Citizen’s Guide to Pennsylvania’s Land Recycling Program

1. Citizen’s Guide to Pennsylvania’s Land Recycling Program

2. 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

3. 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

4. Background • Historically, the DEP’s 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

5. 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

6. 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

7. 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

8. 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

9. Background • The agency’s 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”

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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 today’s policy judgments for generations to come

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

18. 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

19. 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

20. Cleanup Standards • Background • Statewide Health • Site-Specific • Special Industrial Area

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

22. 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

23. 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)

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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.

32. 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

33. 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

34. 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

35. 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

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

37. 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

38. Public Notice • Liability protection dependent on compliance with public notice provisions

39. Obtaining Information • Personal contacts with DEP officials • Formal Written Requests under – • Right to Know Law • Clean Streams Law

40. 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

41. 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?

42. QuestionsHow is the public’s fate tied to DEP’s role? • The science advisory Board sets the cleanup standards for DEP (background and statewide health) • Based on those standards, DEP’s role is severely limited • DEP plays a more significant role where site-specific standard chosen • Where DEP’s 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

43. 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?

44. 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?

45. 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?