PRINTER'S NO. 68
No. 43 Session of 2007
INTRODUCED BY RUBLEY, GEORGE, D. O'BRIEN, ARGALL, BASTIAN, CALTAGIRONE, FRANKEL, GEIST, GOODMAN, GRUCELA, HARPER, HENNESSEY, HERSHEY, LEACH, R. MILLER, MOUL, MUNDY, NICKOL, ROSS, SIPTROTH, SONNEY, STEIL, TANGRETTI, VEREB, WALKO, WATSON, MELIO, GALLOWAY AND FABRIZIO, JANUARY 30, 2007
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 30, 2007
AN ACT 1 Amending Title 27 (Environmental Resources) of the Pennsylvania 2 Consolidated Statutes, providing for uniform environmental 3 covenants. 4 The General Assembly of the Commonwealth of Pennsylvania 5 hereby enacts as follows: 6 Section 1. Title 27 of the Pennsylvania Consolidated 7 Statutes is amended by adding a chapter to read: 8 CHAPTER 65 9 UNIFORM ENVIRONMENTAL COVENANTS 10 Sec. 11 6501. Short title of chapter. 12 6502. Definitions. 13 6503. Nature of rights; subordination of interests. 14 6504. Contents of environmental covenant. 15 6505. Validity. 16 6506. Relationship to other land-use law.
1 6507. Notice. 2 6508. Recording. 3 6509. Duration. 4 6510. Amendment or termination by consent. 5 6511. Enforcement of environmental covenant. 6 6512. Registry; substitute notice. 7 6513. Uniformity of application and construction. 8 6514. Relation to Electronic Signatures in Global and National 9 Commerce Act. 10 6515. Environmental Quality Board. 11 6516. Appealable actions. 12 6517. Relationship to other laws. 13 § 6501. Short title of chapter. 14 This chapter shall be known and may be cited as the Uniform 15 Environmental Covenants Act. 16 § 6502. Definitions. 17 The following words and phrases when used in this chapter 18 shall have the meanings given to them in this section unless the 19 context clearly indicates otherwise: 20 "Activity and use limitations." Restrictions or obligations 21 with respect to real property created under this chapter. The 22 term includes engineering controls and institutional controls. 23 "Agency." Any of the following: 24 (1) The Department of Environmental Protection of the 25 Commonwealth. 26 (2) A Federal agency which determines or approves the 27 environmental response project pursuant to which the 28 environmental covenant is created. 29 "Board." The Environmental Hearing Board. 30 "Common interest community." A condominium, cooperative or 20070H0043B0068 - 2 -
1 other real property, with respect to which a person, by virtue 2 of ownership of a parcel of real property or of ownership of an 3 interest in real property, is obligated to pay for property 4 taxes, insurance premiums, maintenance or improvement of other 5 real property described in a recorded covenant which creates the 6 common interest community. 7 "Department." The Department of Environmental Protection of 8 the Commonwealth. 9 "Engineering controls." Remedial actions directed 10 exclusively toward containing or controlling the migration of 11 regulated substances through the environment. The term includes 12 slurry walls, liner systems, caps, leachate collection systems 13 and groundwater recovery trenches. 14 "Environmental covenant." A servitude arising under an 15 environmental response project which imposes activity and use 16 limitations. 17 "Environmental response project." A plan or work performed 18 for environmental remediation of real property, conducted: 19 (1) under a Federal program governing environmental 20 remediation of real property; 21 (2) under a Commonwealth program governing environmental 22 remediation of real property; 23 (3) incident to closure of a solid or hazardous waste 24 management unit if the closure is conducted with approval of 25 an agency; or 26 (4) under a Commonwealth voluntary cleanup program 27 authorized by statute. 28 "Holder." A person that is the grantee of an environmental 29 covenant as specified in section 6503(a) (relating to nature of 30 rights; subordination of interests). 20070H0043B0068 - 3 -
1 "Institutional controls." Measures undertaken to limit or 2 prohibit certain activities which may interfere with the 3 integrity of a remedial action or result in exposure to 4 regulated substances at a site. The term includes fencing and 5 restrictions on the future use of the site. 6 "Land Recycling Act." The act of May 19, 1995 (P.L.4, No.2), 7 known as the Land Recycling and Environmental Remediation 8 Standards Act. 9 "Person." Any individual, corporation, partnership, 10 association or other entity recognized by law as the subject of 11 rights, duties or obligations. The term includes the United 12 States of America, a Federal agency, the Commonwealth, an agency 13 or instrumentality of the Commonwealth and a political 14 subdivision. 15 "Record." Information which is: 16 (1) inscribed on a tangible medium or stored in an 17 electronic or other medium; and 18 (2) retrievable in perceivable form. 19 "State." A state of the United States, the District of 20 Columbia, Puerto Rico, the United States Virgin Islands or any 21 territory or insular possession subject to the jurisdiction of 22 the United States. 23 § 6503. Nature of rights; subordination of interests. 24 (a) Nature.--Any person, including a person that owns an 25 interest in the real property, or an agency may be a holder. An 26 environmental covenant may identify more than one holder. The 27 interest of a holder is an interest in real property. 28 (b) Rights of agency.--The rights of an agency under this 29 chapter or under an approved environmental covenant, other than 30 as a holder, are not interests in real property. 20070H0043B0068 - 4 -
1 (c) Obligations.--An agency is bound by any obligation it 2 assumes in an environmental covenant, but an agency does not 3 assume obligations merely by signing an environmental covenant. 4 Any person other than an agency that signs an environmental 5 covenant is bound by the obligations the person assumes in the 6 covenant; but signing the covenant does not change obligations, 7 rights or protections granted or imposed under law other than 8 this chapter except as provided in the environmental covenant. 9 (d) Rules.--The following rules apply to interests in real 10 property in existence at the time an environmental covenant is 11 created or amended: 12 (1) An interest which has priority under law other than 13 this chapter is not affected by an environmental covenant 14 unless the owner of the interest subordinates its interest to 15 the covenant. 16 (2) As a condition to approval of an environmental 17 covenant an agency may require that an owner of a prior 18 interest subordinate that interest to the environmental 19 covenant. 20 (3) A subordination agreement may be contained in an 21 environmental covenant covering real property or in a 22 separate record. If the environmental covenant covers 23 commonly owned property in a common interest community, the 24 agreement or record may be signed by any person authorized by 25 the governing board of the owners association. 26 (4) An agreement by a person to subordinate a prior 27 interest to an environmental covenant affects the priority of 28 that person's interest but does not by itself impose an 29 affirmative obligation on the person with respect to the 30 environmental covenant nor affect that person's existing 20070H0043B0068 - 5 -
1 environmental liability. 2 § 6504. Contents of environmental covenant. 3 (a) Required information.--An environmental covenant must: 4 (1) state that the instrument is an environmental 5 covenant executed pursuant to this chapter; 6 (2) contain a legally sufficient description of the real 7 property subject to the environmental covenant; 8 (3) contain a brief narrative description of the 9 contamination and the remedy; 10 (4) describe the activity and use limitations on the 11 real property; 12 (5) identify every holder; 13 (6) be signed, with the formalities required for a deed, 14 by: 15 (i) the agency, unless there is a deemed approval 16 under subsection (c)(4); 17 (ii) every holder; and 18 (iii) every owner in fee simple of the real property 19 subject to the environmental covenant, unless waived by 20 the agency; and 21 (7) identify the name and location of any administrative 22 record for the environmental response project reflected in 23 the environmental covenant. 24 (b) Permitted information.--In addition to the information 25 required by subsection (a), an environmental covenant may 26 contain other information, restrictions and requirements agreed 27 to by the persons who signed it, including: 28 (1) requirements for notice following transfer of a 29 specified interest in, or concerning proposed changes in use 30 of, applications for building permits for or proposals for 20070H0043B0068 - 6 -
1 any site work affecting the contamination on the property 2 subject to the environmental covenant; 3 (2) requirements for periodic reporting describing 4 compliance with the environmental covenant; 5 (3) rights of access to the property granted in 6 connection with implementation or enforcement of the 7 environmental covenant; 8 (4) restriction or limitation on amendment or 9 termination of the environmental covenant in addition to 10 those contained in sections 6509 (relating to duration) and 11 6510 (relating to amendment or termination by consent); 12 (5) rights of the holder in addition to its right to 13 enforce the environmental covenant under section 6511 14 (relating to enforcement of environmental covenant); and 15 (6) a narrative description of the contamination and 16 remedy, including the contaminants of concern, the pathways 17 of exposure, limits on exposure and the location and extent 18 of the contamination. 19 (c) Agency.-- 20 (1) Prior to signing a covenant, an agency may review 21 the covenant and provide its conditions for approval. 22 (2) In addition to other conditions for its approval of 23 an environmental covenant, an agency may require those 24 persons specified by the agency that have interests in the 25 real property to sign the covenant. 26 (3) Except as set forth in paragraph (4), signature by 27 an agency on an environmental covenant constitutes its 28 approval of the environmental covenant. 29 (4) Failure of the department to approve or disapprove 30 an environmental covenant within 90 days of receipt of all 20070H0043B0068 - 7 -
1 information reasonably required by the department to make a 2 determination shall be deemed an approval of the 3 environmental covenant. 4 (5) The department's decision to approve or not approve 5 an environmental covenant is appealable to the board. 6 § 6505. Validity. 7 (a) Nature.--An environmental covenant which complies with 8 this chapter runs with the land. 9 (b) Impediments excluded.--An environmental covenant which 10 is otherwise effective is valid and enforceable even if: 11 (1) it is not appurtenant to an interest in real 12 property; 13 (2) it can be or has been assigned to a person other 14 than the original holder; 15 (3) it is not of a character that has been recognized 16 traditionally at common law; 17 (4) it imposes a negative burden; 18 (5) it imposes an affirmative obligation on a person 19 having an interest in the real property or on the holder; 20 (6) the benefit or burden does not touch or concern real 21 property; 22 (7) there is no privity of estate or contract; 23 (8) the holder dies, ceases to exist, resigns or is 24 replaced; or 25 (9) the persons identified as owner and holder in the 26 environmental covenant are the same person. 27 (c) Prior instruments.-- 28 (1) An instrument which creates restrictions or 29 obligations with respect to real property which would, except 30 for the fact that the instrument was recorded before the 20070H0043B0068 - 8 -
1 effective date of this chapter, qualify as activity and use 2 limitations is not invalid or unenforceable: 3 (i) by reason of the limitations on enforcement of 4 interests described in subsection (b); or 5 (ii) because it was identified as an easement, 6 servitude, deed restriction or other interest. 7 (2) This chapter does not apply in any other respect to 8 an instrument referred to in paragraph (1). 9 (d) Other interests.-- 10 (1) This chapter does not invalidate or render 11 unenforceable any interest, whether designated as an 12 environmental covenant or other interest, which is otherwise 13 enforceable under the law of this Commonwealth. 14 (2) Nothing in this chapter shall be construed to 15 restrict, affect or impair the rights of any person to enter 16 into or record a restrictive covenant, institution control, 17 easement, servitude or other restriction on the use of 18 property permitted by law that does not satisfy the 19 requirements of this chapter and does not have the 20 permission, approval or consent of an agency, a political 21 subdivision, a regulatory body or another unit of government. 22 However, a restrictive covenant, institutional control, 23 easement, servitude or other restriction on the use of 24 property that does not satisfy the requirements of this 25 chapter and does not have such permission, approval or 26 consent is not subject to this chapter. 27 § 6506. Relationship to other land-use law. 28 (a) Effect on unauthorized uses.--This chapter does not 29 authorize a use of real property which is otherwise prohibited 30 by: 20070H0043B0068 - 9 -
1 (1) zoning; 2 (2) law other than this chapter regulating use of real 3 property; or 4 (3) a recorded instrument which has priority over the 5 environmental covenant. 6 (b) Effect on authorized uses.--An environmental covenant 7 may prohibit or restrict uses of real property which are 8 authorized by zoning or by law other than this chapter. 9 § 6507. Notice. 10 (a) Recipients.--The owner or another person designated by 11 the agency shall provide a copy of a signed environmental 12 covenant as required by the agency to: 13 (1) all persons who signed the environmental covenant; 14 (2) all persons holding a recorded interest in the real 15 property subject to the environmental covenant; 16 (3) all persons in possession of the real property 17 subject to the environmental covenant; 18 (4) each political subdivision in which real property 19 subject to the environmental covenant is located; and 20 (5) any other persons the agency requires. 21 (b) Effect.--Failure to provide a copy of the environmental 22 covenant as required by the agency does not affect the 23 environmental covenant's validity. 24 § 6508. Recording. 25 (a) Requirement.--An environmental covenant, any amendment 26 or termination of the environmental covenant and a waiver under 27 section 6510(a)(3)(i) or (b)(2) (relating to amendment or 28 termination by consent) must be recorded in every county in 29 which any portion of the real property subject to the 30 environmental covenant is located. A recorded environmental 20070H0043B0068 - 10 -
1 covenant or a notice recorded under section 6512 (relating to 2 registry; substitute notice) must be indexed in the grantor's 3 index in the names of the owners of the real property subject to 4 the environmental covenant and in the grantee's index in the 5 name of the holder. 6 (b) Applicable law.--Except as otherwise provided in section 7 6509(c) (relating to duration), an environmental covenant is 8 subject to the law of this Commonwealth governing recording and 9 priority of interests in real property. Recording of an 10 environmental covenant pursuant to the law of this Commonwealth 11 provides the same constructive notice of the environmental 12 covenant as the recording of a deed provides of an interest in 13 real property. 14 § 6509. Duration. 15 (a) Perpetual.--An environmental covenant is perpetual 16 unless one of the following applies: 17 (1) It is limited by its terms to a specific duration or 18 the occurrence of a specific event. 19 (2) It is terminated by consent under section 6510 20 (relating to amendment or termination by consent). 21 (3) It is terminated under subsection (b). 22 (4) It is terminated by foreclosure of an interest which 23 has priority over the environmental covenant. 24 (5) It is terminated or modified by judicial decree in 25 an eminent domain proceeding, but only if: 26 (i) the agency which signed the environmental 27 covenant consents to the judicial action; 28 (ii) all persons identified in section 6510(a) and 29 (b) are given notice of the pendency of the eminent 30 domain proceeding; and 20070H0043B0068 - 11 -
1 (iii) the court determines, after hearing, that the 2 termination or modification will not adversely affect 3 human health or the environment. 4 (b) Judicial modification.--A court, in an action in which 5 all persons identified in section 6510(a) and (b) have been 6 given notice, may terminate or modify the environmental covenant 7 on the real property subject to the environmental covenant if 8 any of the following apply: 9 (1) The agency which signed an environmental covenant 10 has determined that: 11 (i) the intended benefits of the environmental 12 covenant can no longer be realized; or 13 (ii) changed circumstances indicate that the 14 intended benefits can only be realized through 15 modification of the environmental covenant. 16 (2) A standard allowing for a reopener of a completed 17 environmental response project under section 505 of the Land 18 Recycling Act is met. 19 (c) Other modifications.--Except as otherwise provided in 20 subsection (a) or (b), an environmental covenant may not be 21 extinguished, limited or impaired through: 22 (1) issuance of a tax deed; 23 (2) foreclosure of a tax lien; or 24 (3) application of the doctrine of adverse possession, 25 prescription, abandonment, waiver, lack of enforcement or of 26 a similar doctrine. 27 § 6510. Amendment or termination by consent. 28 (a) Signature.--An environmental covenant may be amended or 29 terminated by consent only if the amendment or termination is 30 signed by all of the following: 20070H0043B0068 - 12 -
1 (1) The agency. 2 (2) Unless waived by the agency, the current owner in 3 fee simple of the real property subject to the environmental 4 covenant. 5 (3) Each person that originally signed the environmental 6 covenant or that person's successor in interest unless: 7 (i) the person waived the right to consent in a 8 signed record; or 9 (ii) a court finds that the person no longer exists 10 or cannot be located or identified with the exercise of 11 reasonable diligence. 12 (4) Except as otherwise provided in subsection (d)(2), 13 the holder. 14 (b) Effect upon property interests subject to environmental 15 covenants.--If an interest in real property is subject to an 16 environmental covenant, the interest is not affected by an 17 amendment of the covenant unless the current owner of the 18 interest: 19 (1) consents to the amendment; or 20 (2) has waived in a signed record the right to consent 21 to the amendment. 22 (c) Effect of assignment.--Except for an assignment 23 undertaken pursuant to a governmental reorganization, assignment 24 of an environmental covenant to a new holder is an amendment. 25 (d) Assignment requirements.--Except as otherwise provided 26 in the environmental covenant: 27 (1) a holder may not assign its interest without consent 28 of the other parties; 29 (2) a holder may be removed and replaced by agreement of 30 the other parties specified in subsection (a); and 20070H0043B0068 - 13 -
1 (3) a court of competent jurisdiction may fill a vacancy 2 in the position of holder. 3 § 6511. Enforcement of environmental covenant. 4 (a) Parties.--A civil action for injunctive or other 5 equitable relief for violation of an environmental covenant may 6 be maintained by: 7 (1) a party to the environmental covenant; 8 (2) the agency or, if it is not the agency, the 9 department; 10 (3) any other person to whom the environmental covenant 11 expressly grants power to enforce; 12 (4) a person whose interest in the real property or 13 whose collateral or liability may be affected by the alleged 14 violation of the environmental covenant; and 15 (5) a political subdivision in which the real property 16 subject to the environmental covenant is located. 17 (b) Regulatory authority.-- 18 (1) This chapter does not limit the regulatory authority 19 of the agency or the department under law other than this 20 chapter. 21 (2) In addition to bringing an action under subsection 22 (a), the department may issue any order necessary to enforce 23 section 6517(b) (relating to relationship to other laws). 24 (c) Liability.--A person is not subject to liability for 25 environmental remediation solely because the person has the 26 right to enforce an environmental covenant. 27 § 6512. Registry; substitute notice. 28 (a) Registry.--The department shall establish and maintain a 29 registry which contains all environmental covenants and any 30 amendment or termination of those covenants. The registry may 20070H0043B0068 - 14 -
1 also contain any other information concerning environmental 2 covenants and the real property subject to them which the 3 department considers appropriate. The registry is a public 4 record for purposes of the act of June 21, 1957 (P.L.390, 5 No.212), referred to as the Right-to-Know Law. 6 (b) Notice.--After an environmental covenant or an amendment 7 or termination of an environmental covenant is filed in the 8 registry under subsection (a), a notice of the environmental 9 covenant, amendment or termination which complies with this 10 section may be recorded in the land records in lieu of recording 11 the entire environmental covenant. The notice must contain: 12 (1) a legally sufficient description and any available 13 street address of the real property; 14 (2) the name and address of the owner in fee simple of 15 the interest in the real property, the agency and the holder 16 if other than the agency; 17 (3) a brief narrative description of the contamination 18 and the remedy; 19 (4) a statement that the environmental covenant, 20 amendment or termination is available in a registry at a 21 listed address of the department and a disclosure of the 22 method of any electronic access; and 23 (5) a statement that the notice is notification of an 24 environmental covenant executed under this chapter. 25 (c) Sample form.--A statement in substantially the following 26 form, executed with the same formalities as a deed, satisfies 27 the requirements of subsection (b): 28 1. This notice is filed in the land records of the 29 (insert the name of the county in this Commonwealth in 30 which the property is located) of Pennsylvania pursuant 20070H0043B0068 - 15 -
1 to 27 Pa.C.S. § 6512. 2 2. This notice and the covenant, amendment or 3 termination to which it refers may impose significant 4 obligations with respect to the property described below. 5 3. A legal description of the property is attached as 6 Exhibit A to this notice. A brief narrative description 7 of the contamination and the remedy is attached as 8 Exhibit B to this notice. The address of the property 9 that is subject to the environmental covenant is (insert 10 address of property) (not available). 11 4. The name and address of the owner of the fee simple 12 interest in the real property on the date of this notice 13 is (insert name of current legal owner of the property 14 and the owner's current address as shown on the tax 15 records of the county in which the property is located). 16 5. The environmental covenant, amendment or termination 17 was signed by (insert name and address of the agency). 18 6. The environmental covenant, amendment or termination 19 was filed in the registry on (insert date of filing). 20 7. The full text of the covenant, amendment or 21 termination and any other information required by the 22 agency is on file and available for inspection and 23 copying in the registry maintained for that purpose by 24 the Department of Environmental Protection at (insert 25 address and room of building in which the registry is 26 maintained). (The covenant, amendment or termination may 27 be found electronically at (insert web address for 28 covenant).) 29 § 6513. Uniformity of application and construction. 30 In applying and construing this chapter as a uniform act, 20070H0043B0068 - 16 -
1 consideration must be given to the need to promote uniformity of 2 the law with respect to its subject matter among states which 3 enact it. 4 § 6514. Relation to Electronic Signatures in Global and 5 National Commerce Act. 6 (a) General rule.--Except as set forth in subsection (b), 7 this chapter modifies, limits or supersedes the Electronic 8 Signatures in Global and National Commerce Act (Public Law 106- 9 229, 15 U.S.C. § 7001 et seq.). 10 (b) Exceptions.-- 11 (1) This chapter does not modify, limit or supersede 12 section 101(a) of the Electronic Signatures in Global and 13 National Commerce Act (15 U.S.C. § 7001(a)). 14 (2) This chapter does not authorize electronic delivery 15 of any of the notices described in section 103(b) of the 16 Electronic Signatures in Global and National Commerce Act (15 17 U.S.C. § 7003(b)). 18 § 6515. Environmental Quality Board. 19 (a) Regulations.--The Environmental Quality Board has the 20 power and duty to promulgate regulations for the proper 21 performance of work of the department under this chapter. This 22 subsection includes the establishment of fees under this 23 chapter. 24 (b) Fees.--Fees under subsection (a) shall be deposited into 25 the Industrial Land Recycling Fund. 26 § 6516. Appealable actions. 27 Actions of the department under this chapter shall be 28 considered appealable actions under the act of July 13, 1988 29 (P.L.530, No.94), known as the Environmental Hearing Board Act. 30 § 6517. Relationship to other laws. 20070H0043B0068 - 17 -
1 (a) Prospective environmental response projects.-- 2 (1) Unless waived by the department, engineering 3 controls or institutional controls required to demonstrate 4 attainment of a remediation standard under the Land Recycling 5 Act or the act of July 6, 1989 (P.L.169, No.32), known as the 6 Storage Tank and Spill Prevention Act, shall be in the form 7 of an environmental covenant. 8 (2) If a deed acknowledgment is required by section 405 9 of the act of July 7, 1980 (P.L.380, No.97), known as the 10 Solid Waste Management Act, or section 512(b) of the act of 11 October 18, 1988 (P.L.756, No.108), known as the Hazardous 12 Sites Cleanup Act, the requirement may be satisfied by 13 reference to an environmental covenant recorded pursuant to 14 this chapter. 15 (b) Conversion to environmental covenant.-- 16 (1) An instrument created prior to the effective date of 17 this section which establishes activity and use limitations 18 to demonstrate attainment or maintenance of a standard under 19 the Land Recycling Act or to demonstrate satisfaction of a 20 corrective action requirement under the Storage Tank and 21 Spill Prevention Act shall be converted to an environmental 22 covenant within 60 months of the effective date of this 23 section unless conversion is waived by the department. 24 (2) Failure to comply with this subsection does not 25 invalidate the existing engineering controls and 26 institutional controls described in paragraph (1) or preclude 27 the conversion of those engineering controls and 28 institutional controls to an environmental covenant at a 29 later date. 30 Section 2. This act shall take effect in 60 days. L14L27VDL/20070H0043B0068 - 18 -