DEEP: Environmental Land Use Restrictions Fact Sheet

Environmental Land Use Restrictions
An Environmental Program Fact Sheet

Purpose

An Environmental Land Use Restriction ("ELUR") is an easement that is granted to the Commissioner of the Connecticut Department of Energy & Environmental Protection of the State of Connecticut (DEEP) by the property owner and is recorded on the municipal land records. The purpose of an ELUR is to minimize the risk of human exposure to pollutants and hazards to the environment by preventing specific uses or activities at a property or a portion of a property. An ELUR is a tool which permits the remedial goals for a property to be dependent on the exposure risk associated with its use.

Authorizing Statutes and Regulations

The Remediation Standard Regulations (RSRs) 22a-133k-1 through 22a-133k-3 of the Regulations of Connecticut State Agencies (RCSA) define the circumstances where an ELUR may be used. Sections 22a-133n through 22a-133s of the Connecticut General Statutes (CGS) include a description of subordination agreement requirements and waivers, the requirements for a certificate of title, ELUR recording requirements, and provisions for the enforcement of ELURs. Section 22a-133q-1 of the RCSA includes a description of the content of ELURs, approval requirements for ELURs, and ELUR recording requirements. The Appendix of Section 22a-133q-1 of the RCSA specifies the formats which are used to prepare a draft declaration of ELUR.

What an ELUR Does

The circumstances under which an ELUR can be recorded are specified in the RSRs. There are two major categories of ELUR. The first category of ELUR restricts the use and activity of an entire property to industrial/commercial use. This allows remediation to be completed to the industrial/commercial criteria. The second category of ELUR encompasses specific restrictions that prohibit the exposure or disturbance of inaccessible soil; the demolition of buildings which render soil environmentally isolated and prohibit the infiltration of water; the disturbance of an engineered control or the underlying polluted soil; the construction of buildings over groundwater that exceeds the volatilization criteria for groundwater; and the use of groundwater for drinking or other domestic purposes at properties where it is technically impracticable to remediate groundwater. Because the ELUR is recorded on the land records, the requirements of the ELUR are binding on the present and future owners and occupants of the property, unless a release from the ELUR is approved by the Commissioner. Actions or activities that are restricted or prohibited by an ELUR can only be undertaken after obtaining a written release from an ELUR in whole or in part from the Commissioner.

Who is Eligible

Only the current owner of a property may execute and record an ELUR.

When Can an ELUR be Used

The specific circumstances where an ELUR can be used in accordance with the RSRs are described below in Table 1.

ELUR Releases

Releases from ELURs are routinely approved by DEEP and have played a successful role both in the cleanup and redevelopment of contaminated properties. The process for obtaining a release is presented in CGS section 22a-133o(d). ELURs can either be released in whole or in part. An ELUR may be released in whole once the property is fully remediated and an ELUR is no longer required to comply with the RSRs. An ELUR may also be released in part for alterations to the site or for purposes of modifying the provisions of the ELUR. For example, a partial release from an ELUR may be requested when certain provisions of an ELUR are no longer needed, but other restrictions are still required for compliance with the RSRs. At the conclusion of the partial release of the ELUR, an ELUR will remain on the land records in order to satisfy the requirements of the RSRs. Please note that the format for ELURs presented in the Appendix of RCSA Section 22a-133q-1 includes provisions to suspend the ELUR in the event of an emergency.

Further Information

REMEDIATION DIVISION, 2nd Floor
DEPARTMENT OF ENERGY & ENVIRONMENTAL PROTECTION
79 ELM STREET
HARTFORD, CT 06106-5127
(860) 424-3705
This overview is designed to answer general questions and provide basic information. You should refer to the appropriate statutes and regulations for the specific language. It is your responsibility to comply with all applicable laws. The information contained in this fact sheet is intended only to acquaint you with environmental land use restrictions and does not constitute the Department's interpretation of the applicable laws.

TABLE 1 - Restrictions

Reason for ELUR

Purpose

Restriction

Remediation Standard Regulations Citation

Remediate polluted soil (except for polychlorinated biphenyls) to the industrial commercial direct exposure criteria.

No residential activity.
This restriction allows for the use of the industrial commercial direct exposure criteria.

No residential activity.1

22a-133k-2(b)(2)(A)

Remediate polychlorinated biphenyls polluted soil to industrial commercial direct exposure criteria (for outdoor electrical substations or other restricted access locations as defined in 40 CFR 761.123).

No residential activity.
This restriction allows for the use of the industrial commercial direct exposure criteria.

No residential activity. 1

22a-133k-2(b)(2)(B)

Prevent disturbance of polluted soil (except for polychlorinated biphenyls) which exceeds the direct exposure criteria but is inaccessible.

Prevent human exposure to soil which exceeds the direct exposure criteria.

Soil that exceeds the direct exposure criteria cannot be exposed as a result of excavation, demolition, or other activities and any pavement which is necessary to render such soil inaccessible shall be maintained in good condition.

22a-133k-2(b)(3)

Prevent disturbance of soil polluted with polychlorinated biphenyls which exceeds the direct exposure criteria but is inaccessible.  The direct exposure criteria can vary and be dependent on the location of the inaccessible soil (restricted access locations, outdoor electrical substations or electrical substations with a label or notice as defined in 40 CFR 761.123). Prevent human exposure to soil polluted with polychlorinated biphenyls which exceeds the direct exposure criteria. Soil that exceeds the direct exposure criteria cannot be exposed as a result of excavation, demolition, or other activities and any pavement which is necessary to render such soil inaccessible shall be maintained in good condition.

22a-133k-2(b)(3)

Exception to the Pollutant Mobility Criteria for Environmentally Isolated Soil.

Prevent infiltration of water through soil which exceeds the pollutant mobility criteria.

No demolition of the building or permanent structure which renders the soil environmentally isolated. No infiltration of water through the environmentally isolated soil.

22a-133k-2(c)(4)(A)

Variance to use an engineered control.

Prevent disturbance of an engineered control.

Prevent activities which could disturb the engineered control or underlying polluted soil.

22a-133k-2(f)(2)(B) (v)

Remediation of a groundwater plume to the ind/comm volatilization criteria.

No residential activity.
This restriction allows for the use of the industrial commercial volatilization criteria for groundwater.

No residential activity. 1

22a-133k-3(c)(2)

Remediation of soil vapor to ind/comm volatilization criteria.

No residential activity.
This restriction allows for the use of the industrial commercial volatilization criteria for soil vapor.

No residential activity. 1 22a-133k-3(c)(3)(A)

Exemption from the volatilization criteria if no building exists over groundwater which exceeds the volatilization criteria.

Prevent construction of a building over groundwater which exceeds the volatilization criteria.

No building construction.

22a-133k-3(c)(5)(A)

Variance for groundwater that is not technically practicable to remediate.

Protect human health by preventing the use or drinking of groundwater from the plume.

No use of the groundwater for drinking or domestic purposes.

22a-133k-3(e)(2)(C)

1 Generally, residential use restrictions should apply to the entire property.

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Content Last Updated August 15, 2013