Good question. 

With respect to land use restrictions and institutional controls, to qualify for liability protections, one must (A) be "in compliance with any land use restrictions" relied on in connection with a response action at the facility and (B) "not impede the effectiveness or integrity of institutional control" employed in connection with a response action.  

Generally, restrictive covenants imposed as part of a response action are institutional controls that would be subject to requirement (B), and may or may not be a "land use restriction" under (A).  If, for example, the restrictive covenant may include affirmative obligations such as maintaining a cap on site.  It is not clear that such an obligation is a "land use restriction" since the term "land use restriction" is undefined. The implications may be significant:

Consider a soil cap that suffers some erosion.  The land owner may fix the erosion damage when it is discovered and arguably still comply with requirement (B) related to the institutional control.  However for the period of time that the erosion cut exists, is the landowner in "noncompliance" with the LUR such that it fails requirement (A)? If affirmative obligations are "land use restrictions," arguably so depending on the language of the institutional control.  

While I know of no one that would argue that there is no obligation to fix the erosion cut in the soil cap.  It is potentially overly-harsh treatment to disqualify an owner from the LLPs merely because the cut exists.