With its extensive history of industrial development in industries such as steel, coal, oil, etc., Pennsylvania has a long legacy of former industrial properties that have been environmentally impacted by past industrial activities. Although widely known for its steel industry history by such industrial giants as Bethlehem Steel, Carnegie Steel Company and United States Steel, the state is also the birthplace of the modern oil industry and has been the home of numerous well known industrial/manufacturing companies, such as Westinghouse Electric Corporation, General Electric, Pittsburgh Plate Glass (PPG) and others. More recently, as economic conditions shift in the rapidly changing global economy, businesses are frequently closing and moving operations, leaving industrial sites vacant and possibly containing environmental issues.

To deal with the restoration of these former industrial sites, Pennsylvania established their Land Recycling Program or Voluntary Cleanup Program (VCP) in 1995. This program is commonly referred to as Act 2. Act 2 was intended to encourage the voluntary remediation of contaminated properties so they can be redeveloped and returned to productive use. However, Act 2 is not a mystical process, and it does not include a “silver bullet” that allows the responsible party to avoid remediation of the property. Under Act 2, the contaminated property must be remediated in a manner that eliminates exposure pathways and protects human health and the environment. Where Act 2 may differ from other state brownfield programs is it allows the remediator of the site to make the decision as to what level of remediation the site will undergo cleanup—not the Pennsylvania Department of Environmental Protection (PADEP). The act also provides a release of liability specific to the compounds or contaminants voluntarily investigated.

Under Act 2, the goals of remediating a property are to:

• Cleanup contaminated sites
• Return impacted sites to productive use
• Create jobs as the property is returned to productive use in construction (short-term) and redeveloped property uses (long-term)
• Preserve farmland and open space through the reuse of developed or industrial properties

To encourage the voluntary cleanup of a site, the remediator may select areas of contamination within the property without having to characterize the entire property. However, it should be noted that liability relief applies only to the areas of a site that are characterized and addressed.

Act 2 is built on four principles to reduce redevelopment obstacles:

• Uniform Cleanup Standards:  Allows the party remediating the site to understand the effort necessary to clean up the site to acceptable levels. The site is remediated to standards that are dependent on the future use of the property.
• Liability Relief: The liability protection extends to future owners. In the past, this issue frequently limited the sale and redevelopment of impacted properties.
• Standardized Reviews and Time Limits: Consistent reporting requirements allow for timely document reviews to keep projects moving forward. Under Act 2 the PADEP has a time limit of 60 days to review major documents. If no comments are received within this review period, the report is considered accepted.
• Financial Assistance: Parties who did not cause or contribute to the contamination at a site are eligible for grants and/or low-interest loans from the Commonwealth to conduct site assessment and remediation efforts.

As stated earlier, Act 2 allows the party remediating the site to determine the level of remediation necessary, based upon the future intended use of the property. The cleanup standards to which a site may be remediated consist of the following categories:

• Background Standard: A remediator cleaning up a site to the background standard must document that the concentration of any regulated substances remaining are at a level not related to any release of regulated substances at the site. Samples are required both in the area shown to be contaminated by onsite releases (i.e., the site) and in an appropriate background reference area to demonstrate attainment of the background standard.
• Statewide Health Standard (SHS): Medium specific concentrations (MSCs) for soil and groundwater are specified by the PADEP. In addition to demonstrating that a site has attained MSCs based on human health, an ecological screen to demonstrate protection of ecological receptors and a vapor intrusion analysis are part of the SHS.
• Site Specific Standard: A risk-based approach that is tailored to the individual site conditions. This is a more detailed approach both technically and administratively. A site-specific cleanup also provides an opportunity for public participation. Site specific standards are based on one of the following:
  • Background conditions (down-gradient property or naturally occurring)
  • Control of exposure with engineering controls / institutional controls
  • Risk-based calculations specific to the site conditions, contaminant, and receptors

A Special Industrial Area (SIA) designation was created by Act 2 to provide special remediation requirements for a distinct set of properties that were used for industrial activity. Cleanups at these SIAs have reduced remediation requirements, which are intended to allow these sites to be put back into productive use in the community. Act 2 established this provision to encourage the redevelopment of properties used for industrial activities. The SIA designation is not a separate or special remediation standard. SIAs are identified as properties where there is no financially viable responsible party or properties located within enterprise zones (EZs). EZs are distressed properties designated by the Department of Community and Economic Development (DCED), independently of environmental impairments. 

As stated earlier, the SIA is not a separate standard. Remediation of this type of property still must achieve one of the remediation standards listed above. However, the focus of the SIA requirements is on characterizing the contamination within the property boundary and addressing immediate, direct or imminent threats to human health and the environment. The remediator must enter into a Consent Order and Agreement (CO&A) with the PADEP to make use of the SIA designation.

The time necessary to achieve closure through the Act 2 process will vary depending upon site complexity. The primary steps that are conducted under Act 2 to remediate a site are as follows:

• Publish Notice of Intent to Remediate (NIR) –The formal process of performing a remediation under Act 2 is started by submitting a NIR to the PADEP. The NIR is also provided to municipal and appropriate public agencies to inform them of the intended remediation activities. The submission of the NIR initiates the notification procedures.
• The NIR provides basic information on the applicant and the site. A property with multiple areas of contamination can elect to have an NIR for a single area or multiple individual areas, in addition to one or multiple mediums. It is recommended that the NIR not be drafted until the site has been sufficiently characterized to distinguish the area or areas desired for inclusion in the NIR. If the applicant elects to change the remediation standard that the site will be remediated, the NIR must be modified and the PADEP and other involved parties notified.
• Conduct Site Characterization – Investigate the site and determine potential areas of concern (AOCs) and possible contaminants of concern (COCs). A complete and accurate site characterization is necessary for evaluation by the PADEP. This may include the horizontal and vertical characterization of the COCs, fate and transport analysis, development of a conceptual site model (CSM), etc.
• Select Remediation Standard – Determine which remediation standard for the contamination identified to which the site or AOCs will be remediated.
• Remediate Contamination – If it is determined that the site soils or groundwater must be remediated, then conduct activities to reduce contaminant levels to within the intended remediation standard.
• Demonstrate Attainment of Remediation Standard(s) – Through monitoring or confirmation sampling show that the sampled medium is within the intended remediation limits.
• Submit Reports to the PADEP – Submit necessary documents to the PADEP to achieve regulatory approval of the investigation and completed remediation levels. (Note: The PADEP has a 60 day time limit to review major documents. If no comment is received within the state's review period, then the report is considered approved.) 
• Achieve Liability Relief – With submission and acceptance of the final site documents, receive liability relief acceptance.
• Environmental Covenants – If the remediation approach requires institutional controls or land use controls, then property deeds must be modified and recorded to include these restrictions.
• Long-Term Monitoring or Maintenance – If post-remediation care or monitoring is required to fulfill the site remediation requirements, then arrangements and financial assurance requirements must be established.

Under Act 2, entities that demonstrate compliance with the remediation standard selected for the site shall be relieved of further remediation of contamination identified in the submissions to the PADEP. This liability protection applies to:

• Current owner
• Future owner
• Any person who participated in the cleanup
• Developer
• Occupiers
• Successors or assigns
• Public utilities performing work on the property

The liability protection includes protection from citizen suits and contribution actions under Pennsylvania law. However, the site may be reopened for further assessment or remediation depending upon the following circumstances: 

• New information determines that areas of previously unknown contamination are present which exceed the selected remediation standards
• Changes in site use alters the acceptable levels of risk associated with the site
• A new release occurs after the closure of the site that alters the risk exposure associated with the site
• The PADEP determines fraud or gross negligence caused incomplete remediation

If the contamination extends beyond the property boundary at levels exceeding the selected standard, then the boundary of the site must include the contamination exceeding the appropriately selected standard of the property. Closure of these off-site areas is not granted until these areas also achieve the selected remediation endpoints. If deed restrictions or activity use limitations (AULs) are necessary to eliminate unacceptable exposure pathways, the offsite property owner must also agree to these restrictions. Therefore, it is necessary for the remediator to obtain permission from the off-site property owner to implement these restrictions. A remediator must also remember that if the plume exists on both residential and nonresidential properties, then different numeric standards would apply at those properties in most cases.

In most cases, the assessment and remediation of a regulated storage tank is conducted under the Storage Tank and Spill Prevention Act (Act 32 of 1989) and not under Act 2. The PADEP has established a standardized closure report form for storage tanks which may be used to satisfy the site closure report requirements. 

Storage tank cleanups pursuant to the Storage Tank and Spill Prevention Act are still required to meet one or more of the cleanup standards established under Act 2. Remediators who take corrective action under Act 32 and demonstrate attainment of one or more of the cleanup standards under Act 2 will also achieve liability protection.

Where a tank is not governed by Act 32 (non-regulated tanks), adherence to the Act 2 administrative process and cleanup standards is required to receive liability protection. When releases of petroleum products occur at sites with both regulated and non-regulated storage tank systems, the remediator may elect to address the releases together, or to address them separately on a dual track of the Act 2 and Act 32 processes.

Act 2 also provides grants or low interest loans to parties performing remediation who are not responsible for the contamination. Act 2 provides financial assistance to municipalities, authorities, development agencies and eligible members of the public for assessment and remediation of contaminated sites. Applicants may be eligible for a grant and/or loan up to 75% of the site characterization and remediation costs. The maximum amount of any assessment project is up to 75% of the total cost of assessment, or $200,000, in a single fiscal year—whichever is less.

Act 2 has enabled the redevelopment of numerous sites across the Commonwealth, creating jobs and productive tax-paying new enterprises. The Pennsylvania Act 2 program is similar to the VCP or Brownfield programs established by other states. It requires that the party remediating the site still has the responsibility of remediating the site to a level where there are no exposure pathways to human or ecological receptors. Act 2 does allow the party performing the remediation to elect the level to which the site will be remediated using one of the three applicable state standards. Most importantly, Act 2 then provides liability protection to those who complete the cleanup.

The following are key aspects of Act 2 to consider when evaluating a property for remediation within the program:

• The PADEP always reserves the right, as a separate action, to exercise its enforcement discretion under the environmental laws of the Commonwealth to require remediation of any known spill or release of a regulated substance on the property which was not addressed by voluntary cleanup through the Act 2 process or where the voluntary remediation fails to proceed through the Act 2 process.
• A cleanup may be performed by using any combination of the three standards. The remediator may select any one or a combination of standards by regulated substance, by medium of concern or by distinct area of contamination. Combinations must satisfy all the requirements of each standard used.
• Entities that demonstrate compliance with the remediation standard selected for the site shall be relieved of further remediation of contamination identified in the submissions to the PADEP. 
• Regulated storage tanks are typically assessed and remediated under Act 32 (Storage Tank and Spill Prevention Act). However, if the storage tank site can meet the cleanup standards established by Act, the site will be afforded liability protection.
• A site closed under Act 2 may be reopened to require additional investigation or remediation activities under certain conditions, such as changes in human and ecological exposure pathways.
• To qualify for financial assistance from the Commonwealth, a party must not have caused or contributed to the contamination on the property and must be performing a voluntary cleanup. Applicants may be eligible for a grant and/or loan from the fund for up to 75 percent of the site characterization and remediation costs, subject to additional eligibility requirements established by Act 2 and the DCED.

Randy Copenhaver is a senior loss prevention consultant for Great American Insurance’s Environmental Division. In his role, Randy utilizes his specialization in site remediation to provide expertise in environmental evaluation. Additionally, he supports underwriters in risk identification while crafting policies. Accumulating over 18 years of geology, environmental consulting and project management experience, Randy brings valuable experience to our team. He is based out of our Exton, Pennsylvania main office. 

References: 

1.    https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_052821.pdf

2.    http://counties.agrilife.org/upshur/files/2011/03/Using-Oils-as-Pesticides.pdf

3.    https://www.ers.usda.gov/webdocs/publications/43854/46734_eib124.pdf

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