Legal global precedents on polluted land subdivision

June 26, 2024 5:22 PM

In New Zealand we have a polluted-land planning law called the Hazardous Industries & Activities List /HAIL. A property with a HAIL designation is legally unusable (i.e. you cannot borrow against it or insure it, and you won’t get a food, health or safety certicate for anything). HAIL land has a negative value. 'Normal' resolution means excavating the entire upper one-metre and landfilling it - not a real solution as just exports problem to next generation. I'm working towards using law, and after the legal stage, biological remediation.

Assessing for HAIL* is required whenever a land title changes use e.g.
• from farming to residential,
• or from industrial to farming,
• or from public space to private space etc.
Once land has a listed HAIL category its use, and value is severely limited, especially for some pollutants (e.g. Asbestos, heavy metals, persistent organic pollutants - latter are very common here with agrochemical waste)
* Assessment included here as it may trigger a idea about a piece of land where you are.

Typically the activity that led to pollution was limited to a small part of the title. I am exploring legally sub-dividing the land to split off the HAIL area as a new title. That would then enable the non-HAIL land to be available for any normal use. For the HAIL portion I would pursue either phyto-remediation, or a use more palatable to the regulator.

To my knowledge there is no legal precedent for doing this in NZ, so I'm asking here to see if you know of any examples of legally problematic land being re-titled and subdivided (not just pollution; could be unstable land, or where a law is applied carte-blanch to title as a whole).

If I can find a legal precedent it would likely reduce legal costs and complexity. If I can prove ‘this has been worked out in Pennsylvania /Berlin /Tokyo /Darwin I expect it would smooth the path.

posted by unearthed to Law & Government (10 answers total)

Not exactly what you're asking for, and a little dated, but this might spark some ideas for you: Promoting More Equitable Brownfield Redevelopment. Searching for "Emeryville brownfields" will turn up a lot more on the community-based redevelopment discussed there, including identification and prioritization of low-hazard properties.
posted by agentofselection at 6:42 PM on June 26 [1 favorite]

In NSW (and other parts of Aus.) where a large block of land has a place of cultural significance on it with a listing on a heritage register, there has to be an assessment against that heritage before subdivision. It’s a test to see whether the subdivision would harm the significance of the item, e.g. in one case I saw where an owner wanted to subdivide the gardens of a large 19thC mansion to put flats on it. Sometimes you can, sometimes you can’t, but the Heritage Act requires a consent authority to make an assessment.
posted by Fiasco da Gama at 7:46 PM on June 26

https://www.epa.gov/archive/epa/aboutepa/love-canal-tragedy.html
posted by HearHere at 8:21 PM on June 26

Maybe relevant for precedent. Our farmlet in Ireland is defacto divided since They designated the fields adjacent to the river to be a Special Area of Conservation (SACs). As a consequence, there is stuff we can and cannot do on either side of a field boundary 150m from the river. It hasn't come that yet but it is straightforward to divide the relevant folio at the Land Registry.
posted by BobTheScientist at 12:50 AM on June 27

Without knowing anything about HAIL beyond what you put in your post, it sounds like something akin to Superfund sites in the United States. People do buy them and transform the land - you might want to research to see if anyone has done something similar to what you're proposing.
posted by NotMyselfRightNow at 4:24 AM on June 27 [1 favorite]

In the U.S., you can subdivide property part of which is a "Superfund" site (the U.S. equivalent to HAIL) and the buyer of the unpolluted part - as long as not legally connected to the seller - will not be subject to the legal restrictions applicable to the polluted land. This is a not all a simple legal process and, of course, you have to be VERY sure that in fact the pollution did not seep to the other side of the lot, but it can be done.

However, I should say your basic premise that digging out and replacing the polluted soil is "not a real solution" is not correct. It is, in fact, the only solution for remediating polluted land and has been used as such for 50 years. The technology to be build safe-enough lined landfills is very mature. What the remediation process is, however, is expensive - polluted land only gets remediated when the potential value of the land once remediated exceeds the cost, or when other people's money can be used to subsidize the remediation.
posted by MattD at 4:31 AM on June 27 [3 favorites]

I don't deal with subdivision a heap but work in architecture/building. Any time I've had a question about subdivision a good first port of call has always been an experienced surveyor. I'd start there, if you head down this path you are going to need a surveyor anyway.

An alternative to remediation I've dealt with more than once is encapsulation on site, if you have the room and it's appropriate it's generally a lot cheaper. Often the requirement to maintain the encapsulation ends up attached the title and is perpetual, it can be a good option. It's not always appropriate though. The 30 unit apartment building up the hill from me sits on contaminated land and the slab in its ground floor carpark acts as the cap. It seems to have no effect on the value of the units. I'd live there, FWIW.
posted by deadwax at 5:43 AM on June 27

Response by poster: These are great so far, espcially re US Superfund sites -thanks to NotMyselfRightNow and MattD, I'll go and search for some cases.

Thanks BobTheScientist re the SACs, I suspect I can find something in that too as a prelim. search looks interesting:
site:.ie "Special Area of Conservation" pollution
I'll see if I can do some adjacency searches to narrow the pool.

MattD Phytoremediation is the state of the art, and for many toxins there are proven, reliable workflows. 'Solutions' that remove areas of the planet into the deep future are not solutions at all, especially as after about three generations the landfill/dump is forgotten and then refound - often as a slow and terrible accident. This is very common in New Zealand, where we have hundreds of coastal landfills and filled gullies.

In my country, all of yours too I suspect, the landfill and polluted soils industry has lobbied (this is well understood by those of us who want to do this here, I'm not going on feels) to ensure landfilling is the easiest approach by far, and that phytoremediation is essentially impossible (certification of staff, regulation, law .. and as a result of all that insurance is very, very uncertain and equally expensive). And when that all fails people are threatened with violence.

Daadwax, encapsulation is included in my "more palatable to the regulator" idea. Yes a whole team, I have buy-in from friends in surveying, law, soil science, and plant people and now probing the political end.
posted by unearthed at 12:12 PM on June 27

In my part of the US (North Carolina), the state-level Brownfields program would likely be how this is pursued. As part of a Brownfields agreement, the re-developer of the site would get some pollution liability protection by making the site safe for their proposed use. That new use and how it might mean folks interact with any remaining contamination at the site really drive what's required environmentally. As an example, a site with petroleum-related groundwater contamination might mean no water supply wells could be installed, the site must be connected to municipal water supplies, and perhaps vapor barriers for all new buildings. I've certainly seen examples contaminated portions of property carved off to be dealt with separately.

I'd really look into the remediation aspect to get a better understanding of why they'd suggest removing the top meter of soil. Sites can be contaminated with a variety of substances and different site media (soil, groundwater, surface water, soil vapor, etc.) are remediated in different ways depending on what the issue is. Phytoremediation works well for some contaminants, but not others and you might have to deal with disposal of the plant material if it accumulated lots of metals. That said, a lot of soil remediation involves digging it up and sending it to an appropriate lined landfill, but even excavation of soils is targeted to dealing with contaminant source areas which are defined by sampling.
posted by pappy at 1:47 PM on June 27 [1 favorite]

Response by poster: Thanks pappy it's pretty ignorant here, I'd say we're about forty to fifty years behind best practice (which would be basically any other country - the clean green/ pure NZ thing here is pure propaganda to sell meat, milk and tourism).

There's a certified person scheme which is basically a rort - and that's as much as I'll say online.
posted by unearthed at 7:00 PM on June 27