CHAPTER 253. ADMINISTRATION OF THE UNIFORM ENVIRONMENTAL COVENANTS ACT

Sec.


253.1.    Definitions.
253.2.    Contents and form of environmental covenant.
253.3.    Notice of environmental covenant.
253.4.    Requirements for and waiver of environmental covenants.
253.5.    Submission of environmental covenants and related information.
253.6.    Requirements for county recorder of deeds.
253.7.    Fees.
253.8.    Subordination.
253.9.    Duration.
253.10.    Conversion and waiver of conversion.
253.11.    Assignment of interest.

Authority

   The provisions of this Chapter 253 issued under section 6515 of UECA and section 1920-A of the Administrative Code of 1929 (71 P. S. §  510-20), unless otherwise noted.

Source

   The provisions of this Chapter 253 adopted November 19, 2010, effective November 20, 2010, 40 Pa.B. 6654, unless otherwise noted.

§ 253.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Activity and use limitations

     (i)   Restrictions or obligations with respect to real property created under this chapter.

     (ii)   The term includes engineering controls and institutional controls.

   Agency—Any of the following:

     (i)   The Department.

     (ii)   A Federal agency which determines or approves an environmental response project pursuant to which the environmental covenant is created.

   Common interest community—A condominium, cooperative or other real property, with respect to which a person, by virtue of ownership of a parcel of real property or of ownership of an interest in real property, is obligated to pay for property taxes, insurance premiums, maintenance or improvement of other real property described in a recorded covenant which creates the common interest community.

   Eminent domain proceeding—An acquisition of property by an entity acting with the power of eminent domain, whether by condemnation or in lieu of condemnation.

   Engineering controls

     (i)   Remedial actions directed exclusively toward containing or controlling the migration of regulated substances through the environment.

     (ii)   The term includes slurry walls, liner systems, caps, leachate collection systems and groundwater recovery trenches.

   Environmental covenant—A servitude arising under an environmental response project which imposes activity and use limitations under UECA.

   Environmental response project—A plan or work performed for environmental remediation of real property conducted under one of the following:

     (i)   A Federal program governing environmental remediation of real property.

     (ii)   A Commonwealth program governing environmental remediation of real property.

     (iii)   Incident to closure of a solid or hazardous waste management unit if the closure is conducted with approval of an agency.

     (iv)   A Commonwealth voluntary cleanup program authorized by statute.

   Final report—A report filed with the Department by a remediator documenting attainment of one or a combination of cleanup standards under the Land Recycling Act under §  250.204, §  250.312 or §  250.411 (relating to final report).

   Holder—A person that is the grantee of an environmental covenant as specified in section 6503(a) of UECA (relating to nature of rights; subordination of interests).

   Institutional controls

     (i)   Measures undertaken to limit or prohibit certain activities which may interfere with the integrity of a remedial action or result in exposure to regulated substances at a site.

     (ii)   The term includes fencing and restrictions on the future use of the site.

   Instrument—A deed restriction, restrictive covenant or other similar document that imposes activity or use limitations filed with a recorder of deeds.

   Land Recycling Act—The Land Recycling and Environmental Remediation Standards Act (35 P. S. § §  6026.101—6026.908).

   Person

     (i)   Any individual, corporation, partnership, association or other entity recognized by law as the subject of rights, duties or obligations.

     (ii)   The term includes the United States of America, a Federal agency, the Commonwealth, an agency or instrumentality of this Commonwealth and a political subdivision.

   Political subdivision—Any county, city, borough, township, or incorporated town.

   Record—Information which is:

     (i)   Inscribed on a tangible medium or stored in an electronic or other medium.

     (ii)   Retrievable in perceivable form.

   Regulated substance—The term has the same meaning given to it in section 103 of the Land Recycling Act (35 P. S. §  6026.103).

   Remedial Action Completion Report—A corrective action report filed with the Department by a remediator documenting attainment of one or a combination of cleanup standards under the Land Recycling Act pursuant to the Storage Tank Act under either §  245.310(b) or §  245.313 (relating to site characterization report; and remedial action completion report).

   Storage Tank Act—The Storage Tank and Spill Prevention Act (35 P. S. § §  6021.101—6021.2104).

   UECA—The Uniform Environmental Covenants Act (27 Pa.C.S. § §  6501—6517).

§ 253.2. Contents and form of environmental covenant.

 (a)  An environmental covenant must contain the following:

   (1)  A statement that the instrument is an environmental covenant executed under UECA.

   (2)  A legally sufficient description of the real property subject to the environmental covenant.

   (3)  A brief narrative description of the contamination and the remedy.

   (4)  A description of the activity and use limitations on the real property.

   (5)  An identification of every holder.

   (6)  The signatures, with the formalities required for a deed, by the following:

     (i)   The agency, unless the environmental covenant has been deemed approved under subsection (c)(4).

     (ii)   Every holder.

     (iii)   Every owner in fee simple of the real property subject to the environmental covenant, unless waived by the agency.

   (7)  The name and location of any administrative record for the environmental response project reflected in the environmental covenant.

   (8)  A clause that the covenant may be amended or terminated as to any portion of the real property subject to the covenant that is acquired for use as highway right of way by the Commonwealth, providing that:

     (i)   The Department waives the requirements for an environmental covenant and for conversion under section 6517 of UECA (relating to relationship to other laws) to the same extent that the environmental covenant is amended or terminated.

     (ii)   The Department determines that termination or modification of the environmental covenant will not adversely affect human health or the environment.

     (iii)   The Department will provide 30-days advance written notice to the current property owner, each holder, and, as practicable, each person that originally signed the environmental covenant or successors in interest to those persons.

 (b)  An environmental covenant may contain other information, restrictions and requirements agreed to by the persons who signed it, including the following:

   (1)  The requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for or proposals for any site work affecting the contamination on the property subject to the environmental covenant.

   (2)  The requirements for periodic reporting describing compliance with the environmental covenant.

   (3)  The rights of access to the property granted in connection with implementation or enforcement of the environmental covenant.

   (4)  The restrictions or limitations on amendment or termination of the environmental covenant in addition to those contained in sections 6509 and 6510 of UECA (relating to duration; and amendment or termination by consent).

   (5)  The rights of the holder in addition to its right to enforce the environmental covenant under section 6511 of UECA (relating to enforcement of environmental covenant).

   (6)  A detailed narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure and the location and extent of the contamination.

   (7)  Limitations on the duration of the environmental covenant.

 (c)  Agency review will be as follows:

   (1)  Prior to signing an environmental covenant, an agency may review the covenant and provide its conditions for approval, including subordination under §  253.8 (relating to subordination), if the conditions are applicable to the implementation of a remedy (including any postremediation care plan that is part of the remediation).

   (2)  In addition to other conditions for its approval of an environmental covenant, an agency may require those persons specified by the agency that have interests in the real property to sign the covenant.

   (3)  Except as set forth in paragraph (4), signature by an agency on an environmental covenant constitutes its approval of the environmental covenant. Disapprovals of an environmental covenant by the Department will be made in writing to the person submitting the environmental covenant and will describe the basis for the disapproval.

   (4)  Failure of the Department to approve or disapprove an environmental covenant within 90 days of receipt of all information reasonably required by the Department to make a determination shall be deemed an approval of the environmental covenant, unless the Department and the remediator agree to an extension of time.

   (5)  The date the Department receives an environmental covenant for review and the information reasonably required by the Department to make a determination concerning the approval or disapproval of the environmental covenant, shall be the date of receipt under section 6504(c)(4) of UECA (relating to contents of environmental covenant) and for purposes of this chapter.

   (6)  The Department’s decision to approve or not approve an environmental covenant is appealable to the EHB.

 (d)  An environmental covenant may be in the form of the Model Covenant posted on the Department’s web site or may be in any other form acceptable to the agency.

 (e)  If the environmental covenant covers commonly owned property in a common interest community, the covenant may be signed by any person authorized by the governing board of the owners association.

§ 253.3. Notice of environmental covenant.

 (a)  The environmental covenant must indicate to whom copies are to be provided, when those copies are to be provided and by whom the copies are to be provided. A grantor, a holder or any person who signed the environmental covenant may be designated as the individual responsible for distributing copies of the environmental covenant. File-stamped copies shall be provided no later than 90 days after the recording of the environmental covenant by the county recorder of deeds, unless the Department agrees to an extension of time.

 (b)  Unless waived by the Department in writing, copies of the environmental covenant shall be provided to the following persons:

   (1)  Each person who signed the environmental covenant.

   (2)  Each person holding a recorded interest in that portion of the real property subject to the environmental covenant.

   (3)  Each person in possession of that property.

   (4)  If the environmental covenant covers commonly owned property in a common interest community, the copies of the environmental covenant may be provided to any person authorized by the governing board of the owners association.

   (5)  Each political subdivision in which that property is located.

   (6)  Other persons designated by the agency, based upon the rights or interests that the other persons have in receiving a copy of the environmental covenant.

 (c)  A person submitting an environmental covenant to an agency may request waiver of the requirement that copies of the environmental covenant be provided. The request must be in writing and include the reasons for the requested waiver.

§ 253.4. Requirements for and waiver of environmental covenants.

 (a)  Unless waived by the Department, activity and use limitations used to demonstrate or maintain attainment of a remediation standard under the Land Recycling Act or the Storage Tank Act must be in the form of an environmental covenant. An environmental covenant may be used with other types of environmental response projects.

 (b)  Remediation measures undertaken pursuant to the special industrial area provisions of the Land Recycling Act which include land use restrictions limiting use of the property to the intended purpose shall implement those land use restrictions in the form of an environmental covenant.

 (c)  For remediations that require an environmental covenant under subsection (a), requests and justifications for waivers from the requirement to develop and record an environmental covenant shall be submitted to the Department in writing no later than at the time of submission of the Remedial Action Completion Report or the Final Report. Any waivers that are granted by the Department will be issued in writing.

 (d)  An environmental covenant will not be required, but may be used, for property owned by the Federal government before transfer of the property to a non-Federal entity or individual. At least 120 days before the transfer of a property owned by the Federal government, at which engineering or institutional controls are used to demonstrate or maintain attainment of a remediation standard under the Land Recycling Act or the Storage Tank Act, the Department shall be notified of the proposed transfer of the property and be provided with a draft environmental covenant. The requirement for providing notice and a draft environmental covenant to the Department shall be incorporated into an installation’s master plan or other similar and appropriate remedial documentation.

Cross References

   This section cited in 25 Pa. Code §  253.5 (relating to submission of environmental covenants and related information).

§ 253.5. Submission of environmental covenants and related information.

 (a)  For remediations that require an environmental covenant under §  253.4 (relating to requirements for and waiver of environmental covenants), the remediator shall provide the environmental covenant to the Department no later than 30 days after receipt of written approval from the Department of the Remedial Action Completion Report or the Final Report.

 (b)  For remediations that require an environmental covenant under §  253.4, the person who submits the environmental covenant to the agency shall provide the agency with the name and current address of each person occupying or otherwise in possession of the real property subject to the environmental covenant and each person owning a recorded interest in that property. If the environmental covenant covers commonly owned property in a common interest community, only the person as is authorized by the governing board of the owners association to receive the covenant needs to be included under this subsection. The information shall be provided no later than when the Remedial Action Completion Report or the Final Report is submitted to the agency.

 (c)  Within 90 days after the environmental covenant has been approved and signed by the Department, the person who submitted the environmental covenant shall provide the Department with proof of recordation of either the approved environmental covenant or the substitute notice allowed under section 6512(b) of UECA (relating to registry; substitute notice), unless the Department agrees to an extension of time.

§ 253.6. Requirements for county recorder of deeds.

 Within 45 days after the filing of an environmental covenant, or the substitute notice allowed under section 6512 of UECA (relating to registry; substitute notice), with a county recorder of deeds, the recorder of deeds shall provide the person who filed the document with a copy of the recorded document which indicates where the recorder has indexed the document.

§ 253.7. Fees.

 (a)  A nonrefundable fee of $500 shall be submitted to the Department with each environmental covenant appropriately signed by all parties other than the Department.

 (b)  A fee is not required for environmental covenants submitted under §  253.10 (relating to conversion and waiver of conversion) where the person submitting the environmental covenant did not cause or contribute to the contamination described in the environmental covenant.

 (c)  At least every 3 years, the Department will provide the EQB with an evaluation of the fees in this chapter and recommend regulatory changes to the EQB to address any disparity between the program income generated by the fees and the Department’s cost of administering the program with the objective of ensuring fees meet all program costs and programs are self-sustaining.

§ 253.8. Subordination.

 (a)  As a condition of approving an environmental covenant, the Department may require that an owner of a prior interest subordinate its interest to the environmental covenant.

 (b)  If the Department requires subordination of a prior interest to the environmental covenant, it will notify the person submitting the environmental covenant and the owner of the prior interest of this condition in writing and describe the basis for requiring subordination.

 (c)  A subordination agreement may be contained in the environmental covenant or in a separate record. If contained in a separate record, a copy of the subordination document shall be provided to the Department prior to approval of the environmental covenant, unless the Department agrees to an extension of time. If the environmental covenant covers commonly owned property in a common interest community, the agreement or record may be signed by any person authorized by the governing board of the owners association.

 (d)  An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of the person’s interest but does not itself impose an affirmative obligation on the person with respect to the environmental covenant nor does it affect the person’s existing environmental liabilities.

Cross References

   This section cited in 25 Pa. Code §  253.2 (relating to contents and form of environmental covenant).

§ 253.9. Duration.

 (a)  Duration of covenant. An environmental covenant is perpetual except as provided under section 6509 of UECA (relating to duration).

 (b)  Eminent domain. When the Department is the agency referenced in section 6509(a)(5) of UECA, notice and request for consent must be made in writing and submitted to the Department at least 30 days prior to commencement of the eminent domain proceeding.

 (c)  Judicial termination or amendment. Where the Department is the agency referenced in section 6509(b) of UECA, the notice and request for determination must be made in writing and submitted to the Department at least 90 days prior to commencement of the judicial proceeding.

§ 253.10. Conversion and waiver of conversion.

 (a)  An instrument created before February 18, 2008, which establishes activity and use limitations to demonstrate attainment or maintenance of one or a combination of cleanup standards under the Land Recycling Act or to demonstrate satisfaction of a corrective action requirement under the Storage Tank Act shall be converted to an environmental covenant by February 18, 2013, unless waived by the Department or as otherwise provided in this section.

 (b)  The current owner of a property subject to an instrument covered in subsection (a) shall have the responsibility to convert the existing instrument to an environmental covenant in accordance with the requirements of UECA and this chapter. The Department will not require, but may allow, such an environmental covenant to contain information, restrictions or requirements, including activity and use limitations, not contained in the existing instrument or a Department-approved postremediation care plan.

 (c)  The obligation to convert an instrument covered in subsection (a) shall be waived until the property is transferred to a new owner if the current owner of the property requests the waiver in writing and provides the Department with proof of recordation of the instrument covered by subsection (a).

 (d)  The Department may waive the requirement to convert an instrument. Waivers that are granted by the Department will be issued in writing.

Cross References

   This section cited in §  253.7 (relating to fees).

§ 253.11. Assignment of interest.

 When the Department’s consent is required for a holder to assign its interest, or for the removal and replacement of a holder, request for the consent must be made in writing and submitted to the Department at least 30 days prior to the assignment, unless waived by the Department.



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