Environmental Law

PADEP Budget Cuts

Posted on November 17, 2009
Word out today that PADEP has to cut 120 jobs as a result of the recent budget.  I'm told that the final word on which employees are being cut will come out on Friday.  I feel for my friends within the Department, both management and staff...

Proposed Regulations on High TDS Discharges Now Out for Public Comment

Posted on November 13, 2009
The Notice of Proposed Rulemaking for the proposed regulations on Discharges of High Total Dissolved Solids (TDS) was published in the Pennsylvania Bulletin on November 7, 2009.  The comment period on the proposed regulations runs through February 5, 2010, and PADEP has scheduled four public hearings to take place in December...

Despite Cuts, ISR Funding is Available for Brownfield Sites

Posted on November 02, 2009
I spoke with Scott Dunkelberger at PADCED today to see if he still has funds available for assessments and remediation grants.  Scott says that the General Assembly transferred approximately $5 million from Growing Greener 2 into the ISR Fund, so he's in good shape...

Public Funding for Brownfield Development Takes a Hit

Posted on October 30, 2009
As previously reported, the state operating budget for PADEP took a large hit in the budget recently signed into law by Governor Rendell.  The corresponding reduction in Department personnel will undoubtedly have an impact on brownfield redevelopment activities in Pennsylvania...

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Brownfield Insurance Program in Ohio Provides Food for Thought in PA

Posted on October 13, 2009
The Ohio EPA recently announced a new program designed to provide lower cost environmental insurance to brownfield developers remediating sites in Ohio's voluntary brownfield program.   The news release issued by Ohio EPA states that it has signed a memorandum of understanding with three insurance carriers (ACE Environmental Risk, American Insurance Company and Navigator's Specialty Insurance Company) relating to their offering discounted insurance to applicants taking their sites through the states Voluntary Action Program...

Heavy Budget Cuts at PADEP

Posted on October 09, 2009
PADEP's state operating budget is being cut by 26.7%, according to information I received today.  What does that translate into in terms of reduced compliment at the Department?  I'm told that it's estimated PADEP will lose 325 real people...

New Environmental Hearing Board Appointments

Posted on October 09, 2009
Dave Hess just wrote on his blog that the PA Senate earlier today confirmed the following individuals as members of the Environmental Hearing Board:  Thomas W. Renwand, Michelle Coleman, Michael Krancer, and Richard Mather.  I spoke with Dave a few minutes ago and he confirmed the information...

First Glance at Proposed Changes to Chapter 250 Regulations

Posted on October 06, 2009
The Department has posted on its website some proposed changes to the regulations for the Land Recycling Program.   They can be found on the home page for the Cleanup Standards Scientific Advisory Board. The proposed regulatory changes are "for discussion purposes only...

Draft UECA Regulations Do Not Address Periodic Reporting

Posted on September 30, 2009
I've taken my first look through the draft UECA regulations that are now on PADEP's website.  My biggest issue isn't with what's in the draft regulations but with what isn't in there.   After several years of advising clients regarding compliance with UECA and having submitted a number of them to PADEP for review and approval, I can say that the most significant concern for brownfield developers is the fact that the Model Covenant on PADEP's website imposes periodic reporting obligations on the property owner that run in perpetuity...

Obtaining a Copy of the Draft UECA Regulations

Posted on September 24, 2009
I realize that the link I provided in my last post for the draft UECA regulations is not working.  I'm not sure why that is, but for anyone looking to get a copy of the draft UECA regulations, here is how you do it: Go to PADEP's website www.depweb...

Draft UECA Regulations Are Now Available for Review

Posted on September 24, 2009
The draft UECA regulations are now available on PADEP's website.   They aren't on the brownfields web page or on the UECA page.  They can be found as an agenda item to the most recent meeting of the Cleanup Standards Scientific Advisory Board (SAB)...

Bucks County RDA Needs Takers for Revolving Loan Fund Money

Posted on September 18, 2009
I was speaking with the Executive Director of the Bucks County Redevelopment Authority, Bob White, who told me that they need to get the word out on some EPA Revolving Loan Fund money that is available to pay for remediation of contaminated properties...

Pace of Pennsylvania Brownfield Remediation Tied to National Economy

Posted on August 28, 2009
I can't point you to any hard numbers or statistics, but my instincts tell me that brownfield redevelopment work in Pennsylvania is down.  Why?  It's all connected to the national economy.  Years ago, when the housing market was booming, developers were looking at every brownfield site in Southeast Pennsylvania as a possible location for new houses...

No Budget but PADEP Still on the Job

Posted on July 29, 2009
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...

Brownfield Redevelopment Reduces Greenhouse Gases

Posted on July 17, 2009
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...

Buy American applies to Stimulus Money used for PA Brownfield Projects

Posted on July 16, 2009
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...

PADEP Working on UECA Regulations

Posted on July 06, 2009
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...

Federal Stimulus Money for UST Cleanups in PA

Posted on July 02, 2009
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...

Brownfield Funding Through the Proposed Natural Gas Severance Tax

Posted on June 29, 2009
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...

Ken Reisinger Named Acting Deputy Secretary for Waste, Air and Radiation Management

Posted on June 24, 2009
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...

Tom Fidler Praised for Brownfield Work in Pennsylvania

Posted on June 19, 2009
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...

Pennsylvania Environmental Council 39th Annual Dinner

Posted on June 18, 2009
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...

Pennsylvania's Share of Brownfield Stimulus Dollars

Posted on June 16, 2009
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...

Bethlehem Casino Opens on Pennsylvania Brownfield Site

Posted on June 11, 2009
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...

Wind Power Growing in Pennsylvania

Posted on June 05, 2009
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...

New PADEP Permitting Strategy for High TDS Discharges Has Broad Implications

Posted on June 05, 2009
The Pennsylvania Department of Environmental Protection recently released a document entitled "Permitting Strategy for High Total Dissolved Solids (TDS) Wastewater Discharges".  At first glance, it doesn't sound like something that should have implications for brownfield  redevelopers, but it could have a significant impact on them and a wide range of businesses...

Retirement of PADEP Deputy Secretary Tom Fidler

Posted on June 02, 2009
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...

EPA Ends Performance Track Program

Posted on March 18, 2009
On March 16, 2009, EPA Administrator Lisa Jackson issued a two-page memorandum that put an immediate halt to the Performance Track program.  Of the 547 members, 17 were located in Pennsylvania and 7 of them were charter members.  The Performance Track  program offered recognition and certain regulatory benefits for facilities that are environmental leaders...

PADEP's UECA Stakeholder Group Holds First Meeting

Posted on March 16, 2009
On Friday March 13, 2009, PADEP's newly formed UECA Stakeholder Group met for the first time at the Rachel Carson Building in Harrisburg.  I was one of the participants along with several other environmental attorneys who represent brownfield redevelopers, environmental consultants, and in-house environmental engineers from two companies that have a large number of properties subject to activity and use limitations...

PADEP Forms Stakeholder Group on UECA

Posted on March 11, 2009
This Friday will be the first meeting of the UECA Stakeholder Group recently formed by PADEP.  I was asked to participate in that Stakeholders Group and gladly accepted.   According to the invitation that I received from Troy Conrad, the Director of the Land Recycling Program, the discussion is intended to focus on three things...

Knowing When to Use the Right to Know Law

Posted on February 02, 2009
On January 1, 2009, PADEP began implementing its new Public Access to Information and Right to Know Law Policy.  Copies of the new policy are available on PADEP's website.  Go to www.depweb.state.pa.us/dep/site/default.asp and click on Right-to-Know on the left side column...

Outlook for Brownfields Redevelopment in 2009

Posted on December 30, 2008
Like all sectors of our economy, brownfields redevelopment has been adversely effected by the current economic crisis.  Over the last 10 years since I returned to private practice after helping develop the Act 2 program, I've worked with a large number of brownfield redevelopers to turn old industrial sites in Pennsylvania into modern manufacturing facilities, commercial and retail space, shopping malls, hotels and casinos, office buildings, banks, drug stores, and housing developments...

Marcellus Shale is Hot Topic in PA Environmental Law

Posted on October 07, 2008
A few years ago, if you asked Pennsylvania environmental lawyers to identify hot topics, they would never have mentioned oil and gas law.  Yes, there were a handful of practitioners handling the limited oil and gas law work floating around, mainly relating to liability for old uncapped gas wells...

PA LEGISLATION PROVIDING ADDITIONAL BROWNFIELD FUNDING ADVANCES TO HOUSE

Posted on August 01, 2008
The Pennsylvania State Senate unanimously passed Senate Bill 1062, the Brownfields Redevelopment Act, which was sponsored by Senator Rob Wonderling.   The bill next will be taken up by the House Environmental Resources and Energy Committee, chaired by Rep...

PADEP Secretary McGinty Resigns

Posted on July 16, 2008
On July 11, 2008, Governor Ed Rendell announced the resignation of PADEP Secretary Katie McGinty.   Her resignation is effective on July 18.To her credit, Secretary McGinty recognized that PA's Act 2 program was one of its most successful programs and she built on that success...

All Quiet on UECA Front

Posted on June 13, 2008
I apologize to all my readers for the recent lull in postings, but it's been all quiet on the UECA front.  It's still a subject of conversation in every meeting that I have with clients and with my friends at PADEP, but things are definitely in a holding pattern since the initial flurry of activity after the statute was enacted...

An Interview with Troy Conrad on the Future of Act 2

Posted on May 01, 2008
I had the chance to speak today with Troy Conrad, the Director of PADEP's Land Recycling Program.  On the same phone call, I spoke with Jill Gaito (Deputy Secretary, Office of Community Revitalization and Local Government Support) and Tracey Vernon (director of the brownfield action team), but there will be more about those conversations in later posts...

PADEP Posts New Q&A on UECA

Posted on April 23, 2008
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...

Act 2 Update at PBI Forum Addresses UECA

Posted on April 11, 2008
Those hoping to gain some new insight into PADEP's interpretation of UECA during the annual PBI Environmental Law Forum were given just a small glimpse during the Act 2 Update, which included Louise Thompson, the Regional Counsel in the SE Regional Office, and Terry Bossert, the former PADEP Chief Counsel...

Deputy Secretary Gaito Says "No Backsliding" on UECA

Posted on April 07, 2008
Earlier today, Jill Gaito, PADEP's Deputy Secretary for Revitalization and Local Government Support, reached out to me regarding the Department's implementation of UECA.   According to Deputy Secretary Gaito, she intends to ensure that the Department's implementation of UECA does not result in a dramatic change to the Act 2 program...

Unintended Consquences of UECA

Posted on April 07, 2008
In my continuing efforts to understand the potential impact of the Uniform Environmental Covenenats Act (UECA) on brownfields redevelopment in Pennsylvania, I have now spoken with a former PADEP Chief Counsel who was involved in Pennsylvania's enactment of the Act...

UECA's Impact on Site Specific Cleanups

Posted on April 01, 2008
Does the Uniform Environmental Covenants Act (UECA) recently signed into law by Governor Rendell require that environmental covenants be recorded on adjacent properties when the remediator seeks to attain the Site Specific Standard on a property where groundwater contamination is migrating off-site?  That, my friends, is a very real issue that is being hotly debated...

First Experience with UECA

Posted on March 12, 2008
The following is a faithful narrative of my first on the ground experience with the Uniform Environmental Covenants Act.   For the last ten years, I have served as the outside Environmental Solicitor to the Redevelopment Authority (RDA) of the County of Bucks...

PADEP Implementation of Uniform Environmental Covenants Act

Posted on February 12, 2008
Earlier today, PADEP sent information regarding its implementation of the Uniform Environmental Covenants Act (Act 68) to the people on the Land Recycling program's email list.  The information includes PADEP's overview of the UECA, a model environmental covenant, and a model notice of environmental covenant...

PADEP Planning Outreach on UECA

Posted on February 01, 2008
Based on the comments that I received, it looks like lots of people are interested in finding out how PADEP plans to implement the Uniform Environmental Covenants Act (UECA), which takes effect on February 16, 2008.  In a recent exchange of emails that I had with Jill Gaito, PADEP's Deputy Secretary for Community Revitalization and Local Government Support, it sounds like our questions will soon be answered...

Lancaster gets Non-Use Aquifer Designation

Posted on January 18, 2008
As reported in the Lancaster Sunday Times earlier this week, PADEP recently granted the City of Lancaster's request for a non-use aquifer designation.  I didn't see any mention of that on the PADEP website, but it sometimes takes some time before a non-use aquifer designation makes it onto the running list that is kept on the website...

PA Brownfields and Environmental Covenants

Posted on January 14, 2008
Well, it took a long time, but Pennsylvania has now adopted the Uniform Environmental Covenants Act (UECA).  The Act was signed on December 18, 2007 by Governor Rendell and it will be effective on February 16, 2008, so you need to be ready.Right off the bat, I'll say that everyone who deals with brownfield properties in Pennsylvania -- lawyers, consultants, developers, municipalities -- needs to understand that this Act fundamentally changes the manner in which institutional and engineering controls will be handled in the Commonwealth...

PADEP Brownfield Program Receives Needed Funding

Posted on December 26, 2007
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...

Crossing the Delaware in search of brownfields

Posted on December 11, 2007
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...

The Role of the Cleanup Standards Scientific Advisory Board

Posted on December 06, 2007
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...

EHB Case Addresses Act 2/Waste Management Interface

Posted on November 21, 2007
Act 2 has been around for over twelve years now and yet there are only a small handful of Environmental Hearing Board (EHB or Board) cases that address Act 2 issues.  The EHB is the administrative board that hears appeals of final actions taken by PADEP...

Failure to Include Deed Notice Invalidates Lease for Brownfield Site

Posted on November 13, 2007
I came across an interesting case in Massachusetts in which a judge declared a lease for a brownfield site invalid because the landlord failed to include the proper notice of the relevant land use restrictions required by that state's Brownfields Act...

Green Building on Brownfield Sites

Posted on November 01, 2007
In my last entry, I wrote about using brownfield sites to generate solar energy.  In this post, I'd like to focus on one of the hottest topics in the field of environmental law -- green building. What is a green building?   According to EPA's website, "a green building" is a building that is "purposely designed to reduce both the direct and indirect environmental consequences associated with its construction, occupancy, operation, maintenance and eventual decommissioning...

Brownfields and Solar Energy

Posted on October 22, 2007
Brownfield redevelopers are creative people.  It takes a certain kind of vision to be able to look at a vacant or underutilized industrial property or waste disposal site and see all the different and unique opportunities...

Brownfield Sites and SMCLs

Posted on October 05, 2007
There are certain substances that are considered secondary contaminants.  If you look at the Land Recycling Program's Pocket Guide of Statewide Health Standards, you notice that below the chart containing the medium specific concentrations (MSCs) for Inorganic Regulated Substances in Groundwater you see a list providing SMCLs for the following five regulated substances -- aluminum, chloride, fluoride, iron and manganese...

A Tribute to Dave Hess

Posted on September 27, 2007
This is a tribute to Dave Hess.  Not the Dave Hess who was Executive Deputy Secretary and later became Secretary during Governor Ridge's second term, but the Dave Hess we affectionately referred to as Dave Hess the Second, or Dave Hess2 or Dave Hess (14th Floor) when I was at PADEP...

Brother can you spare some fill material

Posted on September 19, 2007
Everyone who works on brownfield redevelopment projects in Pennsylvania needs to understand how the PADEP regulates the use of fill material.  Why?  Because many brownfield projects require some beneficial re-use of on-site fill material or the importation of fill material, either to bring areas up to grade, or to fill in tank excavations, or to use as material to cap areas of the site to eliminate potential direct contact using the Site Specific standard...

Update on HSCA Funding and PADEP ECP Program

Posted on September 19, 2007
I previously reported on the linkage between the lack of HSCA funding and the running of PADEP's brownfield program.  As noted, the HSCA fund only has enough money to continue through December 2007.  Last week, State Senators Pileggi and White introduced legislation that would allocate $15 million from existing legislative accounts to put in the HSCA fund...

What's PNDI got to do with it?

Posted on September 10, 2007
So you've got your brownfield site and now you are ready to start excavating that contaminated soil.  Well, hold on there, do you have your NPDES stormwater construction permit?  It used to be that PADEP policy was that you didn't need an NPDES stormwater construction permit in order to conduct site remediation work...

PA Brownfields and Low Risk Sites

Posted on September 04, 2007
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...

Brownfields and SIA Agreements

Posted on August 24, 2007
I've worked on a number of brownfield projects in Pennsylvania where the question is whether to enter into an SIA Agreement with PADEP or just go through the Act 2 process using the Site Specific Standard.   The SIA Agreement is another useful tool available to brownfield redevelopers...

SHORT LIST FOR PETROLEUM PRODUCTS GETTING LONGER

Posted on August 17, 2007
As many of you know, Act 2 was signed into law on May 19, 1995.  The statute gave PADEP two years to promulgate regulations implementing Act 2.  I worked with a dedicated team to put those brownfield regulations together and, in fact, I had the great fortune of presenting the proposed and final brownfield regulations to the Environmental Quality Board...

PA Brownfield Program Relies on HSCA Funding

Posted on August 15, 2007
My thanks to Bill Cluck, a fellow environmental lawyer in Harrisburg, PA, for asking the following question about the connection between the Hazardous Sites Cleanup Act (HSCA) Fund and the Act 2 program :"I keep hearing how HSCA is relevant to brownfields cleanup and redevelopment...

Brownfield Website Redesigned by PADEP

Posted on August 06, 2007
This morning I received an email from Tom Mellott at PADEP announcing that the Department had redesigned the website for the Land Recycling Program.  The new website is a significant improvement and I want to compliment Jill Gaito, the Deputy Secretary, Dave Hess, the Director of the Pennsylvania Land Recycling Program, and their staff on a terrific new design...

Using Buyer-Seller Agreements in PA Brownfield Transactions

Posted on August 02, 2007
One of the most helpful tools available to developers involved with brownfield redevelopment projects in Pennsylvania is the Buyer-Seller Agreement.   It's a 3 way agreement in the form of a CO&A between the buyer, the seller and PADEP...

Pennsylvania Brownfields Blog Begins

Posted on July 26, 2007
Welcome to the Pennsylvania Brownfields Blog.  My name is Joel Bolstein and I am the co-chair of the environmental law practice group at Fox Rothschild LLP.  I am starting this blog as a way of communicating with others interested in all matters relating to the reuse of former industrial sites in Pennsylvania and around the country...