Penny Wise and Pound Foolish: Passing Up the Opportunity to De-Develop a Brownfield for Fear of the Unknown

Most of my posts about land use deal with issues at my own end of Pennsylvania, in the Lehigh Valley of eastern PA. But I feel compelled to write about a news article I saw earlier this week in an environmental news feed I subscribe to. The article was about a recent land use decision made in the western PA community of McCandless, located about a dozen miles north of Pittsburgh.

I had no prior knowledge about the piece of land in question, a roughly 33-acre parcel containing a shuttered movie theater surrounded by asphalt. So I googled the site and found a news story from last October about the original purchase deal that the non-profit Allegheny Land Trust worked out on behalf of the Town of McCandless (McCandless was originally a Township until they adopted a home-rule charter in 1975 and thus became known as a Town. It's one of only two official Towns in PA). The site is bordered to the south by Pine Creek, a tributary of the Allegheny River.  According to the Town Manager, the entire site in located within the creek's designated floodplain. That means that almost the entire 33 acres is impervious surface capping a 100-year floodplain. That's bad, because natural floodplains allow water to percolate into the soil. When undisturbed, they have lots of trees and other vegetation to help absorb flood waters. Yes, natural floodplains can help mitigate flood conditions, and this movie theater appears to have had a history of flooding. Many municipalities prohibit development in 100-year floodplains.  I don't know if McCandless has seen the light and updated their zoning ordinances to exclude construction on floodplains since this site was originally developed, but at least they were actively pursuing an opportunity to de-develop (I just made up that word) this property from an abandoned and completely impervious Brownfield into a green park that would help them manage stormwater and downstream flash flooding.

The outline in red is the 33-acre movie theater property in question in McCandless, PA. It's pretty clear that Pine Creek (highlighted in blue) was hijacked and redirected when Rt. 19 was built. It's also pretty clear that McCandless never gave much thought to prohibiting development on floodplains. The movie theater reportedly flooded up to the fifth row of seats (photo credit: Google Maps). 

But I guess this de-development was too good to be true. Because the story that I initially stumbled upon this week reported on McCandless's leaders getting a case of cold feet at the prospect of paying for additional soil testing to fully characterize the environmental condition of the site.  And I have to acknowledge that most lay people would likely get cold feet when doing the environmental due diligence necessary to consummate a major property acquisition like this one. But if I were a McCandless resident, I would hope that my elected leaders would have consulted with professionals to determine whether pulling the plug on this deal was the best way to allay their concerns, albeit the easiest way. Allow me to give you a very brief overview of environmental due diligence for real estate transactions, and then I'll let you decide if the Town Council jumped the gun.

As part of the purchase of any commercial or industrial property, an environmental site assessment (referred to as a Phase I assessment) would normally be conducted to determine whether there are any physical indications of potential contamination or any public records that might suggest historic operations that may have caused contamination. These sale agreements are usually contingent on the results of the Phase I. If a Phase I turns up any reasons for concern, the buyer generally has two choices: either walk away from the deal completely or perform a Phase II investigation (at the buyer's expense).  A Phase II typically involves collecting confirmatory samples of soil and/or groundwater from locations of concern.  If contamination above state cleanup standards is confirmed, the seller is usually liable for any cleanup costs if both parties want the deal to go through.  If the seller refuses to pay for remediation, the transaction usually dies right there. A good environmental attorney can usually craft a buyer/seller agreement that would become part of the agreement of sale and would lay out target cleanup standards and time schedules for remediation. Or the agreement could even document an agreed upon dollar figure to credit the buyer on the sale price in exchange for the buyer conducting all remediation and thereby absolving the seller of any future liability for the contamination that had been identified. Bottom line is that with two willing parties, a buyer/seller agreement can ensure that the site is cleaned up with no residual liability for the documented contamination for either the buyer or seller. This is a simplified explanation, but it is generally how Pennsylvania's Act 2 Land Recycling program works. In my personal and professional opinion, in Pennsylvania, there is no reason that a willing buyer and a willing seller should ever have a real estate deal collapse over the environmental condition of the subject property.

I don't know exactly what McCandless's Phase I turned up for this site, but I have one idea based on an aerial photo of the site from 1957. In the photo below, I outlined the approximate current property boundaries in red, and Pine Creek is approximately highlighted in blue. The round objects located on the property immediately east of the theater site appear to be large above-ground storage tanks. There are no obvious tanks on the theater site in this photo, but there appears to be a pond, which would have to be man-made based on the geology and topography in this area.  A Phase I would also include a chain of title search and a regulatory database search, both of which are outside of the scope of this blog post (which is now vying for the record of my longest post ever). Although the neighboring storage tanks are shown to have some sort of containment berms around them, containment berms are not foolproof; and it is not likely that these 1950s berms were constructed to current containment standards. If the tank shown to the immediate north of the northeast corner of the theater site had leaked and the berm was breached, the contaminant plume could have migrated to the theater property both over the ground surface and/or below the ground surface. Another question would be whether the former on-site pond was filled in with clean fill or if contaminated fill material was used to level the pond prior to building the movie theater parking lot. So based simply on a quick look at one historical aerial photo of the site, there certainly would be valid reasons to perform confirmatory Phase II sampling. 

This is a 1957 aerial photo of the site which shows some large above-ground storage tanks at the property to the immediate east of the current theater property. This photo shows a pond was present on the theater site in 1957. You know what concerns me the most in this photo?  What municipal officials in their right mind allowed a tank farm to be constructed on a floodplain like this? In the 21st century, this tank farm at this location would be called an "epic planning fail." (photo credit: Pennsylvania Geological Survey).

The recent article indicated that McCandless has spent nearly $40,000 on preliminary soil sampling and associated legal fees.  As an environmental professional, I know that you can install three shallow groundwater monitoring wells and collect and analyze dozens of soil and groundwater samples for under $20,000. I don't know how extensive their Phase II sampling was at this site, but I have to wonder what the legal price tag has been so far. Don't get me wrong, because the legal review is absolutely necessary. However, the cost of legal review is not necessarily indicative of the magnitude of contamination present in the field.  In addition to the environmental due diligence costs, after the $1.25 million sale price for the property,McCandless officials estimated they would incur $400,000 to demolish the theater and its parking lots. Based on my experience with my township's Environmental Advisory Council, I can tell you that Pennsylvania has many grant opportunities for projects like this one, such as the annual Growing Greener grant program. So the out of pocket cost to McCandless to de-develop this land would very likely have been limited to one-half of the total cost after the matching requirement for any available grants. 

I think it's hugely unfortunate that McCandless is foregoing the extremely rare opportunity to de-develop a brownfield into a greenfield. They currently have 33 acres of floodplain paved and impervious, which surely must be exacerbating flooding downstream from this site. The seller would be responsible for the costs of any necessary remediation. The Town simply had to conduct a reasonably thorough characterization of the current soil and groundwater quality and work out an agreement with the seller to ensure that any contamination identified at concentrations above the state's residential cleanup standards is cleaned up to meet those standards.  The Town may even have been able to recover some of those due diligence costs through available grants if they had gone ahead and purchased the land and built the park that was originally proposed. While I certainly do not have all necessary information about the environmental condition of the site to pass judgement on the Town's officials, I have seen enough to have to wonder if they are getting their environmental advice from an environmental professional who has sufficient experience with Pennsylvania's Land Recycling Program (such as myself). 

Cleaning up a contaminated site for future use as a park is not necessarily as easy as cleaning it up for future commercial or industrial use. The residential cleanup standards that must be met for a public park could potentially mean a significantly higher cleanup cost than cleaning up to non-residential standards, in which case the seller might have eventually gotten cold feet. Or the cost differential between meeting residential versus non-residential standards could have been negligible as a percentage of total sale price.  However, I would expect this seller would want to bend over backwards to unload a property that is guaranteed to flood and that, hopefully by now, has zoning limitations on its use due to its location in the 100-year floodplain.

De-development opportunities like this one in McCandless are rare. From my experience, there are very few environmental conditions that cannot be successfully managed when both the buyer and seller of a contaminated property have reasonable expectations and are willing to work together. If I was a McCandless resident, you can bet I would have been making myself heard at their recent Town council meeting.

Political Attack on PA's Riparian Buffers Requires Immediate Action

The Pennsylvania state Senate is poised to vote on a bill that would remove protections for riparian buffers along streams designated as High Quality (HQ) and Exceptional Value (EV).  These are the kinds of streams that support naturally reproducing populations of trout and have the macroinvertibrate diversity to sustain trout populations.

State Rep. Marcia Hahn (R-Northampton)

HB1565 was introduced by Rep. Marcia Hahn (R-Northampton) and approved by the House last month.  The bill is now before the state Senate and could be voted on as early as next Tuesday when the Senate reconvenes after their Columbus Day weekend break.  If passed, the bill would eliminate the requirement for a 150-foot wide riparian buffer between a project involving earth disturbance and an adjacent EV or HQ stream.

“We have seen significant frustrations under the current regulations as businesses, landowners and homebuyers alike have expressed their concerns with the riparian buffer requirements and the negative impacts they have on development and land use in many areas of the Commonwealth,” said Hahn. “Oftentimes, this has been seen as an instance of eminent domain without compensation as landowners could be prevented from using their own property.”

No, Rep. Hahn. This is nothing like eminent domain. What we have now is a regulation that protects environmentally sensitive waters of the Commonwealth and the fish and other organisms living in and around them from irresponsible land uses that would degrade the downstream portions of these streams. A landowner does not have the right to use their property in a manner that poses a real threat of degrading HQ and EV waterways.  For Rep. Hahn to posture this bill as a landowner rights issue ignores the fact that Pennsylvania's natural resources, including its waterways, are “the common property of all the people, including generations yet to come (Article 1, Section 27 of the PA Constitution).”  Therefore, no landowner has the right to conduct activities on their land that can cause sedimentation or contaminants to enter EV or HQ streams.  Other than that, they may use their property in any legal manner they chose.

Earlier this week, HB1565 was amended and voted out in the Senate Environmental Resources & Energy Committee. The amendments, however, could not repair a bill that is fundamentally detrimental to environmentally sensitive waterways. The two amendments did the following:

(1) Clarified that replacement buffers must occur along special protection waters within the same drainage list. This means that buffers could be destroyed in one tributary of a main EV or HQ stream as long as the developer beefs up buffers in a section of another tributary of the same main stream. This is a nonsensical compromise.

(2) Allowed a concession that alternative Best Management Practices can be substituted instead of a buffer as long as the alternatives used are “collectively…substantially equivalent to a riparian buffer…” This amendment essentially recognizes that riparian buffers are the most effective management tool. So then why compromise at all and remove protections for riparian buffers?

Little Lehigh Creek in Lower Macungie Township, PA.
A designated HQ stream (photo by author).

So, Rep. Hahn, please do not frame this bill as a bogus landowners rights battle.  This bill seems like nothing more than an attempt to ingratiate yourself with developers seeking to squeeze a few more units into projects bordering environmentally sensitive streams.  Too bad those developers cannot comprehend that protecting adjacent streams has a positive effect on the value of their finished project.  Who wouldn’t want to live next to a pristine and well-protected stream?

Please email your state senator today and urge them to vote against HB1565 when it comes to a vote. There is not much time left to ensure our headwater streams remain protected with proper riparian buffers.

If you don’t know who your PA state senator is, you can look them up here (http://www.legis.state.pa.us/cfdocs/legis/home/findyourlegislator/index.cfm) and find their email address.  Please do it this weekend.

Climate Change From a Fish-eye View

For those of us who acknowledge that climate change is real and is already happening, we have the advantage of planning ahead to identify actions that we can take on a local scale to alleviate some of the effects we expect to see throughout the rest of our lifetimes. The U.S. Congress and global diplomats certainly have the ability to take much bigger strides to try to mitigate a climatic tailspin by taking action to lessen the amount of carbon dioxide going into the atmosphere. But let’s consider something each of us can do to mitigate some of the CO2 already in the atmosphere. Plant trees.

A shade tree is capable of absorbing and storing as much as 48 pounds of CO2 in one year. In 40 years, a tree can sequester one ton of CO2 (http://www.ncsu.edu/project/treesofstrength/treefact.htm). That’s pretty substantial, especially considering that most large shade trees (non-ornamentals) can live decades beyond 40 years.

I have a feeling that not very many climate deniers are going to be reading this post. But just in case, for their benefit, I’ll point out another important benefit of planting more trees in our communities. Stormwater control. Trees can manage some of the stormwater heading for waterways in two ways. First, they intercept rainfall before it hits the ground. The result is a delay in the rain hitting the ground as it hangs out on the vast surface area of the leaves and bark. Think about how often you’ve walked under a tree after a rain shower and had raindrops fall from the leaves onto your head and shoulders. And more significantly, trees consume huge amounts of stormwater after it hits the ground. A mature oak can consume up to 40,000 gallons per year. Decreased stormwater runoff means less severe flooding. It’s estimated that for every five percent increase in tree cover in a community, the stormwater runoff is decreased by approximately two percent (https://www.americanforests.org). A two percent decrease might not sound like much, but for municipalities trying to meet the requirements of their EPA stormwater discharge permit (Municipal Separate Storm Sewer System, or MS4, permit), every gallon that doesn’t go into the local creek is a welcome reduction. Trees also absorb some of the pollutants picked up by stormwater, keeping them from washing into waterways as well. See, trees have something to offer everyone regardless of their climate beliefs.

So, speaking of trees, my local Trout Unlimited chapter (the Little Lehigh Chapter) last week was awarded a 2014 Coldwater Conservation Implementation Grant from the Coldwater Heritage Partnership. The Coldwater Heritage Partnership’s mission is to provide leadership, coordination, technical assistance, and funding support for the evaluation, conservation and protection of Pennsylvania's coldwater streams. The partners are Pennsylvania Fish and Boat Commission, Pennsylvania Department of Conservation and Natural Resources, Foundation for Pennsylvania Watersheds, and Pennsylvania Council of Trout Unlimited. The chapter will use this $5,172 grant to purchase and plant 76 appropriate shade trees throughout five selected areas along the Little Lehigh Creek in Lower Macungie Township that have significant gaps in the streamside riparian buffer tree canopy. As they mature, these shade trees will help to maintain the naturally cool water temperature in the spring-fed Little Lehigh to help prevent heat stress on the native trout during the summer months.

 

Little Lehigh Creek at Willow Lane in East Texas, PA. 

But this grant award is a win for more than the Little Lehigh’s native trout. As the trees grow, they will be sucking up stormwater runoff heading for the creek along with some of the road salt, fertilizer, oil and grease typical in suburban stormwater runoff. And, by 2054, these 76 trees will have absorbed approximately 76 tons of CO2 from the atmosphere.

Does a Riparian Buffer Belong in a City Park?

Allentown’s Morning Call recently published an Op-Ed piece written by local blogger Michael Molovinsky, who has a passion for preserving historic structures in the city’s renowned Lehigh Parkway. Lehigh Parkway was the beneficiary of a number of Works Progress Administration (WPA) projects during the 1930s, with various massive stone bridges, fountains, walls, and stairs remaining in various states of repair.  So there are plenty of historic structures in Lehigh Parkway for residents to take pride in and care for.  In my mind though, the most prominent feature of Lehigh Parkway is the Little Lehigh Creek, which the Parkway follows for about three miles through the city.

Little Lehigh Creek in Lehigh Parkway
(photo credit:  wikipedia.org)

In his Op-Ed, Molovinsky blasted a riparian buffer restoration project planned for Lehigh Parkway and denigrated the efforts of the Wildlands Conservancy, a local non-profit engaged in ecosystem restoration and preservation.  Wildlands obtained the necessary permits and outside funding to replant riparian buffers along the Little Lehigh in the Parkway. Volunteers from the Little Lehigh Chapter of Trout Unlimited, of which I am a member, will assist with replanting the buffers.

Molovinsky implied that Wildlands is a special interest group trying to hijack Lehigh Parkway for riparian buffer experiments that would compromise the public’s view of and access to the creek. He said that the function of a riparian buffer is to filter fertilizer from rain runoff and from entering the creek and lamented that current streamside buffers are nothing more than strips of weeds that block the view of and access to the creek.  This is a shortsighted accusation, however, because riparian buffer restorations have been proven to improve the health of streams.  A healthy riparian buffer of 50 feet or greater would typically include various native plants, shrubs, and trees. They would absorb stormwater runoff to mitigate flooding, shade the summer sun to keep the spring-fed waters cool, and provide habitat for various insect species that will be a food source for both fish and birds.  A properly restored riparian buffer would indeed be aesthetically pleasing rather than the weedy eyesore envisioned by Molovinsky.

Dog in Lehigh Parkway. Most, but not all, dog owners

clean up after their pooches.

(photo credit:  http://www.delawareandlehigh.org)

The neatly mowed stream banks that Molovinsky idealizes allow sediment and pollutants, including geese and dog feces, unchecked access to the Little Lehigh, which is a drinking water source for the city of Allentown and some of the surrounding areas west of the city.  A drinking water source for well over 140,000 people, and Molovinsky is worried about a riparian buffer impairing the view of the creek?

With designated pathways mowed through the riparian buffers, the public could still access the stream, the buffers could still perform their intended functions, and the diverse ecosystem that thrives in a healthy riparian buffer could re-establish itself.  A healthy riparian buffer begets a healthy stream.

In addition to his Op-Ed stand against riparian buffer restoration, Molovinsky's blog also trashed a related effort by Wildlands Conservancy to remove two dams in Lehigh Parkway. Wildlands had obtained the necessary permits from the Pennsylvania Department of Environmental Protection (PADEP), the state body in charge of dams, to remove these two dams. They had the green light from the city’s parks department to remove these dams, which cause the water to slow down and sediment to build up behind them.  But at the 11^th hour, Molovinsky tried to block removal of one of the dams, located just 18 feet downstream from the WPA-built Robin Hood Bridge, claiming without basis that removal would cause stream-bed scour that would undermine the bridge and cause it to wash out. Just days ago, however, following a public hearing by city council, Allentown’s mayor gave his approval for the dam removals after it became clear that Wildlands had done the proper engineering due diligence to rule out any adverse effects on the Robin Hood bridge from removal of the adjacent dam.  More obsolete dams have been removed in Pennsylvania than in any other state.  Why would PADEP have approved the dam removal if the effects on any nearby structures had not been properly evaluated?

Come on, Michael.  Environmental folks and history buffs need to work together to protect special places from the effects of over-development and urbanization.  We should not be at odds unnecessarily over things like removing detrimental dams and planting protective riparian buffers.

Joggers in Lehigh Parkway (photo credit: Express Times)

Nostalgia is tricky.  It can cause us to myopically yearn for a distant, simpler, and more picturesque time.  But 21^st century scientists and anglers recognize that riparian buffers and dam removals are the key to the health of any stream.  In environmental science, just as in medical science, we are fortunate to have advanced far beyond common practices of the mid-1900s.