Posted on January 12, 2012 by Joel Bolstein

SAB Process Subcommittee Begins Year Long Project to Help DEP Revise the Act 2 Technical Guidance Manual

Yesterday I chaired a meeting in Harrisburg of the Process Subcommittee of the Cleanup Standards Scientific Advisory Board (SAB), which has been tasked with helping provide advice to the Department on revising the Act 2 Technical Guidance Manual (TGM).   The subcommittee is made up of SAB members, Department staff, and several outside environmental consultants who have been working with the SAB on vapor intrusion issues. 

During the meeting, the Department said that its goal was to have a revised draft of the TGM available for public comment within 12 months.  We talked about how the TGM is used most often, where it is most helpful and where it is deficient.  We developed a long list of issue areas that will be examined by subcommittee members in greater detail to determine how best to update the Manual as it relates to those issues.  We also talked about the need to integrate the Act 2 Q&A from the Department's website into the next version of the TGM, being mindful that some answers might be obsolete or no longer relevant.  The goal, however, is to integrate everything that is still relevant and good policy from the Q&A into the next version of the TGM and then wipe out all the current Q&A and start fresh as new questions come into the Department.  

Some of the issue areas that will be addressed include those that have arisen subsequent to the development of the first TGM, such as providing more information on the One Cleanup Program and integrating separate UECA and vapor intrusion guidance into the TGM.   We also talked about the need for the Subcommittee to provide recommendations on updating the information presented in the TGM on the various Act 2 interface issues, including the interfaces between Act 2 and the Solid Waste Management Act,  Clean Fill, Storage Tanks, E&S, Air, Surface Water, and Marcellus Shale (which the Department is in the process of addressing).              

One critical component of the subcommittee's work will be outreach to others who work with the Act 2 program to ensure that we've considered all of the possible areas where the TGM needs updating.  The PADEP members of the Subcommittee will be reaching out to the regional ECP program personnel and regional counsel that work with those ECP programs to obtain their views.  The engineers and geologists on the Subcommittee will reach out to the PA trade associations that represent those groups, and the environmental attorneys will do the same. 

I thought the first meeting was very productive.  If anyone reading this posting has any thoughts on revising the Act 2 TGM, feel free to send me a comment.  If you'd like it posted, please also let me know and I'll share those comments more broadly.  I intend to keep everyone posted on the important work being done by the subcommittee.

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Posted on November 21, 2011 by Joel Bolstein

Secretary Krancer Lays Down the Law Before Congress

In testimony delivered last week before a Congressional Subcommittee in Washington, D.C., PADEP Secretary Michael Krancer did what a thoughtful judge should do.  He set forth both the facts and the law on the subject of Pennsylvania's regulation of the Marcellus Shale. 

In 19 single-spaced pages, Secretary Krancer systematically debunks every myth about fracing, frac fluids, water usage and water impacts arising from natural gas development.   Unlike the emotional appeals of drilling opponents, his testimony relies on unbiased real facts based on actual evidence gathered in the field.  His review of Pennsylvania's laws governing oil and gas well operations is detailed and thorough.  Anyone reading his testimony will surely agree that  Pennsylvania possesses all of the tools that it needs to protect its citizens and the natural resources of the Commonwealth from the risks associated with Marcellus shale exploration and development.   His summation, addressed to those that think EPA can do a better job regulating the Marcellus shale than PADEP, is eloquent and to the point.  He stated:  "Simply put, because of our long history of oil and gas development and comprehensive regulatory structure, Pennsylvania does not need federal intervention to ensure an appropriate balance between resource development and environmental protection is struck."   Well said Secretary Krancer. 

I would urge everyone active in the development of the Marcellus shale to read Secretary' Krancer's testimony.  It presents as compelling a defense as you will read for Pennsylvania being able to control its own economic destiny.        

 

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Posted on November 18, 2011 by Joel Bolstein

DRBC Postpones Vote on Marcellus Regulations

In a press release issued earlier today, the DRBC announced that it is postponing the special meeting it had scheduled for November 21 to vote on its proposed Marcellus regulations.  No new date was provided. 

At this point, the uncertainty created by DRBC, and the continued de-facto moratorium resulting from the inability of drillers to obtain permits, has made it very unlikely that any drilling will occur anywhere in the basin even after DRBC issues its regulations.  The word on the street is that the leasing agents for the oil and gas companies have been told to stay away from the few counties within the Delaware River basin (mostly Wayne and Pike) that overlie the Marcellus formation and not sign any more leases.  In all likelihood, leases previously signed in those counties will be allowed to expire, and the landowners who thought they would be benefiting from development of their shale gas rights in those counties will be out of luck, no matter what the DRBC's final regulations look like.   With that said, if you take the few counties that are within the DRBC's jurisdiction off the table for drilling, there still remains a very large untapped area within  the central and western parts of the Commonwealth where the regulatory climate is much more welcoming to the shale gas industry.  As they said during the gold rush -- Go West Young Man.     

 

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Posted on October 30, 2011 by Joel Bolstein

CSSAB to Provide Input on Revising Act 2 Technical Guidance Manual

On October 28, I was asked to chair the newly reconstituted Process Subcommittee of the PA Cleanup Standards Scientific Advisory Board (SAB), for the express purpose of helping the Department revise the Act 2 Technical Guidance Manual (TGM).  I was participating in the SAB meeting as one of its newest members, having been appointed earlier this year by PADEP Secretary Michael Krancer.   Back in the period between 1995 and 1997, when the Department was working on the Act 2 regulations and creating the Act 2 TGM, I attended all of the SAB's meetings in my capacity as PADEP Deputy Secretary.  Now I've come full circle, participating as an SAB member, private citizen and environmental attorney, hoping to contribute some ideas for improving what is already recognized as one of the best brownfield programs in the country.     

There were two matters discussed at the SAB meeting -- revising the Act 2 TGM and providing further guidance on vapor intrusion. 

On revising the Act 2 TGM, as noted above, the SAB decided to reconstitute its Process Subcommittee to provide advice to the Department on this very important project.   I agreed to chair the Process Subcommittee after being asked by Ron Buchanan, the chair of the SAB.  I expect that the Subcommittee will be looking to form a larger group that includes SAB members, as well as people outside the SAB, including brownfield developers, environmental consultants, and representatives from economic development agencies that work with Act 2.  In addition, we discussed having regional office ECP staff and counsel who work with the ECP program included as members of the subcommittee.

The idea is to help the Department identify technical and scientific areas of the Act 2 TGM that could use clarification or revision.  Part of that work will be reviewing the Act 2 Q&A on the Department's website to see which of those answers should be integrated into the revised TGM.  The SAB Process Subcommittee will prepare a list of recommendations for the people now in charge of the Act 2 program, Denise Brinley and Troy Conrad.   I expect the Subcommittee may want to hold several stakeholder meetings to gather input.  Troy Conrad said the Department's goal is to have a draft revision of the Act 2 TGM within 12 months.  That draft revision would then be put out for public comment.  

I am very excited to be helping the Department with this project.  I was part of the team within the Department that put together the first version of the Act 2 TGM.  We poured our hearts into that to make sure we had the best possible guidance document to go along with the statute and the regulations.  Many of the people who worked on the initial TGM are long gone, including, among others, Karen Bassett, Ken Bowman, Joe Chnupa, Tom Fidler, Ken O'Korn and Jim Snyder.  Sam Fang was the person who worked on all the statistical analysis, and it was nice to see him sitting with the PADEP folks at the SAB meeting.  We still have many Act 2 veterans within the Department working on this, including Jim Shaw and Dave Crownover, along with Denise and Troy, who have both helped manage the program for many years.  A number of SAB members have also been around from the very beginning and their participation on the Subcommittee will be invaluable.    As I observed during the meeting, we have so much Act 2 talent around the table that  I am very confident that the SAB will be able to make a meaningful contribution to the work of revising the Act 2 TGM. 

Anyone with any thoughts or comments on areas of the Act 2 TGM that should be looked at by the SAB Process Subcommittee, should feel free to send me an email or post a comment.  

The other matter discussed by the SAB at the October meeting was vapor intrusion.  The SAB has a subcommittee chaired by Annette Guiseppi-Eli.  She presented the subcommittee's report, which included a 3 page paper with issues for further discussion.  Those issues included: (1) the proper place within the Act 2 TGM for the vapor intrusion guidance; (2) the difficulty using soil screening tables based on the new J&E model; (3) dealing with occupied structures and potential future structures; (4) addressing vapors on neighboring properties: (5) avoiding vapor sampling by moving directly to installation of a VI abatement system; (6) sampling guidance; (7) petroleum cases; and (8) clarification regarding the use of the term "background" in the context of dealing with vapor intrusion. 

The subject of vapor intrusion is very complex and highly technical.   Regardless of whether anyone thinks the risks posed by vapor intrusion are overblown, it is clear that the federal government is taking vapor intrusion very seriously and it expects the states to follow suit.  There's talk of new Superfund sites being added to the NPL solely on the basis of vapor intrusion.  Pennsylvania has marched to the beat of its own drummer for many years on vapor intrusion, generally having screening levels that are more lenient than EPA and many other states.  That is what the SAB is wrestling with -- how does one change those screening levels without causing every Act 2 project to have to perform costly soil vapor sampling?  After all, at many sites, the vapor sampling can be much more expensive than the eventual vapor remedy, which often involves installing a relatively inexpensive radon-like mitigation system.  As we engaged in the discussion of sampling and screening tables, I continually brought up the question how any of this will effect sites that have already gone through the Act 2 process and received releases of liability.  For example, if the screening levels are reduced significantly, will that mean reopening past liability releases to address vapor intrusion?  Will Act 2 liability releases become less valuable because those sites will now require vapor sampling when the property is sold?  Will banks require vapor sampling at sites being acquired, even if that site has an Act 2 release that runs with the property? 

The discussion of vapor intrusion at the SAB meeting was very thoughtful and practical.  Everyone is motivated to come up with solutions that will not adversely impact the program.  With that said, these are not easy issues.  The most practical recommendation made by the Subcommittee was that a remediator should have the option to avoid the time, effort and costs associated with implementing any of the vapor sampling and vapor screening to proceed directly to the mitigation option at any point in the process.   I see that as keeping with Act 2's mandate to take cost into consideration in developing remedies that are protective of human health and the environment.    Why should someone have to spend $25,000 on vapor sampling when the remedy is installing a $5,000 radon-like mitigation system?  That is the kind of common sense that Pennsylvania's brownfield program has been known for and it's nice to see the SAB members applying that common sense as it works its way through these very complex issues.

Again, I'm excited to be a new member of the SAB and I am very much looking forward to chairing the Process Subcommittee and helping Denise and Troy with the important task of revising the Act 2 TGM.

   

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Posted on October 20, 2011 by Joel Bolstein

How Many Bats Does It Take to Stop a Windmill?

We've got many different kinds of bats in Pennsylvania but only one can stop a windmill.  We've got big brown bats, little brown bats, tri-colored bats, hoary bats, small-footed bats, silver-haired bats, northern long ear bats, red bats, evening bats, and an occasional seminole bat.  But none of those bats can stop a windmill.

The only bat in Pennsylvania capable of stopping a windmill is this little guy

It is the rarely seen Indiana bat (Myotis sodalis).   It's a whopping 3 inches long and weighs in at less than half an ounce.  It likes to hibernate in clusters of 250 bats per square foot on the ceilings and side walls of caves.  Although 97 percent of Indiana bats are found in Missouri, Kentucky, Indiana and Illinois, Pennsylvania is on the edge of its habitat range. 

The thing that distinguishes the Indiana bat from all other bats is that this little guy is the only bat in Pennsylvania that is on the federal endangered species list.  That means, when you are siting a wind farm in western Pennsylvania, the US Fish & Wildlife Service will want a pre-construction impact assessment of wind development on bats.  Depending on the project, they can ask the project developer to conduct mist-net and cave and mine opening surveys for the Indiana bat.  The Pennsylvania Game Commission gets developers to sign Wind Energy Voluntary Cooperation Agreements that include monitoring of post-construction bat mortality.  And if dead bats are found, and they turn out to be Indiana bats, you can expect both the US Fish & Wildlife Service and the PA Game Commission will be looking to the project developer to mitigate adverse impacts on the bats.

And this is not a hypothetical situation.  It just happened at a 35 turbine wind farm in Cambria and Blair Counties.  According to a news report , a bat carcass was discovered by a technician on September 26 and was brought into the office as per standard monitoring protocol.  When it was determined to be an Indiana bat (sometimes Indiana bats are mistaken for little brown or northern long ear bats), the power company operating the wind farm immediately curtailed nighttime operations of the turbines and reported the incident to the PA Game Commission and the US Fish & Wildlife Service.  At this time, the wind turbines are being turned off 30 minutes before dusk until 30 minutes after dawn every night.  The expectation is that the wind farm will be able to be put back into full operation in mid-November, when the migratory season for bats ends and they begin their winter hibernation.

So, how many bats does it take to stop a windmill?  Just one.  If it's a dead Indiana bat .  

 

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Posted on October 12, 2011 by Joel Bolstein

Three Counties Tops in Marcellus Gas Production

An article appearing in Directions Magazine notes that Bradford, Susquehanna and Greene Counties have the highest producing Marcellus Shale gas wells in the Commonwealth of Pennsylvania, according to the most recent data.   The same article notes that as of June 30, 2011, there were 1,655 wells reporting gas production, which was a 37% increase over the prior six months.  

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Posted on October 10, 2011 by Joel Bolstein

DRBC Should Use Extra Time to Give Full Consideration to PA's Objections to the Proposed Marcellus Regulations

Natural gas drillers looking to engage in Marcellus Shale exploration and development in northeastern Pennsylvania (mostly Wayne and Pike counties) are going to have to wait a little longer before they can start putting in their applications with the Delaware River Basin Commission.  That's because the DRBC announced in a press release that it is rescheduling its previously announced special meeting to consider the Commission's draft Marcellus regulations.  The meeting had been scheduled for October 21, 2011 but will now take place on November 21, 2011.  The Commission's press release says the additional time is needed to complete the ongoing process and allow for an opportunity to publish the modified draft regulations on the DRBC website two weeks in advance of the expected vote by the commissioners.  The web posting is planned for November 7 and will be for informational purposes only, since comments will not be accepted.   

What's really going on here?  Behind the scenes there is a significant states' rights issue that directly impacts the Commonwealth's sovereignty and its authority to authorize and regulate natural gas drilling.  Fifty years ago, the Commonwealth entered into a Compact with other states and the federal government to protect the water resources of the Delaware River Basin.  Since that time there has been a division of authority in which the DRBC regulates water withdrawals and the Commonwealth regulates just about everything else, including environmental and local land use decisions.  The adoption of the DRBC's proposed regulations could move the Commission into enter areas traditionally left to Pennsylvania, such as regulating well pad site development.   The big question for everyone to ponder is whether that's the appropriate role for DRBC.  Do we really need a second agency of government stepping into areas that have traditionally been handled by the state?   

In his written comments on the draft regulations, PADEP Secretary Krancer asserted that Pennsylvania has the regulatory capacity to protect Pennsylvania's surface waters and groundwater from the risks posed by Marcellus drilling and that the DRBC needs to avoid adopting duplicative and unnecessary regulations.   The problem Pennsylvania faces is it clearly does not control its own economic destiny at DRBC.  Other states that have no Marcellus Shale gas to develop have an equal voice and can vote to place regulatory roadblocks in front of natural gas companies whose activities are limited to Pennsylvania, even if Pennsylvania is firmly opposed to that.  Is that fair?  Landowners in Wayne and Pike County may not think so.  Gas companies paid Pennsylvania landowners over $1.5 billion in 2009 for leasing rights and gas royalties.  Many landowners in Wayne and Pike County have already entered into leases, but DRBC's lack of regulations has effectively placed a moratorium on their ability to derive any benefits from those leases.

Marcellus Shale development represents the most significant economic opportunity in Pennsylvania in decades.  It has created tens of thousands of new jobs during a time of economic recession.  If the regulations that DRBC adopts prevent or hinder that development, there will continue to be controversy, and possibly litigation brought by those who are adversely impacted.   

And where does it stop?  If the effect of the DRBC's regulations is to place restrictions on natural gas development in Pennsylvania, does that mean that Pennsylvania should be able to propose, through DRBC, restrictions on new housing developments in NJ or Delaware?   Is it okay for DRBC to regulate local land use decisions in Pennsylvania but not okay to do so in these other states that don't have any Marcellus Shale gas, but whose land use decisions also impact the basin?   

One would hope that the states would work cooperatively to ensure that the water resources of the basin are protected, doing so mindful of the regulatory capabilities of each state.  If Pennsylvania was incapable of protecting the waters of the basin, then I could understand the need for a second layer of regulatory oversight.  That does not appear to be the case.  Pennsylvania has acted responsibly to development new regulations, including well-casing regulations.  It has anti-degradation regulations to protect  special protection waters.  It has adopted new well fees that have allowed it to hire more well inspectors.  Rather than being driven by emotion, Pennsylvania has approached Marcellus Shale regulation in a thoughtful manner, based on sound science, which balances the rights of landowners and the gas industry against the right that each citizen has to clean air and clean water.   

The Governor, his cabinet, and the members of the General Assembly have to answer to the citizens of the Commonwealth every election.   For Marcellus Shale development and for every other matter that impacts the environment in Pennsylvania, those people are the ones who swear an oath to protect and defend the Pennsylvania Constitution, which includes the right to clean air and clean water, and they are the ones whose decisions are judged by the voters every election.  When those people act to regulate the development of Marcellus Shale, they do so mindful of that oath and that the actions they take must protect the health and environment of Pennsylvania's citizens.  That is the essential states' rights issue here.  I challenge anyone who thinks that Pennsylvania is incapable of protecting its own citizens and its water resources to spend a day at the Rachel Carson Building in Harrisburg and then travel to each of PADEP's regional offices.  The Department's staff is well trained, highly capable and professional.  They spend each and every day protecting Pennsylvania's environment, and they are fully capable of regulating Marcellus Shale development. 

That's not to say that the DRBC's staff isn't equally capable, professional and diligent.   I know many DRBC personnel from having worked with them when I was at PADEP.  There's no question they are equal to PADEP in terms of training, knowledge and their desire to protect the environment.  My point is that the DRBC's staff has traditionally regulated water withdrawals.  They have not, up until now, been looked to for expertise in the area of local land use.  There is no reason why DRBC and PADEP can't work together to protect the citizens of Pennsylvania and the entire basin.  There shouldn't be any friction between the two entities.  One would hope that they'd  work together to ensure that there are no gaps in regulatory coverage.  One would also hope that DRBC is taking this additional time to try to work things out with Pennsylvania, since it is the state in the Compact that is impacted the greatest by DRBC's proposed regulations. 

No disrespect to the other states in the Compact, but at the moment, the center of the universe for Marcellus Shale exploration and development is Pennsylvania.  It is imperative, therefore, that DRBC and its member states work with Pennsylvania as the Commission moves toward finalizing this important regulatory package.   Maybe the best strategy would be to seize any and all common ground and postpone action in areas where full consensus is lacking.   That would be a major step toward fairness and greater regulatory certainty for everyone. 

   

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Posted on October 6, 2011 by Joel Bolstein

Governor Corbett's Proposed Marcellus Shale Impact Fee

I worked closely with Dave Hess when he was Executive Deputy Secretary and I was Special Deputy Secretary under Jim Seif and Governor Ridge.  Dave was responsible for PADEP's environmental digest that provided fresh news about activities at the Department and around the state that concerned environmental protection.  These days, I get into my office and each morning, I log onto Dave's website to read all of the latest articles on environmental topics that effect the Commonwealth.  This morning, Dave provides his own personal and very thoughtful analysis of the Governor's proposed Marcellus Shale Impact fee in an opinion piece entitled "Will we get a Chevy or a Pinto out of the Upcoming Marcellus Shale Debate."    In his analysis, Dave asks and answers the most important questions facing the General Assembly as it reviews and assesses the Governor's proposal.   I'm very much with Dave in spirit on this.  In my mind, in a perfect world, the fee/tax imposed on Marcellus Shale gas extraction would provide a dedicated funding stream for HSCA that is sorely needed.   In addition to addressing local impacts, it would also provide some amount of funding for Growing Greener, Environmental Stewardship and other funds that support brownfield redevelopment, land conservation, stream protection, and other important environmental projects throughout the Commonwealth.   Again, I thank Dave for his thoughtful  analysis and I urge everyone to read it.   

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Posted on October 3, 2011 by Joel Bolstein

Governor Corbett Releases Proposal for Implementing Marcellus Shale Advisory Commission's recommendations

In a news release issued earlier today, Governor Corbett announced his plans for implementing the 94 recommendations previously released by the Marcellus Shale Advisory Commission.  The recommendations include legislative, regulatory and policy initiatives.  The Department will be given increased enforcement authority over gas drillers, including the authority to impose higher fines and more quickly revoke or withhold permits. 

In addition, the proposal includes the Governor's proposed impact fee on Marcellus gas drilling.  Under the Governor's proposal, 75 percent of the impact fee would be split between the counties and municipalities where Marcellus wells are located, and the remaining 25 percent would go to the state (mostly PennDot) for road improvements, maintenance and other work in the communities where Marcellus wells are located.  Of the money going to impacted counties and municipalities, some of the funds can be directed towards environmental projects that include water, stormwater and sewer construction and repair,along with preservation and reclamation of surface and groundwater supplies.  Those projects are very similar to the kinds of projects previously funded by Growing Greener. 

None of the proposed impact fee money would go into Statewide environmental funds, like Growing Greener or HSCA,  and none of the money would go to counties that have no Marcellus well drilling.    

The expectation is that one-third of the recommendations will require legislation, while the remainder can be implemented by policy.  Governor Corbett has instructed all Cabinet Secretaries to create implementation plans for the policy-oriented recommendations and to have those submitted to his office within 30 days.     Sounds to me like Secretary Krancer and his executive staff are going to be very busy between now and November 3. 

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Posted on September 21, 2011 by Joel Bolstein

PADEP Reorganization is Good for Brownfields

Yesterday, Secretary Krancer formally announced his reorganization for the Pennsylvania Department of Environmental Protection.   According to the Secretary's announcement, there will be a new Bureau of Environmental Cleanup and Brownfields.  That Bureau will be moved back under the Deputy Secretary that has authority over Waste (in addition to air, radiation and remediation).  Right there, that is a significant change and one for the better.  Originally, when Act 2 was passed in 1995, the Land Recycling Program was put under the Waste Management Bureau, which fell under the Deputy Secretary overseeing the implementation of all of the Department's waste programs.  That ensured program consistency, inasmuch as the manager of the Waste Management Bureau (Jim Snyder at that time) could set policy in Central Office for the Act 2 program, and that policy would be implemented by regional managers whose programs aligned with Central Office.  When Secretary McGinty reorganized, she created a Deputy Secretary for Community Revitalization and Local Government Support, and the Land Recycling Program was moved under that Deputate.  The problem that created was that it took the Act 2 program out of alignment with the regional offices, making it more difficult to manage the implementation of Act 2 policy in a consistent manner statewide.  It also marginalized the brownfield program by placing it under a much smaller Deputate with less authority and what we'd call "juice", which is what allows a program to grow and prosper and get things done.   I'm sure the people responsible for the prior re-organization thought that moving the Act 2 program would be a positive, but I'd have to say that in hindsight the move only served to de-emphasize the importance of the Act 2 program.  

I always thought that the prior administration put too much emphasis on green energy within the Department and not enough emphasis on brownfield redevelopment.  As such, one program (green energy) grew while the other withered.  With this reorganization, Secretary Krancer, in my mind, is elevating the brownfield program, putting it back in its proper and original alignment within the Department, and putting it on a path to increased prominence, consistent implementation, prosperity and growth. 

The Secretary said that "the move is a reflection of the Governor's and my belief in the importance of Brownfields development to Pennsylvania."  Boy, that's a refreshing statement. 

I've always said that the Act 2 program is as much a jobs program as it is an environmental program.  Putting old industrial sites back into productive use creates jobs, eliminates blight, and energizes communities.  I've seen it with my own eyes.  It works.  With that said, at times recently it felt like the Act 2 program has been on auto pilot as the Department turned its attention to other things.  Maybe that's what happens when programs move from innovative and new to mature and mundane. 

There's also been some unnecessary back-sliding allowing the Department to make brownfield remediation projects look more like HSCA- type response actions, where site characterization can go on with no end, and remedies seem more about getting every last drop than addressing  realistic risks and getting sites back into productive use.  I believe some of that back-sliding may have been caused by taking the Act 2 program out of its proper alignment and weakening Central Office's ability to maintain program consistency in the implementation of Act 2. 

Here's one example.  Although the General Assembly directed the Department to consider the cost of the remediation as a factor (see Section 304(j)) in reviewing proposed remedies at Act 2 sites, that seems to have been completely lost in translation.  At a time when unemployment is above 9 percent and companies (like the Commonwealth) have to closely watch every dollar that they spend, the brownfield program has to be part of the solution and not part of the problem.  Businesses rightfully complain about a government that imposes unnecessary costs on business and then wonders why those businesses are furloughing people and can't create new jobs.  It's pretty simple.  A dollar spent on unnecessary site characterization or a remedy that doesn't take cost or risk into consideration is a dollar that can't be spent on hiring, payroll and benefits for new employees. 

When Act 2 was written, it provided significant discretion to the Department in developing and implementing the regulations.  In the early years of Act 2, that discretion was used to speed up cleanups, quickly put sites back into productive use, and prove to the naysayers how successful the program could be at creating jobs and economic opportunities.  The program rightfully won accolades and awards and was seen as a model for other states to follow.  What I've seen more recently, however, is a program that needs a shot in the arm, that needs to get back to its roots, and that needs to once again become part of the economic engine that drives this Commonwealth. 

I trust that this reorganization will put the Act 2 program on that path.  It will give Central Office more of a say in the day-to-day implementation of Act 2 policy, and that should lead to greater consistency and the use of discretion in a positive (job creating) way instead of a negative (keep characterizing and remediating until we tell you your done) way.   I am heartened to see that brownfield development is a priority for this administration.  So much time has been spent on Marcellus Shale (for good reason) that it's taken time and emphasis away from the other environmental programs that also create jobs in this Commonwealth.   Act 2 does that.  It always has and the folks in the Department who are the true believers in the power of Act 2 see that.

I know I sound like a preacher, but what we need is for the Act 2 program to , as the Secretary would say, "Get Back to Basics".   This reorganization is the start.  Where it goes from here is up to those within the Department who are in the chain of command that oversees the Act 2 program, from the regional ECP directors to the director of the Land Recycling Program, through the new Bureau Director, and up to the new Deputy Secretary.   I wish then well with the implementation of the reorganization, and I stand ready to assist, both as a member of the Cleanup Standards Scientific Advisory Board (appointed by this Secretary) and as someone who formally stood in that chain of command and presented the Act 2 regulations to the Environmental Quality Board.  I see very good things ahead for the Act 2 program.  

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Posted on August 17, 2011 by Joel Bolstein

Time for PADEP to Put SEPs Back in Its Enforcement Toolbox

Supplemental Environmental Projects or SEPs were part of PADEP's enforcement toolbox for many years.   The Ridge Administration used them very effectively.  The Department, in fact, still has a guidance document on its website that describes its SEP policy .  I'm not sure exactly when it happened, but at some point during the last administration, the Department's leadership decided that SEPs would no longer be accepted as part of the settlement of an enforcement action.  The people who made that decision presumably are now gone, but the policy prohibiting SEPs remains, and I am now urging the new leadership of the Department to put SEPs back into the Department's toolbox. 

There is no downside to allowing parties to propose SEPs for inclusion in the resolution of an enforcement action.  EPA not only accepts SEPs, it welcomes them.  It has a page on its website with links to its SEP policy and guidance.  I've resolved many enforcement actions with EPA on behalf of my clients, and many of the CO&As that were signed included SEPs.  I had a CO&A that was signed recently by a PA municipal sewer authority that included a reduction in the civil penalty paid to EPA in return for the performance of a SEP that sought to educate the users of that sewer system to the need to properly dispose of unused pharmaceuticals.  EPA actually gave us the idea for that SEP.   We recently completed that SEP and it was very successful.  

In December 2007, PADEP was a signatory to a Consent Order and Agreement with EPA that authorized a large chemical company to perform $4.5 million in Supplemental Environmental Projects as part of the settlement of a joint federal/state enforcement action arising out of a chemical release and fish kill.  The SEPs included purchasing land, imposing conservation easements, creating a watershed preservation and restoration plan, and installing a biomonitoring system to provide advance warning of threats to fish in the Wissahickon Creek.   So, it would appear that PADEP is still willing to allow SEPs in an enforcement action if it involves EPA and the project can be done under EPA's SEP Policy. 

In 2007, Hastings College of Law, in conjunction with the ABA Section of Environment, Energy and Resources (of which I am a past officer), published a 50 State Survey of Supplemental Environmental Projects.  That survey found that 28 states had formal published SEP policies and 20 other states and the District of Columbia had internal unpublished policies or practices allowing SEPs.  At the time the survey was done, only North Carolina and South Carolina rejected the use of SEPs.  If it decides to bring back SEPs, PADEP will be able to take comfort from the fact that the overwhelming majority of its sister states allow them.   

SEPs are supported by EPA and by the overwhelming majority of states because they really do provide environmental benefits to communities.  While fines and penalties go into statewide funds, SEPs must have a nexus with the violation, so their benefits are directed at the area where the harm occurred.   Growing Greener used to provide grants to local communities for watershed management and restoration projects.  That funding is gone.  County and local government budgets have also been cut to the bone.   SEPs can help fill those funding gaps and provide funding for worthy local environmental projects.

Again, I never understood why the Department stopped allowing SEPS.  It's been a mystery to me.   Why not give the Department the discretion to use them in the appropriate circumstances?  What harm could come from that?   

 

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Posted on July 27, 2011 by Joel Bolstein

Marcellus Shale Advisory Commission Issues Report

On July 22, the Governor's Marcellus Shale Advisory Commission released its long anticipated report ("Shale Report"), which was written in response to Executive Order 2011-01, calling for the formation of a Commission that would issue a report to the Governor with recommendations to "develop a comprehensive, strategic proposal for the responsible and environmentally sound development of Marcellus Shale."  
 
A significant portion of the Shale Report deals specifically with proposals for new environmental regulations that would be imposed on natural gas drillers, including tougher civil and criminal penalties for violations.  I'll address those in subsequent postings.  Other sections of the Shale Report concern new protections for public health, safety and natural resources.  I'll get to those as well in later postings.  For now, I want to focus on the things in the Shale Report that might be of interest to real estate developers and ancillary businesses who aren't currently players in the Marcellus Shale industry. 
 
For those people, the most important thing to glean from the report is the fact that the Marcellus Shale is generating an enormous amount of new economic development activity in Pennsylvania.  In that regard, the Shale Report finds that the natural gas industry is "creating significant demands for housing, lodging, support business activity, and transportation."  In other words, if you are a real estate developer doing business in Pennsylvania, "go west" or "go north" (since there is no Marcellus Shale gas in southeastern PA), and you may find new opportunities awaiting that you won't find in areas not experiencing the growth spurred by the exploration and development of the Marcellus Shale formation.  
 
I've met with local economic development agencies across the northern tier of Pennsylvania and their message, as confirmed by the Marcellus Shale Commission's Report, is that they desperately need new single family housing, apartment buildings, hotels, motels and warehouses to keep up with the growing demands of the Marcellus Shale industry.   
 
For example, Section 8.5.7 of the Shale Report specifically addresses the lack of affordable housing in north central Pennsylvania and how the growth of the Marcellus Shale industry  has compounded the problem.  The Shale Report states:  "as the gas industry is expanding into communities, housing costs have risen to meet demand such that local residents can no longer afford housing."  It further finds that while there are some gas companies that have constructed "company man camps for workers", many local residents, especially renters, have been forced to relocate "further away form their jobs and communities to find an affordable place to live."  For real estate developers who have previously built affordable housing or worked within federal and state programs designed to increase the availability of affordable housing, such as the Pennsylvania Housing Finance Agency or the federal Low Income Housing Tax Credit Program, building new homes or rental properties in the areas of Pennsylvania experiencing the Marcellus Shale boom could represent a significant new growth opportunity.  
 
Real estate developers will also find it interesting that the Report recommends that the Commonwealth "identify strategic locations" to construct new "regional business parks" capable of tapping into existing infrastructure.  The idea is that as Marcellus Shale related enterprises grow, the Commonwealth would like to channel that growth in the direction of brownfield sites or other properties close enough to existing roads, water and service services, to minimize the need for new infrastructure.  In addition, the Report envisions specialty businesses, such as ethylene processing plants and co-generation facilities, being sited near gas sites to take advantage of natural gas byproducts that can be beneficially used for commercial purposes. 
 
Finally, for those of you just waiting to buy a natural gas powered car but realize that there are no places to fill up, you'll be happy to know that the Shale Report recommends that Pennsylvania develop "Green Corridors" for natural gas fueled vehicles, including Compressed Natural Gas (CNG) and Liquefied Natural Gas (LNG) fueling stations, located at least every 50 miles and within two miles of designated highways.  For now, I'd recommend holding off on that purchase, but don't be surprised when you start seeing CNG and LNG fueling stations popping up along the Pennsylvania Turnpike, probably in the not too distant future.
 
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Posted on July 1, 2011 by Joel Bolstein

EPA Will Study Fracking Impact in Three PA Counties

EPA announced in a news release that it would perform seven "case studies" that would assess the potential impact of hydraulic fracturing on drinking water resources.  The Agency intends to perform two types of studies.  First, there will be "prospective case studies" in which EPA will monitor key aspects of the fracking process throughout the lifecycle of a well.  Washington County, PA will be one of the three prospective case studies.  Second, it will perform "retrospective case studies" in which EPA will examine areas where fracking has already occurred to determine if there has been any impact on drinking water resources.   Bradford and Susquehanna Counties will be two of the five retrospective case studies.  According to the news release, the studies will use best available science and will be conducted in a transparent, peer-reviewed process.

I have always been a little leery of EPA's involving itself in the oversight of the Marcellus Shale business in Pennsylvania.  My perspective is that PADEP is more than capable of regulating the industry and protecting Pennsylvania's groundwater and surface water.  With that said, I don't have any problem with EPA performing a study.  The gentleman at EPA who announced the study, Paul Anastas, the Assistant Administrator for EPA's Office of Research and Development, served with me on the National Advisory Council on Environmental Policy and Technology (NACEPT).  As NACEPT members, we could both see how seriously the scientists in the ORD office take their work.  I would not expect to see a study where the conclusions are drawn up first and the data is gathered to support any pre-determined conclusions.  To the contrary, I would expect to see an honest study done by scientists with no pre-determined agenda.  That is what I observed of EPA's Science Office when I served on NACEPT for six years, and I would fully expect an objective, well reasoned and thoughtful study to be performed here.  

 

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Posted on June 30, 2011 by Joel Bolstein

Is New York getting Ready to Lift its Moratorium on Marcellus Drilling?

An article appearing in today's New York Times states that the Cuomo administration is expected to lift the state's moratorium on drilling in the Marcellus Shale formation.  NYDEC is supposed to be releasing a study on hydrofracking tomorrow, and presumably that will foreshadow what New York plans to do going forward. 

In the event that New York does lift its ban, you can be assured that the boom taking place in Northcentral Pennsylvania will spill over into Southcentral New York.  Right now, there are a lot of very envious landowners just across the New York border wondering why the landowners in Bradford and Tioga Counties can get paid six and seven figure lease and royalty payments but they can't.  

In the event New York lifts its moratorium, it will be very interesting to see how they handle the issues relating to the treatment of frac water.  PADEP is trying to put an end to the use of POTWs to treat frac water with direct discharges to PA streams.  Will New York look to impose similar restrictions?  If you drill in the Marcellus, you are going to generate frac water.  Does New York have any infrastructure at all in place to treat frac water?  If it doesn't, you can expect some of the early frac water that would be generated would come to dedicated frac water treatment facilities in PA.  The same goes for the drill cuttings.  Where would those go in NY?  Maybe there are good lessons to be learned by NYDEC in taking a look at how the Marcellus industry and PADEP's regulation of it have evolved.  

Personally,  I look forward to the day when New York lifts its Moratorium.  Once it does, NY should align itself with PA on matters before the DRBC and EPA, and it should open up new economic opportunities for the companies now working the the Marcellus field in PA.    

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Posted on June 29, 2011 by Joel Bolstein

SB 263 Requires "Acceptable Data" for New Regulations

My thanks to Paul King at PEC for passing word along that the General Assembly passed SB 263 yesterday and it is on its way to Governor Corbett.   The bill amends the Regulatory Review Act and requires that any regulation sent to the Independent Regulatory Review Commission (IRRC) be supported by "acceptable data".  "Acceptable Data" is defined in the Act as "Empirical, replicable and testable data as evidenced in supporting documentation, statistics, reports, studies or research."  The sponsor of the bill was Senator Ted Erickson, who previously served as regional administrator of EPA Region 3.  

How is this likely to work?  For environmental regulations, those are typically developed by PADEP and formally promulgated by the Environmental Quality Board (EQB).  Under the amendment to the regulatory review Act, when notice of the proposed regulation is published in the PA Bulletin, there has to be a detailed description of any data relied upon to support the regulation, along with a demonstration that the data meets the statutory definition of "acceptable data."  The statutory amendment also says that the burden is on the agency advocating the new regulation to prove that the data is acceptable.  As a result, I would expect that when the EQB posts a notice of a proposed regulation in the PA Bulletin, it will be accompanied by a new section that identifies whether it relies on any scientific data and provides some proof that the data is "empirical, replicable, and testable."  This will make things very interesting for PADEP, whose staff essentially manages the development and adoption of the regulations that go before the EQB.  

How does one prove that the data is "empirical, replicable and testable"?   Who in the Department is going to put together that finding and stand behind it?  I'll give you one recent example of a regulation where, had this statutory amendment been in place, it would have made things most interesting.  Last year, the EQB enacted regulations that changes some of the Act 2 statewide health standards.  The initial proposal included changing the standard for MTBE.  The scientific formula used for that proposed new standard was the exact same scientific formula used for all of the other health standards that were changed, but the EQB decided it couldn't change the standard for MTBE.  Was that change based on "acceptable data" or was it based on other considerations?  in dropping the proposed MTBE standard, would the EQB have to prove that its decision was based upon acceptable data?  It may not be a perfect example, but I think you get the point. 

This statutory change will give a lot of ammunition to those challenging proposed environmental regulations that must be approved ultimately by the IRRC, after they are finalized by the EQB.  For those of us who believe in using sound science, the frustration expressed by the General Assembly, as embodied in SB263, appears to be justified.  Regulations should be based on "acceptable data."   With that said, it will be interesting to see how the DEP/EQB conform to this statutory amendment and how the IRRC implements it.  In the note that Paul King from PEC sent around, he expressed the concern that the IRRC may not be equipped to evaluate the scientific validity of information provided by DEP/EQB to support data as being "acceptable data."  He may have a point there.  In my mind, the burden will be on PADEP to ensure that its data is reliable.  That may mean greater use of outside advisory boards like the Cleanup Standards Scientific Advisory Board to doublecheck the reliability of the Department's data.  What is the Department going to do when it wants to make a regulatory change but it can't come up with "empirical, replicable, testable data" to support it?   

I respect Senator Erickson for insisting that regulations be based on valid science and acceptable data.  Having served as EPA region 3 administrator, the Senator had an inside view of how the regulatory process works both at the federal and state levels.  As someone who understands the necessity of using reliable data to develop environmental regulations, he should be commended for getting this passed and for sending a strong message.  Now comes the hard part.  Making sure it works as he envisioned.

 

 

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