PA DEP’s Proposed UECA Regs – our Final Post (for now)

     Our last post (for now) on PA DEP’s proposed regs implementing UECA addresses conversion of deed notices (and other instruments) and DEP’s fees for filing the covenants.

Conversion

     Like UECA, the proposed regulations include a provision for the conversion of existing instruments, such as deed notices and deed restrictions, to an environmental covenant.[1]  The owner of a property subject to an instrument that establishes an activity or use limitation to attain or maintain an Act 2 standard, or to comply with the Tank Act, and that was created before February 18, 2008, must convert the instrument to an environmental covenant, unless waived by DEP.[2]  The purpose of converting earlier instruments to environmental covenants and including the new covenant in DEP’s Registry is to provide the protections afforded by UECA and to make such activity and use limitations readily available and transparent to prospective purchasers.[3]

     A current owner may submit a written request and proof of the prior instrument’s recording to DEP waive conversion until the property is transferred.[4]  DEP’s waiver must be in writing.[5]

     With respect to prior instruments recorded for an SIA, the need for conversion is not as clear.  As with all remedial actions conducted pursuant to Act 2, actions undertaken in an SIA must comply with one or more of the Act 2 standards,[6]  and the SIA provision requires that the person doing the remedial action do it pursuant to an agreement with DEP.[7]  If the agreement requires a deed notice establishing land use, an environmental covenant is required.[8]  Therefore, conversion of the deed notice to an environmental covenant is required pursuant to 27 Pa.C.S. §6517(b).  If a deed notice establishing land use restrictions was not part of remedial action in the agreement, no covenant is required.[9]  Since the effective date of UECA, all land use restrictions that are part of the SIA remediation agreement should be in the form of an environmental covenant.

Fees

     Pursuant to section 6515 of UECA, the EQB has the power to establish fees.  Three years after UECA was enacted, the EQB is doing just that.  The revised proposed regulations require a nonrefundable fee of $350 to be paid when submitting an environmental covenant appropriately signed by all parties (other than DEP).[10]  So the fee and the covenant are due within 30 days of DEP approving the Final Report or RACR.

     A fee is not required when converting a prior recorded instrument to an environmental covenant if the person submitting the environmental covenant “did not cause or contribute to the contamination describe in the environmental covenant.”[11] 

 Conclusion

     The revised proposed regulations provide guidance for remediators to navigate the environmental covenant process.  Time will tell if the proposed timeframes for submitting signed environmental covenants and recorded environmental covenants makes the regulatory process more efficient. 

This blog is provided for informational purposes only. While we hope that this information will be useful, we do not promise that the information provided is up-to-date, accurate or complete.  This blog should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have. 

     DEP Watch – PA and NJ is sponsored by Langsam Stevens & Silver LLP, an environmental law firm where Tom and Dave happen to work.  For more information, contact Tom Storrer (tstorrer@langsamstevens.com) or Dave Romine (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

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[1] Revised Proposed 25 Pa. Code §253.10.

[2] Revised Proposed 25 Pa. Code §253.10 (a) and (b).

[3] Independent Regulatory Review Commission Regulatory Analysis Form, IRRC No. 2824, submitted by the Department on Feb. 24, 2010, available at http://www.irrc.state.pa.us/.

[4] Revised Proposed 25 Pa. Code §253.10 (c).

[5] Revised Proposed 25 Pa. Code §253.10 (d).

[6] Id.

[7] 25 Pa. Code § 6026.305 (e).

[8] See the Department, Uniform Environmental Covenants Act, Frequently Asked Questions, at ¶14 (Apr. 11, 2008).

[9] Id.

[10] Revised Proposed 25 Pa. Code §253.7 (a).

[11] Revised Proposed 25 Pa. Code §253.7 (b).

More on PA DEP’s Proposed New Regs for UECA

     Today we’ll discuss two more aspects of Pennsylvania’s proposed new regulations implementing UECA (the Uniform Environmental Covenants Act): notice of the covenant and covenants for Special Industrial Areas. 

Notice

     The revised proposed regulations identify who must receive notice of the environmental covenant.  The covenant must indicate to and from whom copies are to be provided and when.[1]  Any person who signed the covenant may be designated on the covenant as the individual responsible for distributing copies of it within 90 days after recording by the county recorder of deeds, unless DEP agrees to an extension.[2]  Unless waived by DEP in writing, copies of the covenant must be provided to (1) each person who signed it covenant; (2) each person holding a recorded interest in the real property subject to the covenant; (3) each person in possession of that property; and (4) in the case of commonly owned property in a common interest community, to any person authorized by the governing board of the owners’ association.[3]

 Covenants for Special Industrial Areas

     UECA does not expressly state that environmental covenants may be required for remedial actions in a Special Industrial Area (SIA).[4]  However, Act 2 remedial standards govern remedial actions in an SIA[5], and engineering and institutional controls may be used to achieve or maintain an Act 2 remedial standard.[6]  Therefore, a remedial action implementing an engineering and or institutional control to achieve or maintain Act 2 remedial standard in a SIA would logically be subject to UECA.

     The revised proposed regulations address any uncertainty.  They explicitly require an environmental covenant for SIA sites if the remediation measures to be taken include land use restrictions “limiting the use of the property to the intended purpose [. . .].”[7]  Conspicuously absent from the provision is any requirement for the environmental covenant to include the maintenance of any engineering controls that may have been implemented to achieve the Act 2 remediation standard.

Tomorrow: wrapping up: fees and conversion of deed notices

This blog is provided for informational purposes only. While we hope that this information will be useful, we do not promise that the information provided is up-to-date, accurate or complete.  This blog should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have. 

     DEP Watch – PA and NJ is sponsored by Langsam Stevens & Silver LLP, an environmental law firm where Tom and Dave happen to work.  For more information, contact Tom Storrer (tstorrer@langsamstevens.com) or Dave Romine (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

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[1] Revised Proposed 25 Pa. Code §253.3 (a).

[2] Id.

[3] Revised Proposed 25 Pa. Code §253.3 (b).

[4] An SIA site is a property used for industrial activities where there is no financially viable responsible person to clean up contamination or for land located within a enterprise zone designated by the Department of Community Affairs.  35 Pa. Code § 6026.305(a).

[5] 35 Pa. Code § 6026.305 (e) (3).

[6] 35 Pa. Code § 6026.303 (e) (3) and 35 Pa. Code § 6026.304 (f) (1) and (i).

[7] Revised Proposed 25 Pa. Code §253.4 (b).

A Brief Look at Pennsylvania’s Proposed UECA Regs

     Over the next few days, we’ll look at Pennsylvania’s proposed new regulations regarding UECA, the Uniform Environmental Covenants Act.

1. When an Environmental Covenant is Necessary

     The revised proposed regulations include a provision regarding when an environmental covenant must be used and when a waiver may be obtained.  The revised proposed regulation is similar to section 6517 of the UECA, but not identical.  Section 6517 of UECA states:

     Unless waived by the department, engineering controls or institutional controls required to demonstrate attainment of a remediation standard [. . .], shall be in the form of an environmental covenant.

 Whereas section 253.4(a) of the revised proposed regulations states:

      Unless waived by the Department, activity and use limitations used to demonstrate or maintain attainment of a remediation standard [. . .] shall be in the form of an environmental covenant.

             The term “activity and use limitations” is defined in UECA and the revised proposed regulations to include engineering controls and institutional controls.[1]  Therefore, the use of the term “activity and use limitations” in the revised proposed regulation does not change when an environmental covenant is required. 

            The issue is whether the addition of the phrase “or maintain” changes when an environmental covenant is required.[2]  Given that engineering controls may be used to attain an Act 2 remedial standard, it is reasonable to conclude that they must be maintained in order to sustain or preserve the conditions on which DEP approved the Act 2 release of liability.  Without maintaining the engineering controls, they may fail, thereby releasing the hazardous substances the controls were designed to contain to attain the applicable Act 2 standard.[3]  Therefore, we feel that the phrase “or maintain” does not change when an environmental covenant is required under UECA. 

     2.     Timeframes to Submit Draft Environmental Covenant, Signed Environmental Covenants, or Justifications for Waivers

             Because UECA as enacted did not provide timeframes for the submission of draft and signed environmental covenants,[4] DEP has been advising remediators to provide a draft environmental covenant before submitting a Final Report or Remedial Action Completion Report (RACR) to keep the review process moving in a timely fashion.  In one case, DEP advised me (Tom) to have my client submit a draft covenant before submitting a Final Report or RACR whenever the opportunity presented itself.  When I asked why, DEP informed me that it takes more time to review and provide comments to an environmental covenant.  In addition, the Department told me that the review of environmental covenants was a new process and that covenants had already started to accumulate.  Therefore, the sooner my client submitted the draft environmental covenant, the more likely the environmental covenant would be finalized by the time my client submitted the Final Report or RACR.

     DEP’s advice was welcomed, but submitting a draft environmental covenant prior to submitting a Final Report or RACR created a problem.  Often my clients did not have the details necessary to draft a covenant.  For example, the findings and results of recent investigations were not readily available before submitting a Final Report or RACR.  So, preparing and submitting a draft covenant that would likely be changed to reflect the findings and remedial actions in a Final Report or RACR would be a waste of time and money. 

     In the revised proposed 25 Pa. Code § 253.5(a), DEP backed away from its original proposed time to submit a draft environmental covenant.  Under the proposed regulations as originally drafted, the remediator was to submit a draft environmental covenant, or justifications for a waiver of a environmental covenant, 30 days prior to submitting a Final Report or RACR.  In addition, all the required copies of the signed environmental covenant must be submitted with the Remedial Action Completion Report or the Final Report. 

     In the revised proposed regulations, the remediator must submit an “acceptable signed environmental covenant to the Department no later than 30 days after receipt of written approval from the Department of the [Final Report or RACR].”[5]  This means that a remediator should provide DEP a draft covenant at or about the time that it submits a Final Report or RACR in order to ensure that it receives DEP’s comments to the covenant, makes the proposed changes, and obtains signatures before the deadline. 

     The revised proposed regulations also set a deadline for the submittal of justification for a waiver of a environmental covenant.  Justifications must be submitted along with the Final Report or RACR as opposed to 30 days prior to submitting a Final Report or RACR.[6]

     Currently, DEP requires the recording of the environmental covenant within 30 days of DEP’s approval and the submission to DEP of a file-stamped copy within 60 days.  The revised proposed regulations only require submission proof of the recordation to the Department within 60 days, unless the Department agrees to an extension.[7]  Towards that end, within forty days of the covenant being filed, the county recorder of deeds is to provide the person who filed the covenant a filed stamped copy.[8]  But the proposed regulations do not state what consequences a remediator may suffer should it fail to adhere to these deadlines. 

Tomorrow: proposed regulations regarding notice of the covenant and conversion of deed notices to environmental covenants.

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

     For more information, contact Tom (tstorrer@langsamstevens.com) or Dave (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

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[1] Revised Proposed 25 Pa. Code §253.4 (b) and 35 Pa. Code § 6502.

[2] As stated in the preamble to the proposed regulations, the Department said that an environmental covenant is required for all remedial actions other than those remedial actions that achieve an unrestricted use, i.e. residential standards for soil and groundwater.  40 Pa.B. 1379 (Mar. 6, 2010).

[3] 35 Pa. Code § 6026.303 (e) (3) and 35 Pa. Code § 6026.304 (f) (1) and (i).

[4] 27 Pa.C.S. § 6507.

[5] Revised Proposed 25 Pa. Code §253.5 (a).

[6] Revised Proposed 25 Pa. Code §253.4 (c).

[7] Revised Proposed 25 Pa. Code §253.5 (c).

[8] Revised Proposed 25 Pa. Code §253.6.

UECA in PA – Some Aspects

     Pennsylvania’s version of UECA requires an environmental covenant whenever institutional controls or engineering controls are used to achieve a Land Recycling and Environmental Remediation Standards Act (Act 2) remediation standard for a remedial actions conducted pursuant to any other state or federal environmental law.[1]  An institutional control is restriction on the future use of the property to maintain the integrity of the remedial action or to prevent exposure to regulated substances at a site.[2]  An engineering control is a remedial action (e.g. slurry walls, liner systems, caps, leachate collection systems and groundwater recovery trenches) that contains or controls the migration of regulated substances through the environment.[3]

     The cases in which an environmental covenant will not be required by UECA are limited.  For example, where a remediator demonstrates attainment of the background standard and soil or groundwater contamination remains above Residential Statewide Health Standards, no engineering or institutional controls are needed to attain or maintain the background standard.  Therefore, the remediator does not need a environmental covenant.  However, in such cases, PA DEP recommends that the remediator obtain an environmental covenant to prevent exposure to regulated substances in the future.

     Another example is where a remediator demonstrates attainment of the Statewide Health Standard for groundwater at the point of compliance based on fate and transport analysis, even though groundwater elsewhere at the property is contaminated above the Statewide Health Standard.  Because the remediator did not implement an engineering or institutional control to attain or maintain the Statewide Health Standard for groundwater at the point of compliance, an environmental covenant is not required.

     An environmental covenant must contain specific information, including but not limited to, a legally sufficient description of the property, a brief description of the contamination, a description of activity and use limitations, and the identity of all holders.[4]

     If the persons who sign the environmental covenant agree, the environmental covenant may contain other restrictions or requirements such as a notice following transfer of a specified interest in property, a notice of proposed changes in use of the property, and a notice of any site work.[5]

     DEP must approve the environmental covenant and may make changes prior to approval.  DEP, the current owner(s) of the property, the holder(s) and any other party specified by the Department must sign the environmental covenant.[6]

     The signed environmental covenant must be recorded in all counties in which the property is located.[7]  In addition, copies of the signed environmental covenant must be provided to signers of the environmental covenant, to persons holding a recorded interest in the property, to persons in possession of the property, to the political subdivision(s) in which the property is located, and to any other persons DEP requires.[8]

     Once DEP develops a formal Registry containing all environmental covenants, only a notice of the environmental covenant will be required to be recorded with the County Recorder of Deeds.[9]

     A environmental covenant may contain a self-terminating provision that limits its effect to a specific duration or provides for termination on the occurrence of a specific event.[10]  Otherwise, an environmental covenant may only be terminated by consent, by judicial decree, or by the foreclosure of an interest with priority over the environmental covenant.[11]

     An environmental covenant should not be confused with deed notices (a/k/a deed acknowledgments).  The Hazardous Sites Cleanup Act, 35 Pa.C.S. § 6020.101 et seq. (HSCA) and the Solid Waste Management Act, 35 Pa.C.S. § 6018.101 et seq. (SWMA) include certain requirements for deed notices.  Deed notices are not institutional controls pursuant to Act 2 or UECA, because deed notices do not limit use of the property.

     UECA does not change the deed notice requirements pursuant to HSCA or SWMA.  If HSCA or SWMA requires a deed notice and no environmental covenant exists, the property owner must record a deed notice.  However, if an environmental covenant is required, the environmental covenant fulfills the HSCA/SWMA deed notice requirement. 

     UECA requires that instruments imposing activity and use limitations, and created prior to the UECA’s effective date, must be converted to an environmental covenant within 5 years.[12]  Prior to the enactment of UECA, remediators used deed restrictions to established activity and use limitations of the property or to maintain a remediation.  Because HSCA and SWMA deed notices do not limit activity or use, deed notice do not require conversion. 

Tomorrow: proposed regulations

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

     For more information, contact Tom (tstorrer@langsamstevens.com) or Dave (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

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[1] 27 Pa.C.S. §§ 6502-6517 (2010).

[2] 35 P.S. § 6502.

[3] Id.

[4] 27 Pa.C.S. § 6504(a).

[5] 27 Pa.C.S. § 6504(b).

[6] 27 Pa.C.S. § 6512(a) and (b).

[7] 27 Pa.C.S. § 6508.

[8] 27 Pa.C.S. § 6507.

[9] 27 Pa.C.S. § 6512(a) and (b).

[10] 27 Pa.C.S. § 6509(a) (1).

[11] 27 Pa.C.S. § 6509(a) (2)-(5).

[12] 27 Pa.C.S. § 6517(b).

What is UECA?

     In August 2003 the National Conference of Commissioners on Uniform State Laws (NCCUSL) recommended for enactment the Uniform Environmental Covenants Act (NCCUSL’s Act).[1]  The purpose of NCCUSL’s Act was to provide clear rules for the States and federal agencies to create, enforce, and modify an environmental covenant.  By following NCCUSL’s Act, States and federal agencies would ensure that approved risked-based remedial actions on a property would be properly recorded in deeds and enforceable as a valid real property servitude.  The properly recorded and enforceable servitude would ensure that the activity and use limitations imposed to achieve a risk-based remedial action would be maintained through successive ownership.  The servitude would also promote the development and use of previously undesirable contaminated commercial sites.

     In December 2007 Pennsylvania enacted UECA, which is based on NCCUSL’s Act, but drafted to conform to Pennsylvania’s existing remediation and corrective action laws and regulations.[2]  UECA became effective in Pennsylvania on February 19, 2008 and is codified at 27 Pa.C.S. §§ 6501-6517.

     New Jersey has not enacted UECA.

     Coming Monday: some important aspects of Pennsylvania’s version of UECA.

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

     For more information, contact Tom (tstorrer@langsamstevens.com) or Dave (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

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[1] See National Conference of Commissioners on Uniform State Laws, Uniform Environmental Covenants Act, available at http://www.environmentalcovenants.org/ueca.

[2] Act 2007-68 (H.B. 43), P.L. 450, § 1.

PA DEP Wants New UECA Regs

     On June 14, the PA DEP Environmental Quality Board (EQB) published revised proposed regulations to implement Uniform Environmental Covenants Act, 27 Pa.C.S. §§ 6501-6517 (UECA).  The revisions address some of the comments received from the Independent Regulatory Review Commission (IRRC).  EQB filed the proposed regulations with IRRC on February 24, 2010 and the IRRC submitted its comments on May 5, 2010.

     DEP proposed the new regulations to address ambiguities in the UECA and to establish procedural interfaces with the Land Recycling and Environmental Remediation Standards Act, 35 P.S. § 6026.101 et seq. (Act 2), and the Storage Tank and Spill Prevention Act, 35 P.S. §6021.101, et seq. (Tank Act).[1]  The proposed new regulations will also allow DEP to collect fees to fund the review of environmental covenants and the development and maintenance of the electronic registry of environmental covenants pursuant to section 6512 of the UECA.[2]  DEP says the proposed regulations will assist the Department and the regulated community in implementing the UECA as well as serving the dual purposes of enhancing the protection of human health and the environment and promoting the safe reuse of contaminated property in perpetuity.[3]

What is an Environmental Covenant?

     An environmental covenant is a servitude that imposes activity and use limitations on  real property after a risk-based remedial action.  Generally, a servitude is either a burden or restriction on the use of real property or a benefit to the owner of real property that passes to successive owners of the real property, i.e. the environmental covenant “runs with the land.”  The environmental covenant is perpetual unless it is terminated.

     The environmental covenant creates a non-possessory interest in the real property that is conveyed by the grantor to a “holder” or grantee.  The holder may be any person, including in a person that owns an interest in the real property, the remediator, or an agency.  Thus, an environmental covenant may have multiple holders.  In practice, however, we have found that DEP does not want to be a “holder” of an environmental covenant under UECA.

     A holder may have the right to enforce the environmental covenant or a holder may have obligations created by the environmental covenant.  For example, a holder may initiate a civil action for injunctive relief to compel the property owner to perform an obligation, such as maintenance of engineering controls required by the environmental covenant.  Or, the holder may initiate a civil action to prevent the property owner from using the property contrary to the institutional controls identified in the environmental covenant.

     The non-possessory property interest created by the environmental covenant is transferable.  Therefore, a holder may his or her non-possessory property interest to another person.

Tomorrow: Background of UECA

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

     For more information, contact Tom (tstorrer@langsamstevens.com) or Dave (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

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[1] Independent Regulatory Review Commission Regulatory Analysis Form, IRRC No. 2824, §II (13), submitted by the Department on Feb. 24, 2010, available at http://www.irrc.state.pa.us/.

[2] Id.

[3] Notice of Proposed Rulemaking, Preamble, at 6, §F filed with the IRRC on Feb. 24, 2010, available at http://www.irrc.state.pa.us/.

DEP Inspections – Take Notes, Get a Written Report

Today we’re wrapping up our series on how to handle a DEP inspection by emphasizing two key points: take notes and get a written report.

     Take notes during the inspection.  Note what you and the inspector said, what areas the inspector inspected, the number and subject of photographs taken, problems or issues noted and activities for which the inspector had a concern.  Your notes will help you to remember what happened during the inspection and what was said.

      At the end of the inspection, you should meet the inspector to discuss the results of the inspection.  You should review:

1. what you and the inspector observed;
2. what problems exist or may exist;
3. what activities did not concern the inspector;
4. what the inspector needs to do to complete the inspection;
5. what actions you need to take to address problems;
6. when you will receive a written report of the inspector’s findings and copies of photographs taken;
7. whether a notice of violation will be issued and when it will be issued; and
8. what you need to do in response to the notice of violation.

 Get a written inspection report and follow up on issues, concerns 

     As an inspector and as an attorney, I (Tom) have learned of numerous instances when neither the inspector nor the regulated entity followed up on, or addressed, issues or concerns arising from an inspection.  Regardless who neglected the follow up, the regulated entity or property owner is responsible for correcting the violation.  So to avoid complications, the regulated entity should schedule a reminder to receive a copy of the inspection report, to follow up on outstanding issues, and to follow up in writing describing corrective actions taken. 

     Do not hesitate to consult an attorney, if necessary.  When to consult an attorney is not easily delineated.  For example, a small violation that is relatively inexpensive to correct may not require an attorney.  On the other hand, if an administrative order and civil penalty is served, consulting an attorney immediately is prudent and retaining an attorney would be wise to protect your rights and to represent you in the administrative action. 

     By taking the steps I talk about here and in my earlier posts, you should be able to reduce misunderstandings and miscommunications between you and the inspector.  You and the inspector should have a clear understanding of the issues (and non-issues) and what each person needs to do to complete or close all issues.  In doing so, the issues will be identified and addressed in a timely fashion before they become larger and more costly problems.

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

     For more information, contact Tom (tstorrer@langsamstevens.com) or Dave (dromine@langsamstevens.com).  Their phone number is 215-732-3255.

DEP Inspections – Identify the Inspector and Purpose of the Inspection

What do you do when an inspector knocks on your door?    

     An inspector from a regulatory agency may have any of a number of different reasons to inspect a business or property.  The business may have a permit or license from the agency which requires compliance with the law.  Or the inspector may be investigating a complaint or incident.   Whatever the reason, it is important that you get certain information from the inspector before the inspection starts.  You should obtain and understand the following from each inspector: 

1. The name of the agency for which the inspector works (e.g. US EPA, NJDEP, PADEP, County or local Health Department);
2. The program in which the inspector works (e.g.  waste, water, air, land use); and
3. The purpose of the inspection (routine, complaint, follow up).

     Ask to see the inspector’s credentials and ask for a business card.  If the inspector has no credentials or business cards, you may want to ask for the inspector’s supervisor’s name and phone number.  Call the supervisor and verify that inspector is who they say they are or look up the agency’s phone number on line and ask for the inspector by name.  You may want to ask the inspector to come back when they have their credentials.  If you can’t identify the inspector and the inspector insists on entering the property, you should call your attorney and get advice.  Depending on the situation, denial of access may create more problems. 

Accompany the Inspector at all times while the Inspector is on the property

     Once you have the identity of the inspector and the purpose of the inspection, accompany the inspector during the inspection.  You should not allow the inspector to roam the property unattended and you should not leave the inspector unattended during the inspection.  Aside from any safety issue, you want to be present to answer any questions the inspector may have and you want to be present to ask your own questions.  For example, if the inspector sees a potential violation, you may want to ask the inspector to describe the problem in detail, what the law requires, and what needs to be done to correct the problem.  Also, you want to be able to identify what activities for which the inspector does not have concerns or issues.

Tomorrow: Wrapping up the inspection.

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

DEP Inspection? Control Access to Your Property

     Today we’re going to talk about how and why to control access to your property if you’re expecting a DEP inspection. 

     You should control access to your property in any event to prevent or deter trespassers, theft, vandalism, and premises liability actions.  With respect to regulatory inspections, the objective of controlling access should be to notify the inspector that site access is restricted and that all visitors must report to specific location.  Some simple inexpensive control measures include: 

1. Posting and maintaining clearly visible signs to visitors directing visitors where to park and where to go when entering the property;
2. Posting and maintaining clearly visible signs notifying all visitors that they must sign-in and sign-out;
3. Posting and maintaining clearly visible “no trespassing” signs in prescribe intervals along the boundary of the entire property;
4. Posting and maintaining clearly visible signs “authorized personnel only”, “Danger”, or “Hazardous area” signs as necessary inside and outside buildings;
5. Installing and maintaining gates and fences; and
6. Instructing all employees what to do if an unfamiliar person is observed on the property.

     An inspector from a regulated agency should abide by such notices, thereby reducing the chance that an inspector will enter your property and conduct an inspection without first notifying the proper persons.

     Depending on your situation, you may want to begin using a sign in-log and instructing your employees that all visitors must sign in and sign out.  You may also want to start using badges to identify visitors.  This allows employees to determine whether an unfamiliar person should or shouldn’t be on the property. 

Tomorrow: identify the DEP inspector and purpose of the DEP inspection.

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.

Get Ready for that DEP Inspection!

Recent events have reminded me (Tom) of my days as a solid waste inspector with the Pennsylvania Department of Environmental Protection (PADEP) and how I was trained to conduct inspections.  Without getting into case specifics, recent events have led me to wonder how things may have been different had the regulatory agency conducted its inspections differently and had the regulated entity been a little bit more informed of what to do in the event of a regulatory inspection.  This prompted me to write this article to try to set forth a brief outline for a regulated entity to follow to prevent misunderstandings that might lead to costly corrective actions. 

When I worked at PADEP, I was instructed that the goal of every inspection was compliance with the law and regulations.  Therefore, how an inspector conducted the inspection and how an inspector documented the inspection results was critical.  To achieve the goal of compliance, PADEP instructed me how and when to enter a property and when to leave the property.  I received training on how to write reports, how to document violations, how to communicate with the responsible party, and how to work with the responsible party to achieve compliance.  PADEP personnel, including regional counsel, and U.S. Environmental Agency personnel conducted most, if not all of my training.  In addition, I received about three months of on the job training from experienced inspectors before conducting inspections by myself. 

In general, PADEP instructed me to identify myself, identity the purpose of my inspection, discuss the issues or concerns resulting from the inspection, and inform the person what, if anything, should be done to achieve compliance.  I prepared a report on site or mailed a report of my inspection soon after the inspection.  Aside from informing the responsible party of what violations existed, my training allowed me to develop the best evidence to support an enforcement action should the responsible party fail to achieve compliance. 

To assist inspectors in tracking outstanding violations, PADEP maintained a database to track inspections and violations.  About every three or six months, my supervisor provided me report containing unresolved violations and I was instructed to conduct follow up inspections to “close out” the case. 

During my time at PADEP, I observed that the pervasively regulated industries instructed their employees how to handle inspection by regulatory agencies.  For the most part, pervasively regulated industries handle regulatory inspections the same way.  In general, they want to know who is conducting the inspection, why the inspection is being conducted, what the inspection revealed, and what needs to be done.  

I also observed that small business owners tended to be less informed about regulatory requirements.  In such instances, I spent more time explaining PADEP, the program in which I worked, the purpose of my inspection, the law and regulations, what constituted a violation, and what needed to be done to resolve any issue.  

As result of my training, my inspections proceeded smoothly and the regulated entity knew what constituted a violation and how to address the violation.  I recall only one case in my two years as an inspector that required an enforcement action.  

Unfortunately, not every regulatory agency provides its inspectors training to the extent that I received.  Some agencies do not require that the inspector notify a property owner that they are on the property or that they had inspected the property.  Some agencies do not require that the inspector provide the regulated entity a written report of the inspection, unless the regulated entity asks for a written report.  Such practices do nothing to achieve compliance with environmental laws and regulations, leave regulated entities uninformed, promote misunderstandings or miscommunications, and make enforcement actions much more difficult for the regulatory agency and responsible party.  In some instances, the regulatory agency’s failure to conduct an inspection properly, document the inspection, and communicate violations or potential violations issues to the responsible party may increase costs to correct the violation significantly, and may result in penalties or higher penalties.  Depending on the regulatory agency, the jurisdiction, and the issue, the regulatory agency may seek to hold the business owners, property owners, or even employees responsible for the violation.  Personal liability is a consequence that most business owners, property owners, or employees would want to avoid.  

A small business may prevent expensive corrective actions and litigation costs if the business is prepared for a regulatory inspection.  A few proactive steps can reduce the chance of a costly misunderstanding arising from ill advised regulatory inspection practices, poorly trained inspectors, or an uninformed employee.  These measures include, but are not limited to, the following: 

1. Control access to the property;
2. Identify the inspector by credentials;
3. Identify the purpose of the inspection;
4. Accompany the inspector at all times during the inspection;
5. Ask the inspector questions about observations, issues and concerns during the inspection;
6. Take notes during the inspection;
7. Have a post-inspection meeting with the inspector to discuss observations, issues, and concerns;
8. Request copy of the inspection report, photographs, and sample results at the end of the meeting;
9. Schedule a reminder to be sure you receive a copy of the inspection report, photographs, and sample results;
10. Follow up in writing describing corrective actions taken; and
11. Consult an attorney when issues or concerns arise.

Next week I will discuss the first item, “Control your property,” in more detail.  Have a great holiday!

This post should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.