Environmental Law

PA Brownfields and Low Risk Sites

By M. Joel Bolstein

Back in 2004, the PADEP developed a procedure for putting what they called "low risk sites" through the Act 2 program.  I've only considered using the low risk sites procedure once, and in the end, decided against it for reasons I'll explain later.  Earlier today, the Department sent around an announcement that it had added new Q&A on its website relating to low risk sites, essentially to  clarify some misconceptions.

The low risk site procedure is designed to move low risk sites through the Act 2 process on a faster track than regular Act 2 sites.  In order to qualify as a low risk site, you have to meet the following substantive criteria:

• the area of impacted soil must be less than 10,000 square feet and entirely contained within the property boundary;
• the remediation must attain the statewide health standard for used aquifers or the site specific standard through pathway elimination; and
• groundwater must not be impacted above the residential statewide health standard.

The only time I considered going through the low risk site procedure involved the release of a product where the parameters of concern were aluminum (a secondary contaminant), chloride (a secondary contaminant) and pH (which has no standard under Act 2).  The release was small enough to qualify under the low risk criteria.  We could also demonstrate that the groundwater was not impacted above the residential statewide health standard.  It seemed like the perfect site to put through the low risk site procedure.  In that case, the deciding factor for not using the low risk site procedure was the fact that we wanted the Department to review the final report and provide the usual letter noting that an Act 2 standard had been attained.   If you go through the low risk site procedure, the response letter that you get from the Department will include the following statement:  "A technical review was not performed by Department staff on this report."  In my instance, although the property was not the subject of a current transaction, the client was thinking ahead and wanted a more definitive letter in its file certifying that it had attained an Act 2 standard. 

The idea of a low risk site is that if the substantive criteria are met, the Department can perform a more cursory review.  Since the Department has only done a cursory review, it means that the property owner will be asked to rely on its own consultant for determining that an Act 2 standard was attained.  Some would ask why rely on the consultant when you can get a letter from the Department certifying that the Act 2 standard has been met?  Wouldn't that be better?  Lots of buyers and lenders in Pennsylvania would no doubt prefer a letter from the Department to one from the consultant, especially given how helpful Act  2 has been in moving properties.  With that said, the low risk site process is helpful inasmuch as it provides an additional option for remediators of brownfield sites in PA. 

At least in Pennsylvania, in the case of low risk sites, the PADEP gives the remediator the option of deciding whether or not it is acceptable to rely on the findings of its consultant.  In other sites, Ohio for example, the process is driven by certified professionals, and the number of sites going through those brownfield programs is significantly lower than those going through Act 2.  There has to be some reason for that.   While there probably are sites that could benefit from going through the low risk sites procedure, the Department may need to build more incentives into the process in order to encourage more remediators to use the low risk sites procedure.  Since the remediator has to meet the same cleanup standards and submit all the same reports if they go through the low risk site procedure, it usually will make sense to wait the additional time it takes for the Department to complete its 60 to 90 day review and get the standard approval letter from the Department.      

Anyone who has put a site through the low risk site process in PA and wants to explain the reasons for doing that should feel free to post a comment.  Again, it's an option that should be considered as you evaluate all the possible ways to bring closure to your brownfield site.      

Full post as published by PA Brownfields Environmental Law on September 04, 2007 (boomark / email).