FracNet Targets Marcellus Trucks

PADEP issued a press release today announcing that is was partnering with the State Police on an enforcement initiative targeting trucks used by the Marcellus Shale industry.  The initiative is being called FracNet and is modeled after the successful TrashNet inspections that for years have targeted the solid waste industry. 

I remember going on a few TrashNet inspections when I was Deputy Secretary and dealing with solid waste issues.  We'd set up a gauntlet of enforcement agencies on an approach route to a landfill.  All trucks would be pulled over and inspected by the local police, the State Police, PennDOT and finally, PADEP.  The other agencies would be performing safety inspections, checking brakes, weighing the trucks to see if they exceeded allowable weights, checking tires, etc.  By the time the trucker pulled up to PADEP's inspection station, some would already have a pile of citations.  PADEP's inspection involving checking the tarp holding the waste in place to make sure it was secured properly and didn't have any holes, making sure the trucks weren't leaking or oozing liquids, checking for a fully charged fire extinguisher, and checking the labeling on the side of the truck to make sure it complied with the regulations.  I remember one trucker from NYC who had about $2,000 in violations already in hand when he pulled up to the station I was at with Jim Pagano from the SE Regional Office.  We handed that driver another $300 citation for not having the proper labeling on the side of the truck.  He challenged the citation, saying his truck was properly labeled.  The truck was supposed to have writing of a certain height that said "Municipal Waste".    When the driver pulled up to the first inspection station that was manned by the local township police, Jim noticed there was no labeling on the side of the truck.  The driver noticed that too, and somewhere between that first inspection station and PADEP's, he grabbed a magic marker and tried to write the appropriate label on the side of the truck.  When the driver challenged the citation, Jim said "your truck didn't have any writing on it when it pulled up to the first station, and besides you spelled "municipal" wrong.  Indeed, the driver had crudely scribbled "MUNICIPLE WASTE" on the side of his truck.  Participating in TrashNet activities was instructive for me and it also showed our guys in the field that the people on the 16th floor in Harrisburg thought that work was important. 

By issuing this Press Release, the 16th Floor is saying that FracNet is important and those in the Marcellus Shale industry need to take this very seriously.  While PADEP has in the past tolerated repeat violations from garbage trucks, it's unlikely the Department will do that for Marcellus trucks when the spotlight is shining so brightly on that industry.  Oil and gas companies and their drivers need to be mindful of that spotlight and be extra vigilant to prevent violations, because I have a feeling that FracNet is likely to continue into the foreseeable future.       

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E&S Regulations Effective November 19, 2010

For those of you who didn't read the latest edition of the PA Bulletin, the new E&S/stormwater management regulations were posted on Saturday August 21.  The PA Bulletin notice says that the new regulations become effective on November 19, 2010.  All developers need to be familiar with the new regulations inasmuch as they carry significant regulatory implications for future projects.  I've written about the flexibility provided for brownfield developers in prior posts, and I would encourage brownfield developers to familiarize themselves with those provisions.   

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New Clean Fill Form

For those of you looking for a copy of the new Clean Fill form mentioned in the PA Bulletin Notice and my previous posting, it can be found using the following link:

http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-80812/2500-FM-BWM0008.pdf 

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New Guidance Issued on Clean Fill

When it comes to clean fill, the world is divided into good guys and bad guys.  The good guys play by the rules and don't cut corners.  That means if something tests out as exceeding the clean fill numbers in PADEP's Management of Fill Policy, you don't try to sneak it into a Pennsylvania construction site or quarry hoping no one notices.  The bad guys look for unsuspecting property owners, hide data, blend material in violation of the Fill Policy, and do everything they can to evade detection.  They take contaminated soil from sites being remediated under regulatory programs in New York, New Jersey, and elsewhere and dump it in Pennsylvania because no one is watching.  That is, up until now.

On Saturday, the Department released a new interim guidance making revisions to its Certification of Clean Fill Form and for the first time, requiring that form to be filed with the regional office of the Department where the receiving site is located.  The new form also requires the person performing the fill characterization to identify whether the fill is coming from a regulated site, and if so, to identify that site and the contact person for the overseeing regulatory agency.  So now, if a dirt broker wants to send contaminated dirt from a regulated site in New Jersey that is being remediated with NJDEP oversight, the form will need to identify that site in New Jersey, include its ID number and the NJDEP contact person, include all of the analyticals AND send a copy of the form to the regional PADEP office where the receiving site is located.

As someone who was involved in the development of the Management of Fill Policy and its precursors, I fully support the revised form and the requirement to file the form with the regional office.  What some people don't know is that the bad guys have been moving contaminated dirt into Pennsylvania for a number of years.  Occasionally, someone blows the whistle on them.  In June 2009, a group of local citizens called PADEP regarding contaminated fill material that was taken from a remediation site in New Jersey and dumped at a Monroe County residential construction site.  The fill material had benzo(a) pyrene at elevated levels.  The Pocono Record wrote an editorial soon after on June 22, 2009, which stated:

Citizens must be alert to possible violations and report them to the DEP, conservation district or local municipality if they believe a violation has occurred.  Another issue is the higher regulatory threshold in New jersey than Pennsylvania when it comes to hazardous waste and fill.  Some material that New Jersey considers hazardous and requires to be carefully disposed of in a landfill at the generator's cost, can legally be used as fill here.  This only encourages the shipments of "low level" contaminated fill to our state.  It's time to fix that loophole, either by raising Pennsylvania's threshold, or by enacting a regulation banning the importation of fill that wouldn't meet standards of the state from which it originated. 

Pennsylvania has not banned the importation of fill material.  But it has now shined a bright light on it.  As long as that fill material meets the standards for Clean Fill in the Management of Fill Policy, citizens have no need to fear.   Those levels are safe and protective of human health and the environment.  By revising the Clean Fill form and requiring that it be submitted to the local PADEP regional office, the bad guys are now on notice that Pennsylvania won't tolerate the importation or use of contaminated fill.  To put some added weight behind that notice, the Department is requiring both the sender and receiver of the fill material to certify "under penalty of law" that all of the information regarding the fill is true and correct.

Will this new form create added burdens?  It shouldn't.  The people who have been playing by the rules have been filling out a different version of this form and retaining it on site since the Management of Fill Policy was enacted.  Do I expect PADEP to review these forms when they are filed?  They might.  I hope they would review them, if for no other reason then to get a sense of what kind of fill material is being brought into their local areas and where it is coming from.  I would especially hope that they'd look very closely at any receiving site that checks the box on the form noting that it is receiving 20,000 or more cubic yards of material from a regulated site.   Citizens need the comfort of knowing that if something is supposed to be clean fill it really is clean fill.   

Developers, consultants, property owners, dirt brokers, attorneys and others need to be aware of the new Clean Fill Form and what is now required.   PADEP has now given fair warning to those that might think of bringing contaminated fill into Pennsylvania being disguised as clean fill.   The message is to play by the rules.   

 

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PADEP Releases Guidance on Permit Extensions

As required by the recently approved Fiscal Code bill (now known as Act 46), PADEP just released a Notice of Applicability  and a Guidance Document listing the permits that it thinks are covered by the statutory permit extensions.  As reported previously on this blog, the General Assembly provided relief to developers adversely effected by the recession in the form of permit extensions covering PADEP and Conservation District permit and approvals needed for construction activities.  The extensions run through July 1, 2013.  The question everyone was waiting for PADEP to answer was whether the permit extension would cover NPDES stormwater construction permits.  The Department has now released its official position on that subject.

According to the Department, NPDES Stormwater Construction permits are not covered by the permit extensions because such permits are issued pursuant to delegated authority under the federal Clean Water Act.   The General Assembly had put language in the Fiscal Code bill stating: "Nothing in this Article shall be construed to modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the Commonwealth of the Authority to implement a federal law or program."   Looking at that language, it would appear that PADEP's exclusion of NPDES stormwater permits is consistent with the charge given to it by the General Assembly.   

The Guidance issued by the Department tries to cover all bases when it comes to NPDES stormwater construction permits.  Under Act 46, a person has the right to file a request with PADEP requesting verification that a permit is covered by the extension.  The Act says that if PADEP does not respond within 30 days, the verification request is deemed approved.  Maybe recognizing that the Department doesn't have the resources to respond to each and every verification request, the Department states in the Guidance as follows: 

DEP does not interpret this "deemed affirmation" language to either allow expired approvals to be reinstated, or to allow an approval's expiration date to be extended, if that approval is not governed by Act 46.  For example, if a request for verification is submitted for an expired NPDES permit, it cannot be "deemed" to be extended because DEP failed to respond within 30 days.  This law does not reinstate that permit because NPDES permits are not subject to this law.   

So let's be perfectly clear, NPDES permits are not covered by Act 46 and don't even think about trying to slip one by the Department through the verification/deemed affirmation route.  The Guidance states that DEP will respond to all verification requests, so presumably, there will be no deemed affirmations.

A couple of items in PADEP's list of permits covered by Act 46 jumped out at me.  First, there are several residual waste general permits included on the list.  I find that curious since the Solid Waste Management Act was not one of the statutes listed in Act 46 as "relating to or affecting development".   It would appear that the Department has taken a more expansive view of Act 46 by extending it to statutes not expressly listed in the Scope Section, Section 1602-I.  I have no problem with that.  On the other hand, why pick and chose certain residual waste permits?  For example, GP096, which allows regulated fill material to be used as part of a construction project, is not included in the list of GPs covered by the permit extension.  Neither are GPs 028, 065, 083, 089, 094, 096 and 097.  Some of the GPs can be used for construction projects.  Maybe the Department didn't intend its list to be exclusive.  Maybe it looked at all the GPs out there and only listed the ones where someone arguably might be eligible for the permit extension, given the date of issuance and expiration.  I don't know.  My thought is that anyone holding a GP issued pursuant to the SWMA that could be used as part of a construction project, which would expire sometime between now and July 1, 2013, may want to consider filing a verification request.  The Department certainly opened that door when it listed several residual waste GPs in the Notice of Applicability.

Second, the Department has included sewage approvals issued for on-lot systems pursuant to Chapter 72.  What about other planning module approvals issued by the Department pursuant to the Sewage Facilities Act?  

I think it's possible that there are other permits or approvals that would arguably be covered by Act 46 that aren't necessarily on the Department's list.  I intend to have a conversation with the Department to see if its expectation is that this list is all-inclusive or whether they purposely avoided trying to have to identify each and every permit type that could be covered. 

The Notice says that any questions concerning the applicability of Act 46 "may be directed to the regional Office, District Mining Office, Central Office program, Conservation District or local agency that issued the approval."   Given the fact that the Department was not actively involved with the development of Act 46, and the short period of time it had to develop its list of covered permits and explanatory guidance, don't be surprised if the first person you reach at the Department answers your question with a good-natured "I'll have to get back to you on that".  From the people I've spoken with at the Department, I think this is being viewed as a work in progress. 

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Defending Pennsylvania's Authority over Marcellus Shale

The battle between the Commonwealth and the federal government over the right to regulate the Marcellus Shale industry in Pennsylvania has been engaged.  US EPA is now considering whether it needs to assert its own regulatory authority to protect Pennsylvania's citizens.  There is also legislation in Washington that would provide EPA statutory cover to step in.   In response, PADEP Secretary John Hanger was quoted in an AP story appearing earlier this week saying "I'm not ready to turn Pennsylvania's resources over to the Federal government."  He then went on to say that Pennsylvania has one of the best oversight programs for gas well drilling in the country and it is working hard every day to improve it.  For a Secretary who came out of PennFuture, an environmental advocacy group, to make that statement shows just how important the Marcellus Shale industry is to Pennsylvania's economic future.  

As someone who has practiced environmental law in Pennsylvania for over 20 years, I've seen this state slowly lose its manufacturing base as companies fled south or overseas for cheaper labor, lower taxes, or reduced regulatory burdens.  We tried to stem that tide with brownfields legislation in 1995, encouraging businesses to reclaim those blighted, abandoned industrial sites and to create new jobs and economic opportunities.  PADEP's Act 2 program was given the prestigious Innovations in American Government Award from the Ford Foundation and John F. Kennedy School of Government at Harvard in 1997.  Since that time, it has not only cleaned up thousands of sites, but it has helped create tens of thousands of new jobs for Pennsylvania's citizens.   For example,  I worked with the development team for Harrah's and PADEP to transform the vacant, blighted, old Sun Shipyard in Chester into Harrah's Chester Downs Harness Track and Casino, which created almost 1,500 new jobs.   Pennsylvania's brownfield legislation, regulations and technical guidance were all homegrown.   PADEP has been both an active regulator and redevelopment partner in the effort to put those sites back into productive use.  The federal government's role in that effort has been minimal.   It has helped by providing brownfield grants and loans to economic development agencies and local governments, but it has not been actively engaged in any meaningful oversight or regulation of the remediation work.   It plays no role in selecting the sites or in choosing winners and losers.  The market selects the sites and PADEP ensures that the remediation work is done properly in order to protect the citizens of the Commonwealth and its natural resources.  

With regard to whether Pennsylvania needs EPA's assistance in regulating the Marcellus Shale, I'm on Secretary Hanger's side.    Having worked at PADEP, I know that the people regulating the Marcellus Shale operations are hard working, diligent, and believe deeply in the Department's mission to protect human health and the environment.  They have the tools they need to effectively regulate those operations, and I'm sure they'll be given any new tools they need to do their jobs effectively by the General Assembly, the EQB and PADEP, because it is in the best interests of the Commonwealth to protect its environment while controlling its own economic destiny.  From what I can see, it appears that PADEP has told the oil and gas industry that there will be a "zero tolerance" policy when it comes to violations.  Companies have already been fined hundreds of thousands of dollars for their mistakes and non-compliance.  Secretary Hanger's statement, coupled with his actions, sends an important  message to those outside the Commonwealth.  The message is that Pennsylvania is fully capable of regulating the Marcellus Shale, and it will take all steps necessary to avoid turning "Pennsylvania's resources over to the Federal government", because responsible development of those resources presents one of the best economic growth platforms that Pennsylvania has seen in decades.           

        

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PADEP Permits Extended by Fiscal Code Bill Signed Yesterday

While most of the attention in Harrisburg has been on the FY2010-2011 budget, the little noticed Fiscal Code Bill, Senate Bill 1042, was voted on by the General Assembly on July 3 and signed into law by Governor Rendell on July 6.  Buried in that legislation is Article XVI-I, which grants extensions to PADEP permits issued under the Clean Streams Law, the Sewage Facilities Act, the Stormwater Management Act, and the Dam Safety and Encroachments Act for development or construction projects.  It also includes extensions of permit deadlines in E&S Control Plans approved by county conservation districts and building plans and other local approvals granted by cities and municipalities.  To be honest, even after reading through the bill, it is very difficult to understand how this is all going to work. 

Under the enacted Fiscal Code Bill, if you (1) hold a valid PADEP "approval, agreement or permit" that (2) was issued pursuant to one of the statutes listed above and (3) was granted or in effect during the extension period (which is 12/31/08 to 7/2/13) and (4) allows for a development or construction project to proceed, then the expiration date of that approval, agreement or permit is "automatically suspended" during the extension period.   So, if you are a developer who obtained permits from PADEP to construct a subdivision, but the plans were put on hold because of the economy, the General Assembly and the Governor have now just given you a surprise gift in the form of a permit extension.  The extension, more properly seen as a suspension of the expiration date, would appear to run through 7/2/13.   There are a bunch of exceptions listed in the Fiscal Code Bill, carving out approvals from the suspension of the extension period.  For example, any approval issued for a discharge into EV or HQ waters is not subject to the permit extension.  Moreover, if the approval is for a connection to a public sewer system, the application of the extension period is contingent on the availability of capacity for the extended approval.

How do you know if the approval that you were issued by PADEP is subject to the extension provided by the Fiscal Code Bill?  You'll know soon enough.  Under Section 1607 of the Fiscal Code Bill, PADEP would appear to have until August 5 to publish notice of the applicability of the extension periods in the PA Bulletin.    

I am not sure how deeply involved PADEP was in the development of the Fiscal Code Bill.  My guess is that the Department is going to be scrambling to figure out what this all means.  Putting together a list of applicable approvals, agreements and permits may be very difficult within the time period allowed by the Code Bill.  Just looking at the statutes, it could possibly apply to the following:  Dam safety permits, NPDES Stormwater Construction permits, water obstruction and encroachment permits, submerged lands license agreements, water quality management permits, sewage facility planning approvals, on-lot sewage disposal permits, and NPDES discharge permits into non-EV or HQ waters.  It's possible PADEP will argue that some of those permits are covered by the exceptions because of federal delegation or the need to comply with federal law, but that is unknown at this point  

If you want to find out whether or not the permit or approval you are holding is subject to the extension granted in the Fiscal Code Bill, the Bill gives you the right to seek written verification from PADEP.  The Bill took effect upon the Governor's signature, so you could file that written verification request to PADEP any time.  You simply submit a written request seeking verification of the applicable permit termination date.  Under the Fiscal Code Bill, if you put in your written submission the date that you believe is the applicable extension date, and PADEP fails to respond within 30 days, then that is deemed an affirmation of the existence of the approval or expiration date set forth in the written submission.  I'm not sure how PADEP is going to handle those requests, but the consequences of failing to respond are very significant, and a thirty day response period will put new burdens on the Department in some program areas that are currently understaffed due to furloughs and some staff poaching by USEPA.     

The Fiscal Code Bill will be a welcome relief to many Pennsylvania developers (and others) who have been hurt by the recession.  At first blush, the Bill appears to give added breathing room to those developers.  We'll need to see whether PADEP seeks to narrow the scope of the extensions, but again, we should know relatively quickly what PADEP's position is given the short period in which the General Assembly gave the permit issuing departments and agencies to publish their notices of applicability.    

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PA Budget Results in Mores Cuts for PADEP

The General Assembly is wrapping up the state budget today and the Governor expects to sign it before the close of the fiscal year tonight.  As many of you will recall, last year PADEP took an enormous hit in the budget that resulted in over 300 employees being furloughed.   Whether there will be any furloughs this year is unknown.  The budget numbers released for PADEP show reductions across the board.   I pulled the chart off of Dave Hess' blog, which continues to be the best source for environmental information in the Commonwealth.  The one number in the chart that is stunning is the amount of funding that has been lost over the last 8 years at PADEP.  It's staggering.   What's not shown on the chart is the brain drain that has occurred over those 8 years, which has accelerated over the last two.  Respected senior staff has been retiring in steady and increasing numbers.   Those taking their places oftentimes don't have the same willingness to use the Department's discretion and the flexibility provided by the regulations and guidance.  That's frustrating to those of us on the outside trying to work with clients on projects to create jobs and economic opportunities.  At the same time that senior staff are departing, training budgets are frozen or cut, and that just makes it harder for those climbing the ranks to be as proficient as their predecessors in regulatory areas that are complex and ever-changing.   Many of us on the outside understand the critical dual role that the Department plays in protecting our environment and helping to drive the economic engine of the Commonwealth by making timely permitting decisions and providing advice and guidance to businesses looking to locate or expand in Pennsylvania.  As the state comes to depend on Marcellus Shale exploration and development for jobs and revenue, the Department's role will become even more critical and highly visible.  In all likelihood, the next Governor is also going to have difficult budget decisions to make.   In order for PADEP to implement its mission and to serve its many customers and be an effective partner in restoring economic prosperity in the Commonwealth, the bleeding needs to stop.         

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Impact of the New E&S/Stormwater Regulations on Brownfield Redevelopment Projects

I've gone to a number of programs and seminars where the speakers have summarized the proposed changes to Chapter 102 relating to erosion and sedimentation (E&S) controls and stormwater management and then painted a very grim picture for the developers and home builders in the audience of the high cost of compliance.  They describe the overly burdensome requirements for developing and implementing post construction stormwater management (PCSM) plans and creating riparian stream buffers.  Those new regulations are now on the fast path to becoming law in the Commonwealth, having been approved by the IRRC earlier this month and only having now to go for a final review before the House and Senate Environmental Resources and Energy Committees.  Assuming the regulations pass that hurdle, they will go into effect 90 days after being published in the Pennsylvania Bulletin.       

I took a close look at the regulations and the accompanying 471 page comment/response document to see what, if anything, the Environmental Quality Board (EQB) has done to ensure that the regulations don't adversely impact brownfield redevelopment in Pennsylvania.  Here is what I found.

On Page 264 of the Comment/response document, one commenter asserted that the proposed regulations would "potentially present a significant disincentive to brownfield redevelopment in the Commonwealth."  The commenter noted that the proposed regulation would adversely impact brownfield developers who took the initiative and started preparing the site for re-use (such as by demolishing buildings), before the stormwater permitting and PCSM compliance obligations kicked in at the time of earth disturbance.  In response, the Department agreed that "flexibility is needed" on brownfields sites.  As a result, it revised Section 102.8(g)(2)(ii) and (iii) of the final regulations.  Section 102.8(g) is the subsection that sets forth the criteria to be applied in performing the PCSM plan stormwater analysis.  Section 102.8(g)(2)(iii) states as follows:

(iii) When the existing site contains impervious area and the existing site conditions have  public health, safety or environmental limitations, the applicant may demonstrate to the Department that it is not practicable to satisfy the requirement in (ii), but the stormwater volume reduction and water quality treatment will be maximized to the extent practicable in order to maintain and protect existing water quality and existing and designated uses.

The first thing I see in that subsection that helps brownfield redevelopers is the notion that a site may have existing "public health, safety or environmental limitations" that impact the ability to manage post construction stormwater.   Many brownfield sites have contamination under an asphalt cap or concrete and it is in everyone's interest to leave that undisturbed.  Presumably that would be seen as an "environmental limitation".  So for example, let's assume a brownfield developer wants to buy an old abandoned corner gas station and turn it into a bank or a drugstore.  The site soils are contaminated and are all covered by the existing parking lot.  The developer plans on maintaining that cap to limit direct exposure to the soil contamination.  It would appear that Section 102.8(g)(2)(iii) of the new regulations would allow that brownfield redeveloper to avoid having to comply with the otherwise one-size fits all post construction stormwater volume reduction requirements or design the stormwater BMPs for the 2-year/24 hour storm event, provided it demonstrates that stormwater volume will be reduced for the completed brownfield development "to the extent practicable".   What that means, I don't completely know.  I'm not even sure the Department knows at this point.  Practicability is a concept that puts an enormous degree of discretion in the hands of the Department.   Since the Department carved out this exception for brownfield projects, one would hope they'd use that discretion as a means of facilitating brownfield redevelopment and not be too rigid in applying the subsection.  

In the Comment/Response Document, the Department also notes that Section 102.14(d)(2(v) provides a waiver for brownfield redevelopment projects from the new riparian buffer requirements.   As support for the regulation, the EQB found that "riparian buffers are one of the most cost effective stormwater management BMPs."  The new regulations require the creation of riparian buffers to protect exceptional value and high quality waters.   Under Section 102.14(a), a person may not conduct earth disturbance activities within 150 feet of a perennial or intermittent river, stream, or creek, or lake, pond, or reservoir, where the project site is located in an exceptional value or high quality watershed attaining its designated use as listed by the Department at the time of application and he or she is required to protect any existing riparian buffer in that circumstance.  Where the site is in an EV or HQ watershed where there are waters failing to attain one or more designated uses and the project site is along or within 150 feet of a perennial or intermittent stream, then the person must protect any existing riparian forest buffer, or convert an existing riparian buffer to a riparian forest buffer, or establish a new riparian forest buffer.   The brownfield waiver to the riparian buffer requirement is found in Section 102.14(d)(2).  The exception reads:

(d)(1) The requirements of 102.14(a) do not apply for earth disturbance activities associated with the following:

(2) For earth disturbance activities associated with the following, the Department, or the Conservation District after consultation with the Department, may grant a waiver from any of the requirements of 102.14(a) and (b) upon a demonstration by the applicant that there are reasonable alternatives for compliance with this section, so long as any existing riparian buffer is undisturbed to the extent practicable and that the activity will otherwise meet the requirements of this Chapter:

(v) Redevelopment projects which include brownfields or use of other vacant land and property within a developed area for further construction or development;

In order to invoke the brownfield waiver, a brownfield redeveloper has to submit a written request for the waiver to the Department or the Conservation District as part of the application for the NPDES Stormwater Construction permit.  The new regulation also allows for anyone claiming the waiver to propose "in-lieu of compensation to fund riparian forest buffer protection, enhancement or establishment."

OK, so what does all of this mean?  Well, let's assume you are a brownfield redeveloper and you are looking to buy an old vacant factory that sites on 20 acres and it has a stream running through it and it's located in an EV or HQ watershed.  Without the brownfield waiver, you would have to create a riparian buffer of 150 feet on both sides of the creek.  That would cut back significantly on the area available for the brownfield development project and it might dissuade someone from acquiring that abandoned site.  Presumably, the brownfield waiver was put in the Chapter 102 regulations to recognize that brownfield sites require special incentives, not disincentives, in order to encourage their productive reuse. 

In my hypothetical, the developer would be eligible to seek a waiver upon written request  "as part of the application for a permit" under Chapter 102.  But that is the rub.  The brownfield redeveloper won't know that a waiver will be granted until they apply for a permit.  That means the Department won't likely be telling the brownfield redeveloper whether the site will receive a waiver from the riparian buffer requirement at any time prior to the site being purchased.  They also won't likely be telling that developer in advance of the purchase whether or not any payment in-lieu of the riparian buffer will be required.  That could be a significant enough risk to still deter the potential brownfield redeveloper if that extra site area is important to the viability of the project.  What I can see happening for those sites is a scenario as follows:  (1) developer identifies a vacant abandoned industrial site; (2) developer wants some certainty regarding the area available for redevelopment so it enters into cooperation agreement with a county redevelopment authority or economic development corporation; (3) the county RDA or EDC acquires the site; (4) the county RDA or EDC files an application for a stormwater construction permit, requesting the waiver from the riparian buffer requirement under Section 102.14(d)(v); (5) if DEP or the Conservation District grants the waiver, the developer moves forward and takes title to the property and proceeds.  I'm sure there will be other ideas that brownfield redevelopers will come up with, but that is one I have worked with on a number of projects where the site requires assessment grant or remediation grant funding and the RDA or EDC is the conduit for the state or federal funding.  I believe that structure could be adapted to work in the circumstances of a brownfield site potentially triggering the need for a riparian buffer.    

So for anyone working with brownfield redevelopers,  there is some good news buried in the final   Chapter 102 regulations and the accompanying 471 page Comment/response document.  We can all hope that the Department uses the flexibility provided by the regulations to keep Pennsylvania's successful brownfield program moving forward.   

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Thank You from Mr. Act 2

The new 2010 Chambers USA Guide for Leading Lawyers for Business just came out last week and the description provided for me in the Environment - Pennsylvania section reads as follows:  "While at the Pennsylvania Department of Environmental Protection, he implemented 'Act 2", Pennsylvania's Land Recycling Act, and is now considered "the man to go to for land recycling issues: Mr. Act 2."    I am not sure who provided the quote, whether it was a client or fellow environmental lawyer, but I want to say thank you to whoever gave me the name "Mr. Act 2".   I have already told my partner Phil Hinerman that from now on I expect to be referred to as Mr. Act 2 during our environmental practice group meetings.  I promise not to abuse the new title and to use it in meetings with PADEP only when under extreme duress.   In my mind I've always been Mr. Act 2, but it is nice to know that at least one other person out there sees it that way.    

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