UPPER BERN — The administrative process that has temporarily blocked ICE from moving forward with opening two detention centers in Pennsylvania could take years to play out.
The Shapiro administration’s approach to the agency’s plans to convert warehouses into immigrant detention facilities differs from those of several other states, which have filed lawsuits. And it also differs from the way the Department of Environmental Protection has used such orders in the past, according to one expert.
David Hess, former secretary of DEP, told Spotlight PA that he had never seen an administrative order “advise potential project developers in such detail about the requirements they must meet, without them having violated something first.”
“I’ve really never seen an order used in this fashion,” Hess said. “But, clearly, [DEP] thought they needed to do something stronger to bring that point home to the Department of Homeland Security.”
DEP Press Secretary Neil Shader said the basis and authority for a DEP Administrative Order “will be described in an order itself.”
DHS has spent more than $1 billion on 11 warehouses in seven states, including two in Pennsylvania, as part of its “detention reengineering initiative.” Purchases have been paused and contracts scrutinized under new DHS leadership, and work to redevelop the sites has stalled as state and local governments try to halt progress.
In Maryland, where Gettysburg-based defense contractor KVG LLC won the $133 million contract to renovate a warehouse into a detention center, the state’s attorney general has sued. Similarly, state and local governments in Michigan and New Jersey have also filed lawsuits.
Pennsylvania has gone in a different direction. In early March, DEP issued administrative orders to DHS, barring the agency from connecting to water or sewer, as well as occupying the properties in Upper Bern Township, Berks County, and Tremont, Schuylkill County, until it complies with state environmental laws. It issued similar orders to the municipalities themselves.
“Other states may have different levers, may have different laws that these facilities need to comply with, and they pursued a different strategy,” said Hess, who served as secretary of the DEP from 2001 to 2003. “But DEP has to operate within the statutory authority that it's given and determine whether or not Homeland Security has complied with those state laws, because the decisions it makes as an agency need to be defensible within the bounds of those statutes.”
Administrative orders from DEP are a unilateral action, Hess explained, issued when the department wants someone to do something quickly, and setting deadlines to prevent or deal with significant environmental issues. They can also be used when DEP suspects there may be a problem with the violator complying.
“Dozens of orders are issued every year to conventional oil and gas and shale gas well owners to plug wells or take other actions to comply with environmental laws and regulations,” he said. “The Oil and Gas Program is probably where most of the unilateral DEP orders are issued.”
The administrative orders to DHS don’t “block” the project in the sense that DEP would not consider it under any circumstance, he said.
“These orders are different,” he said. “They tell the DHS specifically what laws and regulations they need to comply with and set a deadline to comply. If they can't meet those requirements, then, like any project, they cannot proceed because they did not comply with the law. It's an important distinction.”
Hannah Wiseman, a professor at Penn State Dickinson Law, said “it is longstanding practice for states and local governments to regulate federal facilities for environmental purposes,” citing federal prisons as an example.
“If you look at old facilities operations manuals for federal prisons, it states in those manuals that there must be demonstration of compliance with local, state, and federal permits for issues such as sewage and water,” she said. “So, this is not new in that it has historically been common for state and local governments to regulate federal facilities just like any other facilities within their jurisdiction, and to issue administrative orders if it appears regulations are not being complied with.”
The added strain ICE facilities would put on local water and sewer systems has been a major concern cited by township and state officials since DHS purchased the warehouses.
In Upper Bern Township, officials estimate DHS’ plans for a 1,500-bed processing facility could increase sewage output at the warehouse from 8,000 gallons per day to 100,000 gallons. The township’s treatment plant is designed to treat up to 155,000 gallons daily. The township has no public water system, so homes and businesses rely on wells for potable water.
DHS recently filed an appeal of the DEP’s order with the state’s Environmental Hearing Board, asking it to allow “reasonable use of the water and wastewater systems” at the levels that were previously approved for the prior owners of the warehouses.
Judge Bernard Labuskes Jr. has been assigned to the case, and both parties are now obligated to try to reach a settlement. If there is no settlement, the case could stretch on for months or even years.
“If it's particularly controversial, both sides will be throwing motions back and forth,” Hess said. “It’s not unusual, even for routine cases, to last a year, year and half, or more. So if you have something that’s really contested, it can be a several-year kind of process.”
DEP’s administrative orders remain in effect during the appeals process, unless DHS successfully petitions the Environmental Hearing Board for a supersedeas, which would require a separate hearing. Like an injunction, a supersedeas could temporarily stop the enforceability of all or part of the DEP’s administrative orders while DHS’s appeal is pending, depending on the petition.
Last week, two environmental groups, Delaware Riverkeeper Network and Green Amendments for the Generations, petitioned the Environmental Hearing Board to intervene in the matter.
While Wiseman was not aware of any federal agency walking away from a project because they cannot or will not meet state laws, she said it has happened with other developers.
“If developers encounter too many hurdles from, for example, local land use authorities and state permitting requirements piling on, at some point, they give up because it would just require too much compliance, or because their financing has run out,” she said.
However, financing doesn’t seem to be an issue for the federal government. In July, Congress passed the “One Big Beautiful Bill Act,” allocating ICE $45 billion for the initiative.
“It won’t be a situation where the government is worried about running out of money as it waits for permit compliance, but it's possible it might consider alternative locations, … maybe even in other states, if it feels that constructing a new water treatment center or expanding sewage pumps or facilities would be too onerous,” Wiseman said. “I don’t know. That’s a guess. But it seems that it could at least dissuade the Department of Homeland Security from locating at these proposed sites.”