Uniform Environmental Covenants Productive Uses and Long Term Challenges Kevin Collins Response Development Unit 2 Coordinator GIEC VRP Workshop October 18, 2016

Georgia Uniform Environmental Covenant Act (UECA) UECA - O.C.G.A. § 44-16-1 et. seq. Effective on July 1, 2008. Created to provide for the contents of an environmental covenant (EC) and to provide for enforcement, notice, recording, amendment and termination of the EC Environmental covenants - “institutional controls”, “land use controls” - increasingly being used as part of the environmental remediation process for contaminated property. Typically used when the property is to be cleaned up to a level determined by the potential environmental risks posed by a particular use, rather than to unrestricted use standards. Can be environmentally and economically preferable in some circumstances, although it will often allow the parties to leave residual contamination place through a risk-based cleanup by controlling the potential risks presented by that residual contamination.

Regulatory APPLICABILITY OF uec’s Voluntary Remediation Program (VRP) Georgia VRP Act (O.C.G.A. 12-8-100) Response and Remediation Program (RRP) Georgia Rules for Hazardous Site Response (391-3-19) & Hazardous Site Response Act (O.C.G.A. §12-8-90) Brownfield Program Georgia Hazardous Site Reuse & Redevelopment Act (O.C.G.A. 12-8-200) 109 VRP Applications / 530 HSI Sites / 400+ LOL issued through Brownfields – 60+ UECs enacted. Also used at RCRA sites.

Primary Use To protect public and environmental receptors from exposure to those substances that remain in soil and/or groundwater through permanent controls and restrictions on property usage. When risk-based remediation imposes restrictions on how the property may be used after the cleanup, requires continued monitoring of the site, or requires construction of permanent containment or other remedial structures on the site, environmental covenants are crucial tools to make these restrictions and requirements effective. Type 5 corrective actions that utilize engineering and institutional controls as part of their corrective actions.

Development of a UEC Primary Resource: GA EPD Website http://epd.georgia.gov/uniform-environmental-covenants Model UEC Streamlined Groundwater Restriction Only UEC Frequently Asked Questions Templates are available online. Examples of FAQs: How does this restriction affect the value of my property? / Why should I sign a UEC for my property? / Can an environmental covenant be removed from a Property? / Why am I being asked to sign a streamlined UEC for groundwater when my property is not a Brownfield property or listed on the HSI?

Primary components of a uec Basic Information / Parties involved Property / Site information Activity and/or Use Limitations Records / Notices Signatures Exhibits Notices: parties notified or copied. Exhibits: legal description, annual certification form, etc.

Basic Information Fee Simple Owner / Grantor Grantee / Holder with power to enforce Grantee / Entity with express power to enforce: State of Georgia – DNR – EPD Parties w/ Interest in the Property (other than Fee Simple) Make sure to define the parties with an interest in the property – easements, lenders, parent companies, etc. Consult your legal representation for advice on the signatories of the covenant – some parent companies / lenders may be required

Property / site information Tax Parcel ID # / Legal Description Name & Location of Administrative Records Description of release and corrective action Reference pertinent regulatory documents related to the corrective action New format may include reference to “records pertaining to this corrective action” and list the locations – rather than list the documents in the covenant. Regulatory documents: CSR, which may include Monitoring & Maintenance Plans, Soil Management Plans, etc. for the engineering & institutional controls. Description of the release: the legal description can include specific geographic location of the release, apply Restrictions to the specified area(s).

Activity and/or Use limitations Notice(s) Monitoring & Reporting Groundwater / Activity Use Limitations Permanent Markers Access Records UEC tend to be generated as part of a risk-based remediation, which in turn imposes restrictions on how the property may be used after the cleanup, it may require continued monitoring of the site, or construction of permanent containment or other remedial structures on the site, and in those instances the Activity and/or land use restrictions detailed in the environmental covenants are crucial tools to make the risk-based remediation effective.

Records/notices EPD Environmental Covenants Registry Warranties & Legal Representations Duration Signatures Exhibits Recording final UEC Duration: runs w/ the land, termination requirements, etc. Warranties – legal representations associated with the covenant, confirming that all necessary parties have been provided with a copy of the covenant, etc. Verbiage for streamline GW EC: “Once the EC is executed and filed, a final copy will be posted on the GA EPD website, or can be made available to you upon request from the undersigned.” Signatures – make sure that all appropriate parties have signed the covenant, corporate representatives, witnesses, etc. Exhibits – Legal description, annual certification form if applicable, etc. Allow for enough time – 30 days before the director can sign, time to file with the county.

Contact information Kevin Collins Response and Remediation Program 404-657-8616 Kevin.collins@dnr.ga.gov