UECA's Impact on Site Specific Cleanups
Does the Uniform Environmental Covenants Act (UECA) recently signed into law by
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
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
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
The DEP indeed has interpreted UECA in an inappropriate way. Unless this interpretation is promptly corrected, the most flexible part of Act 2 based on risk assessment will be lost, with very negative redevelopment implications for the Commonwealth. NJ, to its credit, learned long ago that forcing offsite deed notices means fewer cleanups. State after state has learned that this does not work!
PENNDOT is already adversely affected at more than one site as offsite deed notices mean more money and allow many parties to have the opportunity to block cleanups.
NJ's system of Classification Exception Areas works very well, and the Well Installation approval programs in Chester & Montgomery Counties also work very well to assure that residents will not drink impacted water and that pathway elimination is effective. NJ has its CEAs posted on its widely acclaimed IMAP webpages, whch have GIS coded wetlands, floodplains, contaminated sites, etc. which service is lacking in PA.
It's time for DEP to act responsibly in impementing UECA as NJ, Montgomery County and Chester County have (in advance) and have a system to avoid unknowledgeable well installation into known impacted groundwater areas. DEP's failure to take this basic step, and to instead shift its responsibility to remediators is inappropriate and will cost billions of dollars in higher remediation costs to those who would like to remediate and redevelop, but who now cannot or simply will not face hurdles which are unnecessary. DEP is letting our cities down because old industrial sites will be increasingly mothballed, taking away the promises of Act 2, with many billions more in lost redevelopment potential.
Implementation of this policy change without prior public and legislative input is inapproprate 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.
Let's all hope that DEP recognizes that it needs to do it's job the way PA's responsible counties are and not react to a perceived problem with an inappropriate solution that stifles the Award Winning Act 2 program.
We deserve responsible Environmental Protection in PA, and let's all hope that we get it with an impacted groundwater tracking system that works like NJ's does, with full publicly available information available over the web in real time. This solution works!
GARY BROWN
I believe, from experience, that brownfield redevelopment will be stifled if the offsite groundwater plume is not addressed from the basis of potential exposure. If the Department insists on implementing UECA for groundwater plumes characterized and demonstrated not to cause human exposure, they will negate the technical approach and effort to attain a site specific standard, and do the public water-served property owner a disservice by notifying him or her that there is contamination underground and forget about the attributes ( i.e public water ) on the surface of the property.