1. THE UNIFORM ENVIRONMENTAL COVENANTS ACT—THE EPA PERSPECTIVE BROWNFIELDS 2009 Michael A. Hendershot Senior Assistant Regional Counsel United States Environmental Protection Agency Region III

2. What We’ll Cover Institutional Controls (ICs) or Activity and Use Limitations (AULs) in remedy implementation— Lay of the land. EPA’s position on UECA. How it’s used at Superfund Sites and RCRA corrective action facilities. How we’re doing. Limitations and caveats on the use of environmental covenants. Region III example.

3. AULs as Components of the Remedy Required whenever residual contamination limits a facility’s use or requires exposure limitations in order to be protective. Called for in the decision document.

4. Universe of AULs Four types of AULs mechanisms: --real property (proprietary); --governmental; --enforcement tools; --informational devices.

5. Challenges to Implementing Reliable AULs Traditional property law prevents many controls from running with the land. EPA manages fifty states and several territories—Region III five states and DC. EPA has thousands of sites. EPA doesn’t have authority over most AUL mechanisms.

6. The UECA Advantage Overcomes many traditional property law obstacles. It’s “uniform”—more or less. EPA has direct authority—under state law—to approve and enforce environmental covenants.

7. When we use it RCRA corrective action. RCRA permits. Superfund remedial action. Periodic remedy review.

8. Superfund Remedial Design/Remedial Action Consent Decree Provisions “Layered”—redundant—approach. Consent Decree prohibition on use. Owners enter into environmental covenants with themselves or other settlors (states with UECA). Environmental Covenant must be free and clear of prior encumbrances and liens, unless EPA waives or releases them or subordination can’t be obtained.

9. Superfund Remedial Design/Remedial Action Consent Decree Provisions (Con’t) Holders of environmental covenant agree to enforce covenant if owner breaches it. In states without UECA: --obtain other real property interest; make EPA third-party beneficiary; --use other AUL mechanism(s).

10. How we’re doing Six Region III-approved Superfund environmental covenants; more on the way. Several corrective action covenants; many more on the way.

11. Limitations and Caveats Can’t compel parties to enter into environmental covenants. Large areas of contamination affecting large number of properties. Prior property interests can divest or allow activities inconsistent with environmental covenant.

12. Then what? Unilateral administrative order to recalcitrant owners. Other AUL mechanisms (zoning, municipal ordinances, county well- drilling regulations, for large-area sites. Attempt subordination or release of prior property interests of concern.

13. Region III Case Study Several-hundred-acre landfill—Superfund Site. Surface and groundwater contamination. Five Site parcels require AULs. UECA state.

14. The Proposed Covenant First parcel only. Groundwater contamination beneath the parcel—no surface contamination. Title report listed thirty permitted encumbrances—mortgage, utility easements.

15. The Process Only seven encumbrances were on the parcel. Utility easement use wouldn’t compromise groundwater remedy. Mortgagee subordinated interest in environmental covenant.

16. Conclusion Environmental covenants play a vital role in EPA’s CERCLA and RCRA cleanup programs. But there are important limitations and caveats on their use.