[The following is an excerpted from “Managing Environmental Liability” written by Larry Schnapf and published by Juris Law Publishing]

State Statutes Requiring Deed Disclosures

Virtually all states have adopted deed notice requirements as part of their state RCRA programs which are not linked to transfers of the property. The RCRA regulations promulgated by EPA require owners or operators of hazardous waste treatment, storage and disposal facilities (“TSDF”) to file a survey plat to the local authorities with jurisdiction over land use showing the location and dimensions of disposal areas and landfill cells. In addition, RCRA requires the owners or operators to record a notice in a deed or other instrument that would be examined during a title search to notify future purchasers that the site had been used to manage hazardous wastes, advise them of any use restrictions and to alert them to the existence of the survey plat. The notice must identify type, quantity and location of hazardous wastes disposed in each hazardous waste management unit on the property. For hazardous wastes disposed prior to January 12, 1981, the owner or operator must identify the type, quantity and location of the wastes to its best knowledge. The owners or operators of the TSDFs must file the notices within 60 days of the closure of the TSDF or closure of a particular hazardous waste management unit. 
 
In addition, many states have adopted voluntary cleanup or brownfield programs that allow property owners to leave residual contamination at a site provided the land use is restricted and the owners establish engineering or institutional controls. Most of those states require that the use restrictions and engineering or institutional controls be recorded in the local land records. For more information about negotiating, creating and enforcing institutional controls, readers should read section §9.17. 

The following list discusses additional state recording requirements for contaminated properties. 

California-

If the Department of Toxic Substances Control (“DTSC”) designates a property as a hazardous waste property or identifies it as a “border zone property” which means it is within 2,000 feet of land containing hazardous waste, the owner or lessor of the property must prepare a written disclosure instrument to accompany all purchase or lease agreements involving the land. 
 
Delaware-

When the state Department of Natural Resources and Environmental Control determines that a release has occurred at a property which poses a threat to human health or the environment, the owner of the property must record a deed notice identifying the facility and owner as well as describing the nature of the release. Any remedial action completion certifications or NFA letters must be recorded as well. 

Georgia

An owner of property that has been listed on the state hazardous site inventory and has been identified as having a release requiring corrective action must include a notice in any deed, mortgage, deed to secure debt, lease, rental agreement or other instrument of transfer. A property owner who fails to provide the required notice and has knowledge of the disposal or release of hazardous substances will remain liable for any response costs associated with the contamination and will be barred from asserting any statutory defenses to liability.  
	
Kentucky- 

The Natural Resources and Environmental Protection Cabinet is required to file a notice with the county clerk’s office if the agency determines that disposal activities have taken place at a site. The notice must be sufficient to advise prospective purchasers that the property was used to dispose hazardous wastes and that additional information is available from the agency.   

Louisiana-

Property owners who have actual or constructive knowledge that their property is an abandoned or inactive disposal site or has been used as a solid waste landfill, and that the waste remains on the property must identify and record the location of the waste in mortgage documents and local land records. If the owner fails to file the required notice, the purchaser may rescind the sale unless the purchaser knew or should have known of the presence of the wastes. The action must be filed within one year of learning about the contamination but no more than three years after the sale. Inactive or abandoned landfills must also be recorded. Facilities subject to operating permits are not subject to recording requirements unless otherwise required by a permit or order. 

Massachusetts

Activity Use Limitations (“AUL”) which restrict the uses of property because of the presence of residual contamination must be recorded in the local land records. The restrictions may be recorded by the DEP or the property owner. The state form of institutional control also provides an easement to the DEP to enforce the AUL. 

A property that must have a deed notice filed under the state RCRA program, may not be transferred or leased for any use other than a hazardous waste disposal facility until a notice of the prior activity has been recorded in the deed.

Michigan

If a cleanup approved by the state allows for the use of a commercial or industrial cleanup standard, a notice of remediation must be recorded with the deed.

Minnesota

If a property owner knows or should have known that the property being conveyed was used as a hazardous waste disposal site or that the property has been contaminated with hazardous substances because of a release, the owner is required to record an affidavit with the county recorder and provide a copy to the potential buyer prior to the transfer of ownership in the property.

The affidavit must include a legal description of the property and a statement that: (1) the property has either been used as a hazardous waste disposal facility or is contaminated by a release of hazardous substances; (2) the location, identity, quantity and circumstances involving the disposal or contamination to the extent known or reasonably ascertainable; and (3) listing any use restrictions.

If there are any material changes to any matter that must be disclosed, the seller must file them within 60 days. A subsequent owner who removes the hazardous substances may file an affidavit indicating that the contaminants have been removed.
The transaction may not be voided by failing to record the disclosure document. However, an owner who knowingly fails to record the affidavit will be liable for the release and may be subject to civil penalties. 

New Hampshire-

The state is authorized to record orders concerning hazardous wastes in the local land records. The orders will “run with the land” and will be binding on future landowners. 

North Carolina

When a property owner seeks to sell, lease, convey or transfer land that contains a hazardous waste disposal facility or property that is an inactive hazardous substance or waste disposal site, the instrument of transfer must contain a statement notifying the purchaser of the property's present or past use as a disposal site. An owner who fails to comply may not only be subject to civil penalties but also may be liable to the state or any other succeeding property owner for cleanup costs associated with the undisclosed contamination.

Property owners of brownfield sites and sites contaminated with dry cleaning solvents who remediate sites that require land use restrictions to record the restrictions with the registry of deeds. When these sites are transferred, the instruments conveying title must contain a statement that the property has been contaminated and remediated, if applicable. 	
North Dakota-

Owners of sites that been used for the disposal of wastes associated with the commercial development of oil, natural gas, geothermal energy, burning of coal or fossil fuels, solid wastes associated with the processing of ores and minerals, and cement kiln waste must file a plat of the disposal site with the register of deeds when the site is to be closed.

Oklahoma-

When the state Department of Environmental Quality issues a hazardous waste permit, the agency will file a notice of the permit in the local land records.

Oregon-

The state is required to give notice to local governments of potential hazardous waste sites and any use restrictions imposed on property because of the presence of contamination. The state also files the notice with the county land records. 

Pennsylvania

When property that has been used for the disposal of hazardous wastes is conveyed, the grantor must include an acknowledgment in the deed or instrument conveying the property specifying the location where disposal took place as well as the types of wastes deposited. The deed warranty does not apply to the disposal area and waste description. No deed notice is required when a site is remediated to either the background or statewide health cleanup standards. A deed notice must still be filed if a site-specific cleanup standard is performed at a site. 

Rhode Island-

The state must record a notice in the local land records when it gives notice of an improper disposal of hazardous substances. The notice may be rescinded once the site notice of improper disposal has been complied with and vacated.

South Carolina

An owner of property containing a hazardous waste disposal or storage facility that received a permit to dispose or store hazardous waste must file a notice in the deed or instrument of transfer when the property is sold, leased, conveyed or transferred in any manner indicating that the property has been used as a storage or disposal facility for hazardous waste.

Tennessee-

The state will place a notice in the local land records when a property has been placed on the state superfund list. The notice will indicate what action was taken at the site. 

Texas-

Owners of property that was formerly used as landfill or disposal site must file a deed notice with the local land records specifying the location where disposal took place as well as the types of wastes deposited. 

Vermont-

Owners of underground storage tanks are required to record the location of the tanks in the local land records.

West Virginia

This state recording requirement is triggered by a conveyance of property that was used for subsurface treatment, storage or disposal of hazardous wastes during the period the seller or lessor had an interest in the property or if they have actual knowledge of such use. The seller or lessor must disclose this knowledge in the deed or instrument conveying the property within thirty days prior to conveyance. 

United States

Under section l20 (h) of CERCLA, 93 which was amended by the Community Environmental Response Facilitation Act, 94 when the federal government enters into a contract for the sale or transfer of federally owned property and hazardous substances or petroleum products were stored for more than a year which are known to have ken released or disposed of, the federal government is required to disclose in the contract certain information about the hazardous substances. This information shall include the types and quantities of hazardous substances, the time of the storage or release, to the extent such information is available after a thorough search of agency records, and a description of any remedial action taken.
When the federal government is terminating operations at a federal facility, the agency responsible for the property must conduct an environmental site assessment before it concludes that there is no contamination at the property and must obtain concurrence from the appropriate state official that the property is not contaminated.95 Furthermore, when the federal government intends to terminate operations and lease federal property where hazardous substances or petroleum products were stored for at least a year, which are known to have been released or disposed on the property, the federal agency responsible for the property must notify the state where the property is located. This notice must inform the state that the federal operations will be terminated, that it intends to lease the property, the length of the lease, the name of the lessee and a description of the intended use of the property by the lessee.

(c) Copyright 2000 Lawrence Schnapf