Terry R. Bossert

By Terry R. Bossert, Post & Schell

On March 2, the Department of Environmental Protection issued a press release in which it announced that it would no longer accept remediation reports under the Land Recycling and Environmental Remediation Standards Act (Act 2) for properties formerly used as agriculture and orchard property slated for development. The Department stated that it would not review any documents and asserted that the relief from further cleanup liability if they meet Act 2 standards would not be provided.

However, the press release goes on to note that the remediation standards and testing protocols in Act 2 would be used to determine whether such properties were safe for development. Aside from the questionable legal basis for this position, the Department’s statement raises an issue regarding local land use decisions.

The only legal authority cited for the Department’s statement is reference to the general policy statements in the Declaration of Policy section of Act 2.

Act 2 clearly provides that any person who proposes to or who is required to respond to the release of a regulated substance at a site and who wants to be eligible for clean up protection shall select and attain compliance in accordance with one or more of the standards (See Sections 106 and 301). The Act does not exclude former agricultural lands from its scope. The definition of “site” does not exclude agricultural land.

It would seem that the only way DEP could legitimately exclude a site from Act2 would be to conclude that there had not been a “release” on a particular property. However, in that case, DEP would lack regulatory authority to require the implementation of the Act 2 remediation standards or testing protocols.

One wonders whether DEP really wants to turn its back on remediation at developments on former agricultural land. It has been suggested that DEP will use other programs such as the erosion and sedimentation permit to require remediation, but not give liability relief. However, once they require remediation, Act 2 becomes controlling (See Section106) and once they approve the remediation the liability release becomes effective (See Section 501)

Perhaps more significantly, the announced interpretation paints with too broad a brush and seems to be inconsistent with DEP’s policy for consideration of local comprehensive plans and zoning. The Department has issued several iterations of its Policy for Considering Local Comprehensive Plans and Zoning Ordinances (“Land Use Policy”), the last being in March 2004.

Although Act 2 is not one of the programs affected by that policy, the March 2 announcement runs counter to the philosophy of the Land Use Policy. In the Land Use Policy, DEP indicates that they will rely upon and consider local comprehensive plan and zoning ordinances in making permit decisions. There seems to be no reason that the same philosophy should not apply to Act 2 decisions.

Lands that were formerly used as agricultural land may very well be zoned for commercial or residential development. Not all development of former agricultural lands promotes sprawl. Former agricultural land may be in the midst of already developed areas and development may be entirely in keeping with the municipality’s comprehensive plan.

If the municipality has determined that land is appropriate for development consistent with its comprehensive plan and zoning ordinances, should the Department try to impede that development by excluding the property from the Act 2 program? It seems inconsistent to listen to the municipality’s wishes in one instance and not in another.

The Department’s desire to deter the development of open lands is understandable given its policy goals. However, the March 2 announcement will do little to dampen the pressure for development of former agricultural properties. Rather, it will likely spawn unnecessary litigation and may very well allow properties to be developed without DEP oversight and perhaps without remediation.

Terry R. Bossert served as Chief Counsel to the Department of Environmental Protection for four years and is now chair of  Post & Schell’s Environmental Regulation and Litigation Group. He can be contacted at: 717-612-6018.

NOTE: Senators Mary Jo White (R-Venango), Ray Musto (D-Luzerne) and Chip Brightbill (R-Lebanon) wrote to DEP Secretary McGinty this week expressing concerns about the press release outlining changes to the Land Recycling Program. A copy is attached to this webpage.

3/11/2005