New PADEP Policy Will Minimize UECA Reporting Obligations Where Downgradient Use of Groundwater Is Highly Unlikely
For my regular readers, I am going to share with you a new policy just released to the regional ECP managers by Central Office, which Troy Conrad passed along to me earlier today. This is really inside baseball at this point, so you should be thankful you have me making these calls and prying loose important information. The policy eases the future reporting obligations imposed by UECA on a property owner where there is off-site migration. Up until now, in the case of a remediation attaining the Site Specific Standard with off-site migration (or the non-use aquifer SWHS), the Department would require a post remediation care plan and annual compliance reporting by the property owner on whether the affected downgradient properties continued to be on public water. This new policy released to the regional ECP managers gives them the discretion to not impose an annual reporting obligation in the EC in cases where there are no known downgradient wells and future use of groundwater is "highly unlikely". In those instances, the property owner would have to observe and report only when they became aware of changes in use that could result in a downgradient property owner seeking to use the groundwater. That may not seem like a significant change, but it is and it shows that the Department is willing to apply common sense implementing UECA. I've repeatedly expressed the concern that there needs to be guidance provided on the imposition of the reporting obligation. Some covenants have no reporting, others require annual reporting, and still others authorize reporting every three years. How the Department decides on which obligation to impose is a mystery. Troy has said that there will be guidance provided by way of additional information included in the Act 2 Technical Guidance Manual. Until that time, periodic changes in interpretation, like the one just released, will go a long way to making it easier to live with UECA.
As a service, I am providing the full language of this new directive to the ECP managers below. Anyone with questions, should feel free to send me a comment.
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Monitoring nonuse of groundwater on downgradient properties where the future use is highly unlikely
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Chapter 250.303 establishes the requirements relating to a nonuse aquifer determination and the associated post remediation care requirements.
Chapter 250.303(d)(3) states that; "The remediator shall establish institutional controls to maintain the integrity of the nonuse aquifer determination, or include a postremediation care plan in the final report detailing the process of routinely assessing and reporting to the Department compliance with subsection (c)."
The most common types of institutional controls referenced in this section are environmental covenants on the downgradient properties restricting use of the groundwater or municipal ordinances prohibiting use of the groundwater. The alternative is a post remediation care plan detailing the process of assessing and reporting compliance. The Chapter 250 regulations, LRP technical guidance, and the LRP Q&As do not specify the types of assessment and reporting appropriate for every possible situation. The approval of the specific type of assessment and reporting appropriate in any given case is left to the professional judgment and discretion of the ECP Regional Manager, based on the facts of each case.
Some remediators have raised questions concerning long-term monitoring and reporting for situations where the future use of groundwater is highly unlikely. Based on feedback from ECP Regional Managers, the Land Recycling Program is recommending the following policy for the subset of cases where the likelihood of a downgradient property owner ever using the groundwater in the future is determined to be highly unlikely.
If a remediator meets all of the requirements of 250.303(c), the area is fully developed, no wells are known to exist on any of the downgradient properties, and the ECP Regional Manager determines that the future use of groundwater is highly unlikely; then the obligations for post remediation care can be limited to the following: An environmental covenant shall be placed on the remediated source property prohibiting the use of groundwater on the source property and requiring the owner of the source property to observe the use of the downgradient properties on an on-going basis and report to the Department if and when any changes of property use occur that might reasonably result in a downgradient property owner using the contaminated groundwater.
This policy limits the post remediation care obligations for the remediator for these types of sites while at the same time assuring that an environmental covenant will be placed on the remediated source property deed and posted in the on-line registry, which will provide public notice that the long-term remediation of the site is based on the continued nonuse of contaminated groundwater on the source property and the downgradient properties. This policy should be applied to both Statewide health standard nonuse aquifer cases and equivalent site-specific standard pathway elimination cases.
