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

Pennsylvania's budget is overdue.  What does that mean for brownfield developers?  It means that the people who are reviewing your Act 2 reports in each of PADEP's regional offices, and the people setting policy for the Pennsylvania Act 2 program in Harrisburg, may not be getting paid.  In fact, unless a budget is adopted quickly, many employees at PADEP will not be getting pay checks this Friday. 

I've spoken with many people at the Department over the last week, as is typical for one of my work weeks.  I've also exchanged numerous emails with ECP staff and counsel advising the ECP program.  In each of those communications, I express my sympathies over the present situation and ask how things are going.  Many of the people at the Department are my former colleagues and friends, especially those in the Act 2 program.   In each instance, they thank me for my concern and say that people are managing as best they can in a very difficult situation.  What amazes me is that people continue to go about the Commonwealth's business despite not being paid.  That, to me, is proof that the people at PADEP are among the most dedicated, mission driven employees in the Commonwealth. 

When you are getting ready to make that phone call to someone at PADEP about one of the brownfield projects you are working on, or you're tapping out an email to the ECP program staff asking to set up a conference call or a meeting to keep a project moving, take a moment to thank that person for continuing to do their job during this budget crisis.  It's a difficult time for everyone at PADEP.  Even if someone happens to be working in a program that receives federal funding allowing them to continue to get paid, there's a friend or colleague down the hall that's struggling to figure out how they are going to pay their bills without that regular pay check.    

Brownfield redevelopment in Pennsylvania is a team effort , and the people at PADEP who review and approve your site characterization reports and cleanup plans and final reports are integral members of the team.    When someone on the team is hurting, it is up to all of us to help pick them up.  My advice to everyone that works on brownfield redevelopment projects in Pennsylvania is to be understanding, be human, and show some compassion for the people at PADEP that are continuing to help move your brownfield projects along during this difficult time.   Let's all hope that a budget is passed as soon as possible.       

• Email This
• Print
• Comments
• Trackbacks

According to the Director of California's Department of Toxic Substances Control, Maziar Movassaghi, redeveloping brownfield sites along transit lines or in downtown areas can achieve 25 to 40 percent reductions in greenhouse gas (GHG) emissions, when compared with building in undeveloped areas.  That is based on studies done by the University of California-Berkeley.  A law in California requires regional planning agencies to meet GHG reduction targets and brownfield redevelopment is seen as a viable means of achieving those targets.  It all makes sense to me.  Brownfield redevelopment along urban corridors can increase the use of public transportation, reducing the number of cars on the road.  New buildings can be built to meet more modern energy efficiency standards or to achieve LEED certification, and they can be designed to use alternative energy, like solar panels.  The California studies and the thinking being employed by the California Department of Toxic Substances are equally applicable in a state like Pennsylvania.  As the federal and state governments begin to implement policies and regulations requiring the reduction of GHG emissions, policy makers in Pennsylvania should take advantage of the fact that we have many brownfields in urban areas and near public transit, and redevelopment of those brownfields should be part of any package of activities implemented to reduce GHG emissions.   

• Email This
• Print
• Comments
• Trackbacks

In a Federal Register notice published on July 2, EPA revoked prior guidance and stated "EPA has determined that when a non-governmental borrower or subgrantee uses [Revolving Loan Fund (RLF)] supplemental funds for remediation activities at public buildings or to carry out a public work, the Buy American provisions apply."   As noted in prior posts, there are millions of stimulus dollars being spent on brownfield redevelopment projects in PA.  The recipients of those funds need to understand the "Buy American" provision and adhere strictly to it or place their funding in jeopardy.  How any of this will work, is unknown.  It would be prudent for anyone involved in a project using RLF funds to contact EPA and seek clarification on the scope and applicability of the Buy American provisions.  For example, if the remediation involves using chemical oxidation, do the chemicals have to be manufactured in the U.S.?  If the remediation involves replacing a water line, does the steel or concrete used in that water line replacement have to be manufactured in the U.S.?  As counsel to the Redevelopment Authority of Bucks County, which uses and subgrants RLF funds, I will be seeking answers to those questions.  Stay tuned.       

• Email This
• Print
• Comments
• Trackbacks

PADEP is working on the draft regulations for implementing UECA, and those draft regulations should be up to the Executive Staff in August and sent to both the Cleanup Standards Scientific Advisory Board and the UECA Stakeholders Group for review in September.   That's the word I got from Troy Conrad, the Chief of the Land Recycling Program, in a phone conversation earlier today.  Saying it will be a "pretty plain vanilla" rulemaking,  Mr. Conrad said we shouldn't expect to see anything in the rulemaking that will seem like a dramatic change  from the underlying statute, which was signed into law on December 18, 2007.   The most significant issue to be addressed by the rulemaking would appear to be the matter of converting existing instruments containing activity and use limitations to environmental covenants.  That issue was wrestled with by the UECA Stakeholders Group.  It sounds like the Department is likely to narrowly interpret "instruments" to mean deed restrictions, which makes a lot of sense.  It also sounds like the Department is likely to craft language allowing for waivers of the conversion requirement and for postponing conversion to the time a future transaction occurs.  

UECA has proven to be a much more troublesome statute than I think anyone expected.  It has added a complicating feature to Act 2 cleanups and to property transactions.   It adds an element of uncertainty, because there are no clear rules.   The compliance monitoring provision in the environmental covenants generally imposes a perpetual, never-ending requirement to provide a periodic update to the Department on the continued adherence to the activity and use limitation.  Buyers and Sellers now routinely argue over the scope of the monitoring requirement and who should be responsible for bearing the cost and for providing the periodic report to the Department.   It's also added a new set of considerations  to remediation projects funded by USTIF.

We are all looking forward to the opportunity to review and comment on the Department's draft UECA regulations.  Brownfield redevelopment works most effectively when the rules are clear  and the surprises are limited.    It sounds like we shouldn't have to wait much longer.         

• Email This
• Print
• Comments (1)
• Trackbacks

In one of my prior posts, I talked about how much federal stimulus money was being spent in Pennsylvania on brownfield projects.  Yesterday, Governor Rendell announced that Pennsylvania was applying for $6.1 million in federal stimulus dollars to fund 71 leaking UST remediation projects in 40 counties statewide.  In his news release, the Governor noted that the funds would be distributed by US EPA and would be made available at sites where there were no viable responsible parties.  The news release has a list of 71 sites "where Pennsylvania anticipates it will address leaking underground storage tanks using funding from the American Recovery and Reinvestment Act."   It's unclear how the list was put together or whether the money is limited t o those 71 sites or could be used at other eligible sites.  I am aware that other federal dollars, not necessarily stimulus funds, are available for the remediation of petroleum contaminated sites.  For example, the Redevelopment Authority of Bucks County has a revolving loan fund with $500,000 in it for this same type of work.  What we have found is that the requirement that there be no viable responsible party available to pay for the remediation makes it difficult to get some projects approved.  There are some sites that have functioned as Mom and Pop gas stations for decades, but prior to that they may have been owned by one of the large petroleum companies.  You can drive by them and they look abandoned, but legally they may not meet the requirement of no viable responsible party because a review of the chain of title shows some large petroleum company owned the site 50 or 60 years ago.  In those instances, we've been unable to get the certification needed to approve the release of the revolving loan funds.   I've argued that the requirement should not be applied so strictly as to prevent the use of the funds at a site that is abandoned for all intents and purposes.  I'm hoping that the requirement of no viable responsible party will not be an impediment to the use of the federal stimulus funds at these Pennsylvania brownfield sites.  Presumably, EPA and DEP have learned from the experiences with the revolving loan funds and will find a way to ensure that the funds can be spent at a site even if there remains a viable entity somewhere in the chain of title.      

• Email This
• Print
• Comments
• Trackbacks