Act 2 Cleanups — Challenges Created by Dep
6 Pages Posted: 5 Nov 2019
Date Written: October 24, 2019
When the Land Recycling and Environmental Remediation Standards Act, commonly known as “Act 2”, was enacted in 1995, the Pennsylvania General Assembly declared, inter alia, that: “the elimination of public health and environmental hazards on existing commercial and industrial land is vital to their use and reuse . . . .”; “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 Resources” (now the Department of Environmental Protection or 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 . . . .” 35 P.S. § 6026.102.
While the forgoing purposes of Act 2 have been 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”), 25 Pa. Code § 250, 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. When, however, the application and interpretation become mired in competing interpretations and other regulatory entanglements, the remediation process can be slowed, frustration can set in, and the primary objective of Act 2 to spur the voluntary remediation of brownfield sites without delays or increases in costs is impeded. Further, if the owner desires to sell the property and prospective purchasers and their lenders desire to have an Act 2 release of liability, the sales effort can be halted.
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