Citizens Guide to Pennsylvanias Land Recycling Program

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

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

Background Historically, the DEPs focus on cleaning up polluted sites depended on whether there was a responsible party 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 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 Sites with no responsible parties could be cleaned up using HSCA Abandoned sites were rarely cleaned up by prospective purchasers or developers Abandoned sites were rarely cleaned up by prospective purchasers or developers

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

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

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

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

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

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 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 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 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

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

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

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

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

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

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

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

Site Evaluation Because persons choose remediation standard in NIR, site evaluation will likely preceed the NIR 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 Purpose of site evaluation is to determine site conditions – contaminants, extent of contamination, and media impacted DEP review recommended but not required DEP review recommended but not required Important decisions made without review by agency – sampling methodology, analysis and interpretation of results 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 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 Site-specific Standard requires submission and approval of Site Assessment report before remediation is implemented

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

Cleanup Standards Background Background Statewide Health Statewide Health Site-Specific Site-Specific Special Industrial Area Special Industrial Area

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

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

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) 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)

Cleanup Standards Special Industrial Areas Responsibility limited to removal of immediate, direct or imminent threats to public health based on proposed use Responsibility limited to removal of immediate, direct or imminent threats to public health based on proposed use Department responsible for remediation of other contamination Department responsible for remediation of other contamination

Reports Background and Statewide Health Standard Only Final Report submitted for approval Only Final Report submitted for approval Must demonstrate compliance with chosen remediation standard 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 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 Department has 60 days to review and respond, or it is deemed approved Published in PA Bulletin, municipality and local newspaper Published in PA Bulletin, municipality and local newspaper

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

Reports Special Industrial Area Baseline Remedial Investigation Work Plan 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 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 Department has 90 days to review and respond, or it is deemed approved Published in PA Bulletin, municipality and local newspaper Published in PA Bulletin, municipality and local newspaper

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. 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 extends to successors and assigns, and users or developers The liability protection includes third party contribution actions and citizens suits The liability protection includes third party contribution actions and citizens suits

Re-openers Persons can be required to do further work if the cleanup involved fraud in demonstrating attainment 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 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) 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 A post-act release can now be remediated and only institutional controls were used to meet standard Institutional controls were used and failed Institutional controls were used and failed

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

Permit Exemption No remediation work conducted under Act 2 requires a state or local permit 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 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. So state permits that are required because of underlying federal requirements cannot be waived e.g. NPDES Permits.

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

Institutional Controls Background Standard – may not be used to attain standard, but may be used to maintain the standard after remediation 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 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 Site-specific Standard – may be used to attain standard; controls used to eliminate exposure pathways to meet standard

Deed Restrictions No deed restrictions are required if meet Background or residential Statewide Health Standards 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 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 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 The DEP has no express authority under Act 2 to enforce deed restrictions

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

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

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 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 No express standards for what constitutes an appropriate plan

Public Notice Liability protection dependent on compliance with public notice provisions Liability protection dependent on compliance with public notice provisions

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

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

Questions 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 persons whose financial interest is in reuse of the property? 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? Who suffers the consequences if those judgments are in 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 the DEP? 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 are the opportunities for public involvement in this process? What overview is provided for the assessment process What overview is provided for the assessment process Who is making sure that institutional controls are being maintained? Who is making sure that institutional controls are being maintained? Ask who is inspecting cleaned up sites? Ask who is inspecting cleaned up sites?

Questions How is the publics fate tied to DEPs role? The science advisory Board sets the cleanup standards for DEP (background and statewide health) The science advisory Board sets the cleanup standards for DEP (background and statewide health) Based on those standards, DEPs role is severely limited Based on those standards, DEPs role is severely limited DEP plays a more significant role where site-specific standard chosen 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 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 No state agency action means no opportunity for review by third party, such as a court of law

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

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

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