Transcript Basic Economic Development Course in Pennsylvania

Basic Economic Development
Course in Pennsylvania
Environmental and Commercial Real Estate Legal
Issues Surrounding Economic Development
Act 2 Issues
Scott R. Dismukes
Eckert Seamans Cherin & Mellott, LLC
600 Grant Street, 44th Floor
Pittsburgh, PA 15219
(412) 566-1998
[email protected]
November 8, 2004
849483
Potential Sources of Liability
CERCLA
Hazardous Substances excluding petroleum,
waste oil not typically covered by petroleum
exclusion
HSCA
Hazardous Substances excluding petroleum
OPA
Clean Streams Law
Prohibits discharge of pollutants to surface or
ground water
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CERCLA: Potentially Responsible Parties
CERCLA imposes cleanup cost liability on:
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current owners and operators
persons who owned or operated at the time of
disposal of hazardous substances
persons who arranged for disposal or treatment
of hazardous substances
persons who arranged with a transporter for
transport of hazardous substances for disposal
or treatment
persons who accepted hazardous substances for
transport for disposal or treatment
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PA Land Recycling Program
 Established
in 1995 as:
 Land
Recycling and Environmental
Remediation Standards Act (Act 2)
 Economic Development Agency, Fiduciary
and Lender Liability Protection Act
 Industrial Sites Assessment Act
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PA Land Recycling Program, cont’d.
 Four
Key Elements
 Uniform
Cleanup Standards
 Liability Relief
 Standardized Reviews and Time Periods
 Financial Assistance
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PA Land Recycling Program, cont’d.
 Recognized
programs
as a leader in state
 Over
30,000 jobs on site
 Over $53.2 million in grants and loans
 Since
1995, 1,100 sites have been
cleaned up through the Land Recycling
Program
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PA Land Recycling Program, cont’d.
 Scope:
 Inactive
or abandoned industrial sites
where regulated substances were released
 Active sites with releases of regulated
substances
 “Regulated substances” include hazardous
substances, contaminants and pollutants
subject to regulation under major
Pennsylvania environmental laws
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PA Land Recycling Program, cont’d.
 Eligibility:
 Persons
who voluntarily remediate a
release of a regulated substance
 Persons required by law to remediate the
release of a regulated substance
 Persons who remediate industrial
properties in enterprise zones or
properties for which there are no
financially viable parties to clean up the
contamination
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PA Land Recycling Program, cont’d.
 Provides
protection from cleanup
liability to parties which demonstrate
attainment of cleanup standards
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The Mechanics of Act 2
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Characterize the soil and groundwater
contamination at the site
Investigate historic and current uses of site and
surrounding area
 Perform soil and groundwater sampling
 Site characterization is the basis for the cleanup
liability protection
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Assess the potential future uses of the
property and groundwater
Residential versus non-residential
 Land use and zoning restrictions
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The Mechanics of Act 2, cont’d
 Establishes
standards
three uniform cleanup
 Background
Standard
 Naturally
occurring (e.g., iron or manganese in
groundwater in certain geologic formations)
 Statewide
Health Standards
 Site Specific Standard – Risk-based
standard
 Typically
involves property use restrictions
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The Mechanics of Act 2, cont’d

Deed Restrictions
Act II Land Recycling Program
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Site specific
Non-residential
HSCA/SWMA
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Deed acknowledgment if any disposal
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Area size and location
Description of hazardous substances
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The Mechanics of Act 2, cont’d
 Getting
Started:
 Submit
Notice of Intent to Remediate
(NIR) to DEP
 Notify the municipality and the public of
the submission of the NIR and every
report
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The Mechanics of Act 2, cont’d
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Submit reports to DEP for its review and
approval
Type of reports varies with the cleanup standard
 Final Report demonstrating attainment with
cleanup standard required with all of the
standards
 DEP has limited time to review and act on the
reports
 Failure to take action within this time results in a
deemed approval of the report
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Receive cleanup liability protection
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Demonstrate attainment of cleanup standard
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The Mechanics of Act 2, cont’d
 Buyer-Seller
Agreement – Provides
Buyer with immediate liability protection
and commits Seller to DEP-sanctioned
remediation schedule
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Environmentally Distressed Properties
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Pennsylvania buyer/seller agreements
Act 2 liability release
Innocent purchasers
Bona fide purchasers after January 11, 2002
Contiguous land owner
Prospective purchase agreements
Contractual Indemnity
Insurance
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Assessing Cleanup Strategies
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What law governs
What is intended future use
What cleanup standard arguably apply
On-site/off-site release
What can you negotiate
Is insurance available
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Other Considerations
 Financial
Assistance and Incentives
 Industrial
Sites Reuse Program
 Industrial Sites Cleanup Fund
 Keystone Opportunity Zones
 Governor’s
Action Team
 Key Sites Pilot Project
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Other Considerations, cont’d.
 Local
Land Use Regulation
 Local
governments are not preempted
from regulating the remediated property
 Site use and any deed restrictions must
comply with Municipalities Planning Code
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