Unintended Consquences of UECA
In my continuing efforts to understand the potential impact of the Uniform Environmental Covenenats Act (UECA) on brownfields redevelopment in Pennsylvania, I have now spoken with a former PADEP Chief Counsel who was involved in Pennsylvania's enactment of the Act. He said that UECA was never intended to be "a substantive environmental remediation bill." Moreover, it was never intended to change anything required by Act 2. The Act was intended to standardize deed notices and provide a uniform way to do that. It would appear that steps being taken now to implement UECA at PADEP could lead to the worst kind of unintended consequences, more specifically, making the Site Specific Standard useless for any site where groundwater contamination migrates beyond the property boundary. I'm told that there was never any discussion regarding off-site migration during the legislative debate.
I urge everyone to read the comment just posted on this blog by Gary Brown from RT Environmental. Gary stated:
"Implementation of this policy change without prior public and legislative input is inappropriate 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."
Gary is right on. The most sensible thing the Department can do at this point is to prepare a draft policy or guidance on its proposed implementation of the UECA and roll it out for public review and comment. That is the only way for the Department to fully understand all of the potential consequences.
In speaking with other environmental attorneys who work on Act 2 projects, I'm already hearing that some of them may advise their clients to avoid going through Act 2 if the Department requires covenants from downgradient property owners. Surely that is not what the Department wants. For years, the Department has been trying to get as many sites as possible into the Act 2 process.
I'm also told that the remediator that potentially has the most to lose if covenants are required from downgradient property owners is the Pennsylvania Department of Transportation. PennDOT apparently makes extensive use of the Site Specific Standard in its acquisition of properties for road construction and its own site remediation work. It would be ironic indeed if PADEP's implementation of UECA ended up costing the Commonwealth millions of dollars and delaying road construction projects across the Commonwealth. Presumably PADEP is seeking input from PennDOT and other affected state agencies before it prepares any policy or guidance. Maybe a cost-benefit analysis would be in order before any final policy or guidance is adopted.
I encourage others to weigh in on this important Act 2 policy issue.
