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.
