PADEP Posts New Q&A on UECA
Last week, PADEP posted some "frequently asked questions" on the UECA section of its brownfields webpage. Since that time, I've held my fire, trying to understand what it all means for brownfield redevelopment in Pennsylvania. As noted in previous postings, I had been contacted by PADEP Deputy Secretary Jill Gaito, prior to the PBI Environmental Law Forum, who told me that the Department was working on the Q&A and would be posting it shortly on its website. Louise Thompson, who spoke on behalf of PADEP at the Forum on the Act 2 Update panel, gave a preview of the Q&A in her presentation. (Incidentally, in recognition of her outstanding service to the Commonwealth and her retirement from the position as SE Regional Counsel, Louise received a well-deserved standing ovation both after the Act 2 panel discussion and the first day lunch. She has since been replaced by Martha Blasberg. I wish Louise well in her retirement and offer my congratulations to Martha on being selected as Regional Counsel. She'll have very big shoes to fill.) Now the Q&A is on the Department's website for everyone to see, and presumably, the Department's staff will be using the Q&A to guide their decisions absent further instructions from Central Office.
I've now had a chance to digest the Q&A and here is what I think of all of this. I very much appreciate the Department's attempt to think through the issues. I take Deputy Secretary Gaito at her word that the Department's interpretation of UECA will not substantive change the manner in which it implements Act 2. With that said, I still don't like the fact that the Department is doing this all behind closed doors. The manner in which it interprets UECA will have a lasting effect on the Land Recycling Program. I continue to believe that everything should be done out in the open and in accordance with the Department's Policy on Policy Development. The Department has, for years, provided Q&A on its website as it relates to Act 2 and the Land Recycling Program. But that Q&A is a further interpretation of the regulations that were adopted after a year of public comments, and the technical guidance manual, which was adopted after substantial public input from the CSSAB and others. My understanding is that the Department felt some pressure to roll out the UECA Q&A in order to get something out there and that it does intend to follow-up by seeking public input on its interpretation of UECA. The problem is that once something gets put on the website in the form of Q&A it has a tendency to develop a life of its own, and it becomes policy even in the absence of any public input or comment. I'm hoping this Q&A is merely the first step in a process that will ultimately lead to some technical guidance that considers the broader implications of the UECA/Act 2 interface on brownfields redevelopment in the Commonwealth.
In terms of the specifics, I've focused most of my attention on what the Q&A means for a remediator seeking to attain the Site Specific Standard at a site where there is off-site migration but everyone is using public water. The concern has been that, in those circumstances, the Department would say that UECA requires covenants on all downgradient properties above the plume, and that would effectively destroy the ability to use the Site Specific Standard in these circumstances, or at least provide a serious enough disincentive that developers would avoid such sites. According to the Q&A, the Department will require remediators in those circumstances to either get covenants on all the downgradient properties OR show that a municipal ordinance exists that prevents the use of groundwater and meets other specific criteria (which may be difficult to meet) OR agree to a Post Remediation Care Plan (PRCP) that would, in perpetuity, require the site owner to verify the continued nonuse of groundwater on the downgradient properties in accordance with 250.303(d)(3). In most of these instances, the way out would appear to be agreeing to the PRCP. But is that really necessary to comply with Act 2? My answer is no. 250.303(d)(3) is a regulatory section that has specific applicability to remediation projects undertaken pursuant to the Statewide Health Standard. It was not intended to be applied by the Department to projects using the Site Specific Standard. In the instance of a Site Specific cleanup, you can implement a remediation at a site by using pathway elimination which "eliminates all current and probable future exposure pathways", under 250.606. Moreover, under 250.410(d), a cleanup plan is not required and no remedy is required to be proposed or completed "if no current or future exposure pathways exist." When you implement a pathway elimination remedy, there is no "standard" (some number between 1 in 10,000 and 1 in 1,000,000 cancer risk) developed for the substances found at the site. No numerical standard needs to be developed for any substances because you are using pathway elimination. In essence, the Department is now telling people who want to use a Site Specific Standard/pathway elimination remedy that 250.404 and 250.410 are no longer applicable because of UECA. Now, you'll be forced to to use 250.303 to implement that Site Specific/pathway elimination remedy, even though 250.303 was never intended to be used in the case of Site Specific cleanups. Worse still, the Department is apparently now saying (Q&A answer 6) that if you've received a non-use aquifer determination under 250.303, now you'll be required to verify that determination year after year, in perpetuity, absent a conforming municipal ordinance. I'm sure that will come as very unwelcome news to those who received non-use aquifer determinations previously and will need to convert to covenants under UECA within 5 years.
In my mind, some of this is overkill and is not required by either Act 2 or UECA. The perpetual reassessment on the future use of groundwater is a significant and profound change in how Act 2 has been implemented, and it very well may will have a chilling effect on brownfield remediation projects in Pennsylvania. Let's hope the Department is open to further discussion on this subject. For now, it's provided several options for avoiding the need to obtain covenants on downgradient, off-site properties. Those options are welcome but ultimately unsatisfying. Perpetual groundwater reassessments have never been required before and they don't make sense for Site Specific/pathway elimination remedies. There must be a better way, and I encourage the Department to work with interested parties to develop other options.
