Environmental activity/use limitations (AULs) are legal restrictions filed for two main reasons: The prevention of exposure to environmental contamination and the management of public health and environmental risks associated with a property that has been contaminated. It is important to note the priority of jurisdiction between federal, state, county and city governments when discussing AULs. Federal law is the law of the land. No governmental entity can enact rules that do not meet the minimum criteria of federal regulation. State, and local governments can however implement stricter regulations than the federal government as needed.
Prevention of exposure
In an effort to reduce health and environmental risks associated with some commercial and industrial applications, local governments have created ordinances and institutional controls that limit the practices of businesses known to use or produce hazardous substances. Preventative limitations are filed in a number of ways. When conducting AUL research, the first step is to check with the state environmental regulatory agency for any open permits. Permits filed for solid, air, and water waste contain very specific guidelines for use. The next step is to examine the county record.
The main form in which limitations are filed at the county level is a declaration of restrictive covenants. These documents can be filed on a single property or an entire subdivision. Covenants can limit or completely restrict a property from certain uses. An example would be a covenant restricting use on all or part of a property adjacent to wetlands or other environmentally protected area. If the restrictions were filed prior to the last sale, you will typically find a reference to this document in the exhibits of the vesting deed. A quick index search of the owner will reveal any restrictions that have been filed since the most recent sale.
Another much less common document is a hazardous substances agreement. These are filed in some states so that property owners are aware of the specific restrictions placed on their property. In most cases these documents restrict any and all storage or production of hazardous substances on the premises.
Management of RECs (Recognized Environmental Conditions)
When investigating a site that contains RECs, it will almost certainly also have AULs. Once again, begin your search at the state environmental regulatory agency. Documents filed in the case of RECs vary from state to state. Here in the state of Texas, look for the APAR (Affected Property Assessment Report) and the RACR (Response Action Completion Report). These detail the extent of the contamination, remediation measures taken, and limitations placed on the property by the state.
In most cases of REC sites, a document will be filed in the chain of title for the property in the county recorder’s office. If the site has sold since the contamination was identified, there will typically be a heavy disclaimer within the deed itself. In the chain of title, you will also find a deed notice: an agreed order or similar document detailing the extent of the contamination. You are also likely to find a declaration of restricted covenants or a hazardous substances agreement filed under the property. These restrictions may state, for example, that the site cannot be used for residential purposes or that nonpermeable asphalt must be maintained over the affected area.
Knowledge of these factors is crucial when making an environmental determination for a site. It is always advised that you use experienced researchers when seeking these documents as they can be filed very differently from county to county and state to state.
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