Environmental Law

PADEP Working on UECA Regulations

By M. Joel Bolstein

PADEP is working on the draft regulations for implementing UECA, and those draft regulations should be up to the Executive Staff in August and sent to both the Cleanup Standards Scientific Advisory Board and the UECA Stakeholders Group for review in September.   That's the word I got from Troy Conrad, the Chief of the Land Recycling Program, in a phone conversation earlier today.  Saying it will be a "pretty plain vanilla" rulemaking,  Mr. Conrad said we shouldn't expect to see anything in the rulemaking that will seem like a dramatic change  from the underlying statute, which was signed into law on December 18, 2007.   The most significant issue to be addressed by the rulemaking would appear to be the matter of converting existing instruments containing activity and use limitations to environmental covenants.  That issue was wrestled with by the UECA Stakeholders Group.  It sounds like the Department is likely to narrowly interpret "instruments" to mean deed restrictions, which makes a lot of sense.  It also sounds like the Department is likely to craft language allowing for waivers of the conversion requirement and for postponing conversion to the time a future transaction occurs.  

UECA has proven to be a much more troublesome statute than I think anyone expected.  It has added a complicating feature to Act 2 cleanups and to property transactions.   It adds an element of uncertainty, because there are no clear rules.   The compliance monitoring provision in the environmental covenants generally imposes a perpetual, never-ending requirement to provide a periodic update to the Department on the continued adherence to the activity and use limitation.  Buyers and Sellers now routinely argue over the scope of the monitoring requirement and who should be responsible for bearing the cost and for providing the periodic report to the Department.   It's also added a new set of considerations  to remediation projects funded by USTIF.

We are all looking forward to the opportunity to review and comment on the Department's draft UECA regulations.  Brownfield redevelopment works most effectively when the rules are clear  and the surprises are limited.    It sounds like we shouldn't have to wait much longer.         

Full post as published by PA Brownfields Environmental Law on July 06, 2009 (boomark / email).