Citizens Guide to Pennsylvanias Land Recycling Program.

Citizen’s Guide to Citizen’s Guide to Pennsylvania’s Land Pennsylvania’s Land Recycling ProgramRecycling Program

OverviewOverview

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

PA Department of PA Department of Environmental ProtectionEnvironmental Protection

What is a brownfield?What is a brownfield?

Historically, “brownfield” meant polluted real estate with Historically, “brownfield” meant polluted real estate with no responsible party from which to require cleanup; cost no responsible party from which to require cleanup; cost and other uncertainties led potential users to choose and other uncertainties led potential users to choose green space over reuse of these sitesgreen space over reuse of these sites

Under Federal law, “brownfield” means real property, the Under Federal law, “brownfield” means real property, the expansion, redevelopment or reuse of which is expansion, redevelopment or reuse of which is complicated by pollutioncomplicated by pollution

PA law does not define “brownfield”, but the term is PA law does not define “brownfield”, but the term is generally used in a manner consistent with Federal lawgenerally used in a manner consistent with Federal law

The definition is synonymous with polluted site, and is no The definition is synonymous with polluted site, and is no longer limited by whether persons responsible for the longer limited by whether persons responsible for the pollution existpollution exist

BackgroundBackground

Historically, the DEP’s focus on cleaning up Historically, the DEP’s focus on cleaning up polluted sites depended on whether there was a polluted sites depended on whether there was a responsible partyresponsible party

Responsible parties could be required to Responsible parties could be required to cleanup pollution under an order or consent cleanup pollution under an order or consent order using CSL, SWMA and HSCAorder using CSL, SWMA and HSCA

Sites with no responsible parties could be Sites with no responsible parties could be cleaned up using HSCAcleaned up using HSCA

Abandoned sites were rarely cleaned up by Abandoned sites were rarely cleaned up by prospective purchasers or developersprospective purchasers or developers


DEP negotiated Consent Orders to DEP negotiated Consent Orders to address pollution in soil and groundwateraddress pollution in soil and groundwater

COAs are agreements negotiated between COAs are agreements negotiated between the DEP and a responsible party that the DEP and a responsible party that contains commitments that are contains commitments that are enforceable in a court of lawenforceable in a court of law


COAs contained the following:COAs contained the following: DEP approval of soil and groundwater DEP approval of soil and groundwater

assessment plans requiredassessment plans required Use of Best Available Technology to Use of Best Available Technology to

cleanup contaminationcleanup contamination Set cleanup goals that required the Set cleanup goals that required the

responsible party to use best efforts and responsible party to use best efforts and BAT until significant quantities of BAT until significant quantities of contaminants could no longer be removedcontaminants could no longer be removed


Prior approach required DEP to:Prior approach required DEP to: Make professional and technical Make professional and technical

judgments about how best to assess the judgments about how best to assess the extent of contamination; extent of contamination;

Research and negotiate what technology Research and negotiate what technology would best remove the contaminants, and would best remove the contaminants, and

Determine when removal of contaminants Determine when removal of contaminants was no longer feasiblewas no longer feasible


In short, the pre-Act 2 approach required In short, the pre-Act 2 approach required that DEP employees think and act that DEP employees think and act rationally in safeguarding public health and rationally in safeguarding public health and the environmentthe environment

Critics lodged several complaints at this Critics lodged several complaints at this processprocess

BackgroundBackground The agency’s ad hoc decisions established a The agency’s ad hoc decisions established a

“moving target” for cleanups“moving target” for cleanups Technology-based cleanups were too costlyTechnology-based cleanups were too costly Cleanup goals were unnecessary to protect Cleanup goals were unnecessary to protect

public healthpublic health The “touch and pay” approach discouraged The “touch and pay” approach discouraged

reuse of “old industrial sites”reuse of “old industrial sites” Non-use of old industrial sites lead to Non-use of old industrial sites lead to

consumption of green spaceconsumption of green space The cleanup policy was not evenly appliedThe cleanup policy was not evenly applied The agency was too “heavy handed”The agency was too “heavy handed”


Act 2 was, among other things, a rebuke of how Act 2 was, among other things, a rebuke of how the DEP was interpreting and using its authority the DEP was interpreting and using its authority to regulate industry that caused pollutionto regulate industry that caused pollution

The complaints concerned sites with responsible The complaints concerned sites with responsible parties, and not just abandoned industrial sitesparties, and not just abandoned industrial sites

Act 2 represented a substantial withdrawal of Act 2 represented a substantial withdrawal of decisionmaking authority from the agency that decisionmaking authority from the agency that resulted in a paradigm shift in how we approach resulted in a paradigm shift in how we approach pollution in our environmentpollution in our environment

Act 2 of 1995Act 2 of 1995

Governor Tom Ridge signed the PA Land Governor Tom Ridge signed the PA Land Recycling and Environmental Remediation Recycling and Environmental Remediation and Standards Act into effect on May 19, and Standards Act into effect on May 19, 19951995

DEP promulgated regulations DEP promulgated regulations implementing Act 2 on August 15, 1997implementing Act 2 on August 15, 1997

The Changed LandscapeThe Changed Landscape

Cleanup standards shifted from Cleanup standards shifted from technology to risk-based limitstechnology to risk-based limits

Applied the “same” cleanup numbers Applied the “same” cleanup numbers throughout statethroughout state

Severely restricted DEP involvement in Severely restricted DEP involvement in decision-making processdecision-making process

Provided liability release for meeting Provided liability release for meeting standardsstandards


Move from technology to risk-based limitsMove from technology to risk-based limits Addresses the cost and overkill complaintsAddresses the cost and overkill complaints No technology-driven componentNo technology-driven component Not what technology will best remove pollution Not what technology will best remove pollution

from environment, but whether necessary to from environment, but whether necessary to remove anyremove any

Focus on risk of harm to humans; not on Focus on risk of harm to humans; not on feasibility of removing pollutionfeasibility of removing pollution

Plain policy judgments made by General Plain policy judgments made by General AssemblyAssembly


Uniform Cleanup StandardsUniform Cleanup Standards Addresses the “moving ball” complaintAddresses the “moving ball” complaint Three sets of standards; each of which may be Three sets of standards; each of which may be

applied to the same site for different pollutantsapplied to the same site for different pollutants The site-specific option allows development of The site-specific option allows development of

site-specific cleanup numberssite-specific cleanup numbers Practical Effect: substantive standard changed; Practical Effect: substantive standard changed;

but arguably did not achieve uniformitybut arguably did not achieve uniformity


Severely limited DEP involvementSeverely limited DEP involvement Addresses the perceived “heavy-handedness” Addresses the perceived “heavy-handedness”

with which DEP entered COA negotiationswith which DEP entered COA negotiations Only authorized DEP to get involved in Only authorized DEP to get involved in

approving the Final Report, unless operator approving the Final Report, unless operator chooses the site-specific standardchooses the site-specific standard

General Assembly reigned in executive agencyGeneral Assembly reigned in executive agency Effect: public cannot rely on DEP to oversee Effect: public cannot rely on DEP to oversee

cleanupscleanups


Certainty for innocent purchasers (and Certainty for innocent purchasers (and responsible parties)responsible parties)

Addresses multiple complaints Addresses multiple complaints Provided certainty to risk not previously Provided certainty to risk not previously

offered by “touch and pay” perceptionoffered by “touch and pay” perception Extended this certainty to future Extended this certainty to future

generations of ownersgenerations of owners Effect: lock in today’s policy judgments for Effect: lock in today’s policy judgments for

generations to comegenerations to come

Process OverviewProcess Overview

Notice of Intent to Remediate (NIR) Notice of Intent to Remediate (NIR) submittedsubmitted

Public NoticePublic Notice Site EvaluationSite Evaluation RemediationRemediation Final Plan submitted and approvedFinal Plan submitted and approved Public NoticePublic Notice

Site EvaluationSite Evaluation Because persons choose remediation standard in NIR, Because persons choose remediation standard in NIR,

site evaluation will likely preceed the NIRsite evaluation will likely preceed the NIR Purpose of site evaluation is to determine site conditions Purpose of site evaluation is to determine site conditions

– contaminants, extent of contamination, and media – contaminants, extent of contamination, and media impactedimpacted

DEP review recommended but DEP review recommended but notnot required required Important decisions made without review by agency – Important decisions made without review by agency –

sampling methodology, analysis and interpretation of sampling methodology, analysis and interpretation of resultsresults

Should encompass historical records review; initial soil Should encompass historical records review; initial soil and groundwater screening; detailed sampling; and and groundwater screening; detailed sampling; and assessment of remediation choices and “pathway assessment of remediation choices and “pathway elimination”elimination”

Site-specific Standard requires submission and approval Site-specific Standard requires submission and approval of Site Assessment report before remediation is of Site Assessment report before remediation is implementedimplemented

NIRNIR Describes siteDescribes site Identifies contaminants for which cleanup Identifies contaminants for which cleanup

will be conductedwill be conducted Chooses cleanup standardChooses cleanup standard Identifies future use of propertyIdentifies future use of property Publication in PA Bulletin and local Publication in PA Bulletin and local

newspapernewspaper

Cleanup StandardsCleanup Standards

BackgroundBackground Statewide HealthStatewide Health Site-SpecificSite-Specific Special Industrial AreaSpecial Industrial Area

Cleanup StandardsCleanup StandardsBackgroundBackground

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

Cleanup StandardsCleanup Standards Statewide Health Standard Statewide Health Standard

Numerical numbers designed to protect Numerical numbers designed to protect public healthpublic health

Media specific – meaning different Media specific – meaning different numbers for groundwater and soilnumbers for groundwater and soil

Based only on direct contact through Based only on direct contact through ingestion by humansingestion by humans

Soil numbers developed based on direct Soil numbers developed based on direct ingestion or via leaching to groundwateringestion or via leaching to groundwater

Differ depending on whether use is Differ depending on whether use is residential or non-residentialresidential or non-residential

Cleanup StandardsCleanup Standards Site-specific Standard Site-specific Standard

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

Cleanup StandardsCleanup StandardsSpecial Industrial AreasSpecial Industrial Areas

Responsibility limited to removal of Responsibility limited to removal of “immediate, direct or imminent threats” to “immediate, direct or imminent threats” to public health based on proposed usepublic health based on proposed use

Department responsible for remediation of Department responsible for remediation of other contaminationother contamination

ReportsReportsBackground and Statewide Health StandardBackground and Statewide Health Standard

Only Final Report submitted for approvalOnly Final Report submitted for approval Must demonstrate compliance with chosen Must demonstrate compliance with chosen

remediation standardremediation standard Should include assessment, description of Should include assessment, description of

exposure factors (residential or nonresidential), exposure factors (residential or nonresidential), remediation conducted, sampling that confirms remediation conducted, sampling that confirms compliance, and rationale for concluding the site compliance, and rationale for concluding the site meets the remediation standardmeets the remediation standard

Department has 60 days to review and respond, Department has 60 days to review and respond, or it is deemed approvedor it is deemed approved

Published in PA Bulletin, municipality and local Published in PA Bulletin, municipality and local newspapernewspaper

ReportsReportsSite Specific StandardSite Specific Standard

Remedial Investigation, Risk Assessment Remedial Investigation, Risk Assessment Report, Cleanup Plan and Final ReportReport, Cleanup Plan and Final Report

Must demonstrate compliance with chosen Must demonstrate compliance with chosen remediation standardremediation standard

Department has 90 days to review and Department has 90 days to review and respond, or it is deemed approvedrespond, or it is deemed approved

Published in PA Bulletin, municipality and Published in PA Bulletin, municipality and local newspaperlocal newspaper

ReportsReportsSpecial Industrial AreaSpecial Industrial Area

Baseline Remedial Investigation Work PlanBaseline Remedial Investigation Work Plan Evaluate existing contamination and assess any Evaluate existing contamination and assess any

immediate, direct or imminent threats to public immediate, direct or imminent threats to public health or the environment that would prevent health or the environment that would prevent occupation of the property for its intended useoccupation of the property for its intended use

Department has 90 days to review and respond, Department has 90 days to review and respond, or it is deemed approvedor it is deemed approved

Published in PA Bulletin, municipality and local Published in PA Bulletin, municipality and local newspapernewspaper

Liability ProtectionLiability Protection

Any person demonstrating compliance obtains Any person demonstrating compliance obtains protection from having to do any future cleanup, protection from having to do any future cleanup, unless it can be demonstrated that the unless it can be demonstrated that the contamination resulted from later actions.contamination resulted from later actions.

The liability protection extends to successors The liability protection extends to successors and assigns, and users or developersand assigns, and users or developers

The liability protection includes third party The liability protection includes third party contribution actions and citizens suitscontribution actions and citizens suits

Re-openersRe-openers Persons can be required to do further work if the Persons can be required to do further work if the

cleanup involved fraud in demonstrating cleanup involved fraud in demonstrating attainmentattainment

New information shows contamination that New information shows contamination that exceeds the standard in an area not previously exceeds the standard in an area not previously knownknown

Remediation fails to meet the standard chosen; Remediation fails to meet the standard chosen; level of risk changes (e.g. property use changes)level of risk changes (e.g. property use changes)

A post-act release can now be remediated and A post-act release can now be remediated and only institutional controls were used to meet only institutional controls were used to meet standardstandard

Institutional controls were used and failedInstitutional controls were used and failed

Civil and Criminal LiabilityCivil and Criminal Liability

Act 2 does not protect persons that Act 2 does not protect persons that engaged in wrongdoing from civil penalty engaged in wrongdoing from civil penalty and criminal liability under the and criminal liability under the environmental protection statutesenvironmental protection statutes

However, DEP need not exercise the However, DEP need not exercise the authority to penalize wrongdoers if they authority to penalize wrongdoers if they voluntarily remediate under Act 2voluntarily remediate under Act 2

Permit ExemptionPermit Exemption

No remediation work conducted under Act No remediation work conducted under Act 2 requires a state or local permit2 requires a state or local permit

Act 2 does not exempt persons from Act 2 does not exempt persons from obtaining permits required by Federal lawobtaining permits required by Federal law

So state permits that are required because So state permits that are required because of underlying federal requirements cannot of underlying federal requirements cannot be waived e.g. NPDES Permits.be waived e.g. NPDES Permits.

Institutional ControlsInstitutional Controls

Institutional controls play an important role Institutional controls play an important role in maintaining compliance under Act 2in maintaining compliance under Act 2

Examples include pavement, fencing, Examples include pavement, fencing, restricted use of groundwater, and restricted use of groundwater, and restricting future land userestricting future land use

Institutional ControlsInstitutional Controls

Background Standard – may not be used Background Standard – may not be used to attain standard, but may be used to to attain standard, but may be used to maintain the standard after remediationmaintain the standard after remediation

Statewide Health – may not be used to Statewide Health – may not be used to attain standard, but may be used to attain standard, but may be used to maintain the standard after remediationmaintain the standard after remediation

Site-specific Standard – may be used to Site-specific Standard – may be used to attain standard; controls used to eliminate attain standard; controls used to eliminate exposure pathways to “meet” standardexposure pathways to “meet” standard

Deed RestrictionsDeed Restrictions

No deed restrictions are required if meet No deed restrictions are required if meet Background or residential Statewide Health Background or residential Statewide Health StandardsStandards

Notices that had been required under the SWMA Notices that had been required under the SWMA and HSCA may be removed if meet Background and HSCA may be removed if meet Background or residential Statewide Health Standardor residential Statewide Health Standard

Deed restrictions critical to pathway elimination Deed restrictions critical to pathway elimination option under Site-Specific Standard, and to option under Site-Specific Standard, and to ensuring no change in property use under ensuring no change in property use under Statewide Health StandardStatewide Health Standard

The DEP has no express authority under Act 2 The DEP has no express authority under Act 2 to enforce deed restrictionsto enforce deed restrictions

Public NoticePublic Notice

Basically, notice must be made when report Basically, notice must be made when report must be submitted: NIR, Final Report, Interim must be submitted: NIR, Final Report, Interim Reports for Site-Specific StandardReports for Site-Specific Standard

Provided to municipality and published in local Provided to municipality and published in local paperpaper

Exception – no notice required if responsible Exception – no notice required if responsible party complies with Background or Statewide party complies with Background or Statewide Health standard if Final Report submitted in Health standard if Final Report submitted in response to and within 90 days of releaseresponse to and within 90 days of release

Formal Comment PeriodFormal Comment Period

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

Public Involvement PlanPublic Involvement Plan

For Site Specific Standard or in case of For Site Specific Standard or in case of Special Industrial Area, person must Special Industrial Area, person must develop a public involvement plan, but develop a public involvement plan, but only if municipal official requestsonly if municipal official requests

No express standards for what constitutes No express standards for what constitutes an appropriate planan appropriate plan

Public NoticePublic Notice

Liability protection dependent on Liability protection dependent on compliance with public notice provisionscompliance with public notice provisions

Obtaining InformationObtaining Information

Personal contacts with DEP officialsPersonal contacts with DEP officials Formal Written Requests under –Formal Written Requests under –

Right to Know LawRight to Know Law Clean Streams LawClean Streams Law

Challenges to DEP approvalChallenges to DEP approval

Have 30 days to challenge Department Have 30 days to challenge Department “action” or inaction“action” or inaction

Must affect your personal or property Must affect your personal or property rights to have standingrights to have standing

Not adequate to have a generalized Not adequate to have a generalized interest in subject or siteinterest in subject or site

QuestionsQuestions What is the trade-off in this statute?What is the trade-off in this statute? Who has the burden of challenging judgments made by Who has the burden of challenging judgments made by

persons whose financial interest is in reuse of the persons whose financial interest is in reuse of the property?property?

Who suffers the consequences if those judgments are in Who suffers the consequences if those judgments are in error?error?

What is the check on those judgments?What is the check on those judgments? Who suffers the risk of an error in judgment or inaction by Who suffers the risk of an error in judgment or inaction by

the DEP?the DEP? What are the opportunities for public involvement in this What are the opportunities for public involvement in this

process?process? What overview is provided for the assessment processWhat overview is provided for the assessment process Who is making sure that institutional controls are being Who is making sure that institutional controls are being

maintained?maintained? Ask who is inspecting “cleaned up” sites?Ask who is inspecting “cleaned up” sites?

QuestionsQuestionsHow is the public’s fate tied to DEP’s role?How is the public’s fate tied to DEP’s role?

The science advisory Board sets the cleanup standards The science advisory Board sets the cleanup standards for DEP (background and statewide health)for DEP (background and statewide health)

Based on those standards, DEP’s role is severely limitedBased on those standards, DEP’s role is severely limited DEP plays a more significant role where site-specific DEP plays a more significant role where site-specific

standard chosenstandard chosen Where DEP’s role limited, less documentation of Where DEP’s role limited, less documentation of

decisions being made by company on cleanup, and decisions being made by company on cleanup, and consequently, less chance to review actions that affect consequently, less chance to review actions that affect your communityyour community

No state agency action means no opportunity for review No state agency action means no opportunity for review by third party, such as a court of lawby third party, such as a court of law

QuestionsQuestionsLand Use ControlsLand Use Controls

Future land use traded off for present Future land use traded off for present redevelopmentredevelopment

Public health and safety tied to restricting Public health and safety tied to restricting uses of property – particularly in site-uses of property – particularly in site-specific standardspecific standard

Enforcement mechanism is deed Enforcement mechanism is deed restrictionrestriction

Who is minding the deed restrictions?Who is minding the deed restrictions?

QuestionsQuestionsInstitutional ControlsInstitutional Controls

Institutional controls used to maintain, and Institutional controls used to maintain, and in some cases, attain the “cleanup” in some cases, attain the “cleanup” standardstandard

DEP has no inspection programDEP has no inspection program Who is assuring that institutional controls Who is assuring that institutional controls

remain in tact?remain in tact?

QuestionsQuestionsInformation is PowerInformation is Power

Who has the information on site locations, Who has the information on site locations, cleanup standards, and compliance?cleanup standards, and compliance?

What information is being collected?What information is being collected? Is there a publicly available Act 2 registry?Is there a publicly available Act 2 registry? Is there a publicly available registry of deed Is there a publicly available registry of deed

restricted properties?restricted properties? Can the public easily determine the location and Can the public easily determine the location and

condition of Act 2 sites?condition of Act 2 sites? How does public assess whether goals of Act 2 How does public assess whether goals of Act 2

are being achieved, and validity of policy are being achieved, and validity of policy decisions made by General Assembly?decisions made by General Assembly?

Citizens Guide to Pennsylvanias Land Recycling Program.

Documents

cleanup pollution

polluted sites

hsca sites

background dep

persons responsible

cleanup cost

hsca responsible parties

groundwater dep