Innocent Land Owners Need to Understand PADEP’s Act 2 Program

The old adage “let the buyer beware” refers to a time in history when the seller of a product had no obligation to warn the buyer about defects in the product. Today there are several “implied warranty” laws that ensure anyone buying a product has the right to depend on the product being useable for its intended purpose. Although there are numerous laws and regulations enforced by federal, state, and local agencies to help protect the “buyer,” there are still some wrinkles in the process that every individual should know about. This basic rule also applies to land leases – particularly to leases that allow for the extraction of mineral or oil resources from private property.

In Pennsylvania, land leases for the extraction of natural gas from the Marcellus shale formation have become common. Earlier this year the PADEP published a draft policy on the obligation of gas companies to clean up spills of waste materials such as fuel oil and fracturing fluids on private properties throughout the state.  The proposed policy provides a set of procedures for oil and gas companies to follow in remediating spills at well pad sites. Of particular interest is the allowance to enter those sites in the PADEP’s brownfield remediation (Act 2) program. The PADEP will allow remediators of spills at oil and gas sites to enter them into the Act 2 program and receive liability protection, based on the fact that a spill of frack fluids would be a spill of residual waste, governed by the Solid Waste Management Act, which is one of the statutes covered under Act 2.  In addition, a spill that could impact the waters of the Commonwealth would be regulated under the Clean Streams Law, which is also covered under Act 2.

Act 2: Is It Helping or Hurting Us?

Act 2 is often perceived as a law whose primary intent was to help facilitate the reuse of old industrial sites. Instead of a developer having to figure out how to remove pollutants from soil and groundwater from a former industrial site, it could propose a “cleanup” that eliminates the risk to public health, allowing the pollution to remain in the environment. Capping the land with asphalt and using public water rather than groundwater would limit exposure of persons intending to use the site in the future, and that would suffice to consider the area “clean” under Act 2.  However, Act 2 is commonly used for all sorts of contaminated sites, not just the stereotypical abandoned factory. The practical effect of the Land Recycling and Environmental Standards Remediation Act (Act 2) was to shift the principle that governed environmental cleanups inPennsylvaniafrom the use of the best available technology to remove pollution, to one of allowing pollution to remain in the environment so long as it does not threaten public health.

An innocent land owner who is looking for a cash cow and lessees their land to gas companies for the drilling of natural gas wells should be aware, that although Act 2 does offer protection of life and health, at the end of the process contaminants may still remain in place. That means that if a gas company contaminates your soil and/or groundwater, the PADEP will only make sure the company does what is necessary to meet the risk-based standards under Act 2. So, “Let the lessors beware.” You’ll have to protect your own soil and/or groundwater if you are not satisfied with the risk-based cleanup standards under Act 2, and want to ensure that your property is as clean after drilling as it was before.

“Do you have a site that may be environmentally compromised? REPSG can help you sort through process. REPSG offers a range of environmental due diligence, environmental investigations and remediation for private and commercial land owners.  Do not hesitate to contact REPSG for all of your environmental needs and questions.

The Journey of Redevelopment: an REPSG Photo Log

As a child, I used to work on family genealogy with my dad. We spent countless Saturdays pouring over ship manifests and other old records looking for any information about our ancestors. I was fascinated with all the old documents and photos that told the story of our family’s journey. Years later, working as part of REPSG’s Phase I team, I was explaining my work to my dad. He listened carefully and responded, “So it sounds to me like you’re doing genealogy, just on property instead of people.” I had never thought of my work that way before, but I liked the analogy.

At REPSG, we do a lot of historical research. We want to understand as much as we can about the history of a property in order to inform its future transformations. Some of our projects are short term, some we get to participate in through the course of redevelopment, and some are sites that just keep coming back. It’s fascinating to see what these properties become – old factories turned into thriving community centers, forgotten land redeveloped as affordable housing, or buildings whose future is in limbo and who are left to decay.

I thought it would be interesting to share some photos of the “journeys” of some of our sites.  Click through each set of photos below to see the amazing transformations!

From empty row-homes to state-of-the-art senior housing

Before

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 A major industrial facility redeveloped into homes. In my early days with REPSG, I spent weeks at this site overseeing the volumes of trucks hauling soil on and off site. It was great to be able to see the project evolve, and REPSG was invited to take company tour of the model home!

Before

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Sometimes we visit sites multiple times over the years, and one particular site comes to mind. REPSG has watched this building change over time as it waits for a new life. These photos remind me a bit of the decay you see on the Titanic.

Before

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 REPSG frequently works with community revitalization organizations. I always enjoy working with these types of clients who have such a vision for what a site or even neighborhood can be. This old factory and warehouse is, piece by piece, being renovated to house community offices and a charter school.

Before

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 Another developer client of ours had the vision to turn this piece of vacant urban land into a vibrant senior housing community. This site was also the site of a former industrial facility that had long ago been demolished.

Before

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Do you own a site or have your eye on one for reuse or redevelopment? REPSG would love to be a part of the next phase of your property’s journey of transformation.  Contact us to see how we can best partner with you to define the next generation of your site.

An Introduction to Vapor Intrusion Investigations in New Jersey

 For the New Jersey Department of Environmental Protection (NJDEP), 2012 has been a banner year. Here at REPSG, we have really had to stay on our toes to ensure that allNew Jerseysites are adhering to current regulatory guidance, form submittal requirements, and rules.

In January 2012, the new Vapor Intrusion Technical Guidance was finalized, providing lots of new details for the investigation of vapor intrusion into indoor air. Additionally, the Technical Requirements for Site Remediation (7:26E) was finalized in May 2012, providing the last word in receptor evaluation of populations being potentially impacted by harmful vapors. Now that all of the changes have been finalized, Suzanne Shourds and I plan to tackle the topic of vapor intrusion in an upcoming series of blog articles. We will be discussing the ins and outs of vapor intrusion as well as our own experiences with sites in New Jersey that have addressed potential vapor intrusion. These posts will cover vapor intrusion screening levels, receptor evaluations, the stages of a vapor intrusion investigation (groundwater, soil gas, and indoor air), mitigation, and the special requirements associated with Immediate Environmental Concerns and Vapor Concerns.ew Jersey Department of Environmental Protection (NJDEP), 2012 has been a banner year. Here at REPSG, we have really had to stay on our toes to ensure that all New Jersey sites are adhering to current regulatory guidance, form submittal requirements, and rules.

To get things started, let’s take a look at Vapor Intrusion Investigation Triggers, Screening Levels, and Receptor Evaluation (Stage 1).

When conducting a Site Investigation, the first step to take to address potential vapor intrusion is to identify a source, as well as a potential pathway (typically impacted groundwater) and possible receptors. Identification of all these components triggers the need for a Vapor Intrusion Investigation (Stage 2), addressed in the next blog post on this topic).

Once impacted groundwater with concentrations above the NJDEP’s Groundwater Vapor Intrusion Screening Levels is identified and delineated, all buildings (homes, apartments, commercial spaces, warehouses) and structures (garages, utility vaults, sheds) within 30 feet of petroleum-based impacts (including free product) and/or within 100 feet of non-petroleum-based groundwater impacts (including free product) must be considered potential receptors of vapor intrusion impacts and incorporated into the investigation.       A receptor must be present in order for there to be a potential vapor intrusion concern. This includes consideration of future receptors. Once the trigger is identified, the property owner has 150 days to conduct sampling of the identified receptors. Prior to conducting this sampling, all receptors must be characterized to identify building or structure use, size, and details (such as the presence of a basement).

Additional site triggers for a vapor investigation include: soil gas or indoor air data above Vapor Intrusion Screening Levels, a wet basement or sump containing free product or groundwater impacted with volatile compounds, methane-generating conditions, any other situation threatening health and safety that is related to vapor/indoor air.

Have a question about vapor intrusion investigation triggers? Leave a comment below or please feel free to contact me at jcutright@repsg.com. Please check back soon for our follow up article on Stage 2: Vapor Intrusion Investigation.

Vapor Encroachment Explained

In a Phase I Environmental Site Assessment (ESA) report, these days you are likely to see an evaluation of vapor encroachment conditions at the site. If you haven’t, you will. The upcoming update to ASTM’s Phase I Standard proposes to treat vapor encroachment like any other source of contamination, and thus a routine component of environmental due diligence.  So, what is it?

Think of vapor encroachment as a cousin of vapor intrusion.

According to the EPA, vapor intrusion occurs when there is a migration of volatile chemicals from contaminated groundwater or soil into an overlying building. Evaluation of vapor intrusion identifies contamination sources on- site. Vapor encroachment, on the other hand, also considers off-site sources. Think of vapor encroachment as a screening tool.

Vapor encroachment screening identifies releases in the vicinity of the subject property and, based on the contaminant plume, evaluates the likelihood of vapors migrating to the subsurface of the subject property. Vapors, in this case, consist of any chemical of concern (COC); and their presence or likely presence constitutes a vapor encroachment condition (VEC). The ASTM standard for this screening (E2600-10) uses a two-tiered approach (not to be confused with the EPA’s three-tiered vapor intrusion guidance!)

Tier 1 of vapor encroachment screening uses state and federal database records to identify those sites with the potential to affect subsurface vapor conditions. Much like the radius search for a Phase I report, Tier 1 employs a 1/3 mile radius for releases of non-petroleum products, and a 1/10 mile radius for releases of petroleum products. If a VEC cannot be ruled out, i.e. there are open sites within the search distance, then on to Tier 2.

Tier 2 starts out as a non-invasive records review. If you’re lucky, the state will have regulatory files for sites identified in Tier 1, and those files will contain the location of the source and contaminant plume. Based on the relation of the plume to the subject property, it is possible to rule out a VEC. If you don’t have access to plume info, or, if a VEC cannot be ruled out non-invasively, the next option is sampling – of soil, soil gas, and/or groundwater.

Ultimately, there are four possible outcomes of a vapor encroachment screen: 1) VEC exists; 2) VEC likely exists; 3) VEC cannot be ruled out; or 4) VEC can be ruled out. In the context of a Phase I ESA, the environmental professional determines if a VEC represents a recognized environmental condition (REC) for a specific site.

As vapor intrusion receives more attention from regulators, vapor encroachment screening can be a useful tool to delineate vapor concerns originating on-site and off. The intent is to provide an evaluation of vapor in the soil, thus refining the determination of vapor that may end up indoors. Some agree, some disagree, either way it is here to stay. Have you found vapor encroachment screening to provide insight or headaches? Leave a comment below, and please feel free to contact me at Sszymanski@repsg.com with your vapor encroachment questions.