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

On December 19, Governor Rendell signed Senate Bill 1100 into law, ensuring that PADEP's brownfield program would be able to keep operating through December 31, 2010.  In the weeks leading up to the signing, it was looking pretty bleak for the 149 PADEP staff people who faced layoffs or bumping without additional funding from the HSCA Fund, which was running out of money.  Under SB 1100, $17 million will be transferred into the Hazardous Sites Cleanup Fund from legislative accounts for the balance of the current fiscal year which ends June 30, 2008, and thereafter $40 million will be allocated each year from the Capitol Stock and Franchise Tax  until that tax expires on December 31, 2010.  It's anyone's guess as to what the funding source will be for HSCA and the Act 2 program after that, but for now, it's back to business in PADEP's Act 2 program. 

I have to admit that I was sensing some real tension in the Department as the deadline neared without any resolution to the funding crisis.  The people in the Act 2 program are some of the best problem solvers and creative thinkers in the Department, but it's hard to dig in on a new project when you are worried about getting laid off and paying the bills.  For all the talk about the environment driving the economic engine of the Commonwealth, you would have expected our legislators and the Governor to realize that you can't have sustained economic growth in Pennsylvania without a vibrant and thriving Act 2 program, and you can't have that without a fully funded HSCA Fund.  Hopefully everyone has learned their lesson and we won't have to endure another funding crisis in December 2010.  It's not fair to those hard working people at the Department and it damages the Commonwealth's reputation as a model for other state brownfield programs to follow.   

My best wishes to everyone in the brownfield community for a happy, healthy 2008.  Let us continue to help reclaim old abandoned sites and create new jobs and economic opportunities.  Let us continue to work together to solve problems and protect and preserve the environment.  Finally, let us learn new ways to reduce our impact on the environment and become better environmental stewards in 2008.   

All the best.

Joel  

• Print
• Comments
• Trackbacks

In a few weeks, colonial re-enactors in Pennsylvania will paddle two Durham boats across the Delaware River, landing in New Jersey, just as General Washington did with his troops hundreds of years ago.  Yesterday, I drove my car from Doylestown across the I-95 bridge into Trenton to attend the "Building Strong Neighborhoods Workshop -- Brownfields Redevelopment in Undercapitalized Communities", hosted by the Northeast-Midwest Institute.  My goal was to find out how things are going with brownfield redevelopment efforts across the river and to see how well the regulatory environment in New Jersey compares with Pennsylvania's Land Recycling Program.

The Mayor of Trenton, Douglas Palmer, was rightfully proud of the fact that his City has won 4 Phoenix awards for brownfield redevelopment.  The Mayor noted that Trenton had reduced the number of its abandoned lots by seventy-five percent.  He also pointed out that the City had been successful in rebuilding housing and bringing in new shopping centers and supermarkets and providing an atmosphere for people to move back into the City.  J.R. Capasso, the City's brownfield coordinator, talked about Trenton's Green Initiative.  He noted that Trenton, like all cities looking to reclaim brownfield sites, needed to first create a vision.  He said that the average brownfield redevelopment project in Trenton took between 5 and 7 years.  Capasso also noted that the City had spent $3.2 million since 2000 on the Magic Marker Site and more work still needed to be done to allow for the intended site reuse.  In terms of setting expectations, Capasso noted that there are new environmental policies being rolled out in New Jersey that will impact urban redevelopment, including policies on vapor intrusion, new soil standards and oversight costs.  I sensed some frustration when he noted that brownfield projects in NJ start with the assumption that there will be four phases of NJDEP review, which "can easily become 10 phases."  Another speaker was Marty Johnson, the Founder and CEO of a community group called Isles, Inc.  Isles was doing community gardening before it moved into the area of brownfields.  Mr. Johnson said that one of the lessons he's learned from working on brownfield projects with local community groups is that environmental hazards are perceived by the local community as longer terms problems, while most people at the local level are more acutely focused on jobs, healthcare, and dealing with hunger.  He also noted that tight budgets have an adverse impact on money available for community planning. 

Listening to the speakers confirmed my view that New Jersey's brownfield program is considerably more complicated than Pennsylvania's.  There is far more control of the process placed in the hands of the NJDEP, then there is in the hands of PADEP.  Pennsylvania's brownfield program is designed to provide the remediator with flexibility and it is streamlined to allow projects to move through the system with set deadlines.  In contrast, one of the environmental consultants at the Trenton conference noted that remediators "have to be prepared for the environmental part of a brownfield project in New Jersey to take 3 years, and you need to be willing to hang in there."  Unfortunately, given the competition out there, many developers simply can't hang in there, and if the process looks too complicated, they'll find another site for their project. 

The community leaders at the Trenton conference were all highly energized and motivated to deal with the brownfield sites in their communities.  My thinking is that they'd have a much easier time of it if the New Jersey regulatory process looked more like Pennsylvania's.  As I noted, there is a lot of competition out there for companies that are looking to site new facilities.  A few years ago, I worked with Bob White at the Redevelopment Authority of Bucks County to help bring the Lennox Company across the river from New Jersey to open their new corporate headquarters in an old Dial Soap factory building in Bristol, Bucks County.   That site was redeveloped with financial assistance provided through the Pennsylvania Industrial Site Reuse Fund and it received a release of liability through Act 2.  Given the many tools made available by Pennsylvania through Act 2, my expectation is that Lennox won't be the last company crossing the Delaware to take advantage of a more favorable regulatory environment for brownfield redevelopers here on the other side of the river.      

• Print
• Comments
• Trackbacks

The Cleanup Standards Scientific Advisory Board (SAB) is a 13 member board that was created by Section 105 of Act 2 which assists the Department by providing technical and scientific advice on matters relating to the implementation of the Land Recycling Act.   During the two year period between 1995 and 1997, when the Act 2 regulations were being developed, the SAB worked diligently and met frequently to provide that advice.  I attended many of their meetings during that time.  They helped develop the statewide health standards and determine the appropriate statistically and scientifically valid procedures to be used to demonstrate attainment under Act 2.  Although Act 2 has aged and become a mature program, the SAB remains vitally important to the success of the program.  During the most recent meeting held on December 4, 2007, Kevin Reinert stepped down as Chairperson, after having served in that capacity since 2001 and having been an SAB member since its creation in 1995.  After the meeting, I had a chance to speak with Kevin to ask him what's currently on the SAB's plate and what he thought were the SAB's most important contributions to the success of Pennsylvania's brownfield program.  

At the December 4 meeting, the SAB discussed vapor intrusion and separate phase liquids (SPL), among other topics.  The SAB was instrumental in the development of the Department's vapor intrusion guidance and it continues to work with the Department to evaluate the effectiveness of the guidance.  According to Kevin, the Department conducted a one month audit in July 2007 of 24 Act 2 sites.  The audit found that there were a small number of sites involving the release of gasoline where the site passed the vapor intrusion screen, but sampling of soil gas or indoor air showed that there were exceedances of applicable thresholds.  No changes to the program have been made as a result of the audit, but the Department is planning on doing another audit with a representative group of sites in 2008.  Another topic still under discussion by the SAB's Attainment Subcommittee is how best to define "maximum extent practicable" as it relates to the remediation of SPL.   This has been a dilemma going back to the development of the Act 2 regulations.  The issue is at what point do you say that you have done enough to remove SPL from the groundwater.  It used to drive me crazy when I was Deputy Secretary and someone would call me to say that the Department wouldn't let then close out a site because there were "flecks of sheen" in a well.  We dealt with that issue in both the regulations and the Technical Guidance Manual and now it is possible to get an Act 2 release even though SPL may still be present.  It does, however, leave an enormous amount of discretion to the Department.  Apparently, the issue hasn't gone away and the SAB has been tasked with doing some case studies with an eye toward helping the Department develop a procedure that will allow a remediator to petition that it has removed the SPL to the maximum practicable extent.  It's hard to say where that will go.  When we were developing the Act 2 regulations I remember asking the ECP staff to do a 50 state survey of how each state addressed the remediation of SPL.  We were looking for a state that had developed a cut-off point, i.e., you can stop when you have less than 1/8 of an inch of SPL.  We didn't find any states that had a specific cut-off point and we decided not to create one for Pennsylvania, opting instead for the maximum extent practicable approach.  Kevin said that he thought the SAB had considered the idea of a cut-off at 0.01 feet, but that it was never fully debated or put up for final consideration.

The members of the SAB are volunteers who serve without pay other than reimbursement of travel expenses.  As a member of the National Advisory Council on Environmental Policy and Technology (one of USEPA's advisory boards), I know that being a member of an advisory board requires a significant commitment of time and energy.  In light of the fact that he was stepping down after 12 years, I asked Kevin Reinert what he would remember as the most significant accomplishments of the SAB.  He said that the SAB was a group that "brought real world experience" to the Department and provided a sound "scientific basis for decisions" through the development of "empirical and practical approaches."   He said all of the SAB's members were there "to do the right thing" and "help build a good program" that had at its heart, the protection of Pennsylvania's environment.  In terms of accomplishments, Reinert reminded me that the SAB developed the Ecological Risk Screening Procedure, which was developed in response to a specific request from the Department.  At the time, we had a set of numbers that everyone knew where safe and protective for humans, but the statute mandated that the Act 2 standards be protective of human health "and the environment."  The Eco-screen developed by the SAB bridged that gap.  It was innovative and, as Kevin said, put Pennsylvania in the front of the pack by creating a streamlined way of dealing with ecological impacts.  He also said that he was proud of the contribution that the SAB made to the development of the vapor intrusion guidance. 

At the conclusion of my discussion with Kevin Reinert, I thanked him for all of the work he has done on the SAB.  He should be proud of his contribution to the success of Pennsylvania's brownfield program. 

I'll keep my eye on DEP's website for minutes of the recent SAB meeting and I'll supplement this posting when I see what additional topics were discussed.

• Print
• Comments
• Trackbacks