News from Across the Commonwealth
Pennsylvania’s Governor-Elect, Tom Corbett, Outlines Environmental Priorities (Jan 2011)
Applications Now Being Accepted for Home Heating Equipment Rebates
Staffers at PADEP Held Personally Liable for $6.5 Million in Damages for Improper Regulatory Conduct
PaDEP Extending General Permit to Manage Stormwater Runoff
USTIF 101 - What is it and how does it operate?
2010
Applications Now Being Accepted for Home Heating Equipment Rebates Rebates are now available to help Pennsylvania residents conserve energy and save money by upgrading their home heating systems. The Pennsylvania Home Heating Equipment Rebate Program offers rebates of up to $500 toward the cost of replacing non-electric residential hot water heaters, furnaces and boilers fueled by home heating oil, natural gas or propane with more efficient, ENERGY STAR rated units. The $11 million program is funded by the American Recovery and Reinvestment Act. Pennsylvania residents may reserve a rebate online at www.paheatingrebates.com. Those without internet access can call 877.592.2061. Once a reservation is made, consumers have 30 days to submit the necessary documentation of purchase and installation. Rebate checks will then be mailed directly to the consumer. According to the Pennsylvania Department of Environmental Protection (“PaDEP”), the rebate program could help 33,000 households become more energy efficient. According to ENERGY STAR, the annual energy bill for a typical single-family home is $2,200. PaDEP reports that a homeowner could save more than $900 a year by upgrading to a more energy efficient furnace and water heater. The rebate program is one of several incentives available to consumers. A rebate can be combined with federal tax credits, a non-electric utility rebate and/or a manufacturer’s rebate. The Keystone HELP program, for example, offers low-interest loans to help finance purchases. More information about this program is available by accessing www.keystonehelp.com. Homeowners should also consider performing a home energy audit to see where they can conserve energy or use it more efficiently to save money. Back to top |
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Staffers at PADEP Held Personally Liable for $6.5 Million in Damages for Improper Regulatory Conduct A Federal jury sitting in Philadelphia has found four staffers from the Pennsylvania Department of Environmental Protection (PaDEP) personally liable to the tune of $6.5 million for violating Section 1983 of the Civil Rights Act and intentionally interfering with prospective contractual relations under Pennsylvania law. The case is captioned MFS, Inc. v. DiLazaro et al., and hails from the United States District Court for the Eastern District of Pennsylvania. The plaintiff in the case, MFS, Inc., previously owned and operated an industrial insulation and ceiling tile manufacturing facility in Bethlehem, Pennsylvania. The defendants in the case include four PaDEP high level employees from the Department's Northeast Regional Office, specifically the former regional air program manager, a current assistant regional counsel, the current regional air program manager and the current regional director. The underlying facts of the case are as follows. In 2001, PaDEP issued its first Notice of Violation (NOV) against MFS in response to a complaint of malodors in the vicinity of MFS' facility. On 24 January 2003, at 5:00 pm on a Friday evening, the Department issued a Field Enforcement Order against MFS, also as a result of malodors in the vicinity of its facility. The Field Enforcement Order required a response from MFS by the next business day. Early the next week, MFS started placing phone calls to local state legislators complaining about the actions of PaDEP staff. Shortly after MFS began lodging complaints with local legislators, PaDEP began issuing additional NOVs to MFS. Thirteen such NOVs were issued during the course of a two week span between 5 February 2003 and 24 February 2003. On 24 February 2003, MFS appealed the Field Enforcement Order to the Environmental Hearing Board (EHB). During a conference call with the EHB Judge presiding over the appeal, the Department was questioned about why an enforcement order was issued at 5:00 pm on a Friday afternoon requiring a response by the next business day. In the mind of the EHB Judge, such action by the Department evidenced hostility. The EHB Judge cautioned PaDEP not to take similar actions in the future, and commented that the regional air program staff acted like "little children". In 2007, the Department lodged objections to MFS' Federal Title V permit application, ostensibly on malodor grounds. MFS ultimately ceased operations as a result of its inability to obtain a Title V permit. In its lawsuit against the Department, MFS claimed that the NOVs were issued in retaliation for MFS exercising its First Amendment rights and petitioning the government for redress of its grievances. MFS' operations manager alleged that during a meeting with PaDEP, one of the Department's staffers said he was "pissed off" at MFS for "going over his head". The staffer emphasized his displeasure by pounding his fist on a table. MFS further complained in its suit that PaDEP was aware of other potential sources of malodors in the area, including a local sewage treatment plant, but only initiated enforcement action against MFS. The jury's verdict is highly unusual because typically, state workers are protected from lawsuit exposure by a legal doctrine known as sovereign immunity, which bars claims against government agencies when exercising normal duties. In this case, MFS overcame the sovereign immunity bar by alleging and offering evidence at trial that PaDEP staffers acted outside the scope of their employment. The MFS case has triggered shock waves throughout the Department, where officials are voicing concern that they will now be held personally liable for efforts to uphold environmental laws. Back to top |
PaDEP Extending General Permit to Manage Stormwater Runoff The Department of Environmental Protection (PaDEP) is providing municipal drainage system operators a nine-month extension of their existing permit to better coordinate implementation of new permitting requirements. The extension applies to general permit PAG-13, which governs how municipal separate storm sewer systems handle stormwater runoff in urban areas. These systems, commonly referred to as MS4s, are publicly owned networks of storm drains, pipes and ditches that collect and drain stormwater. Improperly managed stormwater runoff can damage streams, cause significant erosion, and carry excessive pollutants downstream. The current PAG-13 permit for all MS4s is scheduled to expire at midnight on the 9th of March, 2011. The extension will take effect on March the 10th, 2011, and expire at midnight on December the 9th, 2011. The extension allows time for PaDEP and the U.S. Environmental Protection Agency to conduct municipal outreach on the revised permit requirements and to provide municipalities time to prepare their permit applications and supporting information. The extension also applies to existing PAG-13 permit approvals, waivers from permit application requirements, and exemptions from the MS4 operator designation that are scheduled to expire. Permittees covered by an individual permit should continue to implement the requirements of their permit and should request a coverage extension based on its terms and expiration date. The downloadable form to renew coverage for an individual permit is available at www.depweb.state.pa.us, keyword: “stormwater management”, then click on “NPDES MS4 Permit (PAG-13).” The existing PAG-13 permit documents are available from the Department’s website through the “licensing, permits and certification page. Back to top |
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(21 September 2010) Larry Roach, a Professional Geologist and Board member with the Pennsylvania Council of Professional Geologists (PCPG), authored the following insightful article on Pennsylvania’s Underground Storage Tank Indemnification Fund for PCPG’s third quarter 2010 newsletter. “The Pennsylvania Underground Storage Tank Indemnification Fund (USTIF) is a program that satisfies financial responsibilities in the event of a release from a regulated underground storage tank. USTIF covers the actual costs of corrective action and third party liability. Since its inception in 1994, USTIF has paid approximately $800 million in benefits, and most of these payments have been to the consulting industry for corrective action. USTIF is currently providing claim benefits of approximately $60 million annually. There are 1,500 open claims and actuarial studies indicate that the payout on these existing claims will be approximately $500 million. New claims are being filed at the rate of about 200 per year. USTIF pays for eligible, reasonable, and necessary costs. Its mission is to apply the reasonable and necessary criteria in a manner that is fair, just, and fiscally responsible. While there are many eligibility criteria, the criterion that is most often problematic with respect to consultants and claimants is reporting. A claim must be reported to USTIF within 60 days of discovery of the release. There is no discretion with this timeframe, and USTIF will deny any claim reported after the 60-day deadline. Thus, it is important to report claims early, even if in doubt. There is no penalty for reporting a claim and then deciding to withdraw the claim later. It is important to note that the report of a release to [the Pennsylvania Department of Environmental Protection (PaDEP)] or ICF International [USTIF’s third-party administrator] is not the same as a report to USTIF; claims must be reported to USTIF separately. Because USTIF technically has a relationship with the claimant and not the consultant, USTIF reimburses the claimant for reasonable and |
necessary expenses (assuming the claim is deemed eligible). The reimbursement can be made directly to the consultant as a convenience to all parties after the claimant approves the invoice and USTIF determines that the expenses are reasonable and necessary. Based on recent figures, on average over 90% of all costs invoiced by consultants have been paid by USTIF. USTIF is considered a special fund with managerial and administrative functions housed within the Pennsylvania Department of Insurance. USTIF collects fees from underground storage tank system owners or operators as set by the USTIF Board of Directors and uses these fees to make reimbursement payments to program participants. USTIF has engaged the services of a third-party administrator, ICF International, to help manage claims. USTIF has a fiduciary responsibility to act in a fiscally responsible manner so that funds are available to program participants for corrective action and third-party liabilities. Most USTIF-funded corrective actions are reimbursed through sole-source, time and materials contracts; however, these types of contracts are not preferred for state reimbursement. USTIF has the authority to require competitive bidding and is starting to require more claimants to enter into fixed-price contracts resulting from either negotiation or competitive bidding. USTIF selects claims for competitive bidding based on a series of priorities that may include: claims where the cleanup has stalled; repeated upward revisions of the time and cost estimates for closure; repeated failure to obtain approval for site characterization reports from PaDEP; or claims where the cost to bring about closure is expected to be above average. Pennsylvania’s USTIF program has remained financially healthy for 15 years and will continue to be so for the foreseeable future. Back to top |
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Advantage Grant Program Opens to Small Businesses Looking to Increase Profitability by Reducing Energy Costs and Pollution On 19 March 2010, the Pennsylvania Department of Environmental Protection (PaDEP) announced a Consent Order and Agreement with Berks County based Exide Technologies that reportedly will reduce the amount of lead being washed into Berks County waterways. Exide recycles spent lead batteries at its smelting operation in Laureldale. Currently, untreated stormwater run-off from the site flows into an unnamed tributary of Bernhart Creek. In May 2007, PaDEP issued a total maximum daily load, or TMDL, limiting the amount of lead that can be discharged into the creek. |
The Consent Order and Agreement calls for Exide to maximize stormwater collection and treatment by building a new treatment plant with a minimum capacity of 400,000 gallons of water per day. The treated stormwater will be discharged directly to the Schuylkill River through the facility's existing industrial waste line. Under the Consent Order and Agreement, Exide is also obligated to construct an additional 800,000 gallon storage tank that will increase the company's on-site stormwater storage capacity to more than 2 million gallons. The stormwater will be stored until it can be treated at the new plant. As part of the Consent Order and Agreement, PaDEP will issue Exide a new National Pollutant Discharge Elimination System permit, which authorizes the discharge of industrial wastewater. Back to top |
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Pennsylvania Expands Keystone HELP Loan Program to Help Homeowners Install Money-Saving Geothermal Systems |
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(15 November 2010) For Pennsylvania homeowners looking for ways to finance geothermal heat pump systems, a new Keystone Home Energy Loan Program now offers low interest loans that are combined with companion loans given in anticipation of federal tax credits for fuel-conserving geothermal systems. The program is made possible with $5 million from the federal American Recovery and Reinvestment Act, and according to the Pennsylvania Department of Environmental Protection, could help as many as 750 homeowners purchase geothermal systems. With these incentives, the payback for a geothermal system can range from 5-10 years. Under the new geothermal loan program, qualifying homeowners can take advantage of an unsecured 4.99 percent loan for up to $15,000 with a term of up to 10 years. Homeowners can also elect to take an optional “tax credit anticipation loan” equal to the expected 30-percent federal tax credit up to a maximum of $10,000. The HELP program will make the first 12 monthly payments of the tax credit anticipation loan and homeowners can use the tax credit they receive to pay the remainder of the loan without any prepayment penalties. Other special financing is available to homeowners who install a geothermal heat pump system as part of a comprehensive “whole house” improvement project recommended through a certified energy audit. In this case, qualifying homeowners can obtain a secured Keystone HELP loan for up to $35,000 with rates as low as 2.875 percent. All work financed through Keystone HELP must be completed by a certified contractor. Created in 2006 by the Pennsylvania Treasury and AFC First Financial Corp. of Allentown, Keystone HELP offers affordable energy efficiency financing options, including rebates and low-interest loans, enabling homeowners to purchase and install energy efficient equipment or undertake improvements to cut energy use. Keystone HELP began offering even lower rate loans in 2009, when Treasury partnered with PaDEP to expand the program’s impact by using funds provided under Pennsylvania’s 2008 Alternative Energy Investment Act. Visit www.keystonehelp.com to learn more or to apply for a loan. Back to top |