg without delay. If there are concerns about exceedences, a 20 mg/kg standard could be used in conjunction with a 75%/2X attainment rule. Resetting the standard to this level will resolve the problem of there being a “too low” standard at the majority of sites with background concentrations over 12 mg/kg. This is important to maintain the credibility of PA’s standards in light of New Jersey’s findings that 20 mg/kg is the appropriate standard based on use of the 95% confidence interval from measured background arsenic soil concentrations in geologic formations. The same formations extend over a wide swath of Pennsylvania.

10

Deed Notice Requirement

Based on decisions by DEP’s counsel, Deed Notices are required under law where conveyed properties have arsenic concentrations over 12 mg/kg. This requirement should be removed if any of these approaches are taken and a demonstration made or standards are attained: •

a standard of 20 mg/kg using the 75%/2X rule is attained.

•

a background “demonstration” using the NJ Protocol is made.

•

a Site Specific Standard is set and attained using a “No Bioavailability” approach.

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Conclusion

The current 12 mg/kg rSWHS for arsenic is set below natural background soil concentrations which exist in many parts of the Commonwealth. Approaches are needed to distinguish spills and releases from background concentration. This can be accomplished by: 1.

Resetting the direct contact standard to: •

2.

20 mg/kg in conjunction with use of the 75%/2x rule.

Allowing a “Background Demonstration” resulting in no need for any further action at a site.

3.

Allowing use of a Site Specific standard based on a “No Bioavailability” demonstration.

Successful demonstration of “Background Conditions” (2) or attainment of (1) or (3) above would also negate the need for a Deed Notice at a particular site. To make the direct contact rSWHS for arsenic usable in the Commonwealth, it is requested that the standard be revised promptly. This is needed so that those who have sites or materials with background arsenic concentrations greater than 12 mg/kg are not economically penalized even though there is no spill or release impacting the land or materials involved.

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