DEP Provides Tools to Help Public, Businesses Better Understand New Environmental Covenants Law

HARRISBURG – A new Pennsylvania law that began Tuesday that is designed to give residents and businesses greater confidence that protective measures required as part of the state’s contaminated sites cleanup program will stay in place, even after properties change hands and over long periods of time.

And, said Environmental Protection Secretary Kathleen A. McGinty, her agency is ready with materials to help residents, municipalities and developers better understand the Uniform Environmental Covenants Act.

“Pennsylvania has been a national leader in land recycling, and approximately 1,600 environmental remediation actions have been completed at contaminated industrial and commercial sites since 2003,” said McGinty. “Our new Uniform Environmental Covenants Act will make it easier for DEP to track whether measures taken to make the property safe are maintained over time. This measure will protect the public health and give businesses the confidence they need to invest in these sites and return them to productive use.”

When contaminated sites are cleaned up under Pennsylvania’s Land Recycling and Environmental Remediation Standards Act, the remediation plans may control on-site contaminants with physical barriers like water-tight caps, or limit the property’s use by prohibiting the use of well water for drinking.

However, such measures must remain in place and followed in order to protect the public.

The new Uniform Environmental Covenants Act, or Act 68, was signed by Gov. Edward G. Rendell in December, and creates a legal covenant that is recorded in the county where the property is located. The covenant is signed by the property owner and DEP at the time the remediation measures are put in place.

The covenant – which is perpetual until terminated through state law – remains with the land, so whoever owns the property is subject to it.

DEP has developed tools to implement Act 68, including a model covenant and model notice of environmental covenant. The agency is also working to develop a publicly accessible Environmental Covenant Registry.

The registry will include information on the property’s location, including county, municipality, and other location information; the date the covenant was recorded by a county’s recorder of deeds; and a listing of the engineering and institutional controls that were required for any cleanup conducted under Pennsylvania’s applicable environmental laws.

Using the registry will allow neighbors of remediated sites to determine whether measures safeguarding their health are still in place, regardless of the amount of time that has elapsed or number of owners associated with the property.

For businesses, the key to the land recycling process is release from liability once the contaminated site has been remediated in accordance with state law. Prospective buyers and sellers of the property need to know that any required engineering and institutional controls are in place so to preserve the release from liability.

Act 68 is part of a national effort by states to standardize the creation, documentation and enforceability of institutional controls on contaminated sites. The new law affects Pennsylvania’s Land Recycling and Environmental Remediation Standards Act, the Storage Tank and Spill Prevention Act, the Hazardous Sites Cleanup Act, the Clean Streams Law and the Solid Waste Management Act.

Businesses operating in multiple states will have greater confidence given the protection from liability available under this uniform approach.

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