Restrictive covenants as institutional controls for remediated sites: worth the effort?

• Author: DeMeo, Ralph A.
• Position: Environmental and Land Use Law

Restrictive covenants, long used in the real estate context--particularly by homeowner and condominium associations--to prohibit certain land uses, could be more accurately thought of as "permissive covenants" in the environmental and land use law context. Restrictive covenants are one of the extremely valuable tools that allow remediators and redevelopers to bring contaminated property back to productive use. Without such "permissive covenants," the use of most contaminated property would be highly restricted until such contamination was nearly 100 percent remediated. This article discusses the value of restrictive covenants to the environmental and land use lawyer and highlights some practical considerations.

In order to understand restrictive covenants in the context of environmental and land use law, it is important to know the background and history of the use of "risk-based corrective action" (RBCA). RBCA has been used for several years in Florida at contaminated sites pursuant to a limited number of Florida Department of Environmental Protection programs, particularly the Petroleum Program, (1) the Brownfield Program, (2) and the Drycleaning Facility Restoration Program. (3) RBCA utilizes site-specific data, modeling results, risk assessment studies, institutional controls, engineering controls, or any combination thereof to develop a unique remediation strategy for the site that considers the intended use of the property and which is protective of human health and safety and the environment.

Broadly, engineering controls are remedies designed to physically limit access and exposure to contamination or to contain further migration of contamination. Engineering controls can be anything from a security fence to underground impermeable barriers. Institutional controls are administrative and legal controls that help minimize the potential for human exposure to contamination and/or protect the integrity of the physical remedy. They can include recorded restrictive covenants, but land use laws and regulations, deed restrictions, department consent orders, and conservation easements are all institutional controls. (4) Restrictive covenants are typically favored to the extent they tend to be binding on property regardless of changes in the law, do not require change in ownership, provide for enforcement by third parties, allow for productive uses that would not be allowed in conservation areas, and tend to appear during typical title searches. Of the different institutional controls available, the restrictive covenant is the most common form used by the department. (5)

Based upon data collected during the RBCA evaluation process, an applicant may incorporate engineering controls, institutional controls, or even alternative cleanup target levels in some situations, to achieve a "no further action" determination or a site rehabilitation completion order from the department. (6) In other words, the amount of site remediation required to bring a contaminated site into compliance is based on the interplay of the risks of exposure and the likelihood of exposure once controls are in place.

On June 20, 2003, Gov. Jeb Bush signed into a law a global RBCA program that extended the use of RBCA to all contaminated sites, including nonprogram sites, resulting from a discharge of pollutants or hazardous substances where legal responsibility for site rehabilitation exists pursuant to other provisions of F.S. Ch. 376 and 403. (7) Prior to the introduction of RBCA at nonprogram sites, contamination at a site was typically remediated to the default Cleanup Target Levels (CTLs) now contained in Table II of F.A.C. Rule 62-7 7 7.170(8)--with little flexibility to provide for site-specific remediation strategies. For example, the only flexibility in the soil CTLs are found...