PA Brownfields Environmental Law

PADEP's Permit Review Process Public Participation Policy ... It's Back?

Adam H. Cutler — Tue, 30 Apr 2013 18:31:43 -0500

Following up on my posts of February 7, 2013 and November 28, 2012, the agenda for next week's meeting of the Pennsylvania DEP's Environmental Justice Advisory Board includes a scheduled discussion of the status of the Department's draft Permit Review Process Public Participation Policy. After I return from the meeting next week, I'll provide an update on the draft policy, and particularly any revisions made as a result of earlier public comment. Stay tuned....

What Developers Should Know About DVRPC's Updated Comprehensive Plan

Adam H. Cutler — Tue, 30 Apr 2013 16:48:34 -0500

Last week, I attended the April meeting of the Delaware Valley Regional Planning Commission's Environmental Justice Work Group. DVRPC staff presented an overview of its updated comprehensive plan, Connections 2040, which contained eye-opening information that is relevant to developers throughout the Delaware Valley.

Holding all else equal – that is, absent implementation of the comprehensive regional plan – DVRPC's long-term projections showed high growth expected in the outermost parts of Chester County, Montgomery County, and Bucks County, and slower-to-flat growth in most of Philadelphia and the other surrounding Pennsylvania suburbs. But in Delaware County, DVRPC projected losses of both jobs and population, focused in the central part of the county and the communities along the Delaware River. (Click for a pdf showing DVRPC’s projections)

Connections 2040, however, would focus on reinvestment in the central cities of the region, primarily on infill development and redevelopment near existing transportation infrastructure. Transportation capital investments over the next 2 to 3 decades would largely be devoted to maintenance and repair of our existing transportation infrastructure, rather than on expansion of service. This may seem frustrating to the many of us who commute from suburb to suburb, rather than from suburb to Philadelphia; most commuting trips now fall into the former category, and I'm sure there are many who, like me, would like to take the train but find our options lacking and wind up in the car.

But transportation and comprehensive planning in the Delaware Valley are caught in a bind of scarce funds as pressures on both federal and state shares create a shrinking overall pie. Beyond repairing and maintaining existing roads, bridges, and rail lines (some of which have deteriorated to the point that closure is required), available funding will be prioritized for operational improvements such as SEPTA's new fare collection system. Expansion of service will be the third priority, but meaningful expansion, at least through the medium term, does not appear to be in the cards. Thus, faced with the alternative of perpetuating car-centric suburban sprawl that lacks access to public transit, DVRPC’s planners believe that focusing growth into areas that are already well served by existing infrastructure will help to reduce energy demand through more compact land-use patterns and to reduce transportation-related emissions that both cause air pollution and contribute to global climate change.

Given this backdrop, Connections 2040 would seem to offer significant opportunities to developers who are willing to take on Brownfields projects in the central cities of the greater Philadelphia region. Ultimately, the additional costs associated with these sites could compare quite favorably to the costs of building out new infrastructure and navigating regional and local planning policies for new development on greenfield parcels in the far suburbs of Philadelphia.

USEPA Issues Vapor Guidance for Public Comment

Christopher Roe — Tue, 16 Apr 2013 15:09:47 -0500

This afternoon, April 16, 2013, USEPA's Office of Solid Waste and Emergency Response released for public input two draft vapor intrusion guidance documents: a general guidance for all compounds; and one focused on petroleum hydrocarbons released from underground storage tanks. The documents can be accessed at: http://www.epa.gov/oswer/vaporintrusion. Public input must be submitted by May 24, 2013, at: http://www.regulations.gov; docket number: EPA-HQ-RCRA-2002-0033-007.

As reported previously on this blog, our office was among those who formally petitioned USEPA, in December 2012, to release these documents for public comment on the basis that the leaked versions revealed an approach that has fundamentally changed from the last general USEPA draft from 2002. We appreciate that OSWER has taken this important step, and we encourage all interested stakeholders to review these important documents and provide their input. Please reach out to a member of our group if you would like to explore collaborating in this effort.

TOP 5 TAKEAWAYS FROM THE PENNSYLVANIA ENVIRONMENTAL LAW FORUM

Adam H. Cutler — Thu, 11 Apr 2013 16:49:08 -0500

As I train back from the second day of the Environmental Law Forum, here are some takeaways from the presentations I attended today:

· 1. The Environmental Hearing Board Roundtable session continues to be one of the most useful and entertaining sessions at the Forum.

The five judges of the EHB offered pointers and procedural insights on practice before the Board, covering the pre-hearing phase and the hearing itself. One particularly interesting discussion related to what seems to be an uptick (perhaps driven by Marcellus Shale appeals) in party requests to designate discovery materials, and sometimes motion exhibits, as confidential business information (CBI). The judges are very cognizant of the balance to be struck between protection of documents that fit within the scope of the CBI rules on the one hand, and the public interest in open and transparent proceedings on the other. The panel’s general sense was that even when the parties to the appeal jointly request CBI designation, the Board cannot simply defer to the parties’ characterization, but must take a hard look at the materials to ensure they truly are CBI.

· 2. Water quality, air quality, and mining cases are driving the most appeals that come before the EHB, with oil and gas matters not far behind.

It’s not surprising to see water quality and mining at the top of the list, as they are two areas in which statutory fee shifting provisions exist, making appeals in these areas attractive to third party community groups or environmental organizations.

· 3. Keep your eyes peeled for revisions to the EHB Rules.

Draft rules are now wending their way through final state agency reviews before publication in the Pennsylvania Bulletin. The revisions will cover the EHB’s move to mandatory electronic filing (other than for Notices of Appeal, which may be filed electronically or in hard copy); clarification of the timing of responses to dispositive motions in third party appeals; and the deletion of outdated rules that pertain to the Pennsylvania Costs Act, which lapsed in 2007. The proposed rules could be published within the next month, and would become effective later this year.

· 4. My colleague Phil Hinerman’s Insider’s Guide to the Pennsylvania Environmental Hearing Board is an indispensable resource for practitioners.

Phil’s EHB practice guide got a nice shout-out from the panelists in the Skills session on Appeals.

· 5. Even state practitioners would do well to sit in on the annual session led by Temple Law Professor Todd Aagaard and Widener Law Professor Jim May on Federal Environmental Decisions.

Todd and Jim engagingly summarized a variety of federal appeals court and U.S. Supreme Court decisions from the past year, and drew out trends and analysis with applicability to Pennsylvania environmental law, such as the 6^th Circuit’s recent decision in the Summit Petroleum case defining adjacency for purposes of aggregation of air sources, which litigants have already sought to rely upon in litigation pending before the EHB.

As usual, on top of the great programming that the Forum puts on every year, it was great to see former colleagues and old friends, and to meet new friends. Thanks to the organizers, course planners, and faculty.

Vapors and Phase I's, More on the Revision of ASTM's E 1527

Christopher Roe — Wed, 20 Mar 2013 17:14:50 -0500

As indicated in a recent post, ASTM International has developed a revision of the Phase I protocol, Standard Practice for Environmental Assessments: Phase I Environmental Site Assessment Process (“E 1527‑05”) that will be issued this year.

A topic being heatedly discussed, especially by consultants, is whether the revised E 1527 will require vapor intrusion evaluation or a vapor encroachment analysis under ASTM's E 2600-10, Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions. The answer on both accounts is "no."

A better question is whether the significant scientific and regulatory developments related to vapor migration and intrusion in many jurisdictions should already be informing professional judgments of environmental professionals performing Phase I environmental site assessments under the existing E 1527-05. The answer to this question, in my view, is "yes."

Vapor intrusion evaluations are well beyond the level of information and analysis that takes place in a Phase I. Speculating about whether chemical vapors are entering buildings should not be part of a Phase I report. This is the reason that ASTM's E 2600-08, Standard Practice for Vapor Intrusion Assessment (which used Phase I-type information to presume that vapor intrusion was occurring at a target property) needed to be thrown out.

ASTM's replacement document, the E 2600-10 Standard Guide for Vapor Encroachment is purposefully not a Standard Practice. The E 2600-10 Guide itself expressly states that it is not part of all appropriate inquiries or of the performance of a Phase I under E 1527-05. I was a primary author of the Legal Appendix published with E 2600-10. Why I was involved in the process, and yet don't recommend E 2600-10 to clients, is a separate topic that relates to strong resistance to withdrawing E 2600-08 without a replacement document, and, for example, the fact that search distances in E 2600-10 don't meet the requirements of E 1527-05.

On the other hand, there is nothing in the existing E 1527-05 (or coming in the revision) that carves the presence of hazardous substances in vapor form out of the definition of a recognized environmental condition ("REC") (nor anything that carves vapors out of the scope of AAI or CERCLA jurisdiction). The growing understanding of how volatile chemicals move in the subsurface should inform environmental professionals' judgments about whether hazardous substances are likely present at a target property in making Phase I REC determinations; the developing science, regulations and guidance on vapor intrusion may need to be considered by the environmental professional when he or she determines whether the presence of a volatile chemical in the subsurface of the property can be considered de minimis.

Having said all of this, when an environmental professional has determined that volatiles are likely present at the target property in the groundwater (or soil) above de minimis levels, that condition is the REC, and there is no justification or need for the environmental professional to speculate further about the vapor pathway in the Phase I report. Evaluation of that pathway is beyond Phase I, as is complete delineation of the extent of any other REC.

To me, it seems that it should be a rare case where a consultant can, on Phase I type information, support a determination that a hazardous volatile is likely present in soil gas of the target above de minimis levels based solely on vapor movement (independent of groundwater movement) from an offsite release. In other words, the 'vapor only' REC is theoretically possible, but should be practically rare, and nothing in AAI or E 1527-05 justifies speculation or requires sampling.

Because there is and will continue to be confusion on this topic, it is important to make sure that you are on the same page with any consultant you hire for a Phase I, especially for brownfield properties. Note especially that a consultant who inserts a statement disclaiming any consideration of vapors in the Phase I assessment may generate a Phase I report that does not satisfy all appropriate inquiries.

Revision of ASTM Protocol Will Clarify the Focus of Phase I Environmental Site Assessments

Christopher Roe — Mon, 18 Mar 2013 09:59:45 -0500

A Task Group within ASTM International has developed a revision of its ubiquitous Phase I protocol, Standard Practice for Environmental Assessments: Phase I Environmental Site Assessment Process (“E 1527‑05”). The revision is currently under review by USEPA and will be issued this year.

I participated in the revision as the leader of a Focus Group that developed a clarified definition of recognized environmental condition, the core term that defines the focus of a Phase I environmental site assessment.

We developed the revision by reducing the existing definition to its essential elements (in light of the requirements for all appropriate inquiries under the federal Superfund law):

The presence or likely presence of a hazardous substance (or petroleum) at the property

1) due to a release or spill to the external environment; or

2) under conditions that pose a material threat of a future release or spill to the external environment.

Of course, a de minimis condition is not a REC. To constitute a REC, a condition must present a risk to people or the environment, or require clean-up or trigger enforcement, if it were brought to agency attention.

Note: this revised definition clarifies the existing one; it does not change its meaning.

We expect to further address this clarification, as well as the significance of other revisions, in subsequent blogs.

Bill to Allow Fracking with Mine Influenced Waters Clears PA Senate Committee

Adam H. Cutler — Mon, 25 Feb 2013 17:48:31 -0500

Earlier this month, the Pennsylvania Senate Environment Resources and Energy Committee took up Senate Bill No. 411, designed to foster the use of mine influenced water for hydraulic fracturing and other gas well development. The bill, originally proposed by Senator Richard Kasunic, was unanimously approved by the committee and can now move on to the full Senate.

The bill would amend Pennsylvania’s Environmental Good Samaritan Act (the “Act”) in several respects:

By expanding or adding definitions under the Act to make clear that projects that withdraw, divert, and use mine influenced waters for fracking or other gas well development, industrial or other water supply, or other beneficial uses, with and in some cases without treatment, are eligible for the protections of the Act;
By expanding the scope of immunity afforded under the Act to include such projects, as well as limiting the legal liability of landowners, mine operators, and water pollution abatement project operators involved in treating mine influenced water from such projects for any costs, injury or damages resulting from the approved uses;
By exempting the operators and backers of such projects from certain requirements or liabilities under the Surface Mining Conservation and Reclamation Act, the Hazardous Sites Cleanup Act, the Solid Waste Management Act, and the Clean Streams Law; and
By modifying existing exceptions to the immunity afforded under the Act to clarify that those exceptions would not apply to those who use, allow the use of, or provide mine influenced waters as part of a water pollution abatement project for fracking or other gas well development, industrial or other water supply, or other beneficial uses.

S.B. 411 still has a long way to go before it, or some further amended version, winds up on the Governor’s desk. But on the heels of PA DEP’s recent White Paper (PDF), which I blogged about last month, it appears that the use of mine influenced waters in fracking and gas well development has bipartisan traction in the state Senate. We will continue monitoring the bill and will provide further updates as the legislative process unfolds.

WHAT YOU SHOULD KNOW ABOUT UPCOMING CHANGES TO PUBLIC PARTICIPATION FOR PERMITS IN PA

Adam H. Cutler — Thu, 07 Feb 2013 16:41:40 -0500

Updating my November 28, 2012 post, the Department is in the process of finalizing updated guidance for its policy covering public participation in the permit review process. The existing policy, Document ID 012-0900-003 (PDF copy here), was last updated in July 2005. At the February 5, 2013 meeting of the Environmental Justice Advisory Board, staff from the Department’s Policy Office briefed the members of the EJAB and other attendees on the upcoming revised guidance, which the Department expects will be published for public comment around the end of February 2013. Some highlights of the presentation:

The update will remove outdated references, such as to the old Money-Back Guarantee Program, and will clarify policies in an effort to achieve consistency across the regional offices.
The update will emphasize the actual elements of public participation as opposed to internal Department procedures supporting public participation.
Other goals include:
- improving efficiency in the permitting process while honoring the requirements of public participation;
- clarifying the types of public participation available for particular actions;
- clarifying DEP’s role at public information meetings and public hearings;
- clarifying when it is appropriate to schedule a hearing or other applicable public participation meeting;
- establishing standards for conduct at public informational meetings and public hearings (addressing such things as time management; fairness issues; use of demonstrative exhibits, props and signs; disruptive behavior; and public safety issues);
- to the extent possible, harmonizing the elements of and requirements for public participation across the relevant environmental statutes.

Note that the updated guidance expected at the end of the month will address only the public participation policy that is applicable to Department permits or plan approvals with a public comment process (the policy does not apply to Notices of Intent for coverage under general permits or to permits by rule). An update to the separate Enhanced Public Participation Policy for Environmental Justice (EJ) communities (PDF copy here) is still several months away from being ready for public comment. I’ll update the blog as each of the updated policies are released for comment, and I encourage those of you who interact with the Department on permits to submit your input on the policies as proposed.

Finally, in another follow-up to my November 28, 2012 post, the EJAB members were also advised at our February meeting that the Department’s eMap PA online map application has been updated with 2010 Census data. The new data resulted in the designation of 185 additional census tracts in the Commonwealth as EJ Areas. If you have a project proposed in an area that might fall within the eligibility criteria for an EJ Area, I encourage you to check eMap PA and to review the existing EJ Public Participation Policy.

Latest Developments in the Revision of Pennsylvania's Vapor Intrusion Guidance

Christopher Roe — Thu, 31 Jan 2013 15:36:41 -0500

In December 2012 we reported on some of the challenges created by the vapor intrusion pathway under the Act 2 brownfields program in Vapor Intrusion and Act 2 – Imperfect Together. This is an update.

On January 29, 2013, the Department convened a meeting of the vapor intrusion subcommittee of the Cleanup Standards Scientific Advisory Board at the Rachel Carson Building in Harrisburg. We reviewed and discussed a proposal from the Department for how vapor intrusion could be managed under a Statewide Health Standard (“SHS”) clean-up and possible paths forward to update the existing guidance. The meeting included worthwhile discussion on number of aspects of this difficult subject.

If nothing else, our discussions brought into sharp focus the biggest challenges the CSSAB and Department face in revising the vapor intrusion guidance:

1. Soil gas samples. Given growing concern about the reliability of soil gas samples taken from outside the footprint of an existing building (see recent NJ 2013 VI Technical Guidance treatment of this issue, Section 3.3.2, Alternative Soil Gas Sampling), whether near-building and “exterior” soil vapor sampling can and should play a role in evaluation of the vapor intrusion pathway.

2. Future development. Especially in light of the concern noted above about the reliability of exterior soil gas sampling, how to establish a SHS mechanism for vapor intrusion analysis for sites (and parts of sites) that do not yet contain buildings to prevent vapor intrusion analysis for future development from undermining the certainty of an Act 2 release of liability.

3. Screening values for indoor air, ground water, soil gas, sub-slab soil gas and/or soil.

-- On what basis to establish appropriate screening values for groundwater and subslab soil gas that are protective but not overly conservative? Is Johnson-Ettinger still the appropriate model to use?

-- How to make screening values established from modeling more relevant and useful for a wider range of sites where, e.g., soil types or depths to contaminant may differ from the model’s assumptions.

-- How to mitigate effects on existing releases of liability when revised screening values are established that likely will differ by orders of magnitude from the values in the 2004 guidance.

-- Whether meaningful screening values can be established for soil sample results, or whether any amount of volatiles in soil samples could justify further steps to evaluate the vapor pathway even in the SHS context.

-- Whether to use the existing DEP toxicity values or the IRIS values set by the United States Environmental Protection Agency in calculating screening values.

4. Timing. The Department is anxious to move forward with guidance for SHS clean-ups. There was considerable sentiment within the subcommittee that the current 2004 guidance, in particular the screening values in that guidance, needed to be updated as soon as reasonably possible. However, one consideration is that USEPA has not issued a revision of its 2002 vapor intrusion guidance (initially targeted for November of 2012) and some interested parties, including our office, have submitted formal requests urging that USEPA issue its fundamentally rewritten guidance as a draft for public comment before issuance of a final document.

The Department and the subcommittee will be working through each of the these issues as we move toward revised guidance in the coming year. The full CSSAB meetings for 2013 are set at the moment for April 11, 2013 and October 23, 2013.

If you have questions, insights or concerns please let us know. We will keep you posted here.

PADEP Issues White Paper on Use of Mine Influenced Waters in Natural Gas Extraction

Adam H. Cutler — Thu, 17 Jan 2013 09:07:46 -0500

For the past several months, PADEP has been working internally and with stakeholders to develop policy supporting the use of mine influenced waters (“MIW”) in the natural gas extraction process — that is, using acid mine drainage and mine pool water, from Pennsylvania’s long history of coal mining, for fracking. The concept is that the impacted mine waters, which typically require treatment before discharge to surface waters, could serve as a substitute for the natural gas extraction industry’s withdrawal of millions of gallons of water from the same freshwater sources that also support aquatic life, our drinking water, and recreational uses. If workable and done safely, it’s a clear win-win — the gas extractors can use MIW that is already plentiful but has no higher use absent expensive long-term treatment, while preserving the Commonwealth’s natural resources.

Last week, PA DEP released a white paper entitled “Utilization of Mine Influenced Water for Natural Gas Extraction Activities” (the “White Paper”; link is to PDF). The document attempts to address storage and liability issues, which, if left unresolved, would significantly increase the legal risk and lower the economic incentive for transporting and using MIW. The White Paper also provides procedural guidance for those seeking to submit proposals to use acid mine drainage waters in the development of gas wells.

The storage options covered by the White Paper either would require new permitting, or might involve modification of existing well permits and Water Management Plans. One option, known as nonjurisdictional impoundment, would also require showings that the MIW (a) will not result in water pollution and (b) meets a specified set of parameters based upon EPA’s NPDES standards for mine drainage (measured at the source, prior to storage). The other storage options cited in the White Paper would not require that the MIW meet such parameters.

The White Paper’s proposed long-term liability solutions are somewhat more limited. The challenge for expanding the use of MIW into fracking applications is that Pennsylvania’s Clean Streams Law has been interpreted by state courts to impose long-term treatment obligations on those who pump water from abandoned mine pools and thereby create a discharge. As the White Paper notes, long-term treatment of MIW is expensive and labor- and capital-intensive. So PADEP offers two options for users of MIW for fracking to limit their liability under current law and policy: First, some operators could structure their project to fit within the scope of the Environmental Good Samaritan Act, which provides fairly broad protection from civil liability under state law to certain eligible parties for projects involving treatment of MIW, with specified exceptions. Second, PADEP could enter a Consent Order and Agreement with the MIW user under which the Department would agree not to hold the user liable for long-term treatment obligations, so long as the user meets project-specific conditions.

The CO&A would theoretically limit the user’s liability to the state, but would not address civil liability to third parties. For the user who cannot meet the requirements of the Environmental Good Samaritan Act, though, a CO&A may be the next best available option to protect against at least the long-term treatment liability that could otherwise attach. In some circumstances, a belt-and-suspenders approach that employs both the Environmental Good Samaritan Act and a CO&A might make sense. In any case, early communications with PADEP's program staff will be critical. Natural gas extractors who are considering MIW projects should consult environmental counsel to discuss how to take full advantage of the available protections against liability under Pennsylvania law and how best to navigate the process within PADEP.

Looking to the future, PADEP notes that it might be appropriate to develop a general permit covering the use of MIW for fracking, or even to rework its oil and gas regulations in a way that would directly address the issue. Importantly, the MIW policy appears to have earned support across a wide spectrum of stakeholders, from the oil and gas industry to environmental organizations. Indeed, the White Paper expressly envisions the creation of partnerships between industry and watershed groups to help foster MIW uses. Time will tell whether the mechanisms and options set forth in the White Paper will help promote this new use for impaired mine discharges, or whether further regulatory or legislative actions will be necessary for the concept to reach its full potential.

New TMDL Waivers and Vineyards

Adam H. Cutler — Wed, 09 Jan 2013 16:12:20 -0500

The TMDL regulatory scheme is taking hold in many sectors of our country. In fact, even the wine growing industry in Napa and Sonoma Valleys are being impacted by proposed regulations. If interested (and yes, Pennsylvania has a growing wine industry too), see Philip Hinerman's recent post at Fox Rothschild's Legal Tastings blog.

UECA Deadline for Conversion of Deed Restrictions Fast Approaching

Joel Bolstein — Fri, 04 Jan 2013 13:34:43 -0500

Brownfield developers have been living with the Uniform Environmental Covenants Act (UECA) in Pennsylvania since it became effective in February 2008. At the time it became effective, we all knew that it required that deed restrictions put in place prior to February 18, 2008 would have to be converted to UECA environmental covenants (ECs) five years down the road. Well, February 18, 2013 is now almost upon us, and as far as I can tell, no one is doing much to prepare for that date. Like everything else, there are two strategies that can be pursued. Property owners can be proactive or they can sit around and wait for something bad to happen. I'm in the camp that thinks that property owners should be proactive when it comes to the UECA conversion requirement.

Here is what property owners should be doing to address the upcoming deadline. First, anyone who currently owns one or more brownfield sites in Pennsylvania should be taking an inventory of those sites and determining whether any of those sites have deed restrictions containing activity and use limitations that were put in place prior to February 18, 2008. You can figure that out by looking at the deed. An activity and use limitation that would subject the property to the UECA conversion requirement is any kind of engineering or institutional control put in place in order to demonstrate attainment or maintenance of an Act 2 standard or to demonstrate satisfaction of a corrective action requirement under the Storage Tank Act. So, for example, say you completed an Act 2 site remediation at a brownfield site in 2005 and you demonstrated attainment of the Site Specific Standard by putting a cap (asphalt parking or a building) in place over some contaminated soil. Prior to UECA, the remediator would put a deed restriction in the deed imposing that engineering control on the property, which would identify the location of the contaminated soil and cap and require the property owner to maintain the cap. Now, under UECA, the current owner of that property would be obligated to take action to address the requirement that those prior existing deed restrictions be converted to a UECA covenant on or before February 18, 2013.

Does that mean that anyone with a such a deed restriction, as noted above, needs to quickly put together an UECA covenant and get it into PADEP before February 18, 2013? The answer is no. Subsequent to UECA's signing, PADEP adopted regulations at 25 Pa. Code Chapter 253 that implement UECA. Section 253.10 deals with the conversion requirement. In the regulations, the Department opened up a giant loophole to the conversion requirement by allowing property owners who otherwise would have to convert their deed restriction to a UECA covenant to simply send in a letter and request a waiver of the conversion requirement "until the property is transferred to a new owner." Thus, the simplest thing for property owners to do is to send in a written request for the waiver sometime before February 18, 2013. That would postpone the need to impose a UECA covenant until such time that the property is sold. One requirement to be aware of is that when a written request for a waiver is filed, the property owner must include proof that the deed restriction was previously recorded. In addition to the option of requesting a waiver, property owners could just go ahead and prepare a UECA covenant and submit it to PADEP prior to February 18, 2013, if they just wanted to get it over with.

One thing to keep in mind is that the Department cannot impose any additional restrictions in the environmental covenant that aren't in the existing deed restriction that is being converted. So, for example, most deed restrictions don't include any requirement to perform periodic compliance monitoring or file annual reports with PADEP. UECA covenants, however, typically include language in Section 7 (found in the model EC on PADEP's website) that impose compliance monitoring requirements. A deed restriction converted to an UECA covenant should not have a monitoring requirement unless it's in the original deed restriction. That comes straight out of Section 253.10(b) which states: "The Department will not require, but may allow" an EC to contain restrictions or requirements not contained in the existing deed restriction.

How is failure to comply with the UECA conversion requirement likely to come up in the real world? Here is how I see it coming up. Let's say you have a property transaction involving a brownfield site that occurs after February 18, 2013. Let's assume you are representing the seller. The buyer asks to see the deed or gets a title report and they determine that a deed restriction was imposed on the property back in 2005 as part of an Act 2 cleanup. The deed restriction wasn't converted to an EC and no written waiver was requested. Arguably, this is a violation of UECA, and under the language of most asset purchase agreements, this would constitute a breach of the covenant to comply with law. What if the lender or the buyer says that they won't close until that breach is remedied? Now, you've got to delay your closing while the seller or the seller's counsel prepares an environmental covenant and submits it to PADEP for review and approval. That could take several weeks or longer. If the deed restriction had already been converted to an EC, there'd be no delay. Question -- what's the likelihood in that scenario that PADEP would seek to impose fines or penalties on the seller for its failure to comply with UECA? I think the likelihood would be very low. First, UECA has an enforcement provision but it doesn't include seeking monetary fines or penalties. Second, this really isn't a high priority for the Department's enforcement efforts. There is no environmental harm from the failure to convert a deed restriction to an EC. The deed restriction still exists. It's really just a paperwork violation, and nothing more.

Before I wrote this entry, I called Troy Conrad in PADEP's Central Office to see what message the Department wants to get out on the conversion requirement. Troy said we should expect to see some announcements or press releases from the Department in the near future regarding the conversion requirement. They are encouraging property owners to apply for the written waivers that were made available by the UECA regulations. While the Department does plan to enforce the requirement, Troy acknowledged that it would be very expensive and time consuming for the Department, on its own, to figure out what properties have deed restrictions subject to the conversion requirement. As a result, it's really in the Department's interests for property owners to be proactive and apply for the waivers and then convert to ECs when those properties are sold. According to Troy, when PADEP grants a waiver request, it will put that information into the UECA registry, so the information is then publicly available and searchable on PADEP's website. Troy also suggested that property owners carefully consider whether the activity and use limitations imposed on a property even require a UECA covenant. He made a good point in noting that deed acknowledgments and deed notices don't necessarily trigger the conversion requirement (such as those required under HSCA or SWMA) and that you need to take a careful look at how the regulations define "instrument", since only "instruments" are subject to the conversion requirement. I think that's very sound advice. Troy also suggested that if anyone has any general questions about the conversion requirement, they can send in a question to Central Office, since the land recycling program still has a Q&A section on its webpage. For questions about specific sites, he suggested the property owner contact the respective PADEP regional office ECP program staff for those clarifications. Troy said there's been no flood of waiver requests or UECA conversions, so it's likely that people are still considering their options or just haven't focused on the requirement.

As noted above, I'd recommend that brownfield property owners be proactive when it comes to the UECA conversion requirement. That involves looking at property deeds, determining whether those deeds contain deed restrictions that would be covered by the UECA conversion requirement, and applying for written waivers. Under Section 253.7, an UECA covenant ordinarily requires a $500 fee, but fees are not required for EC's or waiver requests submitted under Section 253.10, provided the person submitting the EC or waiver request did not cause or contribute to the contamination.

It's really amazing how quickly those five years flew by.

Marcellus Shale at Year's End

Adam H. Cutler — Mon, 31 Dec 2012 13:16:52 -0500

The year comes to a close today with the Pennsylvania Supreme Court having yet to rule on the constitutionality of Act 13’s provisions concerning the ability of municipalities to control Marcellus Shale development through local zoning rules (those provisions were overturned by the Commonwealth Court in a closely divided decision in July 2012). Despite the legal uncertainties that remain, 2012 saw significant growth of the unconventional gas industry in Pennsylvania:

Pennsylvania is now reportedly second only to Texas in number of workers employed in the unconventional oil and gas industry, although that number likely includes some non-permanent residents who moved to PA for work in the industry.

Marcellus Shale wells in Pennsylvania and West Virginia now account for about 25 percent of all U.S. shale gas production, nearly double the production reported for the Marcellus play in 2011.

Last week saw the release of the U.S. Environmental Protection Agency’s progress report on its research studies into water use in hydraulic fracturing operations. EPA – relying in part on data from Pennsylvania drilling sites and waterways – is looking specifically at the following research questions:

1. What are the possible impacts of large volume water withdrawals from ground and surface waters on drinking water resources?

2. What are the possible impacts of surface spills on or near well pads of hydraulic fracturing fluids on drinking water resources?

3. What are the possible impacts of the well injection and fracturing process on drinking water resources?

4. What are the possible impacts of surface spills on or near well pads of flowback and produced water on drinking water resources?

5. What are the possible impacts of inadequate treatment of hydraulic fracturing wastewaters on drinking water resources?

EPA is expected to release its conclusions in a final report in 2014.

Last week also brought the expected news that current EPA Administrator Lisa P. Jackson will step down once President Obama’s second term begins. As speculation builds about the President’s nominee for the EPA’s top spot, I anticipate that – even though most regulation of unconventional gas operations occurs at the state level – the agency’s direction on the regulation of hydraulic fracturing and other aspects of unconventional oil and gas development will be a significant issue when the U.S. Senate holds confirmation hearings for the new Administrator in early 2013.

This raises an intriguing question: would a nominee from outside the EPA’s current management structure, particularly one experienced with Marcellus Shale development, find an easier path to confirmation in the newly seated Senate than someone from within the agency? That may depend on how difficult a confirmation battle the Obama Administration is prepared to support, in a second-term environment in which even rumored nominees for the top spots at the Departments of State and Defense have found themselves the subject of strong opposition.

PA EHB Goes Electronic

Philip L. Hinerman — Wed, 19 Dec 2012 11:05:00 -0500

The Pennsylvania Environmental Hearing Board is proposing amendments to its Rules of Practice and Procedure to keep it in step with most county and federal courts in the Commonwealth. At long last, the EHB is adopting a mandatory electronic filing process. In the past, the EHB judges would discuss electronic filing in their initial case management orders. Now, electronic filing of pleadings will be mandatory, unless specific exceptions are given on a case by case basis.

One of the biggest changes is that notices of appeal may now be filed either electronically or by the conventional methods. In the past, notices of appeal were ONLY allowed to be filed by conventional fax or mail.

The EHB was also able to address the issue of electronic filings under seal. There will be a provision allowing documents to be filed under seal, with appropriate indications during the electronic filing. Documents under seal will only be reviewed by Board personnel and the parties to the case.

Electronic filing enlarges the filing time to midnight of the day the filing is due. A confirmation of the filing will follow that will include the date and time the document was received. For purposes of calculating responses to the electronic filing, documents filed after 4:30 will be considered filed on same day as received, but considered served on the next business day.

Other rule changes address responses to dispositive motions. In the past, there was confusion when a party to the EHB proceeding wanted to file a “me too” companion motion, but asserted new facts in its motion. If one party filed a motion and another party wanted to join the motion, there was normally no problem. However, if the joining party wants to file a companion motion that asserts new facts, it was unclear under the old rules whether the response time for the new filing was governed by the original motion’s date of filing or the second motion’s date. The new rule clarifies this and states that parties who wish to file a motion asserting additional facts or legal theories must file within 15 days of the original dispositive motion. Opposing parties then receive an additional 30 days to respond to the second motion.

US EPA Revises Guidance to Encourage Renewable Energy on Contaminated Land

Christopher Roe — Mon, 10 Dec 2012 10:47:58 -0500

On December 5, 2012, US EPA issued a “Revised Enforcement Guidance Regarding the Treatment of Tenants under the CERCLA Bona Fide Prospective Purchaser Provision.” US EPA undertook this effort to encourage reuse of contaminated properties for renewable energy development. However, the updated guidance is broad enough to apply to other tenant situations and may justify consideration of "all appropriate inquiries" in more lease situations.

The problem that US EPA is trying to address with this guidance is that a key Superfund 'landowner liability protection' (think limited and conditioned defense to liability) – for bona fide prospective purchasers (42 USC §§ 9601(40), 9607(q)(1)(C) and 9607(r)(1)), which provides a defense even where an acquirer knows of the existence of contamination at the time of acquisition – is not available to those who lease contaminated property unless the tenant’s landlord meets the requirements of the defense. In other words, according to the language of CERCLA itself, a tenant’s bona fide prospective purchaser defense must be derived from the defense of an eligible landowner.

This can be an obstacle to attracting renewable energy projects to contaminated properties. Most renewable energy project developers do not want to buy contaminated land. They do, however, need sufficient rights in the property developed to justify and secure the significant financial investment that will be needed, for example, to put a solar farm on a closed and capped landfill. A lease with a term tailored to the project’s horizon may provide the right balance and allow the developer to ensure that it is not stuck owning unwanted land and potential liability when the project has run its course.

Under the revised policy issued last week, US EPA indicates that it will use its enforcement discretion not to pursue a tenant that meets the criteria of the bona fide prospective purchaser defense (including for example, conducting a pre-lease Phase I) even though the tenant is not a itself a “purchaser,” and even where the tenant’s landlord is not eligible for the defense, for example, because he or she owned the property when disposal occurred there.

This may help get more solar farms on more closed landfills (or other renewable energy projects at contaminated sites), which is a very good idea for a number of reasons, including the long term security and operation and management of the property. First, though, the basic economics of the project must be strong enough to overcome the inherent complications and associated additional time and costs, as well as lingering risks, involved in building on land where significant contamination remains. With strong fundamental project economics, the additional costs and lingering risks can be managed. US EPA’s sincere, though much conditioned, message in this revised guidance that it will be reluctant to pursue such developers will help. For more on US EPA’s encouragement of the development of renewable energy projects on contaminated sites see Re-Powering America’s Land.

Of course, any potential liability under Pennsylvania’s or other state’s law would also need to be sorted through as well. In that regard, it is worth noting that Act 2 releases of liability can extend to a person “who develops or otherwise occupies the identified site.” See 35 P.S. §6026.501(a)(2).

Vapor Intrusion and Act 2 -- Imperfect Together

Christopher Roe — Mon, 03 Dec 2012 16:29:44 -0500

Vapor intrusion, the migration of a volatile chemical from subsurface contamination into the indoor air of a building, was not viewed as a significant exposure pathway in 1995 when Act 2 was written into law. It is viewed as significant now. The emerging importance of this pathway poses unique challenges for DEP and responsible parties under Act 2. It also has the potential to undermine some of the predictability that Act 2 is designed to provide. Managing the risks related to vapor intrusion under Act 2 requires understanding the issues, including the steps that DEP has already taken to address them and the changes that are likely to come. We cover these issues briefly in this post.

Part of the challenge of vapor intrusion for DEP, and the regulated community, is structural -- vapor intrusion exposures are not considered in development of Statewide Health Medium Specific Concentrations (MSCs) for soil and groundwater under Act 2. Perhaps more in theory than practice, this means that achieving MSCs for a volatile contaminant below a building does not ensure that the contaminant is not present at unacceptable levels in the indoor air – the MSCs are not calculated to be protective for vapor migration to indoor air (though they may be protective for most substances in any event). More problematic is that the “point of compliance” for attainment of groundwater MSCs is the property boundary. This means that under the attainment criteria established in the Act 2 statute itself, high levels of a volatile chemical – a source for vapor intrusion to indoor air -- could be left in groundwater under an on-site building as long as the groundwater MSC is achieved at the property boundary.

DEP has taken steps to address these issues.

In January 2004, the DEP Clean Standards Science Advisory Board (CSSAB) issued Section IV.A.4 of the Technical Guidance Manual -- Pennsylvania Vapor Intrusion into Buildings from Groundwater and Soil under the Act 2 Statewide Health Standard (2004 SHS VI Guidance). This guidance states, “Indoor air quality (IAQ) from the vapor intrusion of contaminants into buildings from groundwater and soil is not assessed under the Statewide Health standard in the Act 2, Chapter 250 regulations.” Though not itself a regulation, the guidance provides “additional screening requirements . . . to prevent unacceptable risk” from vapor intrusion in the context of Statewide health standard sign-offs. The guidance provides decision matrices to be followed under the Statewide health standard; includes MSCs for Indoor Air Quality; screening values that can be used to evaluate groundwater and soil data if site conditions match the underlying assumptions; and a framework for evaluating vapor intrusion risks. DEP also developed valuable questions and answers on vapor intrusion in the Land Recycling Q and A Database (Category: Vapor Intrusion).

In January 2011, DEP made the evaluation of vapor intrusion part of the law in promulgating a regulatory provision at Section 250.312 for Statewide Health Standard signoffs: “The final report must include, as appropriate, an assessment of the vapor intrusion pathway.”

In addition, in March 2011, DEP re-convened the CSSAB Vapor Intrusion Subcommittee, to support an update of the 2004 SHS VI Guidance. Preliminary work was done by the DEP and the subcommittee in 2011. After a hiatus, the next meeting of the subcommittee is scheduled for late January 2013. As a member of that subcommittee I will keep you posted as appropriate. At this point, I expect a guidance more focused on sub-slab and indoor air sampling -- consistent with recent New Jersey VI Guidance and the recently ‘leaked’ revision of the USEPA guidance, substantial revision to some of the screening values, and that includes discussion of proceeding directly to the installation of mitigation systems in lieu of extended investigation. Mitigation systems can be relatively inexpensive and work well. The downside is the environmental covenant that will be required if mitigation is to be relied on in a release of liability.

One recommendation, if you plan to rely on an existing Act 2 release of liability for any site where volatile contaminants remain, seek out good advice on whether vapor intrusion has the potential to undermine the certainty you expect from the release of liability.

PADEP's New Permit Decision Guarantee Offers Opportunities Among Challenges

Adam H. Cutler — Wed, 28 Nov 2012 10:48:51 -0500

On November 3, 2012, PADEP published notice of final new guidance for its revamped Permit Decision Guarantee Policy, which restructures the environmental permitting process. Last week, Joel highlighted the way the new Permit Decision Guarantee Policy interacts with the Pennsylvania Natural Diversity Inventory review; this week, I’m going to discuss how the Permit Decision Guarantee Policy interacts with the Department's existing Environmental Justice Public Participation Policy. I’ve worked extensively with the Environmental Justice ("EJ") policy in my past experience representing residents and community groups, and as an appointee to the Department’s Environmental Justice Advisory Board. Though currently undergoing some modernizing revisions, the EJ Public Participation Policy, which was published in 2004, received unqualified support from Department officials at the most recent Advisory Board meeting in early November.

Among other things, the new Permit Decision Guarantee guidance puts the onus on applicants to submit an administratively complete and technically sound application before the Department’s obligation to provide a timely review kicks in. As a result, the applicant’s pre-application strategy will be more critical than ever to an efficient and prompt permitting decision. The Department has scheduled a series of webinars to provide information to various sectors of the regulated community about the new permitting guidance.

The Permit Decision Guarantee Policy, including its specific timeframes for rendering decisions on complete applications, does nothing to alter the process set forth in the EJ Public Participation Policy, under which certain permit applications trigger additional public outreach if the project is located within an Environmental Justice area (“EJ Area”). “Environmental Justice” generally reflects the idea that disadvantaged communities ought not bear a disproportionate level of environmental burdens as compared to other communities. After submission of a trigger permit, the Department determines whether the project implicates an EJ Area – broadly stated, the Department identifies an “area of concern” around the project area and looks to see if any census tract within the area of concern has a minority population of 30% or greater, or 20% or more of its population at or below the federal poverty level. If so, the Department will invoke its enhanced public participation provisions. The Department then circulates a plain language description of the proposed project to residents of the EJ Area and schedules a public information session at which the applicant may voluntarily participate. Residents may also seek a public hearing before the Department to offer testimony about their concerns with the proposed project and its potential impacts.

Although cooperation under the EJ Public Participation Policy is not a box that the applicant must check off to achieve administrative completeness under the Permit Decision Guarantee policy, the Department still – with or without the applicant’s cooperation – must undertake the EJ Area analysis and offer enhanced public participation opportunities to the community when applicable. In addition, the time limits that the Permit Decision Guarantee Policy now imposes on the Department once an administratively complete application is in hand will not trump the existing public participation process. The applicant that is out in front with the community is less likely to see that permitting clock grind to a halt while an enhanced public participation process plays out. As a result, it makes a lot of sense for a permit applicant to determine whether the EJ Public Participation Policy will apply and, if so, to approach community engagement thoughtfully.

The applicant that takes the time to think through a community engagement strategy during the pre-application phase will be well prepared for the enhanced public participation process. The public information meeting conducted under the EJ policy is often the first time that the applicant engages directly with the community about its project. For better, and often for worse, this presentation can have a significant impact on the applicant’s relationship with the community going forward. In my experience representing community groups, I saw applicants who did this well, and others who ignored or attempted to outmaneuver the local community and wound up alienating residents and forfeiting credibility – which only makes it harder for the Department and elected representatives to support the applicant through the process.

Simply put, it makes the Department’s job easier when applicants seize the chance for early community engagement. In turn, this gives applicants the ability to affect better results for their projects.

Community outreach involves a complex set of interactions, and it is critical as an applicant to know your intended host community and its concerns. Know your project too, and how it might affect the neighboring community. This is wise with respect to any project in any community. But take the time in the pre-application phase to determine whether your project is in, or close enough to impact, an EJ community by using the Department’s eMap PA tool. Note that the mapping application currently relies on 2000 U.S. Census data, but the Department is in the process of updating to the 2010 Census data set, which may affect the applicability of the policy to your project.

The importance that the Department’s new permitting structure places on the pre-application period presents an opportunity for applicants who seek trigger permits in EJ Areas to work together with community stakeholders – not only to resolve residents’ issues before the application is submitted and community concerns harden into opposition at public meetings and hearings, but also to identify avenues for positive collaboration that can enhance the applicant’s business interests, improve local environmental conditions, and promote further economic development in the community. The applicant who does not take advantage of this opportunity risks delay, uncertainty, and negative media attention, not to mention its own credibility with the Department and elected officials.

Interplay Between PADEP's Policy on PNDI Coordination and its New Permit Decision Guarantee

Joel Bolstein — Mon, 19 Nov 2012 14:02:10 -0500

In a recent PA Bulletin Notice. PADEP released proposed revisions to its existing policy on PNDI reviews to clarify PNDI coordination within the Department's permit application review process.

For those not familiar with PNDI, it stands for the Pennsylvania Natural Diversity Inventory. It is the review that is done to determine if a project requiring PADEP permits impacts threatened or endangered species or species of concern.

For those attorneys and consultants who work with brownfield developers, you know that the PNDI review can cause delays, especially if the electronic database shows a "hit" that needs to be cleared. The PADEP policy explains the process for performing the PNDI review, including using the PNDI ER Tool, which is an electronic database, or alternatively submitting a hard copy Large Project Form for projects that are too large to be drawn in the PNDI ER Tool.

What appears to be new in the proposed policy is the description of the interplay between the PNDI policy and the Department's new Permit Decision Guarantee Policy. The draft PNDI policy notes that the Department won't issue a permit until a potential impact identified in a PNDI review has been resolved. In some cases, the deadlines set for Department review under the Permit Decision Guarantee Policy may no longer apply depending on the length of the processing delay triggered by the PNDI review. Additionally, if resolving a PNDI hit involves making substantive changes to the permit application, that could trigger the need for a new application under the Permit Decision Guarantee Policy and a new review deadline and a new permit application fee. That's probably the most significant thing in the proposed PNDI policy for brownfield developers, although I can't say that for sure. Developers need to be aware of the risks of proceeding concurrently with a PADEP permit application review and the PNDI review, especially when a potential impact has been identified. It's probably much less risky to run the PNDI search and complete all coordination with the appropriate jurisdictional agencies prior to submitting the PADEP permit application. Again, the risk is that if you submit a PADEP permit application before the PNDI review process is completed, if a potential impact is later identified and it causes substantive changes to the PADEP permit application, the new Permit Decision Guarantee policy will likely require the submission of an entirely new (rather than a modified) application (and trigger a new review clock) and the submission of a new application fee.

As with most things relating to the implementation of PADEP's new Permit Decision Guarantee, the interplay between the PNDI policy and the Permit Decision Guarantee Policy should be considered a work in progress. Having spoken with many program personnel at PADEP regarding the Permit Decision Guarantee, I can say that everyone appears to be fully committed to its successful implementation, and the Department is making every effort to educate the regulated community regarding that implementation process.

On another note, I assume that the Department will do its best to make sure that the Permit Decision Guarantee doesn't delay the redevelopment of brownfield sites, which often include both environmental (by way of cleanup and remediation of a blighted property) and economic benefits (by way of both construction and permanent jobs at the reclaimed brownfield site). I'll note that when the Commonwealth enacted Act 2 back in 1995, it dealt with the issue of squishy review times by imposing strict deadlines upon the Department for reviewing Act 2 plans and reports. In that regard, one of the goals of the Permit Decision Guarantee Policy, of creating firm deadlines for Department action, was realized a long time ago for the state's brownfield program. You certainly don't hear many complaints from the brownfield development community about the deadlines in the Act 2 program. And you know what they say -- If it ain't broke, don't fix it. That's just my two cents on whether something similar to the Permit Decision Guarantee needs to be implemented for the Act 2 program.

The PNDI Policy was released as a draft technical guidance document on November 10, 2012 and for those interested, comments can be submitted up until December 10, 2012.

Case to Watch -- Federal Court Allows Challenge to Air Permits that Bypasses Pennsylvania EHB

Christopher Roe — Wed, 10 Oct 2012 14:17:15 -0500

On September 24, 2012, Judge Robert D. Mariani of the United States District Court for the Middle District of Pennsylvania denied Ultra Resources, Inc.'s motion to dismiss a citizen suit that challenges the issuance of general air permits for seven natural gas compressor stations (read the decision in its entirety here). Ultra had obtained permits for the stations under GP-5, PA DEP's general permit for the construction and operation of natural gas production facilities. Citizens for Pennsylvania's Future (PennFuture) contends in the lawsuit brought under the citizen suit provision of the federal Clean Air Act that air permits for the individual compressor stations should have been aggregated, creating a "major facility" for nitrogen oxides which required nonattainment new source review and which could not have been permitted through the streamlined GP-5 process. Here's the rub: PennFuture did not appeal any of the seven permits through normal administrative channels -- through the Environmental Hearing Board -- when notices of the permits were published in the Pennsylvania Bulletin. PA DEP warned in an amicus brief that allowing this short-circuit of Pennsylvania's administrative process would create great uncertainty for Pennsylvania businesses and communities. In fact, the court noted in its opinion that each of the seven compressor stations have already been built. Despite this fact, the federal court determined that it would consider PennFuture's challenge to the issuance of the permits, relying on what the court viewed as the clear language of the citizen suit provision of the Clean Air Act.

Pennsylvania DEP Issues Guidance on Air Laws for Marcellus Operations

Philip L. Hinerman — Wed, 10 Oct 2012 13:43:06 -0500

For several decades, EPA has wrestled with how to define air emissions sources that are near to each other. EPA has tried to determine whether nearby sites should be “aggregated” for purposes of determining whether to consider the combined emissions for air permitting thresholds or whether each site stands on its own for purposes of deciding whether regulatory thresholds have been crossed. These battles were especially critical in the oil and gas industries.

On October 6, 2012, Pennsylvania DEP addressed aggregation by issuing its Guidance for Performing Single Stationary Source Determinations for Oil and Gas Industries. The Guidance was largely driven by the fact that the numerous new Marcellus Shale production wells are not often on any single piece of property or in a single facility. Accordingly, there was some confusion as to when DEP would require combining of all emissions from all locations, adding them together for purposes of determining if thresholds for permitting were reached.

DEP began by stating that the determination of whether two or more pieces of property should be combined would be on a case-by-case basis. However, the agency then announced several rules to use in making that case-by-case determination.

First, multiple locations may be combined if they either have the same industrial SIC code grouping or they work together to support the production of a principal product. If an operation is a “supporting operation,” then DEP will review whether the sources are “contiguous” or “adjacent” and whether the operations are under “common control.” If so, then the facility will need to comply with preconstruction permitting and operating permit requirements if total emissions are above the regulatory thresholds.

Next, DEP defined what it considers to be “adjacent” for purposes of determining whether facilities meet that requirement. DEP adopted a “quarter mile” rule stating that DEP generally considers operations within a quarter mile of each other as “adjacent.” Although this would be a general rule, DEP announced that the quarter mile area may be expanded on a case by case basis. Furthermore, facilities will not be “daisy-chained” together. In other words, the quarter mile is measured from the primary operation. DEP will not consider the quarter mile as being from each pad, a common shale gas operational practice in which there is a principal pad with supporting pads a quarter mile from each other.

Finally, DEP defined what it would consider to be “common control.” Under the guidance, common ownership or decision making authority would be considered. Also, DEP would consider whether two operations that do not share common ownership, but have a “support/dependency” relationship. Factors to be reviewed for the “support/dependency” test include financial arrangements, common employees, common benefits and voting or control rights.

DEP acknowledged that EPA regulations can be persuasive, but will not control DEP’s definitions.

Obviously, DEP’s attempt to allow flexibility also allows arguments to be made on what test to examine on a case-by-case basis. However, DEP has now given industry a framework for air determinations that had been missing in the past.