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

Legislation voted out of the Pennsylvania House Environmental Resources and Energy Committee last week, House Bill 1489, which imposes a natural gas severance tax, will provide a dedicated funding stream for Pennsylvania's brownfield program.  The legislation sets aside 4 percent of the severance taxes to the state's Hazardous Sites Cleanup Fund, which is used in part to pay for the operation of the Land Recycling Program.   Just last year, the HSCA Fund was going broke before the General Assembly appropriated additional money to keep the program running.  The concern lingers that the most recently appropriated funding will eventually run out, absent a dedicated funding stream.   Without offering any opinion on the wisdom of a natural gas severance tax, if there is going to be a severance tax, the idea of dedicating some of that money for the remediation of contaminated sites, including Pennsylvania brownfields, is an idea that should be supported.  The legislation would also dedicate 15 percent of the taxes generated to the Environmental Stewardship Fund, which is the Growing Greener Program.  The bill now goes to the full House.        

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On Monday, PADEP Secretary John Hanger named Ken Reisinger as the Acting Deputy Secretary for Waste, Air and Radiation Management to replace the recently retired Tom Fidler.  Ken was previously the Director of the Waste Management Bureau, one of three bureaus under that deputate.  Ken now adds air quality and radiation protection to his prior responsibilities managing the programs covering hazardous, residual and municipal waste, remediation services (HSCA and CERCLA) and storage tanks.   Ken is a veteran of the Department having previously served as Chief of the Division of Waterways, Wetlands and Erosion Control.  In my many dealings with Ken he has proven himself to be an excellent listener and problem solver.  As Jim Seif would say, Ken is one of those guys that "gets it" and understands the need to get things done.  He's racked up many accomplishments through his tenure at the Department and my expectation is he will bring an enormous amount of energy to this new position.  Being Tom Fidler's replacement, Ken has some very big shoes to fill.  Although Ken doesn't have direct responsibility for the management of the Land Recycling program, Ken's responsibilities over air and waste permitting, remediation (including the implementation of the Clean Fill Policy ) and storage tanks makes his position extremely important in the continued success of brownfield redevelopment efforts in Pennsylvania.   Having spoken with Ken at Tom Fidler's retirement party last week, I know that Ken is up to the task and I wish him well in his new role.

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Three DEP Secretaries praised Deputy Secretary Tom Fidler last night at his retirement party in Harrisburg for his many contributions to Pennsylvania's award winning brownfield program.  Current Secretary John Hanger, along with former Secretaries Jim Seif and Katie McGinty, all offered Tom their thanks and spoke of Tom's commitment to brownfields redevelopment, recognizing him as instrumental to the creation of the Land Recycling Program and its continued success.  Those in attendance from the early days of Act 2 included myself, former DEP Chief Counsel, Terry Bossert, and former Deputy Secretary Bob Barkanic.  Tom's staff, including bureau directors from air, waste management, and radiation protection, all wished Tom well in his retirement.   In speaking with Tom, my guess is that we haven't seen the last of him.  While the prospect of more time for leisure pursuits looks enticing, Tom's still a young guy and he has developed an incredible skill set in his many years at DEP.  My expectation is that he's likely to find some way that he can continue what he started, helping redevelop brownfield properties and creating new jobs and economic opportunities in Pennsylvania.     

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Last night, I attended the 39th Annual Philadelphia Dinner for the Pennsylvania Environmental Council, known as PEC.  For those of you who wondered what happened to Don Welsh, the regional administrator of EPA Region 3 for the last 8 years, Don is now PEC's President and CEO, having been appointed to that position in April.  Prior to serving as EPA regional administrator, Don was Deputy Secretary for state/federal relations at the PADEP.  When I left to rejoin the private sector, Don actually moved into my old office across the hall from Secretary Seif on the 16th floor of the Rachel Carson Building, and I think they gave him my old state-issued sedan, which my kids affectionately referred to as the dorkmobile.  Don was in wonderful spirits last night and he is anxious to continue PEC's excellent work in the areas of water resources, sustainability and energy and climate.   During the opening reception, I had a chance to speak with Paul King, the chairman of the Board of PEC, to commend him on their pick.  I know they did some national outreach looking for a new President and CEO before they found one in their own backyard.  The speeches last night focused on protecting the Chesapeake Bay and on protecting the state parks and existing conservation programs from budget cuts in the talks now going on in Harrisburg.  I got to talk brownfields with many of the environmental consultants at the dinner along with my colleagues in the environmental bar.  At the end of the evening, I wished Don well in his new position.  I know the highlight of his career at EPA was when he got to sit in the broadcast booth at Citizens Bank Park during a Phillies game last year.  The Phillies were promoting their new green initiatives at the ballpark.  Don was only supposed to say a quick hello, but the inning dragged on, and so too did his time in the broadcast booth.  Speaking with him the next day, Don said "how many people can say they got to sit in the booth with Tom and Wheels".    

If I know Don, PEC will continue to be an active player in the Pennsylvania environmental arena for many years to come.     Anyone interested in learning more about PEC can go to its website at www.pecpa.org.

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Lots of people ask me whether Pennsylvania has received any federal stimulus dollars that are being directed toward brownfield redevelopment.  Based on the information available on US EPA's website, under the American Recovery and Reinvestment Act of 2009, $98,250,000 is supposed to be made available for brownfield redevelopment.    On May 8, EPA announced the release of $37.3 million in Recovery Act Funds for brownfield projects in 252 communities.  Included on that list were 5 projects in Pennsylvania receiving cleanup or assessment grants between $200,000 and $900,000 for a combined total of $2,060,000.   So, roughly 5.5 percent of the federal stimulus money for brownfield projects has been awarded to projects in Pennsylvania.  The projects are located in Sayre Borough, Central City, Johnstown, Pottstown, Pittsburgh, and Steelton.  If an equal percentage of the remainder of the federal brownfield stimulus money is received by Pennsylvania communities, we can expect to see another $3 million dollars from US EPA made available in the Commonwealth.  In addition to the stimulus money, EPA continues to provide brownfield assistance money through its normal appropriations.  For example, the Bucks County Redevelopment Authority (for which this author serves as the outside environmental solicitor) was recently awarded an additional $500,000 for its community-wide hazardous substance revolving loan fund.   Those funds are available for site assessment and remediation work at projects located in Bucks County.  The Redevelopment Authority maintains a brownfield inventory on its website.  I'd encourage developers and companies looking to locate or expand in Bucks County to go to the BCRDA's website, review the brownfield inventory, and make an appointment to meet with the BCRDA's executive director, Bob White, to talk about potentially using the RLF money.  

I'll continue to monitor the EPA's release of the remaining $61 million in federal stimulus money targeted at brownfield development and alert readers to awards being made in Pennsylvania communities.

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Earlier this week, Governor Rendell was in Bethlehem for the grand opening of the $743 million Sands Casino Resort on the former Bethlehem Steel Site.  I stopped into the Sands Casino last week, prior to the grand opening, on my way back from a site visit, just to see it for myself.   I felt wonderful as I drove past the blast furnaces, seeing they were still there, and marveling at the transformation that had occurred on one of Pennsylvania's first brownfield sites.

I remember walking onto the Bethlehem Steel Site in 1996 and thinking about all the possibilities.  It was probably the largest brownfield site in the country covering about 1600 acres.  Act 2 was in its infancy, but we were anxious to promote the benefits of brownfield redevelopment and the Bethlehem Steel Site looked like the perfect poster child.  

Although Bethlehem Steel was still conducting operations on the Site, it was clearly winding things down in Bethlehem.  Steve Donchez had been given the task of identifying reuse opportunities for the Site and he envisioned a Smithsonian Museum of Industrial heritage as well as commercial and entertainment businesses.  I remember meeting on many occasions with Ed Wilson, the remediation project manager for Bethlehem Steel and with Dave Tomlinson, the in-house counsel (now at Constellation Energy).  The Site, it turned out, was not heavily contaminated.  The biggest issue turned out to be that the Site couldn't be managed solely by PADEP in the Act 2 program because it was also subject to RCRA Corrective Action, and the Commonwealth had not been delegated the authority to implement that federal program.  As a result, we needed to come up with a strategy for working with USEPA to ensure the success of the brownfield redevelopment project.  Tom Fidler at PADEP served as a point person for the Department, working with the NE Regional Office.   

The good news was that the USEPA's Assistant Administrator for Solid Waste and Emergency Response, Tim Fields, was a true believer in brown fields redevelopment long before that became fashionable at EPA.  He was a natural leader and I had the opportunity to speak on the same panel with him on brownfield redevelopment issues at numerous seminars and videoconferences.  He had quickly come to the conclusion that the Bethlehem Steel Site could be used as a showcase for both PADEP's and EPA's brownfield redevelopment efforts, and as Deputy Secretary, I was more than happy to share credit with EPA, knowing that the successful redevelopment of the Bethlehem Steel site could create thousands of jobs and open up new economic opportunities for the City.  Long before the Memorandum of Understanding between USEPA and PADEP was signed, the Bethlehem Steel Site served as a pilot project for joint efforts between the two regulatory agencies on brownfield redevelopment.   Tim Fields even came out and spoke alongside PADEP Secretary Jim Seif at one of the first press conferences held at the site to promote the joint brownfield redevelopment effort.  Years later, the Site received a release of liability under the Act 2 Site Specific Standard.

Over the last few years, portions of the former Bethlehem Steel site have been redeveloped into an industrial park including a cold storage facility and intermodal yard.  The opening of the Sands Casino Resort breathes further life into the former industrial site.  

Sitting on my shelf I have an Environmental Excellence Award that I received from Hank Barnette, the former Chairman and CEO of Bethlehem Steel.  It was given to me and others serving on the Bethlehem Works Site Assessment and Remediation Team back in 1999.  It's made of steel forged at the Bethlehem site.  When I look at it I feel a sense of loss for a great Pennsylvania company.  I think about all the thousands of men and women who worked for generations at the Bethlehem Steel site, making the steel that was the engine for our nation's economy.  Now, with the opening of the Sands Casino in Bethlehem, I see the vision of Act 2 further turned into reality.  I see all the hard work and effort put into this site by countless people at PADEP, USEPA and in the private sector bearing fruit.  I understand that additional redevelopment is in the works for the site, including the long-awaited Smithsonian Museum and possibly a hotel and entertainment complex.    If you want to see the benefits of Act 2, you can go to Bethlehem and see it for yourself.

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Pennsylvania has been promoting itself as the largest provider of wind energy on the East Coast.  On May 22, Duke Energy announced that it was acquiring a 70 Megawatt (MW) wind project in Blair and Cambria counties consisting of 35 wind turbines.  To date, Pennsylvania has 366 MW of energy being generated from wind energy projects.  PA currently ranks 17th in existing wind energy capacity, and while it is a long way behind Texas that generates 8,203 MW of wind energy, PA has doubled its wind energy output over the last two years.

Under the PA Energy Portfolio Standards Act, 18% of all electricity sold in PA must come from alternative sources by 2021, and 8% must come from renewable sources like wind and solar.  According to the American Wind Energy Association, PA has the potential to generate 5,120 MW of wind energy.  With that much untapped potential, it's likely that developers will continue to  look for opportunities for wind energy projects in PA. 

Large landowners, including those holding former mining or greyfield properties, should be looking to see whether they are in an area suitable for a wind energy project.  They can do so by consulting the PA wind map at www.pawindmap.org.  A variety of federal and state grant, tax credit, and loan programs are available for wind energy projects.  In November 2006, Pennsylvania enacted legislation providing that wind turbines and related equipment may not be counted by tax assessors when setting property values.  Information on incentives for renewable energy projects can be found at www.newpa.com.    

Among other permitting requirements, wind energy projects in Pennsylvania are subject to traditional land use and zoning laws and ordinances.  Although PADEP has a model ordinance on its website, municipalities are free to draft their own ordinances using their police powers, so developers need to work with the local municipality to determine if any impediments exist to siting.  

Given the need for energy companies to add wind generation to their portfolios and the potential for a 15 fold increase based on potential wind capacity in the Commonwealth, there should be a steady and growing number of wind energy projects being developed in PA.  

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On April 27, I sat down for a friendly chat with PADEP Deputy Secretary Tom Fidler in his office on the 16th floor of the Rachel Carson Building in Harrisburg.  At that time, Tom wasn't sure how much longer he'd last, having put in 35 years.  Well, it's official now.  Tom Fidler will be starting a well-deserved retirement from PADEP on June 19.  

I think the first time I met Tom Fidler was shortly after Tom Ridge was elected Governor and Jim Seif and I went to walk the halls at PADEP during the transition.  The word was already out that Jim was going to be the nominee for Secretary and I was going along with him.  At that time, Tom Filder was a special assistant working on the 16th floor.  He impressed me as being very professional and knowledgeable.  With that said, I had no idea at that time what a significant role he would play in putting together one of the signature environmental programs of the Ridge Administration -- the Land Recycling Program under Act 2.  

On my bookcase, I have a binder of policy development materials from 1995 to 1997 when the Act 2 regulations and Technical Guidance Manual were being developed.  At the time, we had an internal group referred to as the Act 2 Executive Board that made policy decisions on a whole host of issues relating to the implementation of Act 2.  Tom Fidler's name shows up on every one of those emails and policy memos.  On the agendas for what we called the Regulation Development Workgroup, the internal group charged with developing the Act 2 regulations, Tom's name appears as the facilitator.   The issues ranged from aquifer determinations to secondary contaminants to NAPL and PQLs.  Tom prepared the detailed briefing materials along with Dave Hess and their team.  Tom worked long hours.  He kept everyone focused on the tasks at hand.  Tom coordinated the meetings and receipt of scientific advice from the CSSAB.   He was everywhere and doing everything to put the Act 2 program together.

The Land Recycling program owes its success to hundreds of dedicated people at PADEP who  believe in its ability to reclaim brownfield sites and create economic opportunity across the Commonwealth.  I think I can fairly say that without Tom Fidler, the Act 2 program might not have achieved the success that it has and garnered so many awards.  He was integral to its success.  Like Jim Snyder, Karen Bassett, Dave Hess and Ken Bowman, Tom Fidler was there at the beginning and he was a true believer in the ultimate good that could be achieved by the program.  He worked hard to infuse the program with a foundation of sound science.  At the same time, he refused to cut corners which would subject the program to criticism as being weak on environmental protection.   After the Act 2 regulations were promulgated and the manual was released, Tom became one of the leading ambassadors of the PA Act 2 program.  He gave a lot of speeches and he helped write some for people like me.   He fought with the naysayers and he was a strong proponent of using common sense.

As you can tell, I am a big fan of Tom Fidler's.  I'll be sorry to see him go.  He is one of those unique civil servants that people of both parties can praise for his leadership.  When I worked with him he was the Chief of the Land Recycling and Cleanup Program.  Secretary McGinty later appointed Tom as Deputy Secretary for Air, Recycling and Radiation Protection.    At the time, I said Secretary McGinty had a good eye for talent.   Many of us put our faith in Tom over the years and we were rewarded by his hard work and dedication.  He made all of us look good.  

It wasn't that long ago that I remember when Tom was recovering from an accident that left him flat on his back and worried that he might never walk again.  Many of us prayed for Tom at that time and he pulled through and continued on his path of excellence at the Department.  In the retirement announcement that I received, it said Tom had no immediate plans other than to spend some time out on his farm.  I've been to that farm.  It's a beautiful farm where the pond is so well stocked with fish that you get a bite within seconds of casting your line on the water.   Not a bad place to retire.

I have a picture on my wall signed by Governor Ridge that says "To Joel and the Act 2 Team, with admiration and thanks for making Pennsylvania a leader among states".  Tom Fidler is in that picture and he was an integral part of that team.   Everyone working in the area of brownfield redevelopment in Pennsylvania owes Tom Fidler our gratitude for a job well done.   I know that he's worked on many other programs and projects since he became Deputy Secretary, but as far as I am concerned, he'll always be remembered for his leading role in the Act 2 program.  Well done Tom and best wishes in your retirement.  

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