Pennsylvania Proposes Changes to Cleanup Standards and New Rules for Environmental Covenants

March 5, 2010
by Michael Meloy, Rodd Bender and Matthew Sullivan
MGKF Special Alert

On March 6, 2010, two important sets of proposed regulations will be published in the Pennsylvania Bulletin that will broadly affect environmental remediation activities in Pennsylvania. The proposed regulations include:

  • Rules to implement the Pennsylvania Uniform Environmental Covenants Act ("UECA"); and
  • Amendments to existing rules and cleanup standards under the Pennsylvania Land Recycling and Environmental Remediation Standards Act ("Act 2").

Publication of the proposed regulations triggers 30-day public comment periods for each of the rulemakings. The public comment periods close on April 5, 2010. Key features of the proposed regulations are highlighted below. If you are interested learning more about the proposed regulations or submitting comments, please contact Michael Meloy (mmeloy@mgkflaw.com), Rodd Bender (rbender@mgkflaw.com) or Matt Sullivan(msullivan@mgkflaw.com) at 484-430-5700.

Proposed UECA Regulations

As originally envisioned, UECA was designed to strengthen the viability of using institutional controls (such as land use restrictions) and engineering controls (such as caps) as components of environmental remediation projects. Unlike the approach used in other states, however, the version of UECA that Pennsylvania adopted in late 2007 makes compliance with its terms mandatory where engineering or institutional controls are used to demonstrate attainment of a cleanup standard under Act 2 or the Pennsylvania Storage Tank and Spill Prevention Act ("Storage Tank Act"). The Pennsylvania Department of Environmental Protection ("PADEP") has seized on the authority granted by UECA to implement policies that alter the manner in which remediation activities are undertaken in Pennsylvania and expand the universe of post-remediation obligations that the regulated community must shoulder. As a result, UECA has become a significant stumbling block for those engaged in environmental remediation in Pennsylvania. In addition to its prospective requirements, UECA has retroactive impacts in that activity and use limitations established as part of performing prior remediations under Act 2 or the Storage Tank Act generally must be converted to UECA covenants by February 19, 2013.

The proposed regulations address both the prospective and retroactive elements of UECA. For example, the proposed regulations describe which instruments will need to be converted to UECA covenants and who must perform that conversion. The proposed regulations also provide a means to defer that conversion until the property is subsequently transferred and specify that PADEP will not impose additional obligations on the property as part of the conversion process. However, the proposed regulations also appear to create a host of new issues by (1) requiring that UECA covenants generally be prepared prior to the submission and approval of final reports documenting remedial activities, even though such reports typically dictate the content of UECA covenants; (2) requiring the use of PADEP's model UECA covenant, even though the current model covenant includes elements that are not required under UECA; and (3) requiring the submission of a list of the occupants of, and those with a recorded interest in, the property.

In addition, other important issues have not been addressed in the proposed regulations. For example, because PADEP can require each current property owner to execute the UECA covenant, the need to impose a covenant has been problematic for sites that have been remediated and subsequently subdivided and conveyed to multiple new owners, or established as condominium communities. The proposed regulations also appear to reflect the important change in policy that PADEP made in response to UECA to require land use restrictions compliant with UECA in circumstances where the nonresidential statewide health standard is used, even though such restrictions had not previously been mandated under Act 2.

Proposed Changes to Act 2 Regulations and Cleanup Standards

The proposed changes to the Act 2 regulations focus on two areas. First, the proposed regulations contain modifications to certain elements of the Land Recycling Program including, among other things (1) setting a three-year review cycle for future revisions to cleanup standards; (2) incorporating components of the current version of the Environmental Protection Agency's Risk Assessment Guidance for Superfund; (3) clarifying that maximum contaminant levels ("MCLs") and health advisory levels ("HALs") automatically become groundwater cleanup standards under Act 2 upon promulgation; and (4) clarifying that remediators must address vapor intrusion when attaining the Act 2 statewide health standard. Second, the proposed regulations contain extensive revisions to the medium-specific concentrations ("MSCs"), which are numeric standards developed by PADEP to implement the statewide health cleanup standard under Act 2. For example, the revisions to the MSCs reflect new toxicological data and information that has become available, incorporate changes to the MCLs, and reflect changes to risk assessment approaches that have occurred since the MSCs were previously issued.

The proposed revisions to the MSCs will have a mixed impact on cleanups. In total, the MSCs will increase in 215 instances, including for various regulated substances with respect to the groundwater, soil direct contact, and/or soil-to-groundwater exposure pathways. Conversely, the MSCs across these same pathways will decrease in 170 cases. Among commonly encountered regulated substances, the proposed revisions to the MSCs will change the standards for benzene, benzo(a)pyrene and other polycyclic aromatic hydrocarbons, methyl ethyl ketone, various PCB aroclors, tetrachloroethylene, trimethylbenzene compounds, trichloroethylene, xylenes, arsenic and hexavalent chromium. In addition, entirely new MSCs will be issued for 26 additional regulated substances.

Notably, PADEP has decided not to revise the groundwater MSC for methyl tertiary butyl ether ("MTBE"), a prevalent gasoline-related contaminant, notwithstanding the fact that new toxicity information would have resulted in a more lenient cleanup standard using the scientific approaches prescribed in Act 2. Instead, PADEP is proposing to leave the current MSC in place, relying on concerns over potential aesthetic considerations as a justification.