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