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.
