The Missouri Environmental Covenants Act (MoECA) found in the Missouri Revised Statutes at sections 260.1000 to 260.1039, RSMo., creates a uniform standard for environmental covenants and directs the Missouri Department of Natural Resources (department) to create a public database of properties that have restrictions provided for by this law. The law provides standards for and increases the reliability of covenants used as part of the cleanup of contaminated sites.
Environmental Covenants as a Risk-Based Corrective Action Tool
Risk-based corrective action (RBCA) is an important tool in the state’s efforts to see contaminated properties remediated and returned to beneficial use. The process allows a site to be cleaned up based on human health and environmental risks associated with current and future use of the site. This means some sites are cleaned up to standards not protective of all uses, such as residential use. Environmental covenants are used at these sites to help make certain the property is only used for purposes and activities appropriate for the cleanup standards attained. The most common environmental covenant prohibits residential or unrestricted use of a property cleaned up to commercial/industrial use standards. Under RBCA, an environmental covenant is not required at properties where remediation has been done to unrestricted use standards.
To be effective, environmental covenants must be enforceable and durable for as long as the contamination on a property poses a potential risk. Before the act, environmental covenants were treated the same as other real estate covenants; this led to certain weaknesses in durability and enforceability. The act was part of a nationwide effort to address these issues. The act ensures environmental covenants run with the land, meaning a covenant remains in effect until actively removed, regardless of how many times the land is sold.
What Covenants Do
The act does not require the use of environmental covenants, but provides a statutory framework when they are used. Environmental covenants describe limitations on future land use and activities at a specific property in order to minimize or eliminate exposure to remaining contamination. Environmental covenants also specify how and by whom the limitations can be enforced. Property owners must follow the environmental covenants for as long as the contaminants present on the property pose a potential risk.
Environmental covenants are recorded in a property’s chain of title and notify prospective buyers of specific limitations about land use and activities due to the environmental condition of the property. An environmental covenant can clearly explain the condition and acceptable uses of the property and the department’s involvement in any cleanup or other environmental actions. Having this information documented can make the property more marketable. An environmental covenant might also limit the owner’s environmental liability.
Public Access to Information
The act directed the department to create a public database for properties that have undergone risk-based cleanups including activity and land use limitations provided for by this law. This information is available through the hazardous substance investigation and cleanup online information system, known as the Missouri Environmental Site Tracking and Research Tool. This website features an interactive map viewer with individual site status summaries from department databases with links to important documents. It also includes downloadable data layers local governments or utilities can download and use in their own permitting and planning efforts. The site provides a comprehensive information resource designed so property is used safely in Missouri.
Effective Date and Applicability to Prior Cleanups
The act became effective Jan. 1, 2008. Properties cleaned up to other than unrestricted use standards before the act was enacted are not required to have MoECA-compatible environmental covenants. Proactive site owners may voluntarily create and record MoECA –compatible environmental covenants in order that institutional controls in use on those properties are more durable, enforceable and effective.
The act does not apply to above ground or underground storage tank sites, as defined in 319.100, RSMo.
The act does not preempt local zoning or previously recorded instruments establishing activity and use limitations. It also does not limit the regulatory authority of the department under other Missouri laws. The act specifies the following:
- Which environmental projects may use the act covenants
- The specific elements the act covenants must contain
- The obligations of the department and other holders of interest in a property
- How the covenant is to be recorded
- Who receives a copy of the covenant
- How the database is to be structured
- The conditions under which a covenant may be amended or removed
- The actions required to transfer a covenant to a new holder
- The environmental covenant runs with the land
Nothing in this document may be used to implement any enforcement action or levy any penalty unless promulgated by rule under chapter 536 or authorized by statute.