Ohio Is First State to Enact New Uniform State Law on Re-use of Brownfields
January 6, 2005
A new state statute which enforces restrictions on the use of environmentally remediated real estate – or brownfields – is now the law in Ohio. HB 516, the Uniform Environmental Covenants Act (UECA), was signed by Ohio Governor Bob Taft on December 22; the law went into effect immediately. UECA, drafted and approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL), establishes requirements for a new valid real estate document – an "environmental covenant" – to control the future use of brownfields when real estate is transferred from one person to another.
"The Uniform Environmental Covenants Act provides a clear mechanism for the states to create, enforce, modify and terminate environmental covenants to control the use of contaminated real estate and permit safe re-use of that property," said Michael Kerr, Deputy Legislative Director of NCCUSL. "The Act makes it possible for owners to transfer property knowing that the restrictions that need to be kept on that property will be respected."
An environmental covenant is typically used to place enforceable controls on a property following the completion of an approved remediation – or "cleanup." While the general goal of most cleanups is to return a site to a condition where it can be safely used for any purpose, this is not always technically possible or economically practicable. Then, use restrictions and institutional controls may be imposed on the real estate to supplement cleanup measures. Restrictions limit use to safe use.
UECA applies traditional real estate law principles to create environmental covenants that ensure enforcement of valid land use restrictions against subsequent owners of the property as long as necessary, no matter how many times the affected real estate is transferred. State and federal environmental agency approval is required as part of the covenant, and the covenant is recorded as part of the title to the property.
Although nearly half of the states have some sort of law providing for land-use restrictions, UECA includes a number of provisions absent from most existing state statutes. UECA ensures that a covenant will survive despite tax lien foreclosure, adverse possession, marketable title statutes, and a host of other common law doctrines which might otherwise inadvertently extinguish an intended land use control. The Act also provides detailed provisions regarding termination and amendment of older covenants, and includes important provisions on dealing with recorded interests that have priority over the new covenant.
UECA was introduced this year in Nebraska, Ohio, and Pennsylvania. Introductions of the uniform act are expected in at least 20 additional states in 2005. A website has been established which contains important information on UECA – www.environmentalcovenants.org.
UECA is supported by the National Institutional Controls Coalition (NICC), a broad coalition of affected interests, including representatives of affected industries, federal and state regulators, environmental groups, cleanup specialists, and local, state and federal governmental organizations. The NICC also maintains a website devoted to UECA at www.lucs.org.