Fourth Quarter 2007

States Continue to Improve Their Ability to Implement, Monitor and Enforce Institutional Controls

Holland & Knight Newsletter
Amy L. Edwards

Nineteen states and one U.S. territory have now adopted the Uniform Environmental Covenants Act (UECA), and two other states are close to enacting this important law.
UECA was first approved as a model law by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in August of 2003. It overcomes a number of common law obstacles that have made it difficult in the past to create viable institutional controls. The uniform law establishes the legal infrastructure needed to create, modify, terminate and enforce these controls.
Ohio was the first state to adopt UECA (H.B. 516, in December of 2004), and the following have since followed its lead:
Alabama                    H.B. 426, enacted 2007
Delaware                   S.B. 112, enacted 2005
District of Columbia    Act 16-290, enacted 2006
Hawaii                       Act 279, enacted 2006
Idaho                        S.B. 1255, enacted 2006
Iowa                         S.F. 375, enacted 2005
Kentucky                   H.B. 472, enacted 2005
Maine                        L.R. 2059, enacted 2005
Maryland                   H.B. 679, enacted 2005
Minnesota                  SF 1131 and HF 1021, enacted 2007
Missouri                     S.B. 388, enacted 2007
Nebraska                   L.B. 298, enacted 2005
Nevada                      S.B. 263, enacted 2005
Oklahoma                  S.B. 1460, enacted 2006
South Dakota             S.B. 143, enacted 2005
U.S. Virgin Islands      B.N. 26-0064, enacted 2006
Utah                          S.B. 153, enacted 2006
Washington                S.B. 5421, enacted 2007
West Virginia              S.B. 406, enacted 2005

The states are also taking measures to streamline the implementation of UECA, with several of them adopting model forms, templates, fact sheets and guidance documents.

NCCUSL is also considering whether it would make sense to enact a model law to ensure that excavators do not disturb contaminated soil or ground water. Such a model law would build upon existing state “one call” programs. EPA has conducted several pilot studies to evaluate whether “one call” systems would help ensure the integrity of institutional controls. One such study in California involving a Chevron pipeline facility prevented a potentially significant breach of an institutional control.

New Jersey has also announced its intention to start issuing notices of violation to parties who have not submitted their biannual certifications under the New Jersey brownfields program. These notifications are required whenever the remedy includes institutional or engineering controls.
The state relies heavily on self-monitoring and reporting to know whether the controls are working as intended. Fines as high as $8,000 per day may be imposed for each day of non-compliance.

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