Restrictive covenants, which are rules that limit what you can do on your property, are actually really helpful in environmental and land use law. They allow contaminated land to be used again, even if it’s not completely cleaned up. This is important for making sure the land can be productive again. In Florida, they use something called “risk-based corrective action” to figure out how to clean up contaminated sites in a way that is safe for people and the environment. Engineering controls are physical barriers or remedies, like fences or underground barriers, to keep people away from contamination. Institutional controls are rules and regulations, like land use laws and deed restrictions, to protect people from contamination. These controls, along with alternative cleanup levels, help determine how much cleanup is needed at a contaminated site. Governor Jeb Bush signed a law in 2003 that allows contaminated sites to be cleaned up in a more flexible way. Before this law, all sites had to be cleaned up to a certain level, even if it wasn’t necessary. This made the process more expensive and some sites remained unused. With the new law, sites can be cleaned up based on how they will be used in the future, which saves money and makes the process more efficient. The department uses both institutional and engineering controls to make sure that cleaning up contaminated sites is flexible but also protects the environment. If the department relies on these controls to say that no more action is needed or that a site is cleaned up, they have to be recorded and followed by future landowners. This makes sure that the public is safe from any harmful activities because of the contamination on the property. These controls are allowed by Florida law and the department’s rules. The department issued guidelines for using these controls in 2004 and updated them in 2010. These controls can include restrictions on using or accessing the site, like deed restrictions or prohibitions on drilling wells. The department considers many things when deciding on rules for contaminated areas, like what kind of contamination it is, how it might spread, and how the land is used. They might use things like fences and covers to keep people away from contaminated areas. They also have specific rules for what can and can’t be done on contaminated land, like not using the groundwater for drinking or building new buildings. Sometimes, people can make mistakes when following these rules, so it’s important to understand them and talk to the department to avoid problems. In Florida, environmental lawyers need to consider several important questions when creating and implementing controls to deal with contaminated properties. These questions include the length of time controls need to be in place, the current and future use of the property, and whether controls can extend onto neighboring properties. The lawyer should meet with the stateâs environmental department to discuss these issues. Overall, using these controls can help make previously unusable properties available for productive use while still protecting the environment and public health. The report discusses the development of cleanup target levels in Florida and the rules and regulations related to it. It also explains the use of institutional controls and lists the prohibited uses of certain industries and facilities in specific areas. The department needs a complete report with details about all legal matters related to a property, like encumbrances, easements, and mortgages. The report should start with a document that’s at least 30 years old, and also include a search for any older documents that still apply. You can find more information about this in the FDEP, Division of Waste Management, Institutional Controls Procedures Guidance. This column was written by lawyers from a law firm in Tallahassee.
Source: https://www.floridabar.org/the-florida-bar-journal/restrictive-covenants-as-institutional-controls-for-remediated-sites-worth-the-effort/
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