2023 Connecticut General Statutes › Title 22a - Environmental Protection › Chapter 445 - Hazardous Waste › Section 22a-133o. - Environmental use restrictions: Requirements. Environmental land use restriction. Notice of activity and use limitation.

(a) An owner of land may execute and record an environmental use restriction under sections 22a-133n to 22a-133r, inclusive, on the land records of the municipality in which such land is located if (1) the commissioner has adopted standards for the remediation of contaminated land pursuant to section 22a-133k and adopted regulations pursuant to section 22a-133q, (2) the commissioner, or in the case of land for which remedial action was supervised under section 22a-133y or for a notice of activity and use limitation, a licensed environmental professional, determines, as evidenced by his signature on such restriction, that it is consistent with the purposes and requirements of sections 22a-133n to 22a-133r, inclusive, and of such standards and regulations, and (3) such restriction will effectively protect public health and the environment from the hazards of pollution. Such environmental use restriction may be in the form of an environmental land use restriction, as described in subsection (b) of this section, or a notice of activity and use limitation, as described in subsection (c) of this section.
(b) (1) No owner of land may record an environmental land use restriction on the land records of the municipality in which such land is located unless he simultaneously records documents which demonstrate that each person holding an interest in such land or any part thereof, including without limitation each mortgagee, lessee, lienor and encumbrancer, irrevocably subordinates such interest to the environmental land use restriction, provided the commissioner may waive such requirement if he finds that the interest in such land is so minor as to be unaffected by the environmental land use restriction. The commissioner shall waive the requirement to obtain subordination agreements for any interest in land that, when acted upon, is not capable of creating a condition contrary to any purpose of such environmental land use restriction. An environmental land use restriction shall run with land, shall bind the owner of the land and his successors and assigns, and shall be enforceable notwithstanding lack of privity of estate or contract or benefit to particular land.
(2) Within seven days after executing an environmental land use restriction and receiving thereon the signature of the commissioner or licensed environmental professional, as the case may be, the owner of the land involved therein shall record such restriction and documents required under subdivision (1) of this subsection on the land records of the municipality in which such land is located and shall submit to the commissioner a certificate of title certifying that each interest in such land or any part thereof is irrevocably subordinated to the environmental land use restriction in accordance with subdivision (1) of this subsection.
(3) An owner of land with respect to which an environmental land use restriction applies may be released, wholly or in part, permanently or temporarily, from the limitations of such restriction only with the commissioner's written approval which shall be consistent with the regulations adopted pursuant to section 22a-133q and shall be recorded on the land records of the municipality in which such land is located. The commissioner may waive the requirement to record such release if he finds that the activity which is the subject of such release does not affect the overall purpose for which the environmental land use restriction was implemented, or for a temporary release, the activity is sufficiently limited in scope and duration, and does not alter the size of the area subject to the environmental land use restriction. The commissioner shall not approve any such permanent release unless the owner demonstrates that he has remediated the land, or such portion thereof as would be affected by the release, in accordance with the standards established pursuant to section 22a-133k.
(4) An environmental land use restriction shall survive foreclosure of a mortgage, lien or other encumbrance.
(c) (1) A notice of activity and use limitation may be used and recorded for releases remediated in accordance with the regulations adopted pursuant to sections 22a-133k and 22a-133q for the following purposes:
(A) To achieve compliance with industrial/commercial direct exposure criteria, groundwater volatilization criteria, and soil vapor criteria, as established in regulations adopted pursuant to section 22a-133k, by preventing residential activity and use of the area to be affected through the notice of activity and use limitation, provided such property is zoned for industrial or commercial use, is not used for any residential use, and no holder of an interest in such property, other than such owner, has a right of residential use, as defined in regulations adopted pursuant to section 22a-133k;
(B) To prevent disturbance of polluted soil that exceeds the applicable direct exposure criteria but that is inaccessible soil, in compliance with the provisions of the regulations adopted pursuant to section 22a-133k, provided pollutant concentrations in such inaccessible soil do not exceed ten times the applicable direct exposure criteria;
(C) To prevent disturbance of an engineered control to the extent such engineered control is for the sole remedial purpose of eliminating exposure to polluted soil that exceeds the direct exposure criteria, provided pollutant concentrations in such soil do not exceed ten times the applicable direct exposure criteria;
(D) To prevent demolition of a building or permanent structure that renders polluted soil environmentally isolated, provided: (i) The pollutant concentrations in the environmentally isolated soil do not exceed ten times the applicable direct exposure criteria and the applicable pollutant mobility criteria, or (ii) the total volume of soil that is environmentally isolated that exceeds ten times the applicable direct exposure criteria and the applicable pollutant mobility criteria is less than or equal to ten cubic yards; or
(E) Any other purpose the commissioner may prescribe by regulations adopted in accordance with the provisions of chapter 54.
(2) No owner shall record a notice of activity and use limitation on the land records of the municipality in which such land is located unless such owner, not later than sixty days prior to such recordation, provides written notice to each person who holds an interest in such land or any part thereof, including each mortgagee, lessee, lienor and encumbrancer. Such written notice of the proposed notice of activity and use limitation shall be sent by certified mail, return receipt requested, and shall include notice of the existence and location of pollution within such area and the terms of such proposed activity and use limitation. Any such person who holds an interest may waive such sixty-day-notice period in relation to such interest provided such waiver is in writing.
(3) A notice of activity and use limitation recorded pursuant to this subsection shall be implemented and adhered to by the owner and subsequent holders of interests in the property, such owner's successors and assigns, any person who has a license to use such property or to conduct remediation on any portion of such property and, as described in subdivision (6) of this section, any prior holder of an interest in the property who signs such notice of activity and use limitation.
(4) Any notice of activity and use limitation shall be effective when recorded on the land records of the municipality in which such property is located.
(5) (A) Any notice of activity and use limitation document, as described in this subsection, shall be prepared on a form prescribed by the commissioner.
(B) A notice of activity and use limitation decision document, signed by the commissioner or signed and sealed by a licensed environmental professional, shall be referenced in and recorded with any such notice of activity and use limitation, and shall specify:
(i) Why the notice of activity and use limitation is appropriate for achieving and maintaining compliance with the regulations adopted pursuant to section 22a-133k;
(ii) Any activities and uses that are inconsistent with maintaining compliance with such regulations;
(iii) Any activities and uses to be permitted;
(iv) Any obligations and conditions necessary to meet the objectives of the notice of activity and use limitation; and
(v) The nature and extent of pollution in the area that is the basis for the notice of activity and use limitation, including a listing of contaminants and concentrations for such contaminants, and the horizontal and vertical extent of such contaminants.
(6) A notice of activity and use limitation shall not be used in any area where a prior holder of interest in the property has an interest that allows for the conduct of an activity that interferes with the conditions or purposes described in subparagraphs (A) to (E), inclusive, of subdivision (1) of this subsection, except a notice of activity and use limitation may be used in an area where one or more prior holders of an interest in the property have an interest that allows for the conduct of an activity that interferes with the conditions or purposes of such notice if such prior holder of an interest in the property agrees, by signing such notice, to subject such interest to the conditions or purposes described in such notice.
(7) Upon transfer of any interest in or a right to use property, or a portion of property that is subject to a notice of activity and use limitation, the owner of such land, any lessee of such land and any person who has the right to subdivide or sublease such property, shall incorporate such notice in full or by reference into all future deeds, easements, mortgages, leases, licenses, occupancy agreements and any other instrument of transfer provided the failure to incorporate such notice shall not affect the enforceability of any such notice of activity and use limitation.
(8) If a notice of activity and use limitation is extinguished by foreclosure of a mortgage, lien or other encumbrance, the owner of the subject land shall promptly, but not later than one year from the date of such foreclosure, or other schedule if approved in writing by the commissioner, remediate the pollution that was the subject of the notice of activity and use limitation consistent with standards adopted under section 22a-133k. In the event a notice of activity and use limitation is extinguished by such foreclosure, if notice to the commissioner is not otherwise provided as part of the foreclosure proceedings the owner shall, not later than thirty days from the date of such foreclosure, provide written notice to the commissioner by certified mail, return receipt requested, of such foreclosure, the name of the owner, the address of the land, and the identification of the notice of activity and use limitation.
(9) Any owner of a parcel of property that is subject to a notice of activity and use limitation may remediate the pollution on such parcel in accordance with the regulations adopted pursuant to sections 22a-133k and 22a-133q. Such owner, upon completion of such remediation, may terminate the notice of activity and use limitation in accordance with regulations adopted pursuant to section 22a-133q.
(P.A. 94-198, S. 5, 13; P.A. 95-169, S. 2; 95-190, S. 12, 17; P.A. 96-113, S. 9, 17; P.A. 97-218, S. 2; P.A. 11-141, S. 12; P.A. 13-308, S. 33; P.A. 18-85, S. 3, 4.)
History: P.A. 94-198 effective June 7, 1994; P.A. 95-169 amended Subsecs. (a) to (d), inclusive, to provide for the recording of environmental use restrictions on town land records instead of in a registry maintained by the Commissioner of Environmental Protection; P.A. 95-190 added provisions to allow licensed environmental professionals to sign environmental use restrictions and to provide that such restrictions be recorded on town land records rather than in registry maintained by commissioner, effective June 29, 1995; P.A. 96-113 amended Subsecs. (b) and (c) to add provisions re documentation supporting subordination agreements, effective May 24, 1996; P.A. 97-218 amended Subsec. (b) to provide that the commissioner may waive requirements for documentation of a subordination agreement if he finds that the interest to be subordinated is so minor as to be unaffected by the land use restriction, and amended Subsec. (d) to allow a waiver of the recording of a release from the restriction under this section if he finds that the activity which is the subject of the release does not affect the overall purpose of the restriction and does not alter the size of the area subject to the restriction; P.A. 11-141 changed “environmental land use restriction” to “environmental use restriction” in Subsecs. (b) and (d), amended Subsec. (b) to require commissioner to waive requirement for subordination agreements for land interest that cannot create a condition contrary to environmental use restriction's purpose, amended Subsec. (c) to change time frame from “within seven days of” to “within seven days after”, and amended Subsec. (d) to specify that release may be permanent or temporary, to require activity to be limited in scope and duration for a temporary release and to specify that commissioner shall not approve a permanent release unless owner demonstrates remediation according to standards, effective July 8, 2011; P.A. 13-308 amended Subsec. (a) to add provisions re notice of activity and use limitation and re form of restriction, redesignated existing Subsecs. (b) to (e) as Subsec. (b)(1) to (4), respectively, and amended same to change “environmental use restriction” to “environmental land use restriction”, added Subsec. (c) re notice of activity and use limitation and made technical changes; P.A. 18-85 amended Subsec. (c) to add provision re prior holder of interest in property who signs notice of activity and use limitation in Subdiv. (3), delete provision re interest allowing for intrusion into polluted soil, and adding provision re exception allowing notice of activity and use limitation in certain areas where prior holders of interest agree to subject interest to conditions or purposes described in notice in Subdiv. (6).