Pennsylvania Act 2 Cleanups: Challenges Created by the Department of Environmental Protection

When the Land Recycling Standards and Remediation Act, commonly known as “Act 2,” was enacted in 1995, the Pennsylvania General Assembly declared that:

• incentives should be put in place to encourage responsible persons to voluntarily develop and implement cleanup plans without the need for adversarial enforcement actions by the Department of Environmental Protection (the “Department”), “which frequently only serve to delay cleanups and increase their cost” and
• cleanup plans “should be based on the actual risk that contamination on the site may pose to public health and the environment, taking into account its current and future use…”

Introduction

While these purposes of Act 2 have been made clear and numerous sites have been remediated, challenges remain. One ongoing challenge occurs when the Department’s application and interpretation of Act 2, the related regulations (the “Act 2 Regulations”), and the Act 2 Technical Guidance Manual (the “TGM”) are at odds with those performing the remediation. To compound matters, the provisions of Act 2, the Act 2 Regulations, and the TGM can be inconsistent.

Understandably, the application and interpretation of Act 2, the Act 2 Regulations and the TGM can vary to some degree among the Department’s regional offices and even within offices. But when the application and interpretation become mired in competing interpretations and other regulatory entanglements, the remediation process can be slowed, frustration can set in, and efforts to sell the site can be halted.

The challenges can be illustrated with a few hypothetical case studies.

Case Study No. 1

Arsenic is detected in samples taken from groundwater wells on the property that is located along a stream and is being remediated under Act 2. The stream is then sampled to determine whether arsenic concentrations in the stream increased as groundwater from the site entered the stream. Consistent with past sampling, the samples are analyzed for a full suite of metals. Copper is identified at concentrations exceeding the surface water standard. The Department subsequently requests that the source of the copper be determined even though copper is not present in groundwater or soil at the site.

Case Study No. 2

The owner of a commercial property discovers that a dry cleaner tenant released liquid wastes on the property. A Phase 2 assessment discloses the presence of volatile organic compounds in both soil and groundwater.  The owner, along with its environmental consultant and attorney (i.e., the remediation team) decides to pursue remediation under Act 2. Groundwater monitoring wells are installed, sampling is conducted, heavily contaminated soils are removed, and the source area is capped. The remediation team concludes that the requirements of Act 2 have been met because all exposure pathways have been eliminated, most notably because the property and adjoining downgradient properties are served by a public drinking water source. With the submittal of the required reports, the remediation team concludes that a release of liability should be issued by the Department. The Department, however, advises that an Act 2 release of liability will not be issued because insufficient data has been obtained and provided regarding the groundwater plume.

Conclusion

In these case studies, the owners are confronted with having to provide more information to the Department to obtain an Act 2 release of liability. The remediation team believes this additional work is not required by Act 2 or the Act 2 Regulations. The Department, however, requests additional information, not because it is required, but because the information may provide further insight into site conditions. The remediation team finds itself asking “how much is enough and how much more time and money must be expended?”

Unfortunately, the above scenarios are not law school case studies, but illustrations of real situations that have become more common. These situations have resulted in both substantial costs and uncertainty concerning the actions required to reach a resolution with the Department that will allow for the issuance of a release of liability under Act 2.

If you own property on which contamination has occurred, consultation with the environmental team at Norris McLaughlin could avoid a potentially prolonged and costly remediation process.