PADEP Forms Stakeholder Group on UECA
This Friday will be the first meeting of the UECA Stakeholder Group recently formed by PADEP. I was asked to participate in that Stakeholders Group and gladly accepted.
According to the invitation that I received from Troy Conrad, the Director of the Land Recycling Program, the discussion is intended to focus on three things. First, the requirement to convert prior instruments to environmental covenants by February 2013. Second, how that requirement will affect the holders of those instruments. Third, gathering suggestions for implementing the conversion. Troy's invitation also says that the Department would like to hear about any problems encountered with the Department's implementation of UECA.
It should be a very interesting meeting. The participants include other lawyers like myself who specialize in brownfields redevelopment, as well as environmental consultants and companies that have large numbers of sites with activity and use restrictions, such as gas stations undergoing remediation. The Group will have a facilitator, Marylou Barton, who is very good at this, so I am expecting a well-focused discussion.
One of the problems I anticipate is that there really isn't much experience in dealing with UECA at this point. It was thrust upon the Department at the end of the 2007 legislative session and it had very little time to prepare. The only thing that people have to use as guidance are a few fact sheets on the Department's website. There are no other guidance documents or draft regulations and there has been little by way of public input. I've written extensively about UECA on this blog, and my feelings about it are still the same. I think it is unnecessary. If I was advising the Governor, I'd probably tell him to recommend repealing UECA. Act 2 was working just fine prior to UECA. Now, every Act 2 project faces challenges posed by UECA compliance, especially any remediation project that involves the off-site migration of groundwater contamination. Obtaining approval of an environmental covenant has proven to be much more time consuming than expected. Moreover, the Department appears to be requiring provisions in those covenants that were intended to be optional by the General Assembly. Maybe some of this will be improved as the Department starts gathering public comments on any proposed regulations. I've always viewed gathering public comments as being a very helpful process. A stakeholders group is a useful first step in that process and I am thankful to be participating.
My initial thoughts on the conversion of prior instruments is that the Department is likely to need to offer some incentives to property owners to get them to convert prior instruments any time before the February 2013 deadline. It needs to explain to those property owners the benefits of converting to an EC, but even I'm having trouble coming up with those. For companies that have large portfolios of properties subject to activity and use restrictions, it makes sense to go in early for an orderly transition to ECs. They may also have some leverage to negotiate more favorable language because there will also be an incentive for the Department to get large chunks of ECs out of the way before the potential avalanche in early 2013.
Probably the first thing the Department should do at this point is to identify the universe of properties that are known to be subject to activity and use limitations. Those would include Act 2 sites that required engineering and institutional controls in order to meet a standard and storage tank remediations subject to the same controls. One thing I'd urge the Department to do is to step back from the misguided policy of requiring ECs for properties that demonstrated attainment with the non-residential statewide health standard. Those sites are already quite adequately addressed by Act 2 itself, through the need for a deed acknowledgment and the possibility of reopeners. I think the Department also needs to more carefully consider the implications of UECA implementation on the redevelopment of sites within our two largest cities -- Philadelphia and Pittsburgh. There was a reason why the Department allowed for non-use aquifer designations in those urban areas. It was to try to make it easier to redevelop brownfield sites in those areas. It therefore makes no sense to impose new burdens to contact downgradient property owners or to question the fact that everyone is on public water. I'm already seeing some projects in those urban areas become overly complicated as a result of UECA. I'm working on a property now where the main consideration was whether to use the background standard or the site specific standard. It's in the City of Philadelphia and the entire area is on public water. There is a plume of petroleum product contamination migrating onto the site from an upgradient property. The cost of demonstrating background is likely to be higher than the cost of meeting the site specific standard, but under background, an EC would not be required because there wouldn't need to be any activity and use limitations. It should be a simple decision , right? It's not simple because of UECA. Why? Because the Department's implementation of UECA is currently a moving target. If there is a plume of contamination that runs under this property and keeps going, what kind of Post Remediation Care Plan is the Department going to require? Will it say you have to personally contact each and every downgradient property owner? Will it disregard the City of Philadelphia water ordinance that requires property owners to connect to public water or the fact that there are no private wells where the plume extends off-site? How do you give advice in those circumstances? Prior to UECA, the choice would be simple. You'd go Site-Specific, do your fate and transport analysis, and put a restriction in your deed. It's not that simple now, and what do we gain from all of the complications that UECA has brought? Not much in my mind. With that said, it is the law of Pennsylvania and we are currently stuck with it. The Department, therefore, needs to do its best to make it manageable, predictable, and avoid having UECA impose disincentives for brownfield redevelopment, especially in this economy.
I'm looking forward to participating on the UECA workgroup. If anyone has any comments that they'd like me to bring to the Department's attention, please feel free to let me know. I'm happy to carry that water.
