Draft UECA Regulations Do Not Address Periodic Reporting
I've taken my first look through the draft UECA regulations that are now on PADEP's website. My biggest issue isn't with what's in the draft regulations but with what isn't in there.
After several years of advising clients regarding compliance with UECA and having submitted a number of them to PADEP for review and approval, I can say that the most significant concern for brownfield developers is the fact that the Model Covenant on PADEP's website imposes periodic reporting obligations on the property owner that run in perpetuity. So, for example, if the remediation involves capping some contaminated soil with asphalt or concrete, the environmental covenant will say that the cap has to be maintained and the property owner must report annually (i.e., forever) to the Department that it is continuing to maintain that engineering control. It wasn't that way prior to UECA. Before UECA, the property owner would put notice of the cap in its deed and that would be that.
Upon first reading UECA, one could have easily concluded that the drafters did not intend to impose perpetual reporting obligations in each and every environmental covenant. Information "required" to be included in environmental covenants is set forth in Section 6504(a) of UECA. Additional information that was supposed to be optional was set forth in Section 6504(b) of UECA. One of the optional requirements is Section 6504(b)(2) -- "requirements for periodic reporting describing compliance with the environmental covenant." Nonetheless, what appears to have been considered optional by the drafters of UECA has now become required, as a result of the use of the Model Covenant and through the actions of the Department staff responsible for reviewing and approving the environmental covenants.
I had hoped that the regulations would provide an avenue for the Department to interpret Section 6504(b)(2) in a way that would set forth criteria to use in determining instances in which periodic reporting was not required. Surely, perpetual monitoring isn't necessary for every institutional and engineering control. We got along just fine without it in the twelve years that brownfield developers were successfully remediating thousands of sites under Act 2 prior to UECA's passage. In addition to using the regulations to draw distinctions between sites that require periodic monitoring and sites that don't, the regulations could be used to set ground rules for the frequency of the periodic reporting. Some ECs approved by the Department require annual reporting while others allow reporting every three years. There is nothing in any of the UECA guidance (the fact sheets and model covenant) issued by the Department to date that explains how one determines the needed frequency for the reporting. It seems to me that the regulations might be an appropriate place to set those ground rules.
In my reading through the draft regulations, it is apparent that the Department has chosen not to use the regulations to clarify when the "optional" reporting obligation need not be imposed or the frequency of the reporting obligation in those instances when it is imposed. In speaking with Troy Conrad at PADEP, who will be responsible for moving the draft regulations to completion, he acknowledged that the draft regulations don't address the issue of periodic reporting. He suggested it may be better addressed with additional guidance to be provided in the Act 2 Technical Guidance Manual. I agree that is a possibility, but these are issues that need to be addressed in one form or another.
To the extent that the Department is using the regulations to interpret UECA, then it may be entirely appropriate to include provisions addressing the requirements for periodic monitoring in Section 6504(b). The Act 2 TGM is used as a supplement to the Act 2 regulations. It expands upon and provides additional guidance, but the Act 2 regulations address the major issues. The need or lack thereof for periodic monitoring is a major issue under UECA. I would hope that the Department would specifically solicit comments on the need for periodic monitoring and the frequency of that monitoring, when it formally releases the draft regulations as proposed regulations later this year. This is an issue of great concern to brownfield developers in Pennsylvania. I intend to bring up the issue at the next meeting of the UECA Stakeholders Group and I would encourage others to weigh in on this issue as well.
