Pennsylvania Environmental Law & Brownfields Lawyer & Attorney : Fox Rothschild Law Firm : Philadelphia PA

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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Well, it took a long time, but Pennsylvania has now adopted the Uniform Environmental Covenants Act (UECA).  The Act was signed on December 18, 2007 by Governor Rendell and it will be effective on February 16, 2008, so you need to be ready.

Right off the bat, I'll say that everyone who deals with brownfield properties in Pennsylvania -- lawyers, consultants, developers, municipalities -- needs to understand that this Act fundamentally changes the manner in which institutional and engineering controls will be handled in the Commonwealth.  Up until now, when a property has environmental contamination and a deed notice or deed restriction is required under Pennsylvania law (for example, by the Solid Waste Management Act or the Hazardous Sites Cleanup Act), a notice or restriction would have to be placed in the deed at the time of conveyance.  Under certain statutes (Act 2, Storage Tank Act), the deed notice or deed restriction would be included in the deed in conjunction with the remediation.  The deed notice or deed restriction generally described the contamination, identified the location on the property, and also noted whether there were any limitations on the future use of the property.  For example, the deed notice could state that the groundwater at the property was contaminated with TCE, that the PADEP had approved a final report that demonstrated that the property had attained the Site Specific Standard under PA's Land Recycling Act, and that the groundwater was not to be used for drinking water purposes unless the residential statewide health standard was attained in the future.  That language placed in the deed was all that was required to be a valid institutional control and acceptable under PA law.   That is no longer the case.

I'm not going to summarize every provision in the Act.   My goal is to make you aware of the most significant changes brought about by the adoption of the Uniform Environmental Covenants Act.   Here are the most significant points as I see them: 

1. Instead of preparing a deed notice or deed restriction and putting it in the deed, you will now have to draft an environmental covenant and get it approved by PADEP.   A covenant will be required for any remediation done under a federal or state program governing environmental remediation of property, specifically including remediation done under Act 2 and the PA Storage Tank Act.    PADEP will actually have to sign the covenant (but it would be deemed approved if PADEP doesn't sign it within 90 days of receipt).
2. A copy of the environmental covenant will need to be provided to all persons owning or occupying the property and who have a recorded interest in the property.  A copy of the covenant also needs to be sent to each political subdivision in which the property is located.   It has to be recorded in every county in which a portion of the property subject to the environmental covenant is located.
3. The environmental covenant is perpetual, unless certain conditions are met that allow it to be terminated. 
4. A civil action can be brought for injunctive or other equitable relief to enforce an environmental covenant.
5. PADEP and the political subdivision in which the real property is located both have the right to sue to enforce the environmental covenant.
6. The Act requires PADEP to establish and maintain a registry for all of the environmental covenants, and people can reference the availability of the covenant in the registry when preparing deed notices. 
7. Going forward, every cleanup under Act 2 and the PA Storage Tank Act that uses engineering and institutional controls to attain one of the standards, will need to have an environmental covenant.
8. All deed notice and deed restrictions that are currently in place that establish activity and use limitations (for all practical purposes any engineering and institutional controls) will need to be converted to an environmental covenant within 60 months of the Effective Date (by February 16, 2013).  

I told you this would mean big changes.  It will no longer be business as usual when it comes to engineering and institutional controls.  The biggest change is that PADEP will now be reviewing,  approving and signing the actual document that imposes the institutional and engineering controls.  While PADEP did review and approve proposed deed notice language, in reviewing and approving final reports, they never signed the instrument that was recorded.   We'll have to see how PADEP handles that new administrative responsibility.  For example, who on PADEP's staff will be responsible for reviewing and signing the covenant?  Will it be the project manager, the program manager, or an attorney?  Will they be reviewed and signed at the regional level or will all the covenants be reviewed and signed in Central Office?  None of those things are spelled out in the Act, but it does give the EQB the authority to develop regulations for the proper performance of the work of the Department.   Clearly, the question is whether the Department has the resources necessary to review all of the covenants that could be filed under the Act.  The second biggest change is giving PADEP and the municipality the right to enforce the covenants.  There has always been concern that there was little anyone could do if institutional and engineering controls weren't being followed.  For example, if a final report was approved with an engineering control that said a fence was to be placed around a waste area or an asphalt cap had to be maintained on top of some remaining contamination, there was very little that was being done to police those things.  Now, I could see the Department or the municipality going back to sites and bringing action to enforce the covenants, and remediators have to understand that is exactly what is contemplated by the statute.  It's possible that the Department might decide to perform routine, random audits of the covenants and take action based on those results.  One thing they need to avoid is the perception of selective enforcement.  Whether and how municipalities would enforce the covenants is another matter.  I guess we'll just have to wait and see what transpires on that front.    The other thing for people out there to think about is the process of converting existing deed notices and deed restrictions that contain institutional and engineering controls into covenants.  While I don't expect anyone to run out and do that, it would probably be prudent for landowners that have large portfolios of property to start looking at how the UECA will effect those properties, and think about inventorying the instruments that will need to be converted to covenants and start to put in a long term procedure for doing that.  It may make sense, however, for those entities to wait and see if the EQB and PADEP put together new regulations.  After all, five years is a very generous transition period. 

I didn't see anything on PADEP's website acknowledging that the Act was adopted.  Maybe they are planning on rolling out some instructions between now and February 16, 2008 when the Act becomes effective.  If I see anything, I'll include that in future posts.

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