PA Brownfields Environmental Law

More Cuts Proposed for PADEP*

Joel Bolstein — Mon, 04 Jan 2010 18:11:42 -0500

According to a memorandum sent to all Department Secretaries at the close of business today, the Governor has provided a breakdown of the additional 1,000 state furloughs necessary in the event the General Assembly doesn't pass casino table games legislation. The memorandum shows PADEP having to furlough an additional 31 out of 1,647 General Fund positions. I put the asterisk in the title for this post because I don't think these cuts will happen. Table games legislation will be passed because the alternative (additional cuts) is unthinkable. While I can understand the need to demonstrate the seriousness of the problem, I think the Department has experienced enough stress as a result of the most recent budget shortfall and ensuing furloughs. At some point, the leadership in Harrisburg has to acknowledge that the people at PADEP perform an invaluable and necessary public function -- protecting the environment -- and start looking to other less critical areas for filling potential budget gaps. We'll all the pay the price if PADEP is weakened any further.

EPA releases PA Enforcement Results for FY2009

Joel Bolstein — Wed, 30 Dec 2009 15:06:27 -0500

A few days ago, EPA issued a report providing the results of its enforcement actions in FY 2009, and I would like to highlight the results for Pennsylvania.

According to EPA, the following is a summary of the federal enforcement actions taken in Pennsylvania over the last fiscal year:

Region 3, Pennsylvania

Civil Enforcement
Estimated Environmental Benefits – Commitments to Reduce Pollution & Protect the Environment:
Direct Environmental Benefits
Pollution Reduced, Treated or Eliminated (Pounds) (1)	2,804,447
Contaminated Soil to be Cleaned Up (Cubic Yards)	555
Contaminated Water to be Cleaned Up (Cubic Yards)	500
Investments in Actions & Equipment to Reduce Pollution & Protect the Environment (Injunctive Relief)	$36,665,251.00
Investments in Projects that Benefit the Environment & Public Health (Supplemental Environmental Projects)	$187,416.00
Civil Penalties Assessed	$1,218,152.00
Civil Enforcement and Compliance Activities
Civil Judicial Enforcement Case Conclusions	10
Final Administrative Penalty Orders	49
Administrative Compliance Orders	59

It's unclear how these totals were calculated. 555 cubic yards of contaminated soil remediated would appear to be a very small number. It clearly does not take into consideration the soil remediated under Pennsylvania's remediation programs, Act 2 and HSCA. With regard to fines and penalties, I would have thought the number would be much higher, given several high profile enforcement actions over the last year. It's possible that those fines and not included here because they had criminal components. In any event, these are the numbers EPA is putting out for Pennsylvania for FY2009.

Happy New Year to all and here's hoping none of your companies or clients find there way into these tallies next year.

MJB

Pennsylvania's Climate Change Action Plan Now Available

Joel Bolstein — Mon, 21 Dec 2009 15:29:08 -0500

Last Friday, Pennsylvania's Climate Change Action Plan was presented to Governor Rendell and made available on line. It contains 52 recommended actions that the Commonwealth could pursue to reduce greenhouse gas emissions. It represents the culmination of a significant amount of work on the part of the Climate Change Advisory Committee. Now that EPA has found greenhouse gases to be an endangerment to the environment, it is likely that additional regulation can be expected impacting a variety of industries. The Action Plan is a good place to start assessing the likely next steps in the Commonwealth.

PADEP Tells Storage Tank Advisory Committee that MTBE Standard will Not be Changed

Joel Bolstein — Thu, 17 Dec 2009 15:32:17 -0500

As a follow-up to my earlier post noting that the CSSAB had objected to the Department changing its mind on adopting a new statewide health standard for MTBE, the Department has now told the Storage Tank Advisory Committee the same thing. Here is what it posted on STAC's web page:

Statewide Health Standard for MTBE

The Department has reconsidered the proposed changes to the Statewide health standards for Methyl Tertiary Butyl Ether (MTBE) since the September 1, 2009 CSSAB meeting and decided not to change the MTBE standards at this time. The current Chapter 250 Statewide health cleanup standard for MTBE is 20 ug/l for groundwater used for drinking water. This 20 ug/l standard is the odor threshold for MTBE as published by the U.S. Environmental Protection Agency in the

"2006 Edition of the Drinking Water Standards and Health Advisories" (EPA 822-R-06-013). The Department has decided that the previously considered revisions for MTBE included in the September 1, 2009 draft, which allowed for higher concentrations of MTBE based on health based calculations, would have resulted in unacceptable taste and odor impacts on groundwater used for drinking water.

I understand the competing positions on this issue, and I still believe that there may be some middle ground that could be adopted during the regulatory review process. As noted in my prior post, why not treat MTBE in a manner similar to SMCLs (authorizing remediators to move the point of compliance to the point of first use) for sites where MTBE levels are between 20 ppb and the initially proposed higher standard of 190 ppb? The chief beneficiary of the higher MTBE statewide health standard would undoubtedly be the State's Underground Storage Tank Indemnification Fund. For years, I have marveled at how USTIF continues to remain solvent while other states have completely drained their state indemnification funds. It's my understanding that raising the statewide health standard for MTBE to the level proposed by the CSSAB could potentially extend the life of PA's indemnification fund by several years. Keeping more money in USTIF would mean more remediation projects being funded, and that benefits the citizens of the Commonwealth. Extending the life of USTIF would be a worthy policy goal, and it can probably be accomplished without jeopardizing anyone's water source through raising the MTBE standard.

New PADEP Policy Will Minimize UECA Reporting Obligations Where Downgradient Use of Groundwater Is Highly Unlikely

Joel Bolstein — Wed, 16 Dec 2009 16:36:17 -0500

For my regular readers, I am going to share with you a new policy just released to the regional ECP managers by Central Office, which Troy Conrad passed along to me earlier today. This is really inside baseball at this point, so you should be thankful you have me making these calls and prying loose important information. The policy eases the future reporting obligations imposed by UECA on a property owner where there is off-site migration. Up until now, in the case of a remediation attaining the Site Specific Standard with off-site migration (or the non-use aquifer SWHS), the Department would require a post remediation care plan and annual compliance reporting by the property owner on whether the affected downgradient properties continued to be on public water. This new policy released to the regional ECP managers gives them the discretion to not impose an annual reporting obligation in the EC in cases where there are no known downgradient wells and future use of groundwater is "highly unlikely". In those instances, the property owner would have to observe and report only when they became aware of changes in use that could result in a downgradient property owner seeking to use the groundwater. That may not seem like a significant change, but it is and it shows that the Department is willing to apply common sense implementing UECA. I've repeatedly expressed the concern that there needs to be guidance provided on the imposition of the reporting obligation. Some covenants have no reporting, others require annual reporting, and still others authorize reporting every three years. How the Department decides on which obligation to impose is a mystery. Troy has said that there will be guidance provided by way of additional information included in the Act 2 Technical Guidance Manual. Until that time, periodic changes in interpretation, like the one just released, will go a long way to making it easier to live with UECA.

As a service, I am providing the full language of this new directive to the ECP managers below. Anyone with questions, should feel free to send me a comment.

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Monitoring nonuse of groundwater on downgradient properties where the future use is highly unlikely

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Chapter 250.303 establishes the requirements relating to a nonuse aquifer determination and the associated post remediation care requirements.

Chapter 250.303(d)(3) states that; "The remediator shall establish institutional controls to maintain the integrity of the nonuse aquifer determination, or include a postremediation care plan in the final report detailing the process of routinely assessing and reporting to the Department compliance with subsection (c)."

The most common types of institutional controls referenced in this section are environmental covenants on the downgradient properties restricting use of the groundwater or municipal ordinances prohibiting use of the groundwater. The alternative is a post remediation care plan detailing the process of assessing and reporting compliance. The Chapter 250 regulations, LRP technical guidance, and the LRP Q&As do not specify the types of assessment and reporting appropriate for every possible situation. The approval of the specific type of assessment and reporting appropriate in any given case is left to the professional judgment and discretion of the ECP Regional Manager, based on the facts of each case.

Some remediators have raised questions concerning long-term monitoring and reporting for situations where the future use of groundwater is highly unlikely. Based on feedback from ECP Regional Managers, the Land Recycling Program is recommending the following policy for the subset of cases where the likelihood of a downgradient property owner ever using the groundwater in the future is determined to be highly unlikely.

If a remediator meets all of the requirements of 250.303(c), the area is fully developed, no wells are known to exist on any of the downgradient properties, and the ECP Regional Manager determines that the future use of groundwater is highly unlikely; then the obligations for post remediation care can be limited to the following: An environmental covenant shall be placed on the remediated source property prohibiting the use of groundwater on the source property and requiring the owner of the source property to observe the use of the downgradient properties on an on-going basis and report to the Department if and when any changes of property use occur that might reasonably result in a downgradient property owner using the contaminated groundwater.

This policy limits the post remediation care obligations for the remediator for these types of sites while at the same time assuring that an environmental covenant will be placed on the remediated source property deed and posted in the on-line registry, which will provide public notice that the long-term remediation of the site is based on the continued nonuse of contaminated groundwater on the source property and the downgradient properties. This policy should be applied to both Statewide health standard nonuse aquifer cases and equivalent site-specific standard pathway elimination cases.

EHB Further Clarifies Fee Shifting Provisions Under PA Clean Streams Law

Joel Bolstein — Tue, 15 Dec 2009 15:28:50 -0500

The fee shifting provisions of the Clean Streams Law (CSL) have been a subject of recent litigation in Pennsylvania. In a decision issued December 15, 2009, the Pennsylvania Environmental Hearing Board (EHB) further clarified its position on this subject. The case involved a request for fees under Section 307 of the CSL filed by two municipal authorities. The authorities had appealed the issuance of the Skippack Creek Watershed TMDL back in 2005. EPA subsequently withdrew the TMDL and no hearing took place before the EHB, because the parties entered into a stipulation of settlement in January 2009. The authorities later filed a petition for costs with the EHB, asserting they were prevailing parties and their suit played a substantial role in the withdrawal of the TMDL. DEP countered that the TMDL was withdrawn by EPA, not the Department. Moreover, the Department argued that EPA withdrew the TMDL because it wasn't strict enough, which was the opposite view to that expressed by the Authorities.

The Board's unanimous decision was written by Judge Krancer. It's well worth reading by anyone who believes they may find themselves requesting fees under the CSL. There is a thorough analysis and recitation of the applicable law, including the PA Supreme Court's decision in Solebury Township v. DEP, which was decided in 2007 and had the Department paying a Township's costs for challenges brought to permits issued for the Route 202 bypass that were eventually withdrawn by PennDOT. Judge Krancer draws on Justice Ginsburg's 2001 dissent in Buckhannon Board and Care Home, Inc. , Justice Saylor's decision in Solebury, and Judge Labuskas' decision in the Solebury remand. Ultimately, he rejects the fee petition, finding that Section 307 of the CSL is not a "vehicle for recovery of fees and costs where it was not DEP who took the action being claimed as victory or the substantial victory." He noted that in this case, "it was not DEP that did anything or took any action or changed any behavior which supplied what the applicants point to as their good result. . . . Even if the EPA's withdrawal of the Skippack TMDL can be considered a benefit to the applicants, it was EPA, a federal sovereign and a non-party to the EHB suit, which provided that benefit."

To sum up, the Board's holding is that in order to be successful in requesting fees under Section 307 of the CSL, "the petitioner must still be at least a substantially prevailing party in that the party must have attained some result from the other side which is positive from that party's point of view and the suit must have been a substantial or significant cause of the defendant's action providing relief." In this case, that standard wasn't met, because the result (withdrawal of the TMDL) was not obtained from the Department, but from EPA, and it did not result directly from the litigation before the EHB. The decision could be appealed to the Commonwealth Court, so stay tuned.

New EPA Region 3 Administrator Named

Joel Bolstein — Thu, 10 Dec 2009 16:52:03 -0500

I have to admit that I didn't see the EPA's press release when it came out last month. EPA Administrator Jackson has named Shawn M. Garvin to replace Don Welsh as Regional Administrator for EPA Region 3, which covers Pennsylvania, Delaware, District of Columbia, Maryland, Virginia, and West Virginia. Mr. Garvin has worked for EPA Region 3 for over 10 years and currently serves as EPA Region 3’s Senior State and Congressional Liaison. In that position he is the primary contact to Congressional delegations and state and local officials throughout the region. He joined EPA in 1997, serving as Special Assistant to the Regional Administrator. Prior to that, Mr. Garvin worked for then-Senator Joe Biden and County Executive Dennis Greenhouse.

The Regional Administrator is the highest ranking individual within the regional office and serves at the pleasure of the EPA Administrator in Washington. I've know several EPA regional administrators over the years, Jim Seif (who went on to become PADEP Secretary), Ted Ericson (who went on to become a PA State Senator), and Don Welsh (a former PADEP Deputy Secretary who became executive director of PEC earlier this year), and know that it is a very important position that is both challenging and rewarding. I wish Mr. Garvin the best of luck as he takes the reigns of the regional office.

PADEP Withdraws Proposed Changes to MTBE Groundwater Standards

Joel Bolstein — Mon, 07 Dec 2009 16:37:03 -0500

In my post dated October 6, 2009, I provided a first look at the draft proposed changes to Chapter 250, including the proposed changes to the groundwater Medium Specific Concentrations (MSCs). The draft changes were given to the Cleanup Standards Scientific Advisory Board (CSSAB) for their review and comment. As noted in my prior post, the most significant change was the proposed standard for MTBE going from 20 ppb to 190 ppb for groundwater at residential property and 960 ppb for non-residential property. A member of the CSSAB informed me last week that PADEP had withdrawn the proposed change to the MTBE groundwater standards, and when I checked the Department's website, I found that the proposal on the CSSAB's webpage had been revised, as of November 23, 2009, and the MTBE standard was now set to remain at 20 ppb.

After PADEP withdrew the proposed changes to the MTBE standards, the Chair of the CSSAB, Ron Buchanan, sent a letter to Dave Crownower at the Department noting that "[t]he Board unanimously opposes the MSCs for methyl tert-butyl ether (MTBE) contained in the proposed amendments to 25 Pa. Code Chapter 250 because those MSCs do not reflect specific health-based criteria as required in Act 2 and the regulations thereunder, but instead are based on aesthetic considerations not authorized by Act , thereby treating MTBE differently than other regulated substances in contravention of the mandates of Act 2 to establish cleanup standards based on sound science." I am not aware of all of the details of the dispute. My understanding is that the CSSAB developed a formula for setting MSCs and that the results of that formula are reflected in all of the revised MSCs contained in the proposed regulation, except for MTBE. For MTBE, there were people within the Department that asserted that levels above 20 ppb in groundwater effected the taste and smell of the water. I have no way of verifying if that is true, but I do know that MSCs are based on health-based criteria and not on aesthetic considerations, as pointed out by Mr. Buchanan.

The only standards I know that are based on taste and smell are non-health based SMCLs, and meeting those standards are totally voluntary under Act 2, and you are even allowed to move the point of compliance for purposes of attaining those standards to the point of first use. If DEP is going to base its MTBE standard on considerations of taste and smell, then I would propose that they make similar regulatory accommodations allowing a remediator to move the POC for MTBE to the point of first use, at least when the levels are between 20 and 190 ppb. If the formula used by the CSSAB has found that 190 ppb is the appropriate health-based standard for residential groundwater, I would have to question the validity of the Department continuing to use of 20 ppb as the health-based standard. Indeed, it will be interesting when this matter comes before the Environmental Quality Board. Section 303 of Act 2 states that "[t]he Environmental Quality Board shall also promulgate along with the standards the methods used to calculate the standards." What will the Department say is the "method" used for calculating the 20 ppb MTBE groundwater standard? Taste and smell are not "health-based standards" nor are they standards designed to be protective of the environment. In addition, you can't use one method for calculating all health-based standards and another method for calculating a single non-health based standard. That is the essence of arbitrary decision-making.

I realize that MTBE shows up at almost all tank remediation projects, but that is no reason to deviate from the scientific formula developed by the CSSAB to calculate the MSCs for all other hazardous substances. Throughout the history of the Act 2 program, the CSSAB has been a tremendous resource for the Department. Its opposition to relying on aesthetic considerations as the criteria for setting the MSCs for MTBE should be taken very seriously by the Department, seeing that the members of the CSSAB are the outside technical experts whose advice and input have been sought by the Department on issues relating to the Act 2 statewide health standards for the last 15 years. If I remember, Ron Buchanan was one of the original members of the CSSAB when it was initially constituted. On this dispute, I come down on the side of the CSSAB.

DEP Staff Cuts Reduced to 96

Joel Bolstein — Fri, 04 Dec 2009 16:53:57 -0500

As reported on Dave Hess' blog, the final number of cuts made at PADEP was reduced from 130 to 96, as a result of bumping. The losses are spread out across offices and programs. As of today, I am not aware of any list identifying each specific position that was cut. If I find one, I'll provide more information regarding the budget cuts so people will be able to assess the potential impact on specific programs. I'm told that 5 attorney positions were cut.

New Jersey's LSRP Program - Would it work in PA?

Joel Bolstein — Fri, 04 Dec 2009 13:52:00 -0500

I just returned from a seminar in Trenton organized by Langan Engineering on New Jersey's recently enacted Site Remediation Reform Act and its use of Licensed Site Remediation Professionals (LSRP) to implement that Act. The LSRP Program was summarized by Irene Kropp, NJDEP's Assistant Commissioner for Site Remediation. Perspectives were also provided by environmental consultants, attorneys, and corporate and business representatives.

My purpose in attending the program was to learn about New Jersey's LSRP program and to form an opinion on whether such a program could be helpful in Pennsylvania. After sitting through four hours of presentations, my opinion is that Pennsylvania doesn't need an LSRP program now, it is unlikely to need one in the future, but Pennsylvania policy makers should closely monitor developments in New Jersey, and if the program turns out to be wildly successful, then elements of it could be considered to fit within Pennsylvania's remediation framework.

When speakers were asked to explain why New Jersey decided to adopt an LSRP program, they explained that New Jersey's regulatory program for addressing contaminated sites was "broken". David Brogan from the NJ Business and Industry Association described the circumstances leading to the adoption of the LSRP program as "the perfect storm", which included a serious backlog in NJDEP reviewing and approving reports, a budget crisis, and political pressure for the state to be more business friendly. Those circumstances do not exist in Pennsylvania. Act 2 is one of the most successful environmental programs in the history of the Commonwealth. The statute already sets specific timeframes for PADEP to review various plans and reports, and DEP has been meeting those deadlines for the last 14 years. You don't hear many complaints about Act 2. You mostly hear praise and envy from practitioners in other states. It works. And while we have had our own budget crisis, it's nothing like that in New Jersey. Even before the adoption of the LSRP program, NJDEP had been cut to the bone and was just a shell of its former self. While PADEP staff has been cut, the levels are now similar to those that existed when I was Deputy Secretary, when Act 2 was first developed and implemented.

The adoption of the LSRP program means that there will no longer be a voluntary cleanup program in New Jersey. Anyone initiating remediation in New Jersey now needs to hire a Licensed Site Remediation Professional. For sites already in the regulatory system, there is a transition period where people can opt in. Starting in May 2012, however, all sites will need to use an LSRP.

One of the most dramatic changes in New Jersey relates to the new duties imposed on LSRPs. There is an LSRP Code of Conduct that says if an LSRP identifies a condition at a contaminated site that, in his or her professional judgment, is an immediate environmental concern, that LSRP must immediately notify NJDEP of the condition. That duty raises significant issues for buyers and sellers in property transactions. Here's an example. If you are Selling a piece of property and the Buyer is allowed to perform due diligence, would you want the Buyer to use an LSRP or someone who isn't an LSRP? If they use an LSRP and the LSRP comes onto the property and sees a sheen on some surface water or they detect odors in a building, that consultant could, and likely would, be required by the Code of Conduct to immediately report those conditions to NJDEP. On the other hand, if the Buyer's consultant was not an LSRP, there'd be no duty to report those conditions to NJDEP. So, if you are a seller, you might be tempted to put in the purchase agreement a prohibition on the buyer using an LSRP to perform the due diligence. The speakers noted that the Code of Conduct leaves many gray areas which will have to be addressed by an as-yet-to-be -created Board that will oversee the LSRPs.

Another significant issue that was discussed is the requirement that NJDEP audit a certain percentage of the site remediation projects being completed with LSRPs. Apparently, the audits will take place within three years after the site remediation is completed and an RAO (Remedial Action Outcome) is issued (the RAOs replace what had been NFAs issued by NJDEP). What happens if the LSRP, in the exercise of its sound professional judgment, issues the RAO and three years later NJDEP audits the site and decides to invalidate the RAO. Who would be responsible? Is the consultant responsible for any added costs? Was that issue addressed in the agreement between the remediator and the LSRP? What if the LSRP decided that the appropriate remedy was to cap the site, and NJDEP later rejects the RAO that approved that remedy and says all the waste material needs to be removed? If the cap cost several hundred thousand dollars, and now it has to be removed to get at the waste material and all of that expenditure was wasted, who is held responsible? What if the property transaction closed upon the consultant's issuance of the RAO, and several years later NJDEP invalidates the remedy and holds the buyer responsible for additional costs? It would seem that every consulting agreement and purchase and sale agreement in New Jersey will now have to be re-evaluated to take into consideration a whole host of new issues arising out of the LSRP program.

My impression of the New Jersey LSRP program is that it is very complex. NJDEP developed 382 pages of rules. You need to read the statute, the rules, and understand the Code of Conduct. There are multiple triggers and timelines for the implementation of different pieces of the program. There are provisions allowing NJDEP to have direct oversight over specific sites, in addition to the sites handled by LSRPs. There is a hope that this will all work because the system in place now in NJ is broken and in need of repair. The bet is that the LSRP program will give brownfield developers more certainty and push sites through the process more quickly. It's a work in progress. Speaker after speaker said the upcoming 2 1/2 year transition period before all sites are required to use LSRPs is seen as a shakedown period, and all stakeholders are encouraged to help improve the system. Based on what Irene Kropp said, NJDEP is committed to the success of the program. As a former Deputy, I appreciate her determination, but the proof is in the implementation. Using LSRPs to implement the remediation program is a transformational change. Part of me thinks that the environmental consulting community is going to be the biggest beneficiary of this program and the jury is still out on whether this is going to work.

As noted above, I don't think PA needs an LSRP program. NJDEP lacked regulatory capacity. PA still has capacity even with the recent budget cuts. NJDEP staff was chided for not making decisions on plans and reports and allowing them to languish without final decisions. PADEP staff has to deal with statutory deadlines and ECP managers make sure those deadlines are met. The new NJDEP program has aspects that would fundamentally change the nature of how sites are addressed in PA. It's heavy handed, very prescriptive, it pulls all sites into the regulatory system with mandatory reporting by consultants. It seemed to me to still be very enforcement driven. I prefer to stick with a voluntary program that combines discretion, flexibility and common sense. In a way, falling into a situation where environmental consultants have to fill the shoes of regulatory officials has to be seen for what is is -- a failure to properly manage the regulatory program and a throwing in the towel. It's an admission of defeat. I would hope that things in Pennsylvania would never come to that point. While I can see privatization in some form in PADEP's future, I don't think it will take the form of LSRPs.

The only time that I could see Pennsylvania considering an LSRP program would be if funding for PADEP continued to be reduced and the ECP program got the to point where it could no longer fulfill its statutory duties. I don't see that happening. Then again, HSCA (from which most of the ECP staff is funded) will be up for funding again shortly and, as of yet, there is no dedicated funding stream for the program. Rep. George had sought to create a dedicated funding stream through a severance tax on Marcellus Shale. That did not go through in the most recent budget, but it may very well be back on the table in next year's budget discussions. A permanent, secure funding stream for HSCA would ensure a responsibly administered and managed brownfield program in Pennsylvania, which would continue to create new jobs and economic opportunities for the citizens of the Commonwealth.

My thanks to Nick DeRose at Langan for inviting me to the seminar.

PADEP Budget Cuts

Joel Bolstein — Tue, 17 Nov 2009 16:30:36 -0500

Word out today that PADEP has to cut 120 jobs as a result of the recent budget. I'm told that the final word on which employees are being cut will come out on Friday. I feel for my friends within the Department, both management and staff. This cannot be an easy time for anyone.

Proposed Regulations on High TDS Discharges Now Out for Public Comment

Joel Bolstein — Fri, 13 Nov 2009 15:21:19 -0500

The Notice of Proposed Rulemaking for the proposed regulations on Discharges of High Total Dissolved Solids (TDS) was published in the Pennsylvania Bulletin on November 7, 2009. The comment period on the proposed regulations runs through February 5, 2010, and PADEP has scheduled four public hearings to take place in December. If everything runs according to the Department's stated timetable, the new regulations would take effect on or before January 1, 2011.

I've written about the potential impact of the proposed regulations in prior posts on this blog. For the Marcellus Shale industry, the regulations impose new treatment requirements and restrictions on wastewater discharges. Given the amount of money being invested by the Marcellus Shale industry in developing natural gas wells in Pennsylvania, I assume that they are prepared, to paraphrase JFK, to pay any price and bear any burden to make what could be billions in revenue from wells drilled into the Marcellus Shale formation. For businesses outside the growing natural gas industry, i.e., traditional Pennsylvania manufacturing businesses, these new regulations will pose some significant business challenges.

The regulations pose challenges for new businesses looking to locate in Pennsylvania. Any "new" business, i.e., one that did not have a wastewater discharge as of April 2009, will need to comply with the 500 ppm TDS discharge limit, if its wastewater discharge would otherwise exceed 2,000 ppm of TDS. In all likelihood, that will mean modifying processes to stay below the applicable thresholds so as not to trigger the need for wastewater treatment. If that can't be done, then the business will need to identify a means of treating the discharge and pay the cost of that treatment.

For existing businesses looking to expand, the regulations will pose unique challenges. Hypothetically, let's assume you are operating a manufacturing plant in Pennsylvania that employs 300 people. The manufacturing process uses water for cleaning purposes and it currently is treated before being discharged into some surface water. Your current permit has no limit on TDS, or for purposes of the hypothetical, let's assume it allows you to discharge up to 3,000 ppm of TDS. If this regulation becomes law, that business will be allowed to continue operating in its present form and nothing will change. There will be no unilateral reduction in the TDS limit and no need for additional treatment. The moment the manufacturer decides to increase production, resulting in an "expanded" or "increased" discharge, these new regulations would kick in and the manufacturer would have to identify means to treat the TDS discharge to meet the 500 ppm limit. The problem is, as PADEP recognizes in the preamble to the proposed rulemaking, "currently no treatment exists for TDS, sulfates and chlorides, other than dilution." Although the Department and stakeholders are trolling the literature, it's very possible that there still will be very few options available for treating high TDS when these regulations become final. That is going to present existing Pennsylvania businesses with a dilemma. They can stay in Pennsylvania and operate at current levels without the need to identify or pay for new wastewater treatment on TDS. If they decide they need to expand, they'll have to weigh the costs and availability of any new wastewater treatment against other options, which will include shutting down and/or moving operations outside Pennsylvania.

The last thing I would expect Pennsylvania elected officials would want is to force businesses to leave or locate new facilities elsewhere. And don't think businesses won't leave. In today's business climate, where many Pennsylvania manufacturing facilities are owned by out-of-state or foreign corporations, any disincentives to staying or locating in Pennsylvania could be the deciding factor. Having been an environmental lawyer for over 20 years, I've seen too many good Pennsylvania companies disappear from the landscape. Some have gone south (North Carolina, Texas, Mexico), others have gone overseas (India, China), and others have gone bankrupt or just gone out of business (Bethlehem Steel). When I was Deputy Secretary at PADEP, our brownfield program grew out of the fact that virtually every Pennsylvania community was the home to some old factory that was vacant, abandoned or underutilized, and incentives were needed to put those sites back into productive use.

While I realize that high TDS is an issue in some places around Pennsylvania, it certainly is not an issue throughout the Commonwealth. The rulemaking preamble notes that the Department is considering the formation of a work group in the Monongahela River Watershed to focus on wastewater issues relating to the Mon. No doubt there will be some questioning why the Department needs to take a one-size-fits-all approach to high TDS discharges. Why couldn't it simply focus on high TDS from the Marcellus Shale operators? Why couldn't it focus just on the Mon and the West Branch of the Susquehanna? Maybe those issues will be raised in the public comments, or during the public hearings scheduled outside those watersheds.

The rulemaking creates great uncertainty for Pennsylvania businesses. It makes it difficult to do long range planning. On top of that, there would appear to be some wishful thinking on the Department's part that cost-effective, wastewater treatment technologies will become available before the regulation becomes effective. All Pennsylvania business that generate high TDS need to take this seriously and to plan accordingly. Those plans should start with preparing comments for submittal to the EQB and working with their industry groups to make sure the Department hears their concerns.

Despite Cuts, ISR Funding is Available for Brownfield Sites

Joel Bolstein — Mon, 02 Nov 2009 15:31:16 -0500

I spoke with Scott Dunkelberger at PADCED today to see if he still has funds available for assessments and remediation grants. Scott says that the General Assembly transferred approximately $5 million from Growing Greener 2 into the ISR Fund, so he's in good shape. The most recent budget zeroed out approximately $500,000 that had been annually appropriated for assessments under Act 4, but there is still plenty of state money available for environmental assessments and remediation at brownfield sites in Pennsylvania. Applicants for grants must work with their local economic development agencies or redevelopment authorities, since only loan money is available to private developers. One piece of good news is that Scott says there really is no backlog at this point for ISR funding. When the economy was cranking, there often was a 6 to 12 month wait to get ISR funding, because there was always more funding requested than there was funding available. With the slowdown in the economy, there's no backlog now, so anyone with a viable brownfield redevelopment project should get in line now.

Public Funding for Brownfield Development Takes a Hit

Joel Bolstein — Fri, 30 Oct 2009 16:05:30 -0500

As previously reported, the state operating budget for PADEP took a large hit in the budget recently signed into law by Governor Rendell. The corresponding reduction in Department personnel will undoubtedly have an impact on brownfield redevelopment activities in Pennsylvania. Fewer personnel at PADEP means fewer people to review and approve Act 2 plans, reports and environmental covenants. It also means fewer people to review and approve air, water, stormwater and waste permits needed by developers to put brownfield sites back into productive reuse. The result of a reduced budget could be unpredictable review times as program managers scramble to find the necessary resources to get the job done.

In addition to the cuts at PADEP, significant cuts were made at the Department of Community and Economic Development which has historically provided grants to economic development agencies for environmental assessments and remediations at brownfield sites in Pennsylvania. The budget for PADCED dropped dramatically from $567 million to $264 million in this budget cycle. Included among those cuts was a zeroing out for the Industrial Sites Environmental Assessment Fund (a loss of $493,000) and a zeroing out for the Keystone Innovation Zones (a loss of $543,000). Marketing budgets for attracting business have been slashed, as have other grant and loan programs used to attract new businesses to Pennsylvania. Community Revitalization, previously at $39.5 million, has been eliminated entirely, as has $18.75 million for Urban Development.

In looking over the list of line items in the new budget for PADCED, I did not see any line item for the Industrial Sites Reuse Program. The ISR program had typically been funded annually at the $5 million level and it had been used to provide assessment and remediation grants under Act 2. I'm not sure if that money has been put into some other fund or if it has been eliminated entirely. I have a call into the PADCED grants office to see if I can get some answers regarding the future of the ISR fund. If it is gone, that will be a real loss to the county redevelopment authorities that have successfully used those funds to reclaim brownfield sites across the Commonwealth. It will also be a great loss to the brownfield redevelopers who have partnered with those redevelopment authorities and brought life back to some blighted properties.

It's possible that redevelopment and economic development agencies will be able to tap into other state grant funds to use for brownfield assessments and cleanup. I'll be looking into that as well. Absent state money, federal brownfield dollars will have to fill those gaps, and we may all have to learn to live with the extra strings that are attached to those federal brownfield dollars.

Brownfield Insurance Program in Ohio Provides Food for Thought in PA

Joel Bolstein — Tue, 13 Oct 2009 15:42:51 -0500

The Ohio EPA recently announced a new program designed to provide lower cost environmental insurance to brownfield developers remediating sites in Ohio's voluntary brownfield program. The news release issued by Ohio EPA states that it has signed a memorandum of understanding with three insurance carriers (ACE Environmental Risk, American Insurance Company and Navigator's Specialty Insurance Company) relating to their offering discounted insurance to applicants taking their sites through the states Voluntary Action Program. The discounts are 10 percent off the typical cost of the premium. Environmental insurance policies can be expensive for brownfield remediation projects, so a discounted policy would provide an additional incentive. I know that PADEP had pursued discussions with insurance carriers about a similar pooling arrangement, but I don't think those discussions came to fruition. There is no information on PADEP's website about any similar insurance program fro Pennsylvania brownfield sites. Now that Ohio has rolled out its program, it would be a good time for PADEP to take a look to see if that program can be adapted to fit Pennsylvania's brownfield program. Maybe the three insurance carriers could be convinced to provide similar discounts to brownfield remediators in the Commonwealth.

Heavy Budget Cuts at PADEP

Joel Bolstein — Fri, 09 Oct 2009 16:12:09 -0500

PADEP's state operating budget is being cut by 26.7%, according to information I received today. What does that translate into in terms of reduced compliment at the Department? I'm told that it's estimated PADEP will lose 325 real people. How the Department will get its work done with those cuts on top of other cuts that have occurred over the last few years is going to be a topic of much conversation both inside and outside the Department. I'm told the Department may have to consider handing programs back to EPA. What's it going to mean for brownfield developers? Will brownfield developers feel any of those cuts? Undoubtedly they will. Fewer DEP staffers mean fewer people to review Act 2 plans and reports. It also means fewer people to review and approve permit applications necessary for development projects, i.e., air permits, water permits, NPDES stormwater construction permits. The Department may have to resort to something it has previously tried to avoid, namely, allowing plans and permits to be deemed approved because the Department hasn't met its statutory review deadlines. The Department is going to be entering uncharted waters with this new budget, and we'll all have to be watching closely to see how it is going to affect individual programs.

New Environmental Hearing Board Appointments

Joel Bolstein — Fri, 09 Oct 2009 15:30:47 -0500

Dave Hess just wrote on his blog that the PA Senate earlier today confirmed the following individuals as members of the Environmental Hearing Board: Thomas W. Renwand, Michelle Coleman, Michael Krancer, and Richard Mather. I spoke with Dave a few minutes ago and he confirmed the information. The new appointments mean that Judge Krancer has been returned to the EHB, having previously stepped down as Chief Judge to run for the PA Supreme Court. Rick Mather is currently the Deputy Chief Counsel for PADEP in Harrisburg. He has a lifetime of experience within the Department and is an excellent addition to the Board. I have worked with Rick and he has good judgment and I expect a good judicial temperment. The fifth remaining member is Judge Bernie Labuskas, whose term had not expired. The new appointments also mean that Judge George Miller's tenure on the EHB has now ended. There isn't enough time to review Judge Miller's accomplishments or to properly thank him for being an outstanding jurist. He arrived on the EHB having left private practice in 1995, where Jim Seif and I worked with George where he was chair of our environmental practice group. We knew George would make an excellent Judge because of his skills and training as an environmental lawyer, his collegial attitude, and his general nature as what people used to refer to as being "a Philadelphia lawyer." Judge Miller was my mentor at my former firm and I used to enjoy popping down into his office for a chat when I was on the 16th floor of the Rachel Carson Building and he was down on the second floor. At my former firm, Judge Miller used to affectionately call me "Lad". At DEP, he used to enjoy calling me Mr. Deputy Secretary. In many ways, I wouldn't be where I am or who I am without the guidance I received from Judge Miller. He is everything someone who calls themselves an environmental lawyer should strive to be -- honest, hardworking, knowledgeable, experienced, collegial, good-natured, and respectful to all. To Judge Miller I fondly say, you can be proud of your accomplishments on the Environmental Hearing Board, which go beyond the decisions you've written and go directly to the respect you've earned from all those who practiced before you.

First Glance at Proposed Changes to Chapter 250 Regulations

Joel Bolstein — Tue, 06 Oct 2009 18:38:16 -0500

The Department has posted on its website some proposed changes to the regulations for the Land Recycling Program. They can be found on the home page for the Cleanup Standards Scientific Advisory Board.

The proposed regulatory changes are "for discussion purposes only." They have not been sent to the Environmental Quality Board.

The most significant items are as follows: (1) many of the statewide health standards for soil and groundwater will be revised to reflect changes to the methodologies used by US EPA in calculating MCLs; (2) the vapor intrusion guidance is incorporated by reference into the regulations; and (3) the Department will explicitly recognize that groundwater samples taken for characterization purposes can be used for purposes of demonstrating attainment.

In terms of revising the cleanup standards, in looking through the charts it is clear that some numbers will go up and some will go down. The one change that jumped out at me was the proposed new statewide health standard for MTBE in groundwater which will go from 20 ppb to 190 ppb for residential and 960 ppb for non-residential properties. At many brownfield sites where petroleum products are the contaminant of concern, MTBE can be the driver in delaying closure of the site. That is likely to change if and when the new standards are adopted.

With regard to statewide health standards that are proposed to be decreased, I was told by Troy Conrad, the Director of the Land Recycling Program, that the Department has no intention of reopening any Act 2 releases at sites that demonstrated attainment under the existing statewide health standards. Those releases are valid, having been obtained under the standards existing at the time the Act 2 Final Report was approved. Moreover, those releases recognize that the sites are safe and protective of human health and the environment, and PADEP is right to leave those releases alone. It would be a real nightmare for the Department and for brownfield redevelopers to have to revisit each and every site where a release was obtained from the onset of the Land Recycling Program almost 15 years ago.

Inasmuch as the cleanup standards will be changing, environmental consultants and brownfield redevelopers in Pennsylvania would be smart to look at the proposed changes to the Chapter 250 regulations that are now on the Department's website to see if those changes will have any effect on current and future brownfield remediation projects.

Draft UECA Regulations Do Not Address Periodic Reporting

Joel Bolstein — Wed, 30 Sep 2009 15:38:57 -0500

I've taken my first look through the draft UECA regulations that are now on PADEP's website. My biggest issue isn't with what's in the draft regulations but with what isn't in there.

After several years of advising clients regarding compliance with UECA and having submitted a number of them to PADEP for review and approval, I can say that the most significant concern for brownfield developers is the fact that the Model Covenant on PADEP's website imposes periodic reporting obligations on the property owner that run in perpetuity. So, for example, if the remediation involves capping some contaminated soil with asphalt or concrete, the environmental covenant will say that the cap has to be maintained and the property owner must report annually (i.e., forever) to the Department that it is continuing to maintain that engineering control. It wasn't that way prior to UECA. Before UECA, the property owner would put notice of the cap in its deed and that would be that.

Upon first reading UECA, one could have easily concluded that the drafters did not intend to impose perpetual reporting obligations in each and every environmental covenant. Information "required" to be included in environmental covenants is set forth in Section 6504(a) of UECA. Additional information that was supposed to be optional was set forth in Section 6504(b) of UECA. One of the optional requirements is Section 6504(b)(2) -- "requirements for periodic reporting describing compliance with the environmental covenant." Nonetheless, what appears to have been considered optional by the drafters of UECA has now become required, as a result of the use of the Model Covenant and through the actions of the Department staff responsible for reviewing and approving the environmental covenants.

I had hoped that the regulations would provide an avenue for the Department to interpret Section 6504(b)(2) in a way that would set forth criteria to use in determining instances in which periodic reporting was not required. Surely, perpetual monitoring isn't necessary for every institutional and engineering control. We got along just fine without it in the twelve years that brownfield developers were successfully remediating thousands of sites under Act 2 prior to UECA's passage. In addition to using the regulations to draw distinctions between sites that require periodic monitoring and sites that don't, the regulations could be used to set ground rules for the frequency of the periodic reporting. Some ECs approved by the Department require annual reporting while others allow reporting every three years. There is nothing in any of the UECA guidance (the fact sheets and model covenant) issued by the Department to date that explains how one determines the needed frequency for the reporting. It seems to me that the regulations might be an appropriate place to set those ground rules.

In my reading through the draft regulations, it is apparent that the Department has chosen not to use the regulations to clarify when the "optional" reporting obligation need not be imposed or the frequency of the reporting obligation in those instances when it is imposed. In speaking with Troy Conrad at PADEP, who will be responsible for moving the draft regulations to completion, he acknowledged that the draft regulations don't address the issue of periodic reporting. He suggested it may be better addressed with additional guidance to be provided in the Act 2 Technical Guidance Manual. I agree that is a possibility, but these are issues that need to be addressed in one form or another.

To the extent that the Department is using the regulations to interpret UECA, then it may be entirely appropriate to include provisions addressing the requirements for periodic monitoring in Section 6504(b). The Act 2 TGM is used as a supplement to the Act 2 regulations. It expands upon and provides additional guidance, but the Act 2 regulations address the major issues. The need or lack thereof for periodic monitoring is a major issue under UECA. I would hope that the Department would specifically solicit comments on the need for periodic monitoring and the frequency of that monitoring, when it formally releases the draft regulations as proposed regulations later this year. This is an issue of great concern to brownfield developers in Pennsylvania. I intend to bring up the issue at the next meeting of the UECA Stakeholders Group and I would encourage others to weigh in on this issue as well.

Obtaining a Copy of the Draft UECA Regulations

Joel Bolstein — Thu, 24 Sep 2009 14:32:13 -0500

I realize that the link I provided in my last post for the draft UECA regulations is not working. I'm not sure why that is, but for anyone looking to get a copy of the draft UECA regulations, here is how you do it:

Go to PADEP's website www.depweb.state.pa.us

On the left side, click on Public Participation

Scroll down to DEP Advisory Committee Agendas, Minutes and handouts and click on that

Scroll down to the Cleanup Standards Scientific Advisory Board and click on that

Click on Upcoming and Past Meeting Information

Click on Proposed Draft regulations implementing UECA

Click on the Staples Easy Button on your desk, which says "That was easy"