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.  The meeting was led by Troy Conrad, the Director of the Department's Land Recycling Program, and he was assisted by staff from the ECP Program and Counsel's Office, including Dave Crownover, Michael Buchwach, Kurt Klapkowski, Jim Shaw, George Hartenstein, Craig Oleweiler, and Marylou Barton, who acted as the facilitator.  

My impression was that it was a very productive meeting.  By way of introduction, Troy Conrad reviewed the history of UECA.  He then noted that Acting Secretary Hangar recently gave the green light for the Land Recycling Program to move forward with the UECA Rulemaking process authorized by the statute.  In my mind, the rulemaking is the most significant new development relating to UECA.  The Department needs to put first things first.  Parties that are compelled by UECA to convert prior activity and use limitations to environmental covenants will be reluctant to do so if the rules continue to be a moving target.  Putting out draft regulations for public comment will allow parties subject to the conversion requirement to know exactly what they are getting into.  Also, the rulemaking will lead to more uniform statewide rules with increased consistency in the implementation process.  That doesn't mean that conversions shouldn't occur in the absence of  new regulations.  On the contrary, given the universe of sites potentially subject to the conversion requirement, it is definitely in the Department's interest to provide incentives for people to enter the conversion process, thereby avoiding an avalanche of paperwork come February 2013.  

The majority of the Stakeholder meeting was devoted to a discussion of the conversion requirement.  Section 6517(b) of UECA states:

"An instrument created prior to the effective date of this section which establishes activity and use limitations to demonstrate attainment or maintenance of a standard under the Land Recycling Act or to demonstrate satisfaction of a corrective action requirement under the Storage Tank and Spill Prevention Act shall be converted to an environmental covenant within 60 months of the effective date of this section unless conversion is waived by the Department."

Some of the issues we discussed included:

Apparently, Pennsylvania is the only state that made UECA retroactive.  It's unclear why the General Assembly thought that was useful or necessary.  There's little by way of legislative history.  Moreover, the statute itself is decidedly vague on the conversion process.   As a result, the Department has an enormous amount of discretion when it comes to implementation.  How to use that discretion is part of the advice being sought from the Stakeholder Group. 

Why would the General Assembly want to require people to convert their deed restrictions to ECs?  The reasons appear to be durability and enforceability.  An EC is a more durable restriction.  Also, UECA gives both the Department and municipalities the right to enforce ECs, which is not the case with deed restrictions.    

One of the difficulties facing the Department in implementing the conversion process is that it is impossible for the Department to generate a list of properties that are subject to deed restrictions under Act 2 and the Tank Act.  PADEP knows which sites have approved Act 2 Final Reports or Remedial Action Completion Reports under the Tank Act.  However, the database the Department uses -- efacts -- doesn't have a field identifying approvals that included deed restrictions.  When the system was created, UECA didn't exist, so there was no need to create that box.  As a result, the Department plans to undertake a new initiative, using EPA brownfield grant money, to go through the regional office files and flag the approved Final Reports or RACRs that imposed deed restrictions and/or post remediation care plans.  

With regard to the fact that the word "instrument" is not defined in UECA, the group suggested that PADEP contact the Act's sponsors and committee staff to see if anyone knows what was intended.  Presumably, the word "instrument" is referring to a deed.  What is unclear is whether it was intended to refer to anything else.  For example, a post remediation care plan may have been included in an approved Act 2 Final Report without having been placed in the deed.  Does that mean there is no requirement to convert the terms of a PRCP into an EC?  Also, sometimes a property that is the subject of an Act 2 Final Report or RACR is later taken in a condemnation action where no deed is exchanged, such as when PennDOT takes property for a road project.  Is a declaration of taking an instrument for purposes of UECA?  Also, deeds sometimes contain  something less than a deed restriction, such as a deed notice or deed acknowledgment.  Troy Conrad implied that deed notices and deed acknowledgments would not be viewed as "instruments" by the Department subject to UECA conversion. 

With regard to who is responsible for converting a prior instrument, there was a lot of discussion about the fact that properties subject to an Act 2 Final Report or RACR may have been sold or transferred.  One concern expressed by the Stakeholders was that conversion could expose the prior owner to litigation over who is responsible for the costs of conversion.  In some cases, conversion may be covered under an indemnification provision of the purchase and sale agreement.  In cases where a property has been leased and there is an absentee owner, the lease agreement may or may not address who would be responsible for complying with UECA.  In the case of a property that was redeveloped into residential housing, a large parcel may have been subdivided into multiple smaller parcels that are now single family lots, townhomes or condominiums subject to reuse limitations on groundwater usage.  Is the expectation that every one of those homeowners is subject to the UECA conversion process?  In some instances, deed restrictions may have been imposed on a buyer of the property that weren't necessary to comply with Act 2, but were put in to protect the prior owner from third party tort liability.  How does UECA conversion apply to those parcels?  In the former case, there was discussion about the Department using waivers for residential properties.  In the latter case, the Department agreed that deed restrictions put on a property for business reasons and not to comply with Act 2 or the Storage Tank Act were not subject to the conversion requirement.  Who is responsible for the conversion if the property is now vacant or the property owner is bankrupt and the mortgage is being held in lieu of foreclosure?  The discussion made  abundantly clear that companies need to think about revising their sales agreements and lease agreements to take UECA into account, if that hasn't been done already.   Lenders may also want to consider looking at their standard loan agreements to make sure they address UECA, as well.

Throughout the discussions, Troy Conrad made it clear that the policy of Central Office is that UECA is not intended as a substantive change to Act 2.  In that regard, the Department is not looking to impose new obligations on property owners as a result of the required conversion.  For example, if the deed restriction language that currently exists did not include a PRCP or requirement that the property owner periodically certify to the Department that the activity and use limitation is being complied with, then the environmental covenant shouldn't add that requirement, even though the model used by PADEP includes a compliance monitoring requirement.  There was talk about taking the language of the deed restriction and dropping it into the new EC.   At least one of the stakeholders suggested that it would be unconstitutional for the Department to alter property rights held by an owner pursuant to a valid contract or deed.     

Toward the end of the first meeting, an effort was made to categorize groups of sites that would be potentially subject to the conversion requirement.  One purpose of categorizing the sites was to see if there was any consensus among the group on the subject of extending waivers for any particular category.  The discussion resulted in a list of categories based on Act 2/Tank Act, residential/non-residential, statewide health/site specific, soil only/soil and groundwater/groundwater only, groundwater contamination on-site only/groundwater with contamination migrating off-site, non-use aquifer, SIA site, RACR approved pre-Act 2 standards.    More will need to be done in terms of fleshing out the categories at the next meeting.  There was some discussion of temporal waivers, meaning waiving the conversion requirement until the next property transaction.  

My view was that the discussion was very substantive and the Department came to the meeting with an open mind.  I commend Troy Conrad and his staff for using the time effectively and for soliciting the views of a good cross-section of persons active in the field of brownfield redevelopment.  In my case, I enjoy talking about environmental policy and the meeting reminded me of my days at the Department working with a team to put together the Act 2 guidance and regulations.  It was nice to see my friends from the Act 2 program and to have another chance to help the Department work through some issues that have great significance to brownfield redevelopers and local communities throughout the Commonwealth.  In this time of economic difficulty, the Department needs to be very careful not to impose new and costly burdens on brownfield redevelopers.  Companies looking to come to Pennsylvania and to locate on brownfield sites need certainty.  In that regard, UECA needs to be applied consistently and with common sense.   Wrong steps on the road to implementing  UECA could easily cause brownfield developers and companies looking to move to Pennsylvania to look elsewhere.  We don't want that to happen.

I thank Troy Conrad for allowing me to participate and I look forward to the next meeting of the UECA Stakeholder Group.       

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.  As part of the program, EPA also entered into Memoranda of Agreement with state programs to coordinate implementation.  Pennsylvania was not one of the states that had developed a complimentary program.

It is still unclear whether this is the end of the Performance Track Program.  Administrator Jackson will be setting up a multi-stakeholder subcommittee under EPA's National Advisory Council on Environmental Policy and Technology (NACEPT) to focus on the future of all EPA environmental leadership programs.  She has said that she continues to support efforts that encourage increased environmental stewardship.  I have been a member of NACEPT for the last 6 years.  At the most recent NACEPT meeting, we discussed taking a comprehensive look at the Performance Track Program, and one of my suggestions was that the Agency also consider whether Performance Track had achieved its objectives and could be ended.  The intent of any government program is not to go on forever.  Programs like Performance Track are designed to encourage companies and other organizations to go beyond compliance and move toward sustainability.  It is said that many of the companies in the Performance Track program would probably be good environmental stewards for purely business reasons, with or without the recognition provided by the Program.  That is undoubtedly true.  My colleague on NACEPT, Jennifer Nash from the Mossavar-Rhamani Center for Business and Government at Harvard University, published a study in 2006 that took a close look at why some companies decide to join Performance Track.  Professor Nash and her partner on the study, Cary Coglianese, collected data on companies that considered but decided not to join Performance Track and on companies that dropped out of the program.  Professor Nash found that businesses that participated in Performance Track are distinguished by a distinct tendency to value and seek external recognition.  She also found that there was no evidence that facilities were improving their environmental perfomance in order to qualify for membership.  Finally, she found that the applications and admissions process did not directly address whether members' performance is better than other comparable facilities that did not apply to the program.  

I don't see Administrator Jackson's decision as a political move.  I see it as a necessary and prudent reevaluation of one of many government programs designed to promote environmental stewardship.  EPA needs those kind of programs.  Enforcement alone will never be enough to achieve environmental sustainability in this country.  NACEPT wrote a very thoughtful study called Everyone's Business that addresses this very topic.  I encourage anyone who who cares about this issue to read that report.   The next meeting of NACEPT is March 24-26 in Washington and I will be in attendance.  I expect that the future of Performance Track will be discussed along with the role of the soon to be created multi-stakeholder subcommittee.  I will keep everyone posted on any new developments.

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.  

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.  

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.

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.

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.

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.     

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.

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.        

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.      

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.         

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.       

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.