Title of Regulation: 9VAC15-90. Uniform Environmental Covenants Act Regulation (adding 9VAC15-90-10 through 9VAC15-90-60).

Statutory Authority: § 10.1-1250 of the Code of Virginia.

Effective Date: November 9, 2011.

Agency Contact: Carol C. Wampler, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4579, or email carol.wampler@deq.virginia.gov.

Summary:

The Department of Environmental Quality (DEQ) is adopting a new regulation to implement the Virginia Uniform Environmental Covenants Act (UECA), enacted by the Virginia General Assembly in 2010 (§ 10.1-1238 et seq. of the Code of Virginia).

Virginia's UECA is based on the model uniform act developed by the National Conference of Commissioners on Uniform State Law. The General Assembly adopted the model act in 2010 with only a few alterations, including deletion of the requirement to maintain a registry of UECA covenants and addition of provisions for fees to be paid to DEQ to cover DEQ's costs in administering this regulation.

CHAPTER 90
UNIFORM ENVIRONMENTAL COVENANTS ACT REGULATION

9VAC15-90-10. Definitions.

The following words and terms used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Activity and use limitations" means restrictions or obligations created under this chapter with respect to real property.

"Agency" means the Department of Environmental Quality or other state or federal agency that determines or approves the environmental response project pursuant to which the environmental covenant is created. The agency may be considered a grantee for purposes of indexing in the land records.

"Applicant" means the owner or owners of the property to which the covenant attaches or a person or persons who are lawfully authorized to execute and submit a proposed environmental covenant, amendment, termination, or other UECA document to the department or other agency pursuant to this chapter. The applicant may be considered a grantor for purposes of indexing in the land records.

"Common interest community" means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums for maintenance or improvement of other real property described in a recorded covenant that creates the common interest community.

"Department" means the Department of Environmental Quality.

"Environmental covenant" or "covenant" means a servitude arising under an environmental response project that imposes activity and use limitations.

"Environmental remediation" means the actions required by the agency as part of an environmental response project. Activity and use limitations alone may constitute "environmental remediation."

"Environmental response project" means a plan or work performed for environmental remediation of real property and conducted:

1. Under a federal or state program governing environmental remediation of real property;

2. Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or

3. Under a state voluntary clean-up program including the Brownfield Restoration and Land Renewal Act, Chapter 12.1 (§ 10.1-1230 et seq.) of the Title 10.1 of the Code of Virginia.

"Holder" means the grantee of an environmental covenant. A person, including a person that owns an interest in the real property, the agency, or a municipality or other unit of local government, may be a holder. The holder shall be considered a grantee for purposes of indexing in the land records.

"Owner" means the fee simple owner of the property to which the covenant attaches. There may be more than one owner. The owner shall be considered a grantor for purposes of indexing in the land records.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency or instrumentality, or other legal or commercial entity.

"Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

"UECA" means the Uniform Environmental Covenants Act, Chapter 12.2 (§ 10.1-1238 et seq.) of Title 10.1 of the Code of Virginia.

"Virginia UECA Template" means the form and content of an environmental covenant executed in Virginia as prescribed by 9VAC15-90-30 C.

9VAC15-90-20. Authority and applicability.

This regulation is issued under the authority of Chapter 12.2 (§ 10.1-1238 et seq.) of Title 10.1 of the Code of Virginia, the Uniform Environmental Covenants Act (UECA). The regulation contains requirements for UECA environmental covenants.

When the owner, holder, and agency agree that a UECA environmental covenant shall be executed as part of an environmental response project, then the environmental covenant shall fulfill all of the requirements of this chapter.

9VAC15-90-30. Virginia UECA Template.

A. Where the department is the agency or the holder of a UECA environmental covenant, the following requirements shall be met:

1. The applicant shall submit the UECA environmental covenant to the department in accordance with this chapter. In order to meet the regulatory submission requirements, applicants shall utilize the Virginia UECA Template as provided in subsection C of this section.

2. Provisions in the Virginia UECA Template that are marked with an asterisk (*) are required by law for all environmental covenants executed pursuant to the UECA. Other provisions in this Virginia UECA Template shall be included unless the department grants permission for particular provisions to be omitted, added, or modified.

B. Where the department is neither the agency nor the holder of a UECA environmental covenant, applicants desiring to execute a UECA environmental covenant may utilize the Virginia UECA Template or another instrument that meets the requirements of § 10.1-1240 of the Code of Virginia.

C. Virginia UECA Template.

{INSTRUCTIONS are italicized and provided in brackets {}. The applicant may delete these instructions after filling out the template in order to create a more readable document. All provisions other than instructions remain a part of the UECA environmental covenant. As provided in 9VAC15-90-30 A 2, provisions marked with an asterisk (*) are required by law for all environmental covenants executed pursuant to the UECA, and other provisions within this Virginia UECA Template should be included unless the Department grants permission for particular provisions to be omitted or modified (or for additional provisions to be included). This regulation provides notice that the Department intends to require inclusion of all provisions in the Virginia UECA Template whenever the Department is a necessary party to a UECA covenant, unless other parties present persuasive alternatives to which the Department agrees. The Department strongly recommends use of all provisions of the Virginia UECA Template even when the Department is not a necessary party to the UECA covenant. All statutory references are to the Code of Virginia (1950), as amended.}

Tax Map or GPIN No.: ____________________________

Prepared by: _____________________________________

Remediation Program Site ID #:______________________

UECA ENVIRONMENTAL COVENANT

This environmental covenant is made and entered into as of the ___ day of ______, _____, by and between _____________, whose address is ________________ (hereinafter referred to as the "Grantor" or "Owner"), and ____________, (hereinafter referred to as the "Grantee" or "Holder") whose address is __________________.

_____________________, whose address is _____________ (hereinafter referred to as the "Agency") also joins in this environmental covenant.

*This environmental covenant is executed pursuant to the Virginia Uniform Environmental Covenants Act, § 10.1-1238 et seq. of the Code of Virginia (UECA). This environmental covenant subjects the Property identified in Paragraph 1 to the activity and use limitations in this document.

{INSTRUCTIONS: See § 10.1-1240 A 1 of the Code of Virginia. Note: If the parties agree that the Agency shall be an Additional Grantee, then this sentence should be added to the covenant after the sentence containing the Agency's name and address: "The Agency shall be considered as an Additional Grantee for recordation purposes."}

*1. Property affected. The property affected (Property) by this environmental covenant is located at ____________________________________, ____________________, Virginia, and is further described as follows:

{INSTRUCTIONS: Provide a legally sufficient description of the real property subject to the covenant above as required by § 10.1-1240 A 2 of the Code of Virginia. Include the street address of the property (if available), the recorded location of a metes and bounds description or survey plat of the Property (normally the Deed into the current owners), or attach any previously unrecorded survey as an exhibit to this environmental covenant. Note that, if the street address is different from the locality in which the land records are kept (for example, the mailing address is in Ashland but the land records are Hanover), then include both pieces of information.}

2. Description of Contamination & Remedy.

*a. Identify the name and location of any administrative record for the environmental response project reflected in this UECA environmental covenant.

b. Describe the contamination and remedy relating to the Property, including descriptions of the Property before remedy implementation; contaminants of concern; pathways of exposure; limits on exposure; location and extent of contamination; and the remedy/corrective action undertaken.

{INSTRUCTIONS: Unless otherwise agreed by the Department, a copy of the remediation decision document shall be attached as an exhibit. Note: If the decision document is subsequently changed, then the applicant shall submit the updated decision document, probably in conjunction with an amendment or termination of the covenant.}

3. Activity & Use Limitations.

*a. The Property is subject to the following activity and use limitations, which shall run with the land and become binding on Grantor(s) and any successors, assigns, tenants, agents, employees, and other persons under its (their) control, until such time as this covenant may terminate as provided by law:

{INSTRUCTIONS: Describe each specific restriction on land use, such as whether the property can be used only for non-residential purposes or whether the groundwater may be used as potable water; describe each obligation, such as groundwater monitoring, maintenance of a fence or cap. If the activity and use limitations are stated within the remediation decision document that is incorporated in the applicant’s response to 2b, then the applicant shall respond to 3a by referring to the appropriate sections of that decision document and/or by attaching those provisions from within the decision document as an exhibit. If the decision document is lengthy, then the Agency may choose to stipulate which sections must be included in the environmental covenant, rather than requiring that the entire decision document be included. Although it is not generally recommended, the Agency may stipulate another method for compliance with this section if including all or parts of the decision document is not practicable. The Department requires that the UECA environmental covenant be consistent with the decision document. A description of the activity and use limitations is required by § 10.1-1240 A 3 of the Code of Virginia.}

b. Geographic coordinate lists defining the boundary of each activity and use restriction, depicted as a polygon.

{INSTRUCTIONS: The applicant shall attach the required coordinates as an exhibit to the covenant in response to 3b in the following format:

Exhibit ___

Activity and Use Limitation Area(s)

{INSTRUCTIONS: For each activity and use restriction, geographic coordinate lists that define the boundary of each activity and use restriction as a polygon shall be developed. The longitude and latitude of each polygon vertex shall meet the following requirements, unless otherwise agreed by the signatories:

	Decimal degrees format
	At least seven decimal places (to achieve a precision of approximately 0.04 ft based on a typical survey precision of 0.01 ft)
	Negative sign for west longitude
	WGS 1984 datum
	Validate by saving the file as: filename.kml and opening in Google Earth

An example coordinate list and polygon are shown below:

74.xxxxxxxxxxx822,40.yyyyyyyyyyy762,0 (Point of Beginning)

-74.xxxxxxxxxxx822,40.yyyyyyyyyyy762,0 ← Point of Beginning

-74.xxxxxxxxxxx309,40.yyyyyyyyyyy341,0

-74.xxxxxxxxxxx325,40.yyyyyyyyyyy132,0

-74.xxxxxxxxxxx727,40.yyyyyyyyyyy201,0

-74.xxxxxxxxxxx162,40.yyyyyyyyyyy337,0

-74.xxxxxxxxxxx101,40.yyyyyyyyyyy146,0

-74.xxxxxxxxxxx916,40.yyyyyyyyyyy528,0

-74.xxxxxxxxxxx378,40.yyyyyyyyyyy114,0

-74.xxxxxxxxxxx145,40.yyyyyyyyyyy279,0

-74.xxxxxxxxxxx822,40.yyyyyyyyyyy762,0 ← Point of Beginning}

4. Notice of Limitations in Future Conveyances. Each instrument hereafter conveying any interest in the Property subject to this environmental covenant shall contain a notice of the activity and use limitations set forth in this environmental covenant and shall provide the recorded location of this environmental covenant.

5. Compliance and Use Reporting.

a. By the end of ________________, {INSTRUCTIONS: Insert interval for reporting determined to be necessary by the Agency; e.g., "every January following the Agency's approval of this environmental covenant until the specified remediation standards are met and the Agency agrees in writing that reporting is no longer required," or "every fifth January following the Agency's approval of this environmental covenant"} and whenever else requested in writing by the Agency, the then current owner of the Property shall submit, to the Agency and any Holder listed in the Acknowledgments below, written documentation stating whether or not the activity and use limitations in this environmental covenant are being observed. This documentation shall be signed by a qualified and certified professional engineer who has inspected and investigated compliance with this environmental covenant.

{INSTRUCTIONS: See § 10.1-1240 B 2 of the Code of Virginia.}

b. In addition, within one (1) month after any of the following events, the then current owner of the Property shall submit, to the Agency and any Holder listed in the Acknowledgments below, written documentation describing the following: noncompliance with the activity and use limitations in this environmental covenant; transfer of the Property; changes in use of the Property; or filing of applications for building permits for the Property and any proposals for any site work, if such building or proposed site work will affect the contamination on the Property subject to this environmental covenant.

{INSTRUCTIONS: See § 10.1-1240 B 1 of the Code of Virginia. Note that transfer of the property also requires payment of a fee pursuant to 9VAC15-90-40 C.}

6. Access by the Holder(s) and the Agency. In addition to any rights already possessed by the Holder(s) and the Agency, this environmental covenant grants to the Holder(s) and the Agency a right of reasonable access to the Property in connection with implementation, inspection, or enforcement of this environmental covenant.

{INSTRUCTIONS: See § 10.1-1240 B 3 of the Code of Virginia.}

7. Subordination.

If there is an agreement to subordinate one or more prior interests in the Property to this environmental covenant, then the subordination agreement(s) is/are set forth as follows:

{INSTRUCTIONS: The applicant shall additionally provide to the Agency and the Holder(s) a list of all encumbrances on the property based upon a title review conducted by a title insurance company or attorney at law. The Agency and Holder may consider which, if any, of these encumbrances need to be subordinated prior to the Agency's or the Holder's signing the proposed covenant. At the direction of the Agency or the Holder, the subordination agreement for such encumbrances shall be reproduced within the covenant in the applicant’s response to paragraph 7 or attached as an exhibit.}

8. Recording & Proof & Notification.

*a. Within 90 days after the date of the Agency's approval of this UECA environmental covenant, the Grantor shall record, or cause to be recorded, this environmental covenant with the Clerk of the Circuit Court for each locality wherein the Property is located. The Grantor shall likewise record, or cause to be recorded, any amendment, assignment, or termination of this UECA environmental covenant with the applicable Clerk(s) of the Circuit Court within 90 days of their execution. Any UECA environmental covenant, amendment, assignment, or termination recorded outside of these periods shall be invalid and of no force and effect.

{INSTRUCTIONS: Recordation of UECA environmental covenants, amendments, and termination is required by § 10.1-1244 A of the Code of Virginia; however, the deadline for doing so is not specified in the statute. Pursuant to this regulation, the specified Virginia UECA documents shall be recorded within 90 days unless the Agency and other signatories agree otherwise.}

*b. The Grantor shall send a file-stamped copy of this environmental covenant, and of any amendment, assignment, or termination, to the Holder(s) and the Agency within 60 days of recording. Within that time period, the Grantor also shall send a file-stamped copy to the chief administrative officer of each locality in which the Property is located, any persons who are in possession of the Property who are not the Grantors, any signatories to this covenant not previously mentioned, and any other parties to whom notice is required pursuant to the Uniform Environmental Covenants Act.

{INSTRUCTIONS: Notice to the parties specified above is required by § 10.1-1243 of the Code of Virginia "in the manner required by the agency." Pursuant to this regulation, notice of the specified UECA documents shall be provided in the time and method described above unless otherwise directed by the Department or by another Agency in cases where the Department is not the Agency.}

*9. Termination or Amendment. This environmental covenant is perpetual and runs with the land unless terminated or amended (including assignment) in accordance with UECA.

10. Enforcement of environmental covenant. This environmental covenant shall be enforced in accordance with § 10.1-1247 of the Code of Virginia.

ACKNOWLEDGMENTS:

*GRANTOR(S) (All Fee Simple Owners)

		{Name of Owner}, Grantor
Date	By (signature):
	Name (printed):
	Title:

COMMONWEALTH OF VIRGINIA {other state, if executed outside Virginia}

CITY/COUNTY OF ________________________________

On this ___ day of _______________, 20__, before me, the undersigned officer, personally appeared ______________________ {Owner, Grantor} who acknowledged himself/herself to be the person whose name is subscribed to this environmental covenant, and acknowledged that s/he freely executed the same for the purposes therein contained.

In witness whereof, I hereunto set my hand and official seal.

My commission expires: ___________________________

Registration #: ___________________________________

Notary Public

{REPEAT AS NECESSARY}

*HOLDER(S)

			{Name of Owner}, Grantee
Date		By (signature):
		Name (printed):
		Title:

COMMONWEALTH OF VIRGINIA {other state, if executed outside Virginia}

CITY/COUNTY OF ____________________________

On this ___ day of _______________, 20__, before me, the undersigned officer, personally appeared _____________________ {Holder, Grantee} who acknowledged himself/herself to be the person whose name is subscribed to this environmental covenant, and acknowledged that s/he freely executed the same for the purposes therein contained.

In witness whereof, I hereunto set my hand and official seal.

My commission expires: ___________________________

Registration #: ___________________________________

Notary Public

{REPEAT AS NECESSARY}

*AGENCY

APPROVED by the {Department of Environmental Quality and/or other Agency} as required by § 10.1-1238 et seq. of the Code of Virginia.

Date		By (signature):
		Name (printed):
		Title:

{REPEAT AS NECESSARY}

SEEN AND RECEIVED by the Department of Environmental Quality {if the Department is not the Agency or the Holder}

{INSTRUCTIONS: In accordance with 9VAC15-90-40, notice and payment of a fee to DEQ is required for every UECA environmental covenant in Virginia. However, when DEQ is not the Agency or Holder, no approval of the UECA document by DEQ is necessary or will be provided.}

Date		By (signature):
		Name (printed):
		Title:

{END of Virginia UECA Template}

D. The department requires submittal of the appropriate fee in accordance with the fee schedule provided in 9VAC15-90-40 before the department approves or signs a UECA environmental covenant. The department may require submittal of this fee before the department reviews a UECA document.

9VAC15-90-40. Fees.

A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from a fee simple owner or applicant in accordance with this chapter.

B. Fee payment and deposit. Fees related to UECA environmental covenants shall be paid by the fee simple owner or applicant as follows:

1. Due date. Where the department is the agency or the holder of the UECA environmental covenant, all fees are due upon submittal to the department of the proposed environmental covenant, covenant amendment, termination, or notification of property transfer. Where the department is neither the agency nor the holder of the UECA environmental covenant, a copy of the environmental covenant, covenant amendment, termination, or notification of property transfer and the accompanying fee are due prior to recordation.

2. Method of payment. Fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23240.

3. Incomplete payments. All incomplete payments shall be deemed nonpayments.

4. Late payment. No environmental covenant, environmental covenant amendment, or termination under UECA and this chapter may be recorded until the department receives proper payment.

C. Fee schedules. Each UECA environmental covenant, UECA environmental covenant amendment, termination of a UECA environmental covenant, or transfer of a property encumbered by a UECA environmental covenant is a separate action and shall be assessed a separate fee. The amount of the fee is based on the costs associated with the implementation of UECA as required by this chapter. The fees required for UECA transactions where the department is either the agency or the holder are due whenever the department is the sole agency or the sole holder or when the department is one of multiple parties serving in either of these capacities. Where the department is both an agency and a holder, only the fees specified for the department as holder shall obtain. The fee schedules are shown in the following table:

Type of Action	Fee
1. UECA environmental covenants where the department is the agency:
a. Initial submittal	$4,000
b. Amendment	$4,000
c. Termination	$4,000
d. Property transfer	$100
2. UECA environmental covenants where the department is the holder:
a. Initial submittal	$24,000
b. Amendment	$24,000
c. Termination	$24,000
d. Property transfer	$100
3. UECA environmental covenants where the department is neither the agency nor the holder
a. Initial submittal	$1,000
b. Amendment	$1,000
c. Termination	$1,000
d. Property transfer	$100

D. Use of fees. Fees collected pursuant to this section shall be used for the purposes specified in this chapter and UECA.

E. Fund. The fees, received by the department in accordance with this chapter, shall be deposited in the UECA Environmental Covenants Fund, as established by § 10.1-1248 B of the Code of Virginia.

F. Periodic review of fees. Beginning July 1, 2013, and periodically thereafter, the department shall review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover the department's costs associated with this chapter.

9VAC15-90-50. Amendment and termination.

A. A UECA environmental covenant is perpetual unless terminated or modified by court action in accordance with the provisions of § 10.1-1245 of the Code of Virginia.

B. A UECA environmental covenant may be amended or terminated by consent in accordance with § 10.1-1246 of the Code of Virginia.

9VAC15-90-60. Enforcement.

A. Power to enforce. Environmental covenants executed pursuant to this chapter and UECA shall be enforced in accordance with § 10.1-1247 of the Code of Virginia.

B. Limitations. The UECA and this chapter do not limit the regulatory authority of the agency or the department under law with respect to an environmental response project.

C. Liability. A person is not responsible for or subject to liability for environmental remediation solely because he has the right to enforce a UECA environmental covenant.