A Salisbury, Massachusetts marina recently incurred a $14,380 penalty for its failure to adhere to the terms of an Activity and Use Limitation (AUL) attached to the property after the previous owner discovered a spill. According to the Massachusetts Department of Environmental Protection (MassDEP), a recent inspection of the property revealed that the current owner engaged in excavation and trenching activities, in an effort to upgrade electrical utility lines, without first obtaining a health and safety plan or a soil management plan from a licensed environmental consultant, as required by the AUL. This action highlights the importance of ensuring that owners, operators and developers of formerly contaminated properties covered by an AUL obtain permits for maintenance activities or other activities that may be restricted by the AUL.
AULs are an important feature of the Massachusetts Waste Site Cleanup Program established by MGL c. 21E and the Massachusetts Contingency Plan (310 CMR 40.0000). They allow contaminated properties to be used in ways that will not expose the contamination to individuals or the environment, while also keeping such properties on the market and in use. An AUL sets limits and conditions on the present and future use of contaminated property, and often limit development that involves earth disturbance, on such property. The AUL also tells the current and future property owners about the risks of the contamination. To that end, when purchasing a property that is the site of former contamination, buyers inherit any land use restrictions attached to the land, according to Massachusetts environmental compliance lawyers. Even routine maintenance can trigger the provisions of an AUL if that maintenance will require soil on contaminated land to be disturbed.
Because MassDEP conducts targeted audits of properties with AULs to confirm compliance, it’s important for property owners to conduct a search of deed restrictions that may be application, and to seek advice before engaging in any activity that may be regulated by the an applicable AUL.
The Salisbury marina property was issued the AUL in question in 2010 after the removal of residual petroleum contamination from leaking underground storage tanks. The AUL was attached to the deed of sale between the prior owner and the current owner in 2012. MassDEP maintains that the new owner will pay $7,000 up front, with the remaining portion of the fine suspended if no further violations occur over the next 60 days. Owners of properties that are the subject of an AUL must adhere to all restrictions carefully and never assume that a project is too small to implicate an AUL.
Massachusetts Environmental Compliance Lawyers at Michelman & Bricker, P.C. Represent Property Owners of Contaminated Properties
As the MassDEP has made clear, the terms and conditions of AULs will be strictly enforced. If you are the owner of a property that is the subject of an AUL or you are contemplating the purchase of brownfield, or a property with a history of contamination, Massachusetts environmental compliance lawyers at Michelman & Bricker, P.C. can advise you as to whether your proposed development of such property will be compliant with any AUL and negotiate with state and federal authorities before an AUL is put in place to obtain the flexibility you may need to operate the property in accordance with your plans, and in the compliance with the applicable rules, regulations and restrictions.
We previously represented prospective purchasers of contaminated properties and have assisted them in evaluating the risks involved with purchasing such properties, and have assisted owners and developers of contaminated properties to obtain the necessary approvals to operate the property in compliance with any use restrictions. For example, we counseled a real estate developer in obtaining state regulatory approval of in-situ remediation of fuel oil contamination through soil venting, so that property could be used for a parking lot and hotel.
Call us at 413-567-7678 or 215-557-9440 or fill out an online questionnaire today, to schedule your consultation at our offices in Longmeadow, Massachusetts; Philadelphia, Pennsylvania or Cherry Hill, New Jersey.