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Pennsylvania’s Act 2: Non-Use Aquifer Designations By Municipal Ordinance

Pittsburgh Legal Journal, 2002

Harry F. Klodowski, Esq.


DEP statistics indicate more than 1000 properties have been redeveloped under Act 2 of 1995 (The Pennsylvania Land Recycling Program). In November 2001, final amendments to the rules at Chapter 250 for the Land Recycling Program were published in the Pennsylvania Bulletin. Among the several changes was a change in the “non-use aquifer” policy. This amendment makes it easier, faster and less expensive to do Act 2 “cleanups” in urban areas that are on public water supplies. However, municipal governments have not taken advantage of these regulatory changes.

Summary of Act 2

Act 2 establishes four program goals: uniform cleanup standards (based upon health and environmental risks), standardized review procedures, releases from liability and financial assistance. The uniform cleanup standards are utilized for most voluntary and mandatory cleanups in Pennsylvania. The standardized review procedures provide uniform procedures at all sites statewide. Owners and developers of an Act 2 site that has been remediated according to program standards and procedures obtain a release from future liability to the DEP or for private claims under environmental statutes. Finally, Act 2 and related legislation provides funding through the Industrial Sites Reuse Program, a program designed to help “innocent” persons conduct voluntary cleanups. The Program covers up to 75% of the costs of completing an environmental study and implementing a cleanup.

Act 2 requires analysis of both soil and groundwater contaminants. The importance of the level of groundwater contamination under Act 2 depends upon whether it is an area where the groundwater is used for drinking water and agricultural purposes or whether the area is designated as a “non-use aquifer.” Cleanup standards for “non-use aquifers” are much higher (a higher level of contamination is considered safe) and usually are less expensive to attain. Traditionally, it has been difficult to obtain a “non-use aquifer” designation in individual cases.

However, the November 2001 amendments changed the process for obtaining a “non-use aquifer” determination. Under the newly amended regulations, a municipality may request an area-wide certification that designates a certain area or specific geographic location a “non-use aquifer” by enacting an ordinance. This change is a useful tool for certifying large “brownfields” areas to prepare them for redevelopment.

What is an Aquifer?

Under 25 Pa. Code §250.303(a) and (b), all geologic formations that are saturated with water and that are not seasonal, localized or hydrologically isolated perched formations under a property are presumed to be aquifers. All groundwater in aquifers is presumed to be used, or is currently planned for use, unless the Department determines otherwise. To determine current use or currently planned future use, one may conduct door-to-door surveys, verify community water system billing records, or interview community water system suppliers about their currently planned future groundwater use.

The Role of the Municipal Ordinance

A municipal ordinance is required when a municipality requests an area-wide certification of a “non-use aquifer” under new 25 Pa. Code §250.503(f). Under this section, a municipality must demonstrate three things to the Department. First, it must demonstrate that the area meets the requirements of 25 Pa. Code §250.503(c). Section 250.503(c) requires: no groundwater be used from wells or springs for drinking water or agricultural purposes; all downgradient properties must be connected to the community water system; the area must not intersect a radius of ½ mile from the community water supply well source or an area designated by the Department as a Zone 2 wellhead protection area; and there must be no existing document detailing a currently planned future use in the area.

Second, the municipality must have an ordinance in effect that prohibits the use of groundwater from wells or springs for drinking water or agricultural purposes. Third, the municipality must have an ordinance in effect that requires all water users to connect to the community water supply system. Finally, if the municipal ordinance is amended or repealed, the municipal authority who requested the area-wide designation must notify the Department in writing within 30 days of the effective date of the amendment or repeal.

Local governments who are interested in encouraging redevelopment of older industrial or commercial sites should take advantage of area-wide non-use designations under the recent amendments to the Act 2 regulations by enacting a groundwater ordinance.