The House Environmental Resources and Energy Committee chaired by Rep. Bill Adolph (R-Delaware) and Rep. Camille George (D-Clearfield), heard comments this week on House Bill 1249 (Rubley-R-Chester) that would strengthen environmental covenants used in brownfield cleanups.

The bill is based on legislation drafted by members of the National Conference of Commissioners on Uniform State Laws that has already been adopted in at least seven states.

House Bill 1249 would do several things – require the use of covenants with standard elements that make them clearly enforceable in court without relying on common law understandings; specifies the entities that are required to be notified of the covenants, including local governments; gives the Department of Environmental Protection and persons with an interest in the property clear authority to enforce covenants and requires the agency to set up a registry of all covenants as a resource for developers.

The Committee heard comments from Ray Pepe, representing the National Conference; Eugene DePasquale, DEP Deputy Secretary for Revitalization & Local Government Support; Pam Witmer, Pennsylvania Chemical Industries Council; and Brian Hill, Pennsylvania Environmental Council.

Witnesses supported the need for specific legislation to create enforceable covenants to ensure the future integrity of brownfield cleanups. Covenants connected to brownfield cleanups assign responsibility for maintaining engineering controls and limits on using the property that make sure future owners or current users are not at risk.

Hill said, “Cleanups that isolate or prevent the use of a site in certain ways are only good if you preserve the integrity of those controls. The way to do that is to clearly spell out those limits and responsibilities in covenants that are clearly enforceable on existing and new owners of brownfields.

“The Pennsylvania Environmental Council has promoted the cleanup of brownfield sites since the 1990s as a way to encourage new development on existing sites. The more brownfields we reuse, the fewer farms and open spaces will come under development pressure.”

Hill said the Council has a number of brownfield-related projects now underway in several areas of the state including: development of the French Creek Outdoor Learning Center on a former brownfield site in Meadville, a brownfield and grayfield (abandoned mine site) inventory in Luzerne and Lackawanna counties and is working with the Northeast Riverfront Task Force to redevelop the North Delaware Riverfront and the Delaware Riverfront Greenway both in Philadelphia.

Comments by the Chemical Industries Council suggested re-looking at provisions that had the potential for reopening federally-approved and Superfund cleanups to convert them to the new covenants so they could be included on the central registry and making the legislation more self-implementing without the need for lengthy DEP regulations.

DEP supported the legislation noting there are now 424 sites around the state with deed restrictions designed to limit the uses of property or protect the integrity of engineering controls.

The agency said it was open to discussing different ways of achieving the objectives of the legislation and would be glad to participate in further discussions in the workgroup put together by the prime sponsor Rep. Rubley.

There was a suggestion by Rep. Surra (D-Elk) that DEP look at whether these environmental covenants could be used to assign responsibilities for long-term treatment of acid mine drainage and DEP agreed to look at that issue.

9/30/2005