Citizens Guide to Pennsylvanias Land Recycling Program

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Citizens Guide to Pennsylvanias Land Recycling
Program
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Overview

• The Land Recycling Program encourages the
  recycling and redevelopment of old industrial
  sites. It sets standards, by law for the first
  time, that are protective of human health and the
  environment, but which consider future use. It
  provides developers with clear cleanup standards
  based on risk, not a moving target in a
  negotiated agreement, and provides an end to
  liability when that cleanup standard is
  achieved.
• PA Department of Environmental Protection

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What is a brownfield?

• Historically, brownfield meant polluted real
  estate with no responsible party from which to
  require cleanup cost and other uncertainties led
  potential users to choose green space over reuse
  of these sites
• Under Federal law, brownfield means real
  property, the expansion, redevelopment or reuse
  of which is complicated by pollution
• PA law does not define brownfield, but the term
  is generally used in a manner consistent with
  Federal law
• The definition is synonymous with polluted site,
  and is no longer limited by whether persons
  responsible for the pollution exist

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Background

• Historically, the DEPs focus on cleaning up
  polluted sites depended on whether there was a
  responsible party
• Responsible parties could be required to cleanup
  pollution under an order or consent order using
  CSL, SWMA and HSCA
• Sites with no responsible parties could be
  cleaned up using HSCA
• Abandoned sites were rarely cleaned up by
  prospective purchasers or developers

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Background

• DEP negotiated Consent Orders to address
  pollution in soil and groundwater
• COAs are agreements negotiated between the DEP
  and a responsible party that contains commitments
  that are enforceable in a court of law

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Background

• COAs contained the following
• DEP approval of soil and groundwater assessment
  plans required
• Use of Best Available Technology to cleanup
  contamination
• Set cleanup goals that required the responsible
  party to use best efforts and BAT until
  significant quantities of contaminants could no
  longer be removed

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Background

• Prior approach required DEP to
• Make professional and technical judgments about
  how best to assess the extent of contamination
• Research and negotiate what technology would best
  remove the contaminants, and
• Determine when removal of contaminants was no
  longer feasible

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Background

• In short, the pre-Act 2 approach required that
  DEP employees think and act rationally in
  safeguarding public health and the environment
• Critics lodged several complaints at this process

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Background

• The agencys ad hoc decisions established a
  moving target for cleanups
• Technology-based cleanups were too costly
• Cleanup goals were unnecessary to protect public
  health
• The touch and pay approach discouraged reuse of
  old industrial sites
• Non-use of old industrial sites lead to
  consumption of green space
• The cleanup policy was not evenly applied
• The agency was too heavy handed

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Background

• Act 2 was, among other things, a rebuke of how
  the DEP was interpreting and using its authority
  to regulate industry that caused pollution
• The complaints concerned sites with responsible
  parties, and not just abandoned industrial sites
• Act 2 represented a substantial withdrawal of
  decisionmaking authority from the agency that
  resulted in a paradigm shift in how we approach
  pollution in our environment

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Act 2 of 1995

• Governor Tom Ridge signed the PA Land Recycling
  and Environmental Remediation and Standards Act
  into effect on May 19, 1995
• DEP promulgated regulations implementing Act 2 on
  August 15, 1997

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The Changed Landscape

• Cleanup standards shifted from technology to
  risk-based limits
• Applied the same cleanup numbers throughout
  state
• Severely restricted DEP involvement in
  decision-making process
• Provided liability release for meeting standards

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The Changed Landscape

• Move from technology to risk-based limits
• Addresses the cost and overkill complaints
• No technology-driven component
• Not what technology will best remove pollution
  from environment, but whether necessary to remove
  any
• Focus on risk of harm to humans not on
  feasibility of removing pollution
• Plain policy judgments made by General Assembly

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The Changed Landscape

• Uniform Cleanup Standards
• Addresses the moving ball complaint
• Three sets of standards each of which may be
  applied to the same site for different pollutants
• The site-specific option allows development of
  site-specific cleanup numbers
• Practical Effect substantive standard changed
  but arguably did not achieve uniformity

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The Changed Landscape

• Severely limited DEP involvement
• Addresses the perceived heavy-handedness with
  which DEP entered COA negotiations
• Only authorized DEP to get involved in approving
  the Final Report, unless operator chooses the
  site-specific standard
• General Assembly reigned in executive agency
• Effect public cannot rely on DEP to oversee
  cleanups

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The Changed Landscape

• Certainty for innocent purchasers (and
  responsible parties)
• Addresses multiple complaints
• Provided certainty to risk not previously offered
  by touch and pay perception
• Extended this certainty to future generations of
  owners
• Effect lock in todays policy judgments for
  generations to come

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Process Overview

• Notice of Intent to Remediate (NIR) submitted
• Public Notice
• Site Evaluation
• Remediation
• Final Plan submitted and approved
• Public Notice

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Site Evaluation

• Because persons choose remediation standard in
  NIR, site evaluation will likely preceed the NIR
• Purpose of site evaluation is to determine site
  conditions contaminants, extent of
  contamination, and media impacted
• DEP review recommended but not required
• Important decisions made without review by agency
  sampling methodology, analysis and
  interpretation of results
• Should encompass historical records review
  initial soil and groundwater screening detailed
  sampling and assessment of remediation choices
  and pathway elimination
• Site-specific Standard requires submission and
  approval of Site Assessment report before
  remediation is implemented

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NIR

• Describes site
• Identifies contaminants for which cleanup will be
  conducted
• Chooses cleanup standard
• Identifies future use of property
• Publication in PA Bulletin and local newspaper

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Cleanup Standards

• Background
• Statewide Health
• Site-Specific
• Special Industrial Area

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Cleanup StandardsBackground

• Based on concentration of regulated substance
  present in environment assuming that has been no
  release by humans

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Cleanup Standards Statewide Health Standard

• Numerical numbers designed to protect public
  health
• Media specific meaning different numbers for
  groundwater and soil
• Based only on direct contact through ingestion by
  humans
• Soil numbers developed based on direct ingestion
  or via leaching to groundwater
• Differ depending on whether use is residential or
  non-residential

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Cleanup Standards Site-specific Standard

• Standard developed by applicant using site
  specific information and risk assessment (fate
  and transport modeling) to achieve certain risk
  factors (e.g. 1 in 10,000 for suspected
  carcinogens where cancer risk has been
  defined)(1X10-4)

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Cleanup StandardsSpecial Industrial Areas

• Responsibility limited to removal of immediate,
  direct or imminent threats to public health
  based on proposed use
• Department responsible for remediation of other
  contamination

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ReportsBackground and Statewide Health Standard

• Only Final Report submitted for approval
• Must demonstrate compliance with chosen
  remediation standard
• Should include assessment, description of
  exposure factors (residential or nonresidential),
  remediation conducted, sampling that confirms
  compliance, and rationale for concluding the site
  meets the remediation standard
• Department has 60 days to review and respond, or
  it is deemed approved
• Published in PA Bulletin, municipality and local
  newspaper

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ReportsSite Specific Standard

• Remedial Investigation, Risk Assessment Report,
  Cleanup Plan and Final Report
• Must demonstrate compliance with chosen
  remediation standard
• Department has 90 days to review and respond, or
  it is deemed approved
• Published in PA Bulletin, municipality and local
  newspaper

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ReportsSpecial Industrial Area

• Baseline Remedial Investigation Work Plan
• Evaluate existing contamination and assess any
  immediate, direct or imminent threats to public
  health or the environment that would prevent
  occupation of the property for its intended use
• Department has 90 days to review and respond, or
  it is deemed approved
• Published in PA Bulletin, municipality and local
  newspaper

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Liability Protection

• Any person demonstrating compliance obtains
  protection from having to do any future cleanup,
  unless it can be demonstrated that the
  contamination resulted from later actions.
• The liability protection extends to successors
  and assigns, and users or developers
• The liability protection includes third party
  contribution actions and citizens suits

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Re-openers

• Persons can be required to do further work if the
  cleanup involved fraud in demonstrating
  attainment
• New information shows contamination that exceeds
  the standard in an area not previously known
• Remediation fails to meet the standard chosen
  level of risk changes (e.g. property use changes)
• A post-act release can now be remediated and only
  institutional controls were used to meet standard
• Institutional controls were used and failed

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Civil and Criminal Liability

• Act 2 does not protect persons that engaged in
  wrongdoing from civil penalty and criminal
  liability under the environmental protection
  statutes
• However, DEP need not exercise the authority to
  penalize wrongdoers if they voluntarily remediate
  under Act 2

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Permit Exemption

• No remediation work conducted under Act 2
  requires a state or local permit
• Act 2 does not exempt persons from obtaining
  permits required by Federal law
• So state permits that are required because of
  underlying federal requirements cannot be waived
  e.g. NPDES Permits.

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Institutional Controls

• Institutional controls play an important role in
  maintaining compliance under Act 2
• Examples include pavement, fencing, restricted
  use of groundwater, and restricting future land
  use

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Institutional Controls

• Background Standard may not be used to attain
  standard, but may be used to maintain the
  standard after remediation
• Statewide Health may not be used to attain
  standard, but may be used to maintain the
  standard after remediation
• Site-specific Standard may be used to attain
  standard controls used to eliminate exposure
  pathways to meet standard

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Deed Restrictions

• No deed restrictions are required if meet
  Background or residential Statewide Health
  Standards
• Notices that had been required under the SWMA and
  HSCA may be removed if meet Background or
  residential Statewide Health Standard
• Deed restrictions critical to pathway elimination
  option under Site-Specific Standard, and to
  ensuring no change in property use under
  Statewide Health Standard
• The DEP has no express authority under Act 2 to
  enforce deed restrictions

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Public Notice

• Basically, notice must be made when report must
  be submitted NIR, Final Report, Interim Reports
  for Site-Specific Standard
• Provided to municipality and published in local
  paper
• Exception no notice required if responsible
  party complies with Background or Statewide
  Health standard if Final Report submitted in
  response to and within 90 days of release

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Formal Comment Period

• A formal 30-day public comment period is required
  only for use of Site Specific Standard and in
  Special Industrial Area

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Public Involvement Plan

• For Site Specific Standard or in case of Special
  Industrial Area, person must develop a public
  involvement plan, but only if municipal official
  requests
• No express standards for what constitutes an
  appropriate plan

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Public Notice

• Liability protection dependent on compliance with
  public notice provisions

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Obtaining Information

• Personal contacts with DEP officials
• Formal Written Requests under
• Right to Know Law
• Clean Streams Law

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Challenges to DEP approval

• Have 30 days to challenge Department action or
  inaction
• Must affect your personal or property rights to
  have standing
• Not adequate to have a generalized interest in
  subject or site

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Questions

• What is the trade-off in this statute?
• Who has the burden of challenging judgments made
  by persons whose financial interest is in reuse
  of the property?
• Who suffers the consequences if those judgments
  are in error?
• What is the check on those judgments?
• Who suffers the risk of an error in judgment or
  inaction by the DEP?
• What are the opportunities for public involvement
  in this process?
• What overview is provided for the assessment
  process
• Who is making sure that institutional controls
  are being maintained?
• Ask who is inspecting cleaned up sites?

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QuestionsHow is the publics fate tied to DEPs
role?

• The science advisory Board sets the cleanup
  standards for DEP (background and statewide
  health)
• Based on those standards, DEPs role is severely
  limited
• DEP plays a more significant role where
  site-specific standard chosen
• Where DEPs role limited, less documentation of
  decisions being made by company on cleanup, and
  consequently, less chance to review actions that
  affect your community
• No state agency action means no opportunity for
  review by third party, such as a court of law

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QuestionsLand Use Controls

• Future land use traded off for present
  redevelopment
• Public health and safety tied to restricting uses
  of property particularly in site-specific
  standard
• Enforcement mechanism is deed restriction
• Who is minding the deed restrictions?

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QuestionsInstitutional Controls

• Institutional controls used to maintain, and in
  some cases, attain the cleanup standard
• DEP has no inspection program
• Who is assuring that institutional controls
  remain in tact?

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QuestionsInformation is Power

• Who has the information on site locations,
  cleanup standards, and compliance?
• What information is being collected?
• Is there a publicly available Act 2 registry?
• Is there a publicly available registry of deed
  restricted properties?
• Can the public easily determine the location and
  condition of Act 2 sites?
• How does public assess whether goals of Act 2 are
  being achieved, and validity of policy decisions
  made by General Assembly?