A daycare center could never be located on a former hazardous waste site under House Bill 43 (Rubley (R-Chester) creating environmental covenants that passed the House this week.

Land use limitations such as those imposed on brownfields or sites with underground storage tanks, or those previously used to dispose solid or hazardous waste, would be known and enforceable under environmental covenants to be put in place under the bill.

“Pennsylvania has done a great job encouraging the recycling of land contaminated by commercial activity. Under previous laws, many brownfields have rehabilitated and readied for reuse, as opposed to pristine land being developed for industrial use,” said Rep. Rubley. “My proposal creates environmental covenants to ensure that these properties are catalogued, and that future uses after the land is transferred to new owners are consistent with the permissible uses of the land.”

An example of a use that would be prevented under Rubley’s bill is a situation discovered in New Jersey, where a property contaminated with mercury was converted into a day-care center, potentially endangering those children and workers with mercury poisoning.

Currently, there is no good way to ensure that a brownfield cleanup site will be used according to restrictions. The covenant protects both the previous owner and future occupants of the site, ensuring that the land is either restored to a noncontaminated state or used according to restrictions in the covenant.

Covenants describe the property, the activity and use limitations on the property, and identify every holder of the covenant. Environmental covenants agreed to by property owners, local governments and the Department of Environmental Protection are enforceable in court if a change in use occurs that exceeds the uses allowed in the covenant. They can also be terminated by a foreclosure or eminent domain, or when all parties agree, which could occur if a site cleanup has taken place. Covenants can also be amended or terminated in court when circumstances change.

DEP would establish and maintain a registry of all environmental covenants and changes made to them. A key benefit of the registry is that one single statewide listing will be maintained in addition to county-level listings.

Environmental covenants will apply to activity and use limitations required under the Land Recycling Act and the Storage Tank and Spill Prevention Act.

If a remediation under either act was created prior to the effective date of this measure, it must be converted to an environmental covenant within five years. Deed notice requirements under the Solid Waste Management Act or the Hazardous Sites Cleanup Act may be in the form of an environmental covenant.

6/29/2007