Transcript Citizens Guide to Pennsylvania Land Recycling Program

Citizen’s Guide to
Pennsylvania’s 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?
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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
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
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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
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
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
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
Background
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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”
Background
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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
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
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
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
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
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
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
Process Overview
 Notice
of Intent to Remediate (NIR)
submitted
 Public Notice
 Site Evaluation
 Remediation
 Final Plan submitted and approved
 Public Notice
Site Evaluation
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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
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
Cleanup Standards
 Background
 Statewide
Health
 Site-Specific
 Special Industrial Area
Cleanup Standards
Background
 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
 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
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)
Cleanup Standards
Special 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
Reports
Background and Statewide Health Standard
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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
Reports
Site 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
Reports
Special Industrial Area
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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
Liability Protection
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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
Re-openers
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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
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
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.
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
Institutional Controls
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
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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
Public Notice
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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
Formal Comment Period
 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
 No express standards for what constitutes
an appropriate plan
Public Notice
 Liability
protection dependent on
compliance with public notice provisions
Obtaining Information
 Personal
contacts with DEP officials
 Formal Written Requests under –
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Right to Know Law
Clean Streams Law
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
Questions
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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?
Questions
How is the public’s fate tied to DEP’s role?
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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
Questions
Land Use Controls
 Future
land use traded off for present
redevelopment
 Public health and safety tied to restricting
uses of property – particularly in sitespecific standard
 Enforcement mechanism is deed
restriction
 Who is minding the deed restrictions?
Questions
Institutional 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?
Questions
Information is Power
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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?