What's PNDI got to do with it?
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.
