No Pa. Case Has Ever Adjudicated A Claim To Enforce An Environmental Covenant Imposed Under 'Act 2'—Does That Matter?

Pennsylvania allows voluntary cleanups of contaminated sites under the Land Recycling and Environmental Remediation Standards Act (Act 2), 35 Pa. Stat. Ann. Sections 6026.101 to .908. When contamination remains at or under a property even after cleanup, the Land Recycling Program frequently requires a restrictive covenant to be recorded on the property that satisfies the Uniform Environmental Covenants Act (UECA), 27 Pa. Cons. Stat. Sections 6501-17. A UECA covenant imposes an activity and use limitation on the property enforceable not only by the remediator but also by the Department of Environmental Protection.

Act 2 has been on the books since 1995. UECA was adopted in Pennsylvania at the end of 2007. More than a few UECA covenants have been recorded as parts of Act 2 cleanups. Nevertheless, research has not revealed any decision of any Pennsylvania state or federal court or of the Environmental Hearing Board deciding whether a UECA covenant should be enforced or