Activity and use limitations

A control sits on the subject property, or one is suspected: a covenant, a use restriction, an engineered cap. The standard calls these activity and use limitations (AULs) and treats one as a sign of a past or present release. What a control means for the finding depends on four things: whether it exists and in what document, what it controls, how the release behind it was closed, and what has changed since.

What the answer turns on

An AUL is a legal or physical restriction that limits how a site is used or entered, meant to cut exposure to contamination in soil, soil vapor, groundwater or surface water, or to protect a response action (E1527-21, 3.2.2). Institutional controls are the legal or administrative kind, such as restrictive covenants; engineering controls are physical, such as capping (E1527-21, 3.2.26, 3.2.42).

• Whether it exists, and in what document. AULs are ordinarily in the land title records, and sometimes in a registry of controls in place of, or as well as, those records (E1527-21, 5.4, 5.5). Some states keep reasonably ascertainable registries and others do not, and some AULs exist only in project documentation. The environmental professional should find out whether, in that state, AULs are records that can reasonably be had (E1527-21, 5.5).
• What it controls. An AUL should say what substance is at the subject property, which exposure pathway and medium it controls, and what it is expected to achieve (E1527-21, 5.3). The standard reads an AUL as a regulatory agency's open acknowledgment that some contamination may remain and that the property may not be fit for unrestricted use (E1527-21, 5.1).
• How the release behind it was closed. A controlled recognized environmental condition (CREC) is a recognized environmental condition (REC) addressed to the regulatory authority's satisfaction, with substances left in place under required controls, such as AULs or other property use limitations (E1527-21, 3.2.17). A historical REC needs unrestricted use criteria met with no control on the subject property (E1527-21, 3.2.39). The control alone does not make a CREC: the professional also reviews the no further action letter or like approval, or, for a self-directed action, data that satisfy the authority's risk-based criteria (E1527-21, 3.2.17.1).
• What has changed since. A release that once qualified as a CREC may no longer do so on new conditions, which include changed regulatory criteria, a changed use of the property, and a migration pathway not known or evaluated before. Calling a release a CREC does not vouch for the control's adequacy, implementation or continued effectiveness (E1527-21, 3.2.17.1). Whether a party is complying with an AUL is beyond the scope of the practice (E1527-21, 13.1.4).

The records that bear on it

• The professional's search. Federal and state or tribal registries of institutional and engineering controls are standard sources, with a required minimum search of the subject property (federal, state; E1527-21, 8.2.2, Table 2). Local land records for AULs are among the additional sources the standard names (E1527-21, 8.2.4, Table 3).
• The user's search. Searching land title records, and judicial records where applicable, for environmental liens and AULs is the user's task, by title insurance documents or by a title search report covering documents recorded from 1980 on (E1527-21, 6.2, 6.2.2.1). The professional requests the results and need not review the title records unless that is added to the scope (E1527-21, 6.1, 6.2.3).
• Owner and officials. The owner, key site manager and user are asked for recorded AULs (E1527-21, 10.8.1). Local agencies whose building or groundwater use permits document AULs are among those named for the government interview (E1527-21, 11.5.1).

What the federal rule says

The rule defines institutional controls as

non-engineered instruments, such as administrative and/or legal controls, that help to minimize the potential for human exposure to contamination and/or protect the integrity of a remedy.

40 CFR 312.10

For the subject property, the records review should include

Registries or publicly available lists of institutional controls, including environmental land use restrictions, applicable to the subject property.

40 CFR 312.26(b)(7)

For nearby or adjoining properties the rule names registries of engineering controls among the records to be searched, at half a mile (40 CFR 312.26(c)(2)(ii)). The standard's required minimum search of the control registries is the subject property only (E1527-21, 8.2.2, Table 2). The rule lets E1527-21's procedures be used to meet its records requirements (40 CFR 312.11).

How it is written up

The report says whether the user reported an AUL or an environmental lien, and whether the professional received the results of the user's title search (E1527-21, 6.2.3.2, 12.3).

Where the professional concludes a release was addressed to the authority's satisfaction with substances left in place under a required control, the opinion explains how it was addressed and identifies the AUL or property use limitation relied on, and the document that provides it (E1527-21, 3.2.17.1, 12.6.1). A CREC is a REC, and the Conclusions list it (E1527-21, 12.7).

Where a control exists but the professional concludes the release was not so addressed, or no longer qualifies, the opinion says why. Unless judged a de minimis condition or a historical REC, the REC is listed in the Conclusions, and the professional should give an opinion on additional investigation (E1527-21, 3.2.20, 3.2.39, 12.7, 12.8).

An interview with a local agency official, or with the key site manager, may be what cannot be had. Required information that good faith efforts could not obtain is a data gap, significant if it affects the ability to identify a REC: named in the Findings with the sources consulted, discussed in the Opinions and listed in the Conclusions (E1527-21, 3.2.19, 3.2.78, 12.5.1, 12.6.2, 12.7).

Related

• REC, CREC, HREC or de minimis condition
• Vapor in a Phase I
• Agency file review
• Closed leaking tank case with a no further action letter
• Control registries: state and tribal, federal
• The rule on government records

This page is general reference for environmental professionals. It does not classify any property. ASTM E1527-21 is the standard and is not reproduced here; the judgment of the environmental professional on the facts governs.