PADEP Publishes Much Anticipated Technical Guidance Document Addressing Vanadium in Clean Fill

March 3, 2022
Michael M. Meloy, Esq. and Will Hitchcock, Technical Consultant

Effective as of February 26, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published a new Interim-Final Technical Guidance Document (TGD) titled Utilizing Published Data in Performing a Background Demonstration and Equivalent Site Evaluation for Naturally Occurring Vanadium.  This new TGD helps address the biggest issue restricting the movement and use of fill material in the Commonwealth.  PADEP’s Management of Fill Policy (MoFP) establishes a clean fill concentration limit (CFCL) for vanadium of 15 mg/kg, which is based on the residential medium-specific concentration (MSC) for vanadium in soils under the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2).  Unfortunately, the current vanadium CFCL is far below naturally occurring levels of vanadium in soils within Pennsylvania and surrounding states.  As a result, the CFCL for vanadium has artificially restricted the use of otherwise clean fill, adding significant unnecessary delays and costs to construction and other types of projects in Pennsylvania.  

As part of stakeholder input, our firm assisted PADEP in the development of the new TGD, including providing PADEP with statistical analyses of published soil data to determine representative background concentrations (RBCs) of vanadium in soils in Pennsylvania, New Jersey, and New York.  As a result, the TGD includes the following RBCs:

State

RBC for Vanadium (mg/kg)
Pennsylvania

129
New Jersey

136
New York

118

These RBCs can now be used in lieu of the site-specific background demonstration process described in the MoFP, which requires the collection and analysis of soil samples from both the donor and receiving sites.  By eliminating the need to secure access to off-site background reference areas for soil sampling and establishing a consistent set of requirements for construction projects across the state, this new TGD facilitates the use of soils as clean fill in a much more efficient manner and provides significant relief to the construction industry in Pennsylvania.

Through our continued involvement with the Cleanup Standards Scientific Advisory Board (CSSAB), our firm has also been working closely with PADEP regarding the development of scientifically appropriate MSCs for vanadium based on consensus toxicological studies that are currently in use by USEPA and other states.  The new MSCs for vanadium are expected to be issued in proposed form for public comment later this year and, once promulgated, the new residential MSC for vanadium in soils will become the de facto CFCL for vanadium.  At that time, the new TGD and associated RBCs listed above will no longer be necessary and will likely be rescinded.

While the TGD is effective as of February 26, 2022, PADEP is accepting comments from interested persons through Wednesday, April 27, 2022.  

If you have any questions about the development or implementation of PADEP’s new TGD or the upcoming changes to the Act 2 cleanup standards, please contact Michael Meloy (484-430- 2303) or Will Hitchcock (484-430-2356), who have been working diligently with PADEP and the CSSAB over the last several years to resolve issues created by the 2016 revisions to the vanadium cleanup standards.