The Saga of the PA DEP and the Vanadium MSC
On July 30, 2022, the Pennsylvania Department of Environmental Protection (PA DEP) published a proposed amendment to 25 Pa. Code Chapter 250 (Administration of the Land Recycling Program) to update the toxicity value and medium-specific concentrations (MSCs) established under the statewide health standard (SHS) for vanadium based on the most recent published scientific information. Over the past 6 years, the vanadium MSC has received much discussion, debate, and frustration from the regulated, scientific, and legal communities.
As background, Chapter 250.11 requires PA DEP to review new scientific information used to calculate MSCs under the SHS and propose appropriate changes every 36 months following the effective date of the most recently promulgated MSCs. In 2016, PA DEP published new MSCs that decreased the vanadium MSC by 100 times, from 1,500 mg/kg to 15 mg/kg. At the time, the scientific and regulated communities presented much concern because vanadium background concentrations in Pennsylvania range from 15 mg/kg to a maximum of 150 mg/kg with an average of 80 mg/kg (Dragun 2005, USGS 1981). The outcome of the 2016 MSC resulted in the likelihood that virtually every property in Pennsylvania would exceed the residential MSC for vanadium.
To compound matters, in January 2020, PA DEP published a new Management of Fill policy that established the clean fill concentration limits (CFCL) be equal to the MSCs. The previous Management of Fill policy incorporated a stand-alone table for clean fill and regulated fill. PA DEP’s new Management of Fill policy was overly restrictive for vanadium and limited the use of fill material around the state since vanadium commonly exceeded the clean fill and regulated fill limits. The result of this restrictive policy diverted fill material to disposal or treatment facilities when it could have been beneficially reused.
In November 2021, PA DEP published new MSCs, but the revisions did not include a change to the vanadium MSC. The inaction by PA DEP on the vanadium MSC in November 2021 caused a large response and push back by the scientific, legal, and regulated communities. As a response to the push back, PA DEP published guidance in February 2022 on vanadium affecting management of fill. The guidance established a published reference background concentration for vanadium (129 mg/kg) that can be used as part of the evaluation of fill material and classifying fill material as “clean fill.” The Management of Fill policy still requires the user to demonstrate that the fill had not been affected by a release of vanadium.
Fast-forward to the July 30, 2022 Pennsylvania Bulletin, where the Environmental Quality Board proposed to amend Chapter 250 regarding the MSC for vanadium. PA DEP utilized available toxicity data for vanadium from the United States Environmental Protection Agency’s (US EPA’s) Integrated Risk Information System to develop the new MSC. PA DEP consulted with the Cleanup Standards Scientific Advisory Board during the development of the proposed rulemaking and received unanimous support. The new proposed residential direct-contact MSC for vanadium is 1,100 mg/kg. This should provide some much-needed relief for managing fill across the state of Pennsylvania.