PRINTER'S NO. 2864
No. 2138 Session of 2001
INTRODUCED BY YUDICHAK, DeWEESE, GEORGE, BELFANTI, STEELMAN, WOJNAROSKI, BROWNE, CAPPELLI, CORRIGAN, COSTA, DIVEN, GRUCELA, HERMAN, HORSEY, JOSEPHS, KELLER, MAHER, MANN, MELIO, MUNDY, PIPPY, SOLOBAY, STABACK, TANGRETTI, THOMAS, TIGUE, WANSACZ, G. WRIGHT, YOUNGBLOOD, HARHAI AND J. WILLIAMS, NOVEMBER 14, 2001
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, NOVEMBER 14, 2001
AN ACT 1 Amending the act of May 19, 1995 (P.L.4, No.2), entitled "An act 2 providing for the recycling of existing industrial and 3 commercial sites; further defining the cleanup liability of 4 new industries and tenants; establishing a framework for 5 setting environmental remediation standards; establishing the 6 Voluntary Cleanup Loan Fund, the Industrial Land Recycling 7 Fund and the Industrial Sites Cleanup Fund to aid industrial 8 site cleanups; assigning powers and duties to the 9 Environmental Quality Board and the Department of 10 Environmental Resources; and making repeals," providing for 11 previously mined sites with preexisting discharges that are 12 proposed for remining, reclamation or redevelopment; and 13 making editorial changes. 14 The General Assembly of the Commonwealth of Pennsylvania 15 hereby enacts as follows: 16 Section 1. The title and section 102 act of May 19, 1995 17 (P.L.4, No.2), known as the Land Recycling and Environmental 18 Remediation Standards Act, are amended to read: 19 AN ACT 20 Providing for the recycling of existing industrial and 21 commercial sites; further defining the cleanup liability of
1 new industries and tenants; establishing a framework for 2 setting environmental remediation standards; establishing the 3 Voluntary Cleanup Loan Fund, the Industrial Land Recycling 4 Fund and the Industrial Sites Cleanup Fund to aid industrial 5 site cleanups; assigning powers and duties to the 6 Environmental Quality Board and the Department of 7 Environmental [Resources] Protection; and making repeals. 8 Section 102. Declaration of policy. 9 The General Assembly finds and declares as follows: 10 (1) The elimination of public health and environmental 11 hazards on existing commercial and industrial land across 12 this Commonwealth is vital to their use and reuse as sources 13 of employment, housing, recreation and open-space areas. The 14 reuse of industrial land is an important component of a sound 15 land-use policy that will help prevent the needless 16 development of prime farmland, open-space areas and natural 17 areas and reduce public costs for installing new water, sewer 18 and highway infrastructure. 19 (2) Incentives should be put in place to encourage 20 responsible persons to voluntarily develop and implement 21 cleanup plans without the use of taxpayer funds or the need 22 for adversarial enforcement actions by the Department of 23 Environmental [Resources] Protection which frequently only 24 serve to delay cleanups and increase their cost. 25 (3) Public health and environmental hazards cannot be 26 eliminated without clear, predictable environmental 27 remediation standards and a process for developing those 28 standards. Any remediation standards adopted by this 29 Commonwealth must provide for the protection of public health 30 and the environment. 20010H2138B2864 - 2 -
1 (4) It is necessary for the General Assembly to adopt a
2 statute which sets environmental remediation standards to
3 provide a uniform framework for cleanup decisions because few
4 environmental statutes set cleanup standards and to avoid
5 potentially conflicting and confusing environmental
6 standards. The General Assembly also has a duty to implement
7 the provisions of section 27 of Article I of the Constitution
8 of Pennsylvania with respect to environmental remediation
9 activities.
10 (5) It is necessary for the General Assembly to adopt a
11 statute which provides a mechanism to establish cleanup
12 standards without relieving a person from any liability for
13 administrative, civil or criminal fines or penalties
14 otherwise authorized by law and imposed as a result of
15 illegal disposal of waste or for pollution of the land, air
16 or waters of this Commonwealth on an identified site.
17 (6) Cleanup plans should be based on the actual risk
18 that contamination on the site may pose to public health and
19 the environment, taking into account its current and future
20 use and the degree to which contamination can spread offsite
21 and expose the public or the environment to risk, not on
22 cleanup policies requiring every site in this Commonwealth to
23 be returned to a pristine condition.
24 (7) Cleanup plans should have as a goal remedies which
25 treat, destroy or remove regulated substances whenever
26 technically and economically feasible as determined under the
27 provisions of this act.
28 (8) The Department of Environmental [Resources]
29 Protection now routinely through its permitting policies
30 determines when contamination will and will not pose a
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1 significant risk to public health or the environment. Similar 2 concepts should be used in establishing cleanup policies. 3 (9) The public is entitled to understand how remediation 4 standards are applied to a site through a plain language 5 description of contamination present on a site, the risk it 6 poses to public health and the environment and any proposed 7 cleanup measure. 8 Section 2. The definitions of "department," "point of 9 compliance," "release" and "secretary" in section 103 of the act 10 are amended to read: 11 Section 103. Definitions. 12 The following words and phrases when used in this act shall 13 have the meanings given to them in this section unless the 14 context clearly indicates otherwise: 15 * * * 16 "Department." The Department of Environmental [Resources] 17 Protection of the Commonwealth or its successor agency. 18 * * * 19 "Point of compliance." For the purposes of determining 20 compliance with groundwater standards, the property boundary at 21 the time the contamination is discovered or such point beyond 22 the property boundary as the Department of Environmental 23 [Resources] Protection may determine to be appropriate. 24 * * * 25 "Release." Spilling, leaking, pumping, pouring, emitting, 26 emptying, discharging, injecting, escaping, leaching, dumping or 27 disposing of a regulated substance into the environment in a 28 manner not authorized by the Department of Environmental 29 [Resources] Protection. The term includes the abandonment or 30 discarding of barrels, containers, vessels and other receptacles 20010H2138B2864 - 4 -
1 containing a regulated substance. 2 * * * 3 "Secretary." The Secretary of Environmental [Resources] 4 Protection of the Commonwealth. 5 * * * 6 Section 3. Sections 106(a), 302(b), 303(e), 304(k), 305(a), 7 702 and 905(a) of the act are amended to read: 8 Section 106. Scope. 9 (a) Remediation standards.--The environmental remediation 10 standards established under this act shall be used whenever site 11 remediation is voluntarily conducted or is required under the 12 act of June 22, 1937 (P.L.1987, No.394), known as The Clean 13 Streams Law, the act of May 31, 1945 (P.L.1198, No.418), known 14 as the Surface Mining Conservation and Reclamation Act, the act 15 of January 8, 1960 (1959 P.L.2119, No.787), known as the Air 16 Pollution Control Act, the act of July 7, 1980 (P.L.380, No.97), 17 known as the Solid Waste Management Act, the act of July 13, 18 1988 (P.L.525, No.93), referred to as the Infectious and 19 Chemotherapeutic Waste Law, the act of October 18, 1988 20 (P.L.756, No.108), known as the Hazardous Sites Cleanup Act, and 21 the act of July 6, 1989 (P.L.169, No.32), known as the Storage 22 Tank and Spill Prevention Act, to be eligible for cleanup 23 liability protection under Chapter 5. In addition, the 24 remediation standards established under this act shall be 25 considered as applicable, relevant and appropriate requirements 26 for this Commonwealth under the Comprehensive Environmental 27 Response, Compensation, and Liability Act of 1980 (Public Law 28 96-510, 42 U.S.C. § 9601 et seq.) and the Hazardous Sites 29 Cleanup Act. 30 * * * 20010H2138B2864 - 5 -
1 Section 302. Background standard.
2 * * *
3 (b) Attainment.--Final certification that a site or portion
4 of a site meets the background standard shall be documented in
5 the following manner:
6 (1) Attainment of the background standard shall be
7 demonstrated by collection and analysis of representative
8 samples from environmental media of concern, including soils
9 and groundwater in aquifers in the area where the
10 contamination occurs through the application of statistical
11 tests set forth in regulation or, if no regulations have been
12 adopted, in a demonstration of a mathematically valid
13 application of statistical tests. The [Department of
14 Environmental Resources] department shall also recognize
15 those methods of attainment demonstration generally
16 recognized as appropriate for that particular remediation.
17 (2) A final report that documents attainment of the
18 background standard shall be submitted to the department
19 which includes, as appropriate:
20 (i) The descriptions of procedures and conclusions
21 of the site investigation to characterize the nature,
22 extent, direction, volume and composition of regulated
23 substances.
24 (ii) The basis for selecting environmental media of
25 concern, descriptions of removal or decontamination
26 procedures performed in remediation, summaries of
27 sampling methodology and analytical results which
28 demonstrate that remediation has attained the background
29 standard.
30 (3) Where remediation measures do not involve removal or
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1 treatment of a contaminant to the background standard, the
2 final report shall demonstrate that any remaining
3 contaminants on the site will meet Statewide health standards
4 and show compliance with any postremediation care
5 requirements that may be needed to maintain compliance with
6 the Statewide health standards.
7 (4) Institutional controls such as fencing and future
8 land use restrictions on a site may not be used to attain the
9 background standard. Institutional controls may be used to
10 maintain the background standard after remediation occurs.
11 * * *
12 Section 303. Statewide health standard.
13 * * *
14 (e) Attainment.--Final certification that a site or portion
15 of a site meets the Statewide health standard shall be
16 documented in the following manner:
17 (1) Attainment of cleanup levels shall be demonstrated
18 by collection and analysis of representative samples from the
19 environmental medium of concern, including soils, and
20 groundwater in aquifers at the point of compliance through
21 the application of statistical tests set forth in regulation
22 or, if no regulations have been adopted, in a demonstration
23 of a mathematically valid application of statistical tests.
24 The [Department of Environmental Resources] department shall
25 also recognize those methods of attainment demonstration
26 generally recognized as appropriate for that particular
27 remediation.
28 (2) A final report that documents attainment of the
29 Statewide health standard shall be submitted to the
30 department which includes the descriptions of procedures and
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1 conclusions of the site investigation to characterize the 2 nature, extent, direction, rate of movement of the site and 3 cumulative effects, if any, volume, composition and 4 concentration of contaminants in environmental media, the 5 basis for selecting environmental media of concern, 6 documentation supporting the selection of residential or 7 nonresidential exposure factors, descriptions of removal or 8 treatment procedures performed in remediation, summaries of 9 sampling methodology and analytical results which demonstrate 10 that contaminants have been removed or treated to applicable 11 levels and documentation of compliance with postremediation 12 care requirements if they are needed to maintain the 13 Statewide health standard. 14 (3) Institutional controls such as fencing and future 15 land use restrictions on a site may not be used to attain the 16 Statewide health standard. Institutional controls may be used 17 to maintain the Statewide health standard after remediation 18 occurs. 19 * * * 20 Section 304. Site-specific standard. 21 * * * 22 (k) Attainment.--Compliance with the site-specific standard 23 is attained for a site or portion of a site when a remedy 24 approved by the department has been implemented in compliance 25 with the following criteria: 26 (1) Soil, groundwater, surface water and air emission 27 standards as determined under subsections (a) through (h) 28 have been attained. 29 (2) Attainment of the site-specific standard shall be 30 demonstrated by collection and analysis of samples from 20010H2138B2864 - 8 -
1 affected media, as applicable, such as surface water, soil, 2 groundwater in aquifers at the point of compliance through 3 the application of statistical tests set forth in regulation 4 or, if no regulations have been adopted, in a demonstration 5 of a mathematically valid application of statistical tests. 6 The [Department of Environmental Resources] department shall 7 also recognize those methods of attainment demonstration 8 generally recognized as appropriate for that particular 9 remediation. 10 * * * 11 Section 305. Special industrial areas. 12 (a) Special sites.--For property used for industrial 13 activities where there is no financially viable responsible 14 person to clean up contamination or for land located within 15 enterprise zones designated pursuant to the requirements of the 16 Department of Community [Affairs] and Economic Development, the 17 review procedures of this section shall apply for persons 18 conducting remediation activities who did not cause or 19 contribute to contamination on the property. Any environmental 20 remediation undertaken pursuant to this section shall comply 21 with one or more of the standards established in this chapter. 22 This section shall also apply to any person who proposes to 23 remine, reclaim or redevelop an area on which there is a 24 preexisting discharge from previous mining and has secured 25 special authorization under section 4.6(a) of the act of May 31, 26 1945 (P.L.1198, No.418), known as the Surface Mining 27 Conservation and Reclamation Act. 28 * * * 29 Section 702. Industrial Sites Cleanup Fund. 30 (a) Establishment.--There is hereby established a separate 20010H2138B2864 - 9 -
1 account in the State Treasury, to be known as the Industrial 2 Sites Cleanup Fund, which shall be a special fund administered 3 by the Department of [Commerce] Community and Economic 4 Development. Within 60 days of the effective date of this act, 5 the Department of [Commerce] Community and Economic Development 6 shall finalize guidelines and issue application forms to 7 administer this fund. 8 (b) Purpose.--The Industrial Sites Cleanup Fund is to 9 provide financial assistance to persons who did not cause or 10 contribute to the contamination on property used for industrial 11 activity on or before the effective date of this act and who 12 propose to undertake a voluntary cleanup of the property. The 13 financial assistance shall be in an amount of up to 75% of the 14 costs incurred for completing an environmental study and 15 implementing a cleanup plan by an eligible applicant. Financial 16 assistance may be in the form of grants as provided in this 17 section or low-interest loans, to be lent at a rate not to 18 exceed 2%. 19 (c) Grants.--Grants may be made to political subdivisions or 20 their instrumentalities or local economic development agencies 21 for the purposes of this section if the grantee owns the site on 22 which the cleanup is being conducted and the grantee is 23 overseeing the cleanup. The total amount of grants awarded under 24 this section in any one fiscal year shall not exceed 20% of the 25 total amount of the Industrial Sites Cleanup Fund. 26 (d) Loans.--Loans meeting the requirements of subsection (b) 27 may be made to the following categories of applicants: 28 (1) Local economic development agencies. 29 (2) Political subdivisions or their instrumentalities. 30 (3) Other persons determined to be eligible by the 20010H2138B2864 - 10 -
1 Department of [Commerce] Community and Economic Development. 2 (e) Priority for financial assistance.--The Department of 3 [Commerce] Community and Economic Development shall take all of 4 the following factors into consideration when determining which 5 applicants shall receive financial assistance under this 6 section: 7 (1) The benefit of the remedy to public health, safety 8 and the environment. 9 (2) The permanence of the remedy. 10 (3) The cost effectiveness of the remedy in comparison 11 with other alternatives. 12 (4) The financial condition of the applicant. 13 (5) The financial or economic distress of the area in 14 which the cleanup is being conducted. 15 (6) The potential for economic development. 16 The Department of [Commerce] Community and Economic Development 17 shall consult with the department when determining priorities 18 for funding under this section. 19 (f) Terms and conditions.--The Department of [Commerce] 20 Community and Economic Development shall have the power to set 21 terms and conditions applicable to loans and grants it deems 22 appropriate. The Department of [Commerce] Community and Economic 23 Development may consider such factors as it deems relevant, 24 including current market interest rates and the necessity to 25 maintain the moneys in this fund in a financially sound manner. 26 Loans may be made based upon the ability to repay from future 27 revenue to be derived from the cleanup, by a mortgage or other 28 collateral, or on any other fiscal matters which the Department 29 of [Commerce] Community and Economic Development deems 30 appropriate. 20010H2138B2864 - 11 -
1 (g) Funds.--In addition to any funds appropriated by the 2 General Assembly, $15,000,000 shall be transferred upon approval 3 of the Governor from the Hazardous Sites Cleanup Fund 4 established by the act of October 18, 1988 (P.L.756, No.108), 5 known as the Hazardous Sites Cleanup Act, to the Industrial 6 Sites Cleanup Fund for the purpose of implementing the program 7 established in this section. Moneys received by the Department 8 of [Commerce] Community and Economic Development as repayment of 9 outstanding loans shall be deposited in the fund. Any interest 10 earned by moneys in this fund shall remain in this fund. Moneys 11 in the fund are hereby appropriated to the Department of 12 [Commerce] Community and Economic Development for the purpose of 13 implementing this section. 14 (h) Annual report.--The Department of [Commerce] Community 15 and Economic Development shall on October 1 of each year report 16 to the General Assembly on the grants, loans, expenditures and 17 commitments made from this fund. The annual report shall include 18 an evaluation of the effectiveness of this fund in recycling 19 industrial and commercial sites. The evaluation shall include 20 any recommendations for additional changes if necessary to 21 improve the effectiveness of this fund in recycling such sites. 22 Section 905. Enforcement. 23 (a) General.--The department is authorized to use the 24 enforcement and penalty provisions applicable to the 25 environmental medium or activity of concern, as appropriate, 26 established under the act of June 22, 1937 (P.L.1987, No.394), 27 known as The Clean Streams Law, the act of May 31, 1945 28 (P.L.1198, No.418), known as the Surface Mining Conservation and 29 Reclamation Act, the act of January 8, 1960 (1959 P.L.2119, 30 No.787), known as the Air Pollution Control Act, the act of July 20010H2138B2864 - 12 -
1 7, 1980 (P.L.380, No.97), known as the Solid Waste Management 2 Act, the act of July 13, 1988 (P.L.525, No.93), referred to as 3 the Infectious and Chemotherapeutic Waste Law, the act of 4 October 18, 1988 (P.L.756, No.108), known as the Hazardous Sites 5 Cleanup Act, or the act of July 6, 1989 (P.L.169, No.32), known 6 as the Storage Tank and Spill Prevention Act, to enforce the 7 provisions of this act. 8 * * * 9 Section 4. This act shall take effect in 60 days. J3L27BIL/20010H2138B2864 - 13 -