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
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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.
[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).
