New Risk Based Corrective Action Guidance for Miami-Dade Sites
Securing risk-based closure of a contaminated site in Miami-Dade County, known as a “No Further Action with Conditions (NFAC),” typically requires the imposition of institutional controls in the form of a covenant running with the land, accompanied by an opinion of title (See Section 24-44 (2)(k)(ii) of Chapter 24, Code of Miami-Dade County, Fla.). Recently, Miami-Dade County Department of Regulatory and Economic Resources, Division of Environmental Resources Management (DERM), revised the 2013 Risk Based Corrective Action Provisions (RBCA) Guidance document to impose a new requirement as a condition of obtaining approval of the NFAC closure – namely, written notification of the proposed closure to encumbrance holders and those having a claim to or interest in the property subject to the closure (See 2018 RBCA Guidance No.7). Such notice recipients are provided a 30-day comment period (with opportunity to request an extension of another 30 days). In certain cases, as provided in the 2018 RBCA Guidance, joinder of an easement holder may be required.
Why should you care about the revised Guidance?
This change is significant for several reasons: 1) the additional time required to obtain NFAC approval, especially when securing such approval is a prerequisite to a property closing or is desired to market a property for sale; 2) the potential comments by notice recipients, and; 3) the possibility of needing to obtain joinder of an easement holder. The Guidance does not expressly recognize any claim of estoppel or grandfathering with respect to the applicability of the of the 2018 Guidance.
This can prove to be particularly problematic when you have a site that would otherwise be entitled to receive closure approval after several years of remedial effort, only to learn that additional steps are required.
In sum, when dealing with contaminated properties in unincorporated Miami-Dade County that will be undergoing a risk-based environmental closure, keep in mind the notice, timing, and potential joinder obligations under the 2018 RBCA Guidance and consult with an environmental attorney on the particular issues of significance with respect to the property in question.