Posted on May 1, 2008 by Joel Bolstein

An Interview with Troy Conrad on the Future of Act 2

I had the chance to speak today with Troy Conrad, the Director of PADEP's Land Recycling Program.  On the same phone call, I spoke with Jill Gaito (Deputy Secretary, Office of Community Revitalization and Local Government Support) and Tracey Vernon (director of the brownfield action team), but there will be more about those conversations in later posts.

As many of you know, Troy recently replaced Dave Hess, who is now retired.  Since not many people outside the Department know Troy, I asked him to talk about his background.  According to Troy, he started at PADEP in 1993.  At that time, he worked in the Southcentral regional office in Harrisburg in the ECP program, dealing primarily with storage tank facilities and tank owners.  He was working in that program during the time that Act 2 was enacted and the regulations and technical guidance were put together, so he has some perspective on the transition that occurred.  He then moved to the regional water program and worked on permit issues, so he has some background in understanding the integration between permitting and remediation.  He later moved to the Chapter 105 program in Central Office. 

Troy views the move to being director of the Land recylcing Program as a "great opportunity".  One of the things he likes is "the idea of working toward the common goals" of environmental protection and economic development.

I asked Troy if he's encountered any difficulties in taking over the Land Recycling Program.  He pointed to succession planning, which is a common concern to large organizations, but is more pronounced in state government.  There have been many work force retirements at PADEP, and those include senior staff within the Land Recycling program.  Also, when HSCA funding was delayed last year, a number of important positions could not be filled.  Troy is now working on filling those vacancies.  He sees that as vitally important to improving customer service. 

Troy is also interested in building strong and productive relationships with the regional office ECP managers and program staff.  He views the regional ECP managers as his peers.  He wants to better understand the issues that they are dealing with, and he plans to use the quarterly ECP managers meetings as ways to develop consistency, where possible, in state implementation of policies developed as part of the Land Recycling Program. 

I asked Troy whether people in the regulated community are continuing to submit Act 2 questions for Central Office's response and later incorporation on the brownfield webpage.  That process was used frequently by Troy's predecessors (Tom Fidler and Dave Hess) at earlier stages in the development of the Land Recycling program, and later when issues arose concerning the interpretation of the clean fill and vapor intrusion guidances.  The Q&A is still posted on the Department's website and provides very helpful information.  According to Troy, the flow of general questions has dropped off considerably.  He thinks one reason for that is that the Land Recycling program is now a mature program.  He also thinks people are working with the ECP staff in the regional offices who are very helpful and knowledgeable.  He said he thought it was always best to try to resolve day-to-day implementation questions at the regional office level, involving the regional ECP manager, as necessary.    While he's willing to entertain questions about regional inconsistency or improper application of Central Office guidance and policy, he said that the most constructive way of resolving some of the trickier issues is to work with the regional office ECP manager. 

Troy said that "75% of the emails he receives now deal with UECA."  And that's not surprising, since it is the hottest Act 2 topic of the day.  With regard to UECA, Troy said that the Department expects a break in period of about 6 to 12 months.  He expects that the Q&A that was recently rolled out will be expanded as new questions flow into the Department and new answers are developed and posted over the next 8 to 12 weeks.  At some point, the Q&A will be folded into an "interim guidance" that would involve some form of public notice and comment, and ultimately the interim guidance would give way to a rulemaking that resulted in new regulations, as authorized by UECA.  I expect to have a further discussion with Troy on how he sees that process developing and the part that those in the regulated community can play as the process moves forward. 

Troy said that it is his understanding that "UECA was not intended to supplant the substantive aspects of Act 2. "  He's hoping that the actions the Department takes can help alleviate the concerns being expressed and reduce the anxiety level that some people are experiencing over UECA.   With that said, both he and Jill Gaito believe that there are benefits to UECA in terms of strengthening public acceptance of institutional and engineering controls.   As Jill said, "the last thing the Department wants to see is some catastrophic failure" of controls that could lead to a lack of confidence in the Department or in the Land Recycling program, and I share that sentiment.  My concern is that Act 2 needs to continue to be a vehicle that promotes economic development and we need to avoid the situation where the addition of UECA's requirements turns developers away from Pennsylvania brownfield sites (especially sites in urbanized areas with off-site groundwater migration) that would otherwise have been redeveloped under Act 2 in the absence of UECA. 

As noted above, I also had a chance to speak with Jill Gaito and Tracey Vernon.   Jill and Tracey mentioned that Senate Bill 1062, which is modeled after a very successful program in NJ in which remediators can obtain reimbursement of up to 75% of their remediation costs, is now moving through the Senate.  I'm going to follow up on that and speak with the bill's sponsor, Senator Rob Wonderling, and contact the program staff in NJ to get more information.  From what Jill and Tracey were saying, it sounds like it could be a very useful funding mechanism, and new funding would be extremely helpful, because the popularity of ISR funding historically leads to shortfalls, especially leading up to the close of the fiscal year.    

I thank Troy, Jill and Tracey for giving our readers some added insight into what is going on with the Act 2 program.  Here's hoping the program continues to grow and prosper.  It's in good hands. 

  

 

 

 

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Posted on April 23, 2008 by Joel Bolstein

PADEP Posts New Q&A on UECA

Last week, PADEP posted some "frequently asked questions" on the UECA section of its brownfields webpage.  Since that time, I've held my fire, trying to understand what it all means for brownfield redevelopment in Pennsylvania.  As noted in previous postings, I had been contacted by PADEP Deputy Secretary Jill Gaito, prior to the PBI Environmental Law Forum, who told me that the Department was working on the Q&A and would be posting it shortly on its website.   Louise Thompson, who spoke on behalf of PADEP at the Forum on the Act 2 Update panel, gave a preview of the Q&A in her presentation.  (Incidentally, in recognition of her outstanding service to the Commonwealth and her retirement from the position as SE Regional Counsel, Louise received a well-deserved standing ovation both after the Act 2 panel discussion and the first day lunch.  She has since been replaced by Martha Blasberg.  I wish Louise well in her retirement and offer my congratulations to Martha on being selected as Regional Counsel.  She'll have very big shoes to fill.)  Now the Q&A is on the Department's website for everyone to see, and presumably, the Department's staff will be using the Q&A to guide their decisions absent further instructions from Central Office.

I've now had a chance to digest the Q&A and here is what I think of all of this.  I very much appreciate the Department's attempt to think through the issues.  I take Deputy Secretary Gaito at her word that the Department's interpretation of UECA will not substantive change the manner in which it implements Act 2.  With that said, I still don't like the fact that the Department is doing this all behind closed doors.  The manner in which it interprets UECA will have a lasting effect on the Land Recycling Program.  I continue to believe that everything should be done out in the open and in accordance with the Department's Policy on Policy Development.   The Department has, for years, provided Q&A on its website as it relates to Act 2 and the Land Recycling Program.  But that Q&A is a further interpretation of the regulations that were adopted after a year of public comments, and the technical guidance manual, which was adopted after substantial public input from the CSSAB and others.   My understanding is that the Department felt some pressure to roll out the UECA Q&A in order to get something out there and that it does intend to follow-up by seeking public input on its interpretation of UECA.  The problem is that once something gets put on the website in the form of Q&A it has a tendency to develop a life of its own, and it becomes policy even in the absence of any public input or comment.  I'm hoping this Q&A is merely the first step in a process that will ultimately lead to some technical guidance that considers the broader implications of the UECA/Act 2 interface on brownfields redevelopment in the Commonwealth.

In terms of the specifics, I've focused most of my attention on what the Q&A means for a remediator seeking to attain the Site Specific Standard at a site where there is off-site migration but everyone is using public water.  The concern has been that, in those circumstances, the Department would say that UECA requires covenants on all downgradient properties above the plume, and that would effectively destroy the ability to use the Site Specific Standard in these circumstances, or at least provide a serious enough disincentive that developers would avoid such sites.   According to the Q&A, the Department will require remediators in those circumstances to either get covenants on all the downgradient properties OR show that a municipal ordinance exists that prevents the use of groundwater and meets other specific criteria (which may be difficult to meet) OR agree to a Post Remediation Care Plan (PRCP) that would, in perpetuity, require the site owner to verify the continued nonuse of groundwater on the downgradient properties in accordance with 250.303(d)(3).  In most of these instances, the way out would appear to be agreeing to the PRCP.  But is that really necessary to comply with Act 2?  My answer is no.  250.303(d)(3) is a regulatory section that has specific applicability to remediation projects undertaken pursuant to the Statewide Health Standard.  It was not intended to be applied by the Department to projects using the Site Specific Standard.  In the instance of a Site Specific cleanup, you can implement a remediation at a site by using pathway elimination which "eliminates all current and probable future exposure pathways", under 250.606.  Moreover, under 250.410(d), a cleanup plan is not required and no remedy is required to be proposed or completed "if no current or future exposure pathways exist."  When you implement a pathway elimination remedy, there is no "standard" (some number between 1 in 10,000 and 1 in 1,000,000 cancer risk) developed for the substances found at the site.  No numerical standard needs to be developed for any substances because you are using pathway elimination.   In essence, the Department is now telling people who want to use a Site Specific Standard/pathway elimination remedy that 250.404 and 250.410 are no longer applicable because of UECA.  Now, you'll be forced to to use 250.303 to implement that Site Specific/pathway elimination remedy, even though 250.303 was never intended to be used in the case of Site Specific cleanups.  Worse still, the Department is apparently now saying (Q&A answer 6) that if you've received a non-use aquifer determination under 250.303, now you'll be required to verify that determination year after year, in perpetuity, absent a conforming municipal ordinance.   I'm sure that will come as very unwelcome news to those who received non-use aquifer determinations previously and will need to convert to covenants under UECA within 5 years. 

In my mind, some of this is overkill and is not required by either Act 2 or UECA.  The perpetual reassessment on the future use of groundwater is a significant and profound change in how Act 2 has been implemented, and it very well may will have a chilling effect on brownfield remediation projects in Pennsylvania.   Let's hope the Department is open to further discussion on this subject.  For now, it's provided several options for avoiding the need to obtain covenants on downgradient, off-site properties.   Those options are welcome but ultimately unsatisfying.   Perpetual groundwater reassessments have never been required before and they don't make sense for Site Specific/pathway elimination remedies.  There must be a better way, and I encourage the Department to work with interested parties to develop other options.

                 

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Posted on April 11, 2008 by Joel Bolstein

Act 2 Update at PBI Forum Addresses UECA

Those hoping to gain some new insight into PADEP's interpretation of UECA during the annual PBI Environmental Law Forum were given just a small glimpse during the Act 2 Update, which included Louise Thompson, the Regional Counsel in the SE Regional Office, and Terry Bossert, the former PADEP Chief Counsel.  Louise Thompson did a good job of summarizing the information that is currently on the Department's website (the 2 page summary, model covenant and model notice letter), and she informed the standing room only audience that there is a Q & A list being prepared by Central Office that will be based, in part, on questions already being submitted by environmental lawyers and consultants.  She urged the attendees to "keep the cards and letters coming."   For those not able to attend, here are some of the more significant comments made by Louise Thompson:

  • While compliance reporting (section 7 of the model covenant) was made optional under UECA, it is likely to be required in almost all environmental covenants.
  • PADEP does not want to be a "holder" of an environmental covenant.  As a holder, PADEP would hold a property interest, and it takes an Act of the General Assembly for the Commonwealth to give or accept a property interest.  This has also turned out to be a real problem for PENNDot with regard to its compliance with UECA, and PADEP is trying to work through that.  
  • PADEP would like remediators to submit draft environmental covenants at some point in the Act 2 process well before the Final Report is submitted, most likely with the Cleanup Plan or the site characterization report. 
  • There is no petroleum exemption under UECA.
  • PADEP will not be notifying developers/remediators of sites that have deed restrictions that need to be converted to environmental covenants.  
  • With regard to Site Specific Sites with off-site migration, the Department has not decided that environmental covenants will be required on all downgradient properties.  At this point, the Department is considering various options and alternatives, including some that focus on municipal or county ordinances (like those in Bucks and Montgomery Counties that regulate well drilling), and some that would impose post remedial care requirements to ensure that wells haven't been drilled on downgradient properties.

Terry Bossert, who was involved in the behind the scenes legislative work during the discussion and passage of UECA by the General Assembly,  made the following points during his presentation:

  • UECA does not amend Act 2, and it was not intended to have a substantive effect on Act 2.
  • UECA should more properly be referred to as ECA, because PA tinkered with the model Act, as did many of the other states that enacted it.
  • There was a reason why many of the provisions in UECA were made optional.  When the statute says that something is optional, it means it has to be agreed to by the persons who sign the environmental covenant.  That would appear to indicate that the grantor has the power to decide whether one of the optional provisions should go in the covenant.  With that said, there is also language in the Act that says PADEP has the ability to impose conditions as part of its review and approval of the covenant.  So if the grantor refuses to agree to one of the optional requirements, PADEP could invoke its authority and impose that condition.  The question in many instances will be whether it's worth fighting with the Department over the inclusion of one of the optional provisions in the covenant.
  • The obligation to convert a deed restriction to a covenant applies only if the activity and use limitations were necessary to attain an Act 2 standard.  If the owner placed a limitation on the use of the property for other reasons, then it would not need to be converted. If, for example, the owner wrote into the deed a restriction against using the groundwater, but that condition wasn't needed for Act 2 protection (e.g., you met the statewide health standard but had some contamination in the interior of the property), then that restriction would not need to be converted to a covenant.

There was also some lively Q&A from the audience at the Act 2 update on UECA.  It was also a hot topic of conversations out in the hallways.  I made sure to tell people about my recent conversation with Deputy Secretary Gaito (see my most recent blog entry prior to the Forum) in which she agreed with Terry Bossert that UECA was not intended to have a substantive impact on Act 2 and the manner in which PADEP has handled Act 2 remediations over the last 13 years.

It is obvious that there are lots of opinions about UECA both inside and outside the Department.  Additional comfort, guidance and direction is needed from Central Office, and the sooner the better.       

 

 

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Posted on April 7, 2008 by Joel Bolstein

Deputy Secretary Gaito Says "No Backsliding" on UECA

Earlier today, Jill Gaito, PADEP's Deputy Secretary for Revitalization and Local Government Support, reached out to me regarding the Department's implementation of UECA.   According to Deputy Secretary Gaito, she intends to ensure that the Department's implementation of UECA does not result in a dramatic change to the Act 2 program.  She is appealing for calm while the Department puts together additional information for the regulated community.  She boldly stated that the "Land Recycling Program will not backslide on her watch."  She further instructed that anyone who has questions regarding the Department's implementation of UECA should direct their inquiries to Troy Conrad, the Director of the Land Recycling Program in Central Office. 

I very much appreciated the call from Deputy Secretary Gaito.  It's clear that she has heard the concerns being expressed by those who are invested in the success of the Act 2 program, and she is taking those concerns very seriously.   It sounds like more information may be coming out of the Department later this week or early next week.   Until then, we should all take a deep breath.  The sky is not falling.              

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Posted on April 7, 2008 by Joel Bolstein

Unintended Consquences of UECA

In my continuing efforts to understand the potential impact of the Uniform Environmental Covenenats Act (UECA) on brownfields redevelopment in Pennsylvania, I have now spoken with a former PADEP Chief Counsel who was involved in Pennsylvania's enactment of the Act.  He said that UECA was never intended to be "a substantive environmental remediation bill."  Moreover, it was never intended to change anything required by Act 2.  The Act was intended to standardize deed notices and provide a uniform way to do that.  It would appear that steps being taken now to implement UECA at PADEP could lead to the worst kind of unintended consequences, more specifically, making the Site Specific Standard useless for any site where groundwater contamination migrates beyond the property boundary.  I'm told that there was never any discussion regarding off-site migration during the legislative debate.

I urge everyone to read the comment just posted on this blog by Gary Brown from RT Environmental.  Gary stated: 

"Implementation of this policy change without prior public and legislative input is inappropriate on DEP's part and undercuts the statements of DEP's top officials and the Governor that they are in favor of remediation and redevelopment in the Commonwealth. PA MUST NOT REPEAT THE MISTAKES OF OTHER STATES." 

Gary is right on.   The most sensible thing the Department can do at this point is to prepare a draft policy or guidance on its proposed implementation of the UECA and roll it out for public review and comment.   That is the only way for the Department to fully understand all of the potential consequences.       

In speaking with other environmental attorneys who work on Act 2 projects, I'm already hearing that some of them may advise their clients to avoid going through Act 2 if the Department requires covenants from downgradient property owners.  Surely that is not what the Department wants.   For years, the Department has been trying to get as many sites as possible into the Act 2 process.

I'm also told that the remediator that potentially has the most to lose if covenants are required from downgradient property owners is the Pennsylvania Department of Transportation.  PennDOT apparently makes extensive use of the Site Specific Standard in its acquisition of properties for road construction and its own site remediation work.  It would be ironic indeed if PADEP's implementation of UECA ended up costing the Commonwealth millions of dollars and delaying road construction projects across the Commonwealth.  Presumably PADEP is seeking input from PennDOT and other affected state agencies before it prepares any policy or guidance.   Maybe a cost-benefit analysis would be in order before any final policy or guidance is adopted.

I encourage others to weigh in on this important Act 2 policy issue.   

 

 

     

 

       

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Posted on April 1, 2008 by Joel Bolstein

UECA's Impact on Site Specific Cleanups

Does the Uniform Environmental Covenants Act (UECA) recently signed into law by Governor Rendell require that environmental covenants be recorded on adjacent properties when the remediator seeks to attain the Site Specific Standard on a property where groundwater contamination is migrating off-site?  That, my friends, is a very real issue that is being hotly debated.  You can read all of the information posted on PADEP's website regarding the UECA and not find the answer to that question.  Yet, it may be the most significant issue arising under the UECA and how the Department answers that question may very well determine the continued use and viability of the Site Specific Standard at sites involving off-site migration.  

The way it works now, and has worked for the last eleven years, a remediator can demonstrate attainment of the Site Specific Standard at a site with groundwater contamination migrating off-site by doing a fate and transport analysis and showing that there is no impact on drinking water or surface water and demonstrating that vapor intrusion is not an issue.  The remediator in that case would, after completion of the attainment sampling, publish a notice of the remediation in the local newspaper and submit the Final Report for review and approval to PADEP.  In addition, under Act 2, the remediator would record a deed restriction stating that the groundwater on his or her property should not be used for drinking water purposes.  Such notice would be recorded only on the property being remediated. 

Here is a hypothetical showing how this issue may arise.  Let's say you are a developer looking to purchase a shopping center that has, among other things, a dry cleaner.  You decide you want to do some soil and groundwater sampling to determine if there is any contamination.  You find that there is PCE in the groundwater at the property.  You determine that the shopping center and all properties surrounding it are on public water and there are no drinking water wells.  You also determine that there is a local ordinance prohibiting the installation of any new drinking water wells.  Your consultant takes two rounds of samples and does a fate and transport analysis and determines that while PCE in the groundwater is migrating off-site, it isn't impacting any drinking water wells or surface water.  Your consultant also determines that the PCE levels are below the threshold of the vapor screen so there is no vapor intrusion issue.  Now your due diligence period is about to expire, and you, as a buyer, need to decide whether or not you want to proceed with the transaction.  You ask your consultant to give you a scope of work and cost estimate to complete the Act 2 process and get a release of liability.  Your consultant says that you will need to do 8 quarters of groundwater samples and then file a Final Report under the Site Specific Standard.  Now you remember that one of your lawyers mentioned that Pennsylvania recently adopted the Uniform Environmental Covenants Act and that you heard that in order to get an Act 2 release in this situation you might have to get the owners of the adjacent properties to agree to place environmental covenants on their properties because the plume has moved off-site.  You worry if that is true you could get to the end of the process and any one of those adjacent property owners could say no and prevent you from getting your Act 2 Final report approved using the Site Specific Standard.  Is that a real concern?

From what I have been hearing, it sounds like it is.  The alternatives to using the Site Specific Standard in that hypothetical are not very good.  You could install a treatment system or use some treatment technology to try to get to the statewide health standard for PCE, which would probably be so expensive it would kill the deal. (It also would be unnecessary given that there is no risk to public health or the environment).  You could also go ahead and try to buy the property without getting an Act 2 release, but your lender may require that you agree to get the Act 2 release as a condition to obtaining financing.  You had big plans for upgrading and expanding that aging shopping center, but maybe it just isn't a good deal anymore.

How the Department interprets the UECA will effect not just future deals, but past deals as well that involved using the Site Specific Standard.  What about the developer that bought that shopping center a few years ago and now is being told that he or she needs to convert the deed restriction that was imposed on the shopping center property into an environmental covenant?  Will that person have to go to those adjacent property owners whose properties sit above the plume and ask for permission to put environmental covenants in the deeds for those properties?   If those adjacent property owners refuse, would the Department require the shopping center owner to remediate to the statewide health standard or lose the Act 2 protection to a reopener?  It's hard to believe that the drafters of the UECA would have intended a result that could have such a chilling effect on brownfield transactions and the use of the Site Specific Standard under Act 2. 

One of my fears is that the wrong interpretation of the UECA may lead people away from brownfield properties, especially those in highly urbanized areas.  How would anyone be able to gather environmental covenants on all the adjacent properties effected by groundwater contamination at a property in the middle of Philadelphia or Pittsburgh?  Why would anyone even want to get involved with such a project with that level of uncertainty? Some of those sites may qualify as non-use aquifers, but many others will need the flexibility afforded by the Site Specific Standard.  If you remove that flexibility, developers of properties in those urban areas will look elsewhere, most likely to greenfield sites in suburban areas, leaving those brownfield sites blighted and unreclaimed, and for no good reason.      

PADEP has not yet released any written guidance on how it will enforce the UECA beyond a short summary and a model covenant on its website.  Nevertheless, I have heard from several consultants that Department staff in the tanks program has told people that in order to demonstrate attainment of the Site Specific Standard on a site with groundwater contamination migrating off site, you will need to obtain environmental covenants from each and every property owner whose property is above the plume of contamination.  Because such an interpretation would result in a significant and material change to how Act 2 cleanups have been conducted in the Commonwealth since the Act 2 regulations were first adopted in 1997, I would hope that the Department would handle this like any other new policy and seek public comment before moving in that direction.  This is a matter of great significance for the Act 2 program.  Accordingly, the Department should follow its policy on policy development and prepare a draft policy for public review and comment, obtain public comment from all affected parties and stakeholders, and then release final guidance after due deliberation. 

The Act 2 program is one of the most successful environmental programs in the history of the Commonwealth.  For many years, the redevelopment of brownfield sites has been the engine driving economic development in the Commonwealth.  At this point, it is unclear where PADEP ultimately will come out on this.  The annual Environmental Law Forum is next week in Harrisburg and I am sure this issue will be discussed.  If the Department's representatives provide any further guidance on the subject at the Forum, I will let you know. 

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Posted on March 12, 2008 by Joel Bolstein

First Experience with UECA

The following is a faithful narrative of my first on the ground experience with the Uniform Environmental Covenants Act.   For the last ten years, I have served as the outside Environmental Solicitor to the Redevelopment Authority (RDA) of the County of Bucks.  In 2006, the RDA was working with a developer to reclaim an abandoned building in the lower end of Bucks County and convert it into residential condominiums.   As a means to facilitate that transaction, the RDA and the developer entered into a Special Industrial Area Agreement with PADEP.  The SIA Agreement required conducting some removal work (which was done with a PADCED remediation grant) and recording a deed restriction to maintain an asphalt/concrete cap over some contaminated soil and to prohibit the use of the groundwater for drinking water purposes.  The deed restriction was placed in the deed that was conveyed from the RDA to the developer and it was recorded in December 2006.  After the remediation work was completed, the RDA sent a Completion Report to PADEP, as required under the terms of the SIA Agreement. 

My thought was that since the deed restriction was recorded prior to the effective date of the UECA (February 19, 2008), the RDA would have until December 2011 to convert the deed restriction into a covenant, as required by Section 6517(b).  The Department's position was that an environmental covenant would have to be filed now, in conjunction with the Completion Report.  I questioned that, by noting that the activity and use restriction that would be included in the covenant would be identical to the restrictions set forth in the previously recorded deed.  I also noted that this wasn't a situation where someone was filing an Act 2 Final report.  With an SIA, the Agreement conveys the liability protection and it is conditioned on the completion of the work.  I further noted that all of the work had been completed prior to the effective date of the UECA, including meeting the requirement in the SIA to record a deed restriction. 

The Department respectfully disagreed and said that in their view, approval of the Completion Report was necessary to demonstrate attainment, and under section 6517(a) of the UECA, engineering and institutional controls needed to demonstrate attainment after the effective date of the UECA must be in the form of an environmental covenant.   I could see their side and agreed to prepare and submit a draft environmental covenant.  For its part, and given the friendly nature of our disagreement, the Department said it would approve the Completion Report, on condition that an environmental covenant be submitted within sixty days.  Given the nature of the transaction, that seemed very reasonable. 

The moral of the story is that deed notices submitted prior to the effective date of the UECA will need to be converted into covenants if there is an attainment demonstration for that property that postdates the UECA.  It's hard to say how many sites this will effect, but you need to take it into consideration.  Just because you filed a deed notice prior to the UECA doesn't mean you have 5 years to convert it.    

        

 
  

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Posted on February 12, 2008 by Joel Bolstein

PADEP Implementation of Uniform Environmental Covenants Act

Earlier today, PADEP sent information regarding its implementation of the Uniform Environmental Covenants Act (Act 68) to the people on the Land Recycling program's email list.  The information includes PADEP's overview of the UECA, a model environmental covenant, and a model notice of environmental covenant. 

Having read through the materials, here are the highlights:

  • When an environmental covenant is required as part of a site remediation project, the Department will expect the remediator to draft up the covenant and submit the draft prior to the Act 2 Final report or Storage Tank Act Remedial Completion Report.  The suggestion is to submit the draft covenant with the Cleanup Plan that is submitted under the Act 2 Site Specific Standard or the Remedial Action Plan for a tank remediation under Chapter 245.  Presumably if the covenant is an institutional control required under the non-residential statewide health standard (such as a deed notice that says the property cannot be used for residential purposes), then the remediator can submit that with the Final Report because no cleanup plan is required.
  • PADEP says that remediators can request that the Department waive the need for a covenant, and that such waivers will be granted only in limited circumstances.  I'm not sure when a remediator would need to seek a waiver, but it is good to know that the Department recognizes that it has that discretion.
  • The Department wants the remediator to submit at least 2 copies of the proposed covenant.  The copies should be signed by all parties except PADEP and submitted to the regional office with the Act 2 Final Report or the Remedial Action Completion Report.   Presumably, if the remediation is done pursuant to a Special Industrial Area Agreement(where there is generally no Final Report or RACR filed), the covenant should probably be submitted with the draft SIA Agreement and agreed upon at that time.  
  • The covenant will be reviewed by both the program and legal staff and it will be signed by the regional ECP manager at the same time that he/she sends out the final report approval letter.
  • The Department is working to put together the PA Environmental Covenant Registry that is required by the Act.  That is a work in process and for now, the Department will be posting a listing of covenants on its website.
  • The model Environmental Covenant posted on PADEP's website is a fill in the blanks type document similar to the model Buyer/Seller Agreement that has instructions provided within the model itself.  It appears that considerably more information is necessary than the standard deed notice used up until now.  For example, Section 4 of the model covenant, which requires a description of the contamination and the remedy, appears to require a listing of all documents ("any administrative record for the environmental response project").  An administrative record is a term generally used to refer to a HSCA or CERCLA administrative record and maybe that is how it is intended to be used here.  It is unclear whether PADEP expects an Act 2 voluntary remediator, for example, to include in this description a listing of every document submitted to PADEP as part of the remediation project.  Presumably, it will be sufficient to identify the Final Report, which references all of the other documents generated and relied upon for the remediation.  
  • Section 7 of the model covenant contains the most troublesome provision.  It imposes a compliance reporting obligation when an engineering or institutional control is used.  The example used in the model requires that the Owner of the property submit to PADEP and any holder of the covenant at fixed intervals, such as every January or every third January, "written documentation stating whether or not the activity and use limitations in this Environmental Covenant are being abided by."    That type of obligation, until now, has typically only been imposed in HSCA or CERCLA consent decrees that impose annual reporting or five year type reporting obligations.  It looks like going forward, property owners are going to need to be responsible for submitting written certifications that the covenant is being complied with, and that obligation will continue for as long as the covenant is in place (which in most instances is in perpetuity).    This responsibility is a new one and property owners will need to get used to it.  Providing these certifications will need to be scheduled just like other continuing obligations imposed on a property owner, like paying taxes.   One problem I see is the disconnect between property owners and their environmental consultants.  Typically, the environmental consultant does all of the work and files the Act 2 final report for the property owner.  Once it it approved and the property owner receives the letter from the PADEP approving the report, the consultant's work typically ends and the property owner assumes no further work is required.  Now, property owners will need to be given explicit instructions by their outside environmental counsel or consultants to identify all continuing obligations, and it will then be the property owner's responsibility to comply with those future reporting obligations.  Another point is that it is unclear from the model language who at PADEP should be the addressee for the written documentation that will need to be provided by the property owner.  Presumably, it will be sent to the regional office and hopefully end up in the correct file.  My last point regarding Section 7 is that it appears to require that documentation be submitted to PADEP every time "any site work affecting the contamination on the property" is "proposed".  That would seem to impose a very heavy burden on property owners where contamination is left in place under a cap.  For example, will the Department expect the property owner to submit copies of proposals for replacing utilities, such as stormwater pipes, on properties that have contamination under a concrete or asphalt cap before such work is undertaken?  If such proposals have to be submitted to the Department, do you have to wait for approval prior to conducting the work?  Who would review the proposal?  What would the review time be for the Department? In the past, no such prior approval would be necessary but the property owner would be expected to maintain and/or replace the cap to maintain its Act 2 liability protection.  This obligation will need to be clarified by the Department.  I'm not sure that anyone expected this type of an obligation to be imposed by the UECA.    

I urge everyone to take a very close look at the model covenant language.  I will keep you all posted regarding any new information provided by PADEP and any experiences that I or any of my colleagues have with the new PA UECA after its effective date later this month.                  

 

 

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Posted on February 1, 2008 by Joel Bolstein

PADEP Planning Outreach on UECA

Based on the comments that I received, it looks like lots of people are interested in finding out how PADEP plans to implement the Uniform Environmental Covenants Act (UECA), which takes effect on February 16, 2008.  In a recent exchange of emails that I had with Jill Gaito, PADEP's Deputy Secretary for Community Revitalization and Local Government Support, it sounds like our questions will soon be answered.  Deputy Secretary Gaito is in charge of an internal workgroup that is developing guidance and a standard covenant document.  Her workgroup is finalizing internal protocols and policies and is shooting to get something out publicly in early February.  She also said the Department is planning a public roll-out for the new guidance to explain the implementation of the UECA and to gather information and answer questions.     

Everyone who is involved with brownfields redevelopment should be closely watching the Department's website for announcements on the UECA.  As of this morning, I didn't see any information, but as soon as something comes out, I will provide an update. 

While the Department's information and roll-out will undoubtedly be helpful in understanding what will need to be filed and how the UECA will effect Act 2 and Storage Tank Act sites, I would expect that there will be other conferences and seminars developed to address the myriad of issues raised by the implementation of the UECA.  The most positive aspect of the UECA is that it legitimizes the use of engineering and institutional controls at sites in Pennsylvania.  Skeptics have questioned the reliability of these remedies.  With the UECA in place, that skepticism should be lifted, inasmuch as the engineering and institutional controls will no longer be hidden in deeds but will be in an electronic state registry, and the controls will be enforceable.    

On another note, Deputy Secretary Gaito told me that the Department appointed Troy Conrad as the new director of the Land Recycling Program.  Troy comes out of the Bureau of Watershed Management.   My best wishes go to Troy.  He'll be taking the reigns of a highly successful and mature program.  He'll also have some very big shoes to fill, following in the footsteps of Dave Hess and Tom Fidler who were both integral players in the development and implementation of PADEP's award winning program.       

  

 

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Posted on January 18, 2008 by Joel Bolstein

Lancaster gets Non-Use Aquifer Designation

As reported in the Lancaster Sunday Times earlier this week, PADEP recently granted the City of Lancaster's request for a non-use aquifer designation.  I didn't see any mention of that on the PADEP website, but it sometimes takes some time before a non-use aquifer designation makes it onto the running list that is kept on the website. 

If you have an Act 2  project in the City of Lancaster, you can now thank City officials for making it a little easier to attain the Statewide Health Standard under Act 2.  Both the groundwater MSC and the soil-to-groundwater pathway numeric values are increased significantly when you are within a non-use aquifer.  The rationale is that since no one is using the groundwater as a source of drinking water, you shouldn't have to remediate the groundwater to a level that would make it safe for human consumption.   You still have to do the required site characterization and attainment sampling, but the actual numbers in the chart that you have to meet are several orders of magnitude higher. 

At the outset of Act 2, it was much easier to get a non-use aquifer designation than it is today.  Early on in the process, it was much more intuitive.  Now, there are forms you have to fill out  and you need to satisfy the requirements set forth in the Act 2 Technical Guidance Manual starting on pages II-32.    I've had recent instances where, for example, I was working on a site that was just down the road from a site that had already received a non-use aquifer designation.  I contacted PADEP and said "hey, there is an Act 2 site that is two doors down the road from my project and it's a non-use aquifer, can't I just get a letter saying that my site is in the same non-use aquifer?"  The answer years ago might have been "sure, we'll send you out the letter."  Now, the answer is you have to go through the process of designating your specific site as a non-use aquifer by doing the site characterization work and the fate and transport analysis and everything else that you have to do, even if the site next door is a non-use aquifer.  From a purely scientific standpoint, I don't see how you could have one property that is considered to be within a non-use aquifer and have another site just down the street that isn't part of the same non-use aquifer.  When we were putting together the Act 2 regulations, we wrestled with the idea of defining areas of the Commonwealth where the water was or was not part of an "aquifer."  Ultimately, the technical staff convinced us that the entire Commonwealth was really just one big interconnected aquifer (except for the Wissihickon Schist).  In any event, there is a process that you have to go through now to get the designation, even if you have another non-use aquifer site next door, and it isn't as simple as asking for a letter.

The beauty of the Lancaster situation is that the designation covers the entire City.  The City must have followed the process in the regulations for certifying the entire geographic area as part of a non-use aquifer.   In the article that I read, Kathy Horvath from the ECP program in the Southcentral  Regional Office was quoted as saying that the Department recognized that "you're never going to bring [the groundwater] up to pre-industrial standards" in a City like Lancaster.  I've always known Kathy Horvath to take a very common sense, practical approach toward Act 2 remediation projects.  That is the right approach for those that continue to see Act 2 as helping to drive the economic engine of the Commonwealth.    

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