On September 4, the Environmental Hearing Board decided a motion in limine in Barron v. Department of Environmental Protection, EHB No. 2011-142-L, that highlights issues presented by the intersection of the bar on pre-enforcement review under, in that case, the Hazardous Sites Cleanup Act (HSCA), Pa. Stat. Ann. tit. 35, §§6020.101 to .1305, and reliance on “institutional controls.” It calls into question the boundaries of what actions ought to be shielded from appeal.

The HSCA is Pennsylvania’s state equivalent of the federal Superfund statute, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§9601-75. In 1986, Congress added Section 113(h) to CERCLA, divesting the federal courts of jurisdiction to review the United States’ (1) selection of a “removal or remedial action” or (2) issuance of an administrative order under CERCLA until the United States takes certain enforcement actions against the person asserting the challenge.

A “remedial action” is a permanent cleanup of a release of a hazardous substance, and a “removal action” is any response to a release that is not a remedial action. So, Section 113(h) bars pre-enforcement review of essentially any response to a release. Further, challenges to “the adequacy of any response action taken or ordered by” the United States are generally decided on the administrative record.

The General Assembly followed suit in 1988 when it adopted the HSCA. Section 508(b) of the HSCA provides:

“Neither the [Environmental Hearing Board] nor a court shall have jurisdiction to review a response action taken by the [Department of Environmental Protection] or ordered by the department under Section 505 until the department files an action to enforce the order or to collect a penalty for violation of such order or to recover its response costs or in an action for contribution under Section 705. In the case of an action to enforce an order of the department, the person receiving such order shall be entitled to challenge said order within 30 days from the date the department moves to enforce its order.”

Section 508(c) limits “a challenge to the selection and adequacy of a remedial action” to “the administrative record.”

These provisions contrast with the general rule under the Environmental Hearing Board Act. Section 4(c) of the EHB Act provides that “no action of the [DEP] adversely affecting a person shall be final as to that person until the person has had an opportunity to appeal the action to the [EHB.]” The board’s rules require the appellant to file its notice of appeal within 30 days after notice of the action of the department.

These provisions of the HSCA also contrast with the rule under the Land Recycling and Environmental Remediation Standards Act (Act 2), Pa. Stat. Ann. tit. 35, §§6026.101 to .908. Under Act 2, most approvals by the DEP of reports and submissions setting out any remediation plan under Act 2 are appealable to the Environmental Hearing Board.

Note also that most appeals to the board are de novo, although to be sure under a deferential standard. (See “De Novo Review in the Environmental Hearing Board,” by David G. Mandelbaum and Sabrina Mizrachi (Pennsylvania Law Weekly, September 27, 2011).) Nevertheless, remedy selections and remedial orders under the HSCA are reviewed on the administrative record.

Most cleanups in Pennsylvania occur under Act 2. Therefore, most cleanup decisions by the department are appealable on a de novo record. However, if the department makes its decision under the HSCA or CERCLA, special insulations apply to those decisions.

The special insulations — the ban on pre-enforcement review and the limitation of review to the administrative record — reflect a sense that hazardous site cleanups ought to occur promptly. Litigation should occur, if at all, after the site is cleaned up.

Since the adoption of CERCLA and the HSCA, however, policy has focused more closely on the ultimate objectives of the cleanup programs. Cleanups make sense because they reduce risk. Risk requires a completed pathway from a hazardous substance in the environment to receptors — like people or wildlife. One can reduce risk by breaking the pathway. Removing or treating the hazardous substance is only one way to do that.

So, for example, hazardous substances buried in soil typically pose very little risk unless they migrate into groundwater and from there into a well, or unless they volatilize into a building. One can try to excavate and to remove them. One can also take steps to keep the contaminants from moving into groundwater, like capping the site to prevent rainwater from infiltrating the soil. If a hazardous substance does get into groundwater, treating the water in a well before allowing anyone to drink it will generally cost less and work better than trying to capture and clean all of the contaminated groundwater in the ground.

Capping, wellhead treatment and similar approaches to breaking the pathway rely on institutional controls to assure that sites remain capped (even with a paved parking lot) or drinking water is treated. Institutional controls include physical structures, like the parking lot, and legal obligations like restrictive covenants not to disturb groundwater or to maintain the pavement. Because they are often quicker, cheaper and more reliably effective than complete cleanup, they are often appropriate. Indeed, they form the basis of a great deal of practice under Act 2.

Barron involves institutional controls. Groundwater under a residential area in Bucks County contains trichloroethylene (TCE), a common industrial solvent. The DEP selected an “interim response” — what would be called a CERCLA “removal” — under which homeowners whose well water contained TCE above a specified concentration were given the option of accepting a drinking water treatment system from the department provided they recorded a restrictive covenant on their property. The covenant prohibited use of the groundwater except after treatment and also prohibited excavation and other disturbance of groundwater. This approach reduced the risk to anyone who accepted the treatment system and to anyone who later occupied the home.

The Barrons had already installed a treatment system on their home. They did not accept the department’s offer, and therefore refused to record a restrictive covenant. The department therefore imposed the restrictive covenant by administrative order under Section 512(a) of the HSCA.

The Barrons appealed. Their principal ground for appeal was that the department ought to have ordered provision of, or itself provided, public water to the affected homes, obviating the restrictive covenant. The Environmental Hearing Board held that challenge was to selection of a remedial action under the HSCA, and was therefore barred by Section 508.

The measures the department ordered did not clean up the groundwater. Instead, they cut off the exposure of the receptors by ordering them not to drink untreated groundwater and to encumber the title of their homes with an obligation never to drink untreated groundwater. It was an order that the victims protect themselves — the opposite of “polluter pays.”

Many contamination problems could be solved this way. Fish and wildlife consumption advisories could be made compulsory. People could be ordered not to drink groundwater, or to swim in a stream, or to use their property in ways that caused exposure. These approaches might even make sense. But one wonders whether it makes sense to bar a person who has been polluted upon from appealing an order directed to him or her under the HSCA.

The only reported appellate court decision addressing Section 508 did not apply it with such strictness.

In Diess v. Pennsylvania Department of Transportation, 935 A.2d 895 (Pa. Commw. Ct. 2007), fly ash had been released and had affected plaintiffs’ homes. They sought to have measures additional to those ordered by the Department of Environmental Protection implemented to address the release. The state filed preliminary objections arguing, among other things, that this amounted to a challenge to the selection of a remedy barred by Section 508 of the HSCA. The Commonwealth Court held that it was not clear whether the remedy selected by the department extended beyond the “slope area,” and held out the possibility that the plaintiffs might be seeking relief for sites as to which no remedial action had been selected.

One wonders whether obligations to maintain institutional controls imposed on people in the Barrons’ position really count as “remedial actions” under the HSCA. Even if they do, one wonders whether the rationale for barring pre-enforcement review applies. When most remedial decisions are, in fact, appealable because they are made under Act 2 and when many remedial decisions depend critically on institutional controls, perhaps Section 508 ought to be revisited. •

David G. Mandelbaum is national co-chair of the environmental practice group of Greenberg Traurig. His principal office is in Philadelphia. He teaches “Oil and Gas Law,” “Environmental Litigation: Superfund” and “Global Climate Change” in rotation at Temple University’s Beasley School of Law, and serves as vice chair of the Pennsylvania Statewide Water Resources Committee. He was educated at Harvard College and Harvard Law School.