Pennsylvania Environmental Law & Brownfields Lawyer & Attorney : Fox Rothschild Law Firm : Philadelphia PA

This is a tribute to Dave Hess.  Not the Dave Hess who was Executive Deputy Secretary and later became Secretary during Governor Ridge's second term, but the Dave Hess we affectionately referred to as Dave Hess the Second, or Dave Hess2 or Dave Hess (14th Floor) when I was at PADEP.   Dave Hess recently retired from the Department after somewhere close to 26 years.  He had worked his way up to the position of Director of the Land Recycling and Cleanup Program, which is the head of the Act 2 program.   Many of you may know Dave Hess.  He made countless presentations and was a tireless promoter of the Act 2 program.  What you may not know, and what I will tell you, is how instrumental Dave was in the early days of the Act 2 program, working quietly behind the scenes to vet different issues and help develop consensus on many of the trickiest policy issues.  

After Governor Ridge signed Act 2 on May 19, 1995, the Department had one year to develop a draft set of regulations.  After I presented the draft regulations to the EQB, the Department had one more year to review all of the comments, resolve all of the issues, and present final regulations to the EQB.  There was a group of people within DEP, mostly Deputy Secretaries, the Chief Counsel and various section chiefs, who constituted the Act 2 Executive Board and were the ultimate decision- makers on Act 2 policy and the Act 2 regulations.  It was Dave's job to develop issue papers for presentation to the Act 2 Executive Board.  He worked hard.  He kept long hours.  He went above and beyond the call of duty.    He worked closely with Deputy Secretary Tom Fidler, who was the program chief at the time, and Jim Snyder, who was the head of the Bureau of Land Recycling and Waste Management. 

I still have many of the memos that Dave Hess put together for the Act 2 Executive Board.  In one memo dated 11/1/96, Dave laid out the approach for addressing the many issues that were raised during the public comment period.  The approach, as set forth in Dave's memo, was (1) to identify the significant issues and circulate discussion points among a small group of people within Central office and the regional offices with backgrounds on those particular subjects (and to also include the CSSAB when appropriate) and to develop viable alternatives for addressing the issues; (2) the Land Recycling Program staff would then draft an issue paper incorporating the results of those discussions which would be reviewed by a regulation development work group which consisted of Bruce Beitler, Ken Okorn, John Matviya, Ken Bowman, Don Killian, Tom Fidler, Michelle Moses and Dave Hess the Second; (3) that group would formulate recommendations that would then be discussed by the Act 2 Executive Board.   The issues were often very complex and highly technical.  The subjects covered topics such as, what constitutes an aquifer? How should we deal with secondary contaminants? What should be in the eco-screen? How should we deal with NAPL? I remember discussions led by Dave Hess and Sam Fang regarding statistical analyses for attainment tests where I really wished I had taken more math courses in college.  Through it all, Dave Hess helped all of us focus on the issues.  There were many long meetings with people drawing on the chalkboard.  When I didn't understand a concept, Dave was there to educate or to find someone else who could help.  Dave Hess helped put together (along with Karen Bassett), many of the overheads and powerpoints that I used for the first public presentations during the roll-out of the Act 2 program.  He worked on the Act 2 technical guidance manual and kept the statistics on Act 2 sites.  More recently, he was responsible for the ongoing Act 2 Q&A that's found on the Department's website.   While there were many, many people within the Department who put in long hours developing the Act 2 program, Dave Hess was one of the guys working behind the scenes to help make it all come together.  He was the ultimate team player.  In fact, his name appears on the Award for Excellence that I have posted on my wall that was given to the members of the Land Recycling Team by Secretary Seif in 1995, and he is seen standing in a picture I have on my wall proudly showing Governor Ridge and PADEP's Land Recycling Team with a few of the national awards it won for the Act 2 program. 

Dave Hess was instrumental in the success of Pennsylvania's Land Recycling Program.   I salute him and offer my thanks to him for all of his hard work and I wish him well in his retirement from the Department.     

• Print This Article
• Comments
• Trackbacks

Everyone who works on brownfield redevelopment projects in Pennsylvania needs to understand how the PADEP regulates the use of fill material.  Why?  Because many brownfield projects require some beneficial re-use of on-site fill material or the importation of fill material, either to bring areas up to grade, or to fill in tank excavations, or to use as material to cap areas of the site to eliminate potential direct contact using the Site Specific standard.   If the site needs to import lots of fill material, let's say to cap a large former disposal area, that could be a significant added expense over and above the cost of the site assessment and other necessary remediation work.  As a result, developers need to have ready sources of fill material and the cheaper the better.   

Act 2 doesn't address fill material specifically.  PADEP has used several policies over the years to regulate the beneficial re-use of fill material.  The current version is the Management of Fill Policy dated April 24, 2004.  The policy provides PADEP's procedures for determining whether material is clean fill or regulated fill.  Whether something qualifies as clean fill or regulated fill will depend on the due diligence relating to the origin of the fill material and the testing conducted to determine the substances present in the fill material.  Under the policy, if material qualifies as clean fill it can be used in an unrestricted and unregulated manner under PA Act 2.  You don't need any permits to beneficially re-use clean fill.  You do still need to comply with PADEP's regulations relating to erosion and sedimentation control and dam safety and waterway management.  Regulated fill, on the other hand, can't be used at a greenfield property not planned for development or on a property that is currently residential or planned for residential use, unless otherwise authorized by PADEP.  Also, to use regulated fill at a brownfield site, you need to use the regulated fill general permit (GP)# WMGR096 (application Form 20 RF), unless there is an exception that would apply.  Those exceptions include:

• You don't need a GP to beneficially re-use regulated fill material for remediation activities undertaken entirely on an Act 2 site.
• You don't need a GP to import regulated fill from one Act 2 site for use as construction material on another Act 2 site.
• You don't need a GP if you are using regulated fill that is the subject of a Section 902 waiver letter from PADEP.

That last bullet is very interesting and very useful.  Section 902 of Act 2 allows PADEP to waive in whole or in part any state or local permit requirement (which would include a GP) that would otherwise be required for the work being undertaken on an Act 2 site.  I have helped clients obtain numerous Section 902 waiver letters as they relate to the use of fill material at Act 2 sites.  These letters are extremely helpful in that they can clarify sampling and testing requirements, in addition to avoiding the need for a permit. 

Clients often have lots of questions regarding the application of the Management of Fill Policy.  When I get a question, I pull out my handy copy of the fill policy to see if the question can be answered just by reading the policy.   Unfortunately, the policy is not the model of clarity and there are numerous ambiguities and grey areas.  If the answer isn't readily apparent, the next place I look is the page on PADEP's website  that is called Management of Fill Questions and Answers.  Since April 24, 2004, I and many of my colleagues in the environmental bar, as well as developers and consultants, have submitted numerous questions to the ECP program staff in Harrisburg regarding the implementation of the fill policy.  To their credit, the ECP staff  has placed 58 questions with specific answers on the website.  The Q&A is informative and wide-ranging.  It covers virtually all aspects of the fill policy.  It tells you, for example, that something doesn't qualify as clean fill if it meets the numerical standards but has an objectionable or strong odor.  It also tells you that the Department expects to have "minimal" involvement and oversight in the management of clean fill at sites, that it doesn't issue letters certifying that material is clean fill, and that it's involvement is probably going to be limited to responding to complaints received relating to the placement of fill material.  If you haven't read the Q&A, I urge you to do that.  The Department continues to add new Q&A periodically so you'll need to check back every so often.  The information is useful for attorneys, consultants, developers and anyone interested in gaining a better understanding regarding PADEP's management of fill policy.   If I can't find the answer to the question by reading the policy and the Q&A, I can always formulate my own question and send it into the ECP staff in Harrisburg by email.  They ordinarily get back to you with a timely answer.  

Remember, brownfield projects require creative thinking and problem solving.  How you handle fill material at a brownfield site is part of that mix.    

• Print This Article
• Comments
• Trackbacks

I previously reported on the linkage between the lack of HSCA funding and the running of PADEP's brownfield program.  As noted, the HSCA fund only has enough money to continue through December 2007.  Last week, State Senators Pileggi and White introduced legislation that would allocate $15 million from existing legislative accounts to put in the HSCA fund.  Under the proposed legislation, $40 million in existing revenues from the Capitol Stock and Franchise Tax will be earmarked for HSCA beginning in FY 2008-2009.  In a news release dated September 17, 2007, a number of environmental groups came out in support of the proposed legislation because it would provide funding out of the existing budget surplus rather than out of the Growing Greener or the Keystone Recreation, Parks and Conservation Fund.   The proposal does not provide a permanent funding solution for HSCA, but it will allow staff in the ECP program, as well as those on the outside who rely on ECP program staff to review and approve Act 2 reports, to breathe easier.   I will continue to provide updates. 

• Print This Article
• Comments
• Trackbacks

So you've got your brownfield site and now you are ready to start excavating that contaminated soil.  Well, hold on there, do you have your NPDES stormwater construction permit?  It used to be that PADEP policy was that you didn't need an NPDES stormwater construction permit in order to conduct site remediation work.  In the first few years after Act 2 was enacted, PADEP allowed you to break the project into 2 phases-- the cleanup phase and the redevelopment phase.   You didn't need an NPDES stormwater construction permit until you completed the site remediation and then moved onto doing the work necessary to actually develop the site (i.e., build the buildings or houses on the clean site).  PADEP subsequently changed the policy and said that you needed to apply for and obtain an NPDES stormwater construction permit before you moved any dirt around, even during the remediation phase of the project.  The rationale was that the NPDES permit is a federal permit (not a state only permit) that is issued by PADEP pursuant to delegated authority from US EPA.  OK, but what has PNDI got to do with it?

PNDI stands for the Pennsylvania Natural Diversity Index.  When you file an application for an  NPDES stormwater construction permit, a PNDI search has to be run to determine whether there are any threatened or endangered species located at or around your brownfield site.  In many instances, especially when you are developing property near a water body, the PNDI search may come back with a "hit", meaning that the system identified "known occurrences" of threatened or endangered species in the vicinity of your site.   At that point, you have to take steps to "clear the hit", by contacting the particular agency that has jurisdiction over the protected plant, bird, bunny, fish or reptile (which could be the PA Department of Conservation and Natural Resources (DCNR),  the PA Fish & Boat Commission, PA Game Commission or the US Fish & Wildlife Service), and sending in additional site specific information that will allow that agency to determine that the project will have no impact on the species identified in the hit.   The problem for brownfield developers isn't so much that threatened and endangered species are likely to be found on the site (because many of these sites tend to have a long industrial history), but that it can take a long time to clear the hit.

Earlier this year, I had a client that was redeveloping a brownfield site that had been used as a municipal landfill.  The PNDI search came up with a hit, probably because of the proximity of the site to the Delaware Canal.  I contacted PA DCNR and sent in additional information that I hoped would convince them that the threatened or endangered species identified in the hit was highly unlikely to be found at this brownfield site.  When I called the PNDI office, they were all very friendly, but I was told that there were about 400 PNDI requests waiting to be reviewed in that office and that the review time was expected to be up to 70 days.  Now you know what's PNDI got to do with it.  How quickly you move through the PNDI review process could have a direct effect on whether your client gets the green light to proceed on a brownfield redevelopment project in PA or whether he or she starts to look elsewhere because the delays are piling up.

At the time that I spoke with the PNDI office at DCNR earlier this year, I urged them to do everything they could to clear that backlog.  It's amazing when you think about it.  Every brownfield redevelopment site represents potential new jobs and economic activity.  In fact, it's fair to say that the offices that help clear PNDI hits play an incredibly important role in the economic engine of the Commonwealth.   I was told back then that they were going to try to add staff to help clear the backlog.   It's possible that the problem may have resolved itself with a slowdown in the residential development, translating into fewer applications being filed for NPDES stormwater construction permits.  With that said, be aware that the NPDES stormwater construction permit application process, and the need to conduct a PNDI search, represents one of the potential bottlenecks in moving your brownfield project through the Act 2 process.      

• Print This Article
• Comments
• Trackbacks

Back in 2004, the PADEP developed a procedure for putting what they called "low risk sites" through the Act 2 program.  I've only considered using the low risk sites procedure once, and in the end, decided against it for reasons I'll explain later.  Earlier today, the Department sent around an announcement that it had added new Q&A on its website relating to low risk sites, essentially to  clarify some misconceptions.

The low risk site procedure is designed to move low risk sites through the Act 2 process on a faster track than regular Act 2 sites.  In order to qualify as a low risk site, you have to meet the following substantive criteria:

• the area of impacted soil must be less than 10,000 square feet and entirely contained within the property boundary;
• the remediation must attain the statewide health standard for used aquifers or the site specific standard through pathway elimination; and
• groundwater must not be impacted above the residential statewide health standard.

The only time I considered going through the low risk site procedure involved the release of a product where the parameters of concern were aluminum (a secondary contaminant), chloride (a secondary contaminant) and pH (which has no standard under Act 2).  The release was small enough to qualify under the low risk criteria.  We could also demonstrate that the groundwater was not impacted above the residential statewide health standard.  It seemed like the perfect site to put through the low risk site procedure.  In that case, the deciding factor for not using the low risk site procedure was the fact that we wanted the Department to review the final report and provide the usual letter noting that an Act 2 standard had been attained.   If you go through the low risk site procedure, the response letter that you get from the Department will include the following statement:  "A technical review was not performed by Department staff on this report."  In my instance, although the property was not the subject of a current transaction, the client was thinking ahead and wanted a more definitive letter in its file certifying that it had attained an Act 2 standard. 

The idea of a low risk site is that if the substantive criteria are met, the Department can perform a more cursory review.  Since the Department has only done a cursory review, it means that the property owner will be asked to rely on its own consultant for determining that an Act 2 standard was attained.  Some would ask why rely on the consultant when you can get a letter from the Department certifying that the Act 2 standard has been met?  Wouldn't that be better?  Lots of buyers and lenders in Pennsylvania would no doubt prefer a letter from the Department to one from the consultant, especially given how helpful Act  2 has been in moving properties.  With that said, the low risk site process is helpful inasmuch as it provides an additional option for remediators of brownfield sites in PA. 

At least in Pennsylvania, in the case of low risk sites, the PADEP gives the remediator the option of deciding whether or not it is acceptable to rely on the findings of its consultant.  In other sites, Ohio for example, the process is driven by certified professionals, and the number of sites going through those brownfield programs is significantly lower than those going through Act 2.  There has to be some reason for that.   While there probably are sites that could benefit from going through the low risk sites procedure, the Department may need to build more incentives into the process in order to encourage more remediators to use the low risk sites procedure.  Since the remediator has to meet the same cleanup standards and submit all the same reports if they go through the low risk site procedure, it usually will make sense to wait the additional time it takes for the Department to complete its 60 to 90 day review and get the standard approval letter from the Department.      

Anyone who has put a site through the low risk site process in PA and wants to explain the reasons for doing that should feel free to post a comment.  Again, it's an option that should be considered as you evaluate all the possible ways to bring closure to your brownfield site.      

• Print This Article
• Comments
• Trackbacks