Chapter 17: Environmental Covenants for Contaminated Property

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Section 1: Background

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Effective September 1, 2009, under the authority of Senate Bill 480 as codified in Transportation Code Section 202.061, the Texas Transportation Commission (TTC) may enter into an environmental covenant for the purpose of subjecting real property in which TxDOT has an ownership interest to a plan or the performance of work for environmental corrective action.

TxDOT may enter its real property into an environmental covenant at its own initiative or at a request from a third party.

Entering into covenants regarding contaminated property is not a common practice for TxDOT.

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Definition of an Environmental Covenant

An environmental covenant is a voluntarily imposed servitude on land which limits the uses of and activities on the land in conjunction with a plan or the performance of work for an environmental response (corrective action).

Examples of environmental covenants include covenants that restrict the use of the property (i.e., restricted to commercial use only) or covenants that stipulate the installation and maintenance of engineering controls, such as an engineered cover to prevent human exposure to contaminants located on the property.

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Purpose of an Environmental Covenant

An environmental covenant allows performance of cost-effective corrective action and still permits safe and effective use of the property. In this guidance, corrective action refers to regulated activities that are required for the protection of the environment.

The potential negative effects of an environmental covenant include: 1) reduction of property value and 2) limited use of the property to industrial or commercial purposes, unless the covenant is removed by performing additional corrective action.

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Roles and Responsibilities for Coordinating an Environmental Covenant

The Environmental Affairs Division (ENV) has primary responsibility for coordinating the execution of an environmental covenant. ENV also is responsible for coordinating all regulatory corrective actions, technical reviews, and regulatory coordination necessary to support an environmental covenant on TxDOT property. The applicable District Office will assist ENV in coordinating the execution of an environmental covenant.

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General Overview

In order to successfully execute an environmental covenant, the following actions must occur:

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  1. Comply with all state and federal corrective action standards.
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  3. Receive corrective action approval from applicable state and/or federal agencies.
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  5. Receive TxDOT General Counsel and TxDOT Management approval.
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  7. Conduct required notices.
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  9. Receive TTC approval.
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  11. File the environmental covenant with the county real property records.

Note actions one through three may occur concurrently, and actions four through six occur sequentially.

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