Uniform Environmental Covenants Act (UECA) Program Moving Forward

The Uniform Environmental Covenants Act (UECA) program in West Virginia came into existence on July 2, 2008, West Virginia Code §22-17. UECA was developed to allow risk-based closure of contaminated sites. These sites are likely to have land use covenants (LUCs) associated with the property following closure of the site by the West Virginia Department of Environmental Protection (WVDEP). LUCs, such as restricting the property to exclude residences or prohibiting groundwater wells are a common practice for contaminated sites using human health and ecological risk-based closure. West Virginia had no standard procedure for attaching LUCs to property deeds. UECA will provide a standard practice (hence-Uniform) for covenants placed upon the property. Additionally, there is a provision for the property owner to conduct inspections of the property on a regular basis to monitor compliance with the LUCs and report those inspections to the WVDEP after site characterization, remedial design and implementation of the remedial measures have been completed. There is a provision to discontinue the inspections, if it is determined that the inspections are no longer necessary to protect human health and ecological receptors.

UECA is very similar to the West Virginia Voluntary Remediation Program (VRP) administered by the WVDEP. The VRP became effective on July 1, 1997. The VRP also allows for closure of contaminated sites using risk-based technology and has been successful in redevelopment of numerous contaminated properties that otherwise would not have been remediated or redeveloped. Below is a comparison of major components of the VRP and UECA requirements. 

VRP

·     Under the VRP, successful closure of the site results in a Certificate of Completion (COC) for all potential historical environmental impacts that can be identified at the site and thus results in screening for an expanded analytical parameter list. The COC is a legal document that limits the ability of the regulatory agencies from re-opening of the site for regulatory enforcement.

·     Requires an application fee and reimbursement costs for DEP employee’s time and expenses associated with the project.

·     Requires a signing of a Voluntary Remediation Agreement (VRA) and use of a Licensed Remediation Specialist to manage the project. Detailed risk assessment in accordance with USEPA protocols must be performed.

·     Requires extensive QA/QC and laboratory data validation. 

UECA

·     Under UECA, successful closure results in a No Further Action at this time (NFA) for specific environmental impacts associated with an identified environmental release such as a Leaking Underground Storage Tank (LUST) site. This generally results in a limited analytical parameter list. The NFA would allow the regulatory agency to re-open the site, if environmental conditions warrant and does not provide the broader protection of the COC.

·     Requires reimbursement costs for DEP employee’s time and expenses associated with the project. There is no initial application fee, as is the case with the VRP.

·     Requires signing of an Agreement For Investigation And Remediation Activities Under W.VA. Code §22-17 & §22-22B (UECA Agreement) and use of a Licensed Remediation Specialist to manage the project. Detailed risk assessment in accordance with USEPA protocols must be performed. (same as VRP)

·     Requires extensive QA/QC and laboratory data validation. (same as VRP)

The UECA program is currently being developed by the WVDEP. The UECA Agreement became available for use in August 2009. The UECA Agreement and the Uniform Environmental Covenant Act are available through the WVDEP website at www.wvdep.org. 

At this time, no site has officially entered the UECA program, with a signed UECA Agreement. This program will provide another tool to effectively remediate contaminated sites. Each contaminated site must be evaluated for its own characteristics to determine if it would be more cost effective or logistical to use UECA, the VRP, or remediate to conventional numerical clean-up standards, which was often the only option, prior to existence of the VRP and UECA. Such factors as spreading costs over time, problems with off-site impacts that may affect neighboring properties, future land use, cost of remedial alternatives and liability issues are just a few of the considerations when determining which program may best fit your situation. 

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.