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.
