Environmental Lien and AUL State
Statutes
Where
Environmental Liens are filed
To establish its priority among other secured parties and creditors, EPA must
file notice of the lien “in the appropriate office within the State (or county
or other governmental subdivision), as designated by State law, in which the
real property subject to the lien is located.” (Section 107
(1) (3)).
Super Priority Lien Statutes
A lien
is a legal claim against the title of property to secure the payment of a debt
or the performance of an obligation. The
Environmental Protection Agency (EPA) is authorized under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C.
9601 et seq.) to file environmental liens and many States also allow their environmental
agencies to file liens on contaminated property to secure the recovery of
response costs. Some State Liens can also attach to revenues of responsible
parties. Typically, a lien placed upon a
property is given priority based upon the order in which they are
recorded. In some states, provisions may
allow an environmental enforcement agency to impose upon a contaminated parcel
which takes priority over any prior liens on the parcel, which is a super
priority lien.
Alabama:
Where
Environmental Liens are filed
Alabama adopted the Uniform
Federal Lien Registration Act – AL Code 35-11-42. Environmental Liens are filed
at the Judge of Probate’s Office in the county where the real estate is
located.
Super Priority Lien Statutes
Alabama does not have
a statute imposing a super priority lien for clean up of hazardous waste.
Alaska:
Where
Environmental Liens are filed
Alaska adopted the Uniform
Federal Lien Registration – AS 40.19.020. Environmental Liens are filed in the
Clerk’s Office in the recording district in which the real property is located.
Super Priority Lien Statutes
Alaska does not have
a statute imposing a super priority lien for clean up of hazardous
waste.
Comments: The State
of Alaska has a lien for expenditures by the state from a dedicated fund
financing the costs of response, containment, removal, or remedial action
resulting from an oil or hazardous substance release, or, with respect to
response costs, for the costs of response to a threatened release of oil or a
hazardous substance, against all property owned by a person who is determined
by the commissioner to be liable for the expenditures under this chapter, AS
46.03, AS 46.04, 42, U.S.C. 9607, or other state or federal law. The lien includes interest, at the maximum
rate allowable under AS 45.45.010(a), from the date of the expenditures. The state may file an action in a court of
competent jurisdiction in order to foreclose on the lien.
Arizona:
Where
Environmental Liens are filed
Arizona adopted the Uniform
Federal Lien Registration – ARS Section 33-963. Environmental Liens are filed
in the County Recorder’s Office where the property is
situated.
Super Priority Lien Statutes
Arizona does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Comments: Although,
not a super priority lien for the cleanup of hazardous waste the state does
have a super priority lien (ARS Section 48-309) for the cost and expense of
removing and eradicating noxious weeds, shrubs, vines or grasses from property.
Arkansas:
Where
Environmental Liens are filed
California adopted the Uniform
Federal Lien Registration Act – Code of Civil Procedure Section 2100-2107.
Environmental Liens are filed in the County
Recorder’s office where
the real estate is located.
Super Priority Lien Statutes
Arkansas does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Comments: Arkansas does impose a
super priority lien under the Surface Coal Mining and Reclamation Act. (AR Code
15-58-101 et seq) The lien is attached as of the date
of expenditure of money by the state. The liens must be recorded in the Office
of the Circuit Clerk and Recorder of the county where the land lies. No time
limit for enforcement is prescribed. (AR Code 15-58-404)
California:
Where
Environmental Liens are filed
California adopted the Uniform
Federal Lien Registration Act – Code of Civil Procedure Section 2100-2107.
Environmental Liens are filed in the County
Recorder’s office where
the real estate is located.
Super Priority Lien Statutes
California does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Comments: Cal. Health & Safety Code §25395.83
Statute allows the state agencies to file a lien for unrecovered cleanup costs
against properties owned by non-liable parties (innocent landowners, bona fide
purchasers and contiguous property owners) but only to the extent that the
cleanup has increased the fair market value of the property.
Under
Public Resources Code
§2796.5 the state may remediate or reclaim mined lands where
financially able operator cannot be located, and may record a non-priority lien
against the affected property.
Colorado:
Where
Environmental Liens are filed
Colorado adopted the Uniform
Federal Lien Registration Act – CRS 38-25-101 et seq. Environmental Liens are
filed in the Office of the Clerk/Recorder where the real estate is located.
Super Priority Lien Statutes
Colorado does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Connecticut:
Where
Environmental Liens are filed
Connecticut adopted the Uniform
Federal Lien Registration Act – Section 49-32a of the General Statutes.
Environmental Liens are filed in the office of the clerk of the town in which
where the real estate is located.
Super Priority Lien Statutes
Connecticut has a first priority
Super Lien Statute for clean up of hazardous waste. Conn. Gen. Stat. §22a-452a [Enacted in 1984,
amended in 1985, 1987, 1997, 2001 and 2007]
Comments: The statute excludes residential real estate
and liens older than June
3rd, 1985. The General
Statutes allows the State of Connecticut
to claim a lien for any amount paid by the Commissioner of Environmental
Protection to contain and remove or mitigate the effects of a spill on real
property. The lien is not effective
unless a certificate of lien is filed in the land records of the town in which
the property is located describing the property, the amount of the lien, and
the name of the owner. In addition, the Commissioner must mail a copy of the
lien to all persons of record holding an interest in the property over which
the lien is entitled to priority.
Delaware:
Where
Environmental Liens are filed
Delaware adopted the Uniform Federal Lien Registration
Act – 25 Del.
C. Chapter 31. Environmental Liens are filed in the Office of the Recorder of
Deeds where the real estate is located.
Super Priority Lien Statutes
Delaware does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Comments:
Pursuant to 7 Del. C. §9115, when a release of a hazardous substance has been
determined by the Secretary of the Department of Natural Resources, the owner
of the subject property is required to file a notice of release in the office
of the Recorder of Deeds of the county in which the property is located. The Secretary of the Department of Natural
Resources is authorized to bring an action in the Superior Court against any
potentially responsible party to collect remedial costs incurred by the
Secretary. 7 Del.
C. §9109(d). Upon obtaining a judgment pursuant to Section 9109(d), such
judgment would become a lien against all property owned by the responsible
party in the county in which the judgment was obtained. 10 Del. C. §4716.
District of Columbia:
Where
Environmental Liens are filed
District of Columbia has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed in the
Office of the Recorder of Deeds. Environmental Liens may also be filed in the Federal District Court
for the District in which the property is found.
Super Priority Lien Statutes
District of Columbia does not have a statute
imposing a super priority lien for clean up of hazardous waste
D.C. Code
§42-3131.01 (1979) (recodified from §6-711.01) (allows a tax to be assessed
against property which if unpaid is the basis for obtaining a lien against the
property) D.C. Mun. Regs. Tit. 20
§4014 (1996). DC Code Section
8-113.05 (underground storage tanks; reasonable costs of correction and related
expenses collected in same manner as real estate taxes); DC Code 47-1312 (a-1)
(real estate taxes as super priority lien); DC Code Section 8-113.09
(compliance orders; cease and desist orders)
Florida:
Where
Environmental Liens are filed
Florida adopted the Uniform
Federal Lien Registration Act – 713.901. Notices of liens upon real property
for obligations payable to the United
States, and certificates and notices
affecting the liens, shall be filed in the office of the clerk of the circuit
court of the county in which the real property subject to the liens is
situated. If by law the county recorder and custodian of the official records
of a county is other than the clerk of the circuit
court, a reference in this section to the clerk of the circuit court shall be
deemed to be the county recorder so designated by law.
Super Priority Lien Statutes
Florida does not have a statute imposing a super
priority lien for clean up of hazardous waste, except Miami-Dade County
Comments: Miami-Dade
County Code §24-31(8) .01
[Enacted in 1983; repealed and re-enacted in different section 2004 (previously
§24-57(i)]. Whereas the county must take
steps to investigate, control and abate pollution conditions, and restore
damaged conditions, the county may assert a first priority lien against the
affected property, equal in rank to county tax liens.
Georgia:
Where
Environmental Liens are filed
Georgia has not adopted the
Uniform Federal Lien Registration Act, but has adopted acts modeled on its
predecessor, the Uniform Federal Tax Lien Registration Act – OCGA 44-14-517. Environmental
Liens are filed in the office of the clerk of the Superior Court of the county
in which the real property is located.
Super Priority Lien Statutes
Georgia does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Comments: The "Georgia Underground Storage Tank
Act," OCGA 12-13-1
et seq., provides for a lien on the real property on which underground storage
tanks which caused discharge are located, even if owned by a person other than
the operator. (OCGA 12-13-12)
There is no requirement to file the lien to make it effective. While the lien
may be perfected by a filing in the local real estate records, it may otherwise
be "hidden." Further, there is no provision in the statute for
termination of such a lien.
Hawaii:
Where
Environmental Liens are filed
Hawaii has a modified version
of the Uniform Federal Lien Registration Act – HRS Chapter 505. Hawaii has a dual
recording system. Documents affecting real property, such as Environmental
Liens, can be recorded in the Land Court System, the Regular System, or both,
depending on which system was originally used for the
property. The single, statewide recording office for both systems is located in
the Department of Land and Natural Resources, Bureau of Conveyances. Documents
affecting Land Court
property are "registered" in the Office of the Assistant Registrar of
the Land Court,
located in the Bureau of Conveyances. Documents affecting Regular System
property are "recorded" with the Registrar of Conveyances, Bureau of
Conveyances.
Super Priority Lien Statutes
Hawaii does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Idaho:
Where
Environmental Liens are filed
Idaho adopted the Uniform
Federal Lien Registration Act. Environmental Liens are filed in the County Recorder’s
office where the real estate is located.
Super Priority Lien Statutes
Idaho does not have any
statute imposing a super priority lien for cleanup of hazardous waste.
Illinois:
Where
Environmental Liens are filed
Illinois adopted the Uniform
Federal Lien Registration Act – 770 ILCS 110/2. Environmental Liens are filed
in the County Recorder’s office where the real estate
is located.
Super Priority Lien Statutes
Illinois has a first priority
Super Lien Statute for clean up of hazardous waste (with a few
exceptions). 65 ILL.
Comp. Stat §5/11-31-1 (e) and (f) [Enacted in 1990, amended in 1991, 1992,
1995, 1997, 1999, 2001, 2002 and 2003]
Comments: This Statute allows a first priority lien, to
which only a tax lien and certain municipal liens are superior against real
property where hazardous substances have been investigated, removed or
remediated. Recoverable costs include
court cost and attorneys fees, as well as demolition, repair, enclosure,
inspection, testing and remediation expenses.
This law also
allowed a first priority lien for other zoning and health violations to which
only tax liens and certain other third party interests are superior. A super lien can be filed for the costs to
remove garbage, debris or other hazardous noxious or unhealthy substances or
materials.
Indiana:
Where
Environmental Liens are filed
Indiana has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed in the County Recorder’s
office where the real estate is located. Environmental Liens may also be filed
in the Federal District Court
for the District in which the property is found.
Super Priority Lien Statutes
Indiana does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Comments: The
Environmental Protection Agency has the ability to acquire a lien on real
estate for hazardous waste clean-up. This lien is not a super lien, but rather
takes the priority of a judgment lien under state law. In Indiana, the federal lien is perfected by
filing a notice of the lien in the recorder's office in the county where the
property is located. Indiana Code 13-25-4-11 provides that the State may impose
a lien upon property on which clean-up or removal of hazardous substances is
undertaken by the State. Such a lien is perfected by recording a notice of the
lien in the county recorder's office. The lien continues for ten years unless
earlier discharged and satisfied.
Iowa:
Where
Environmental Liens are filed
Iowa adopted the Uniform
Federal Lien Registration Act – 331.609. Environmental Liens are filed in the
Office of the Recorder of the County in which the real property is situated.
Super Priority Lien Statutes
Iowa does not
have a statute imposing a super priority lien for clean up of hazardous waste.
Kansas:
Where
Environmental Liens are filed
Kansas adopted the Uniform
Federal Lien Registration Act – Section 79-2614. Environmental Liens are filed
in the Register of Deeds Office.
Super Priority Lien Statutes
Kansas does not have a
statute imposing a super priority lien for clean up of hazardous waste.
Kentucky:
Where
Environmental Liens are filed
Kentucky has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed in the County Clerk’s
office where the real estate is located. Environmental Liens may also be filed
in the Federal District Court
for the District in which the property is found.
Super Priority Lien Statutes
Kentucky does not have a statute
imposing a super priority lien for clean up of hazardous waste.
Louisiana:
Where Environmental Liens are filed
Louisiana adopted the Uniform
Federal Lien Registration Act – La. R.S. 52:52. Environmental Liens are filed
in the parish where the property is located.
Super Priority Lien Statutes
Louisiana has a first priority
Super Lien Statute for clean up of hazardous waste (with a few
exceptions). La. Rev. Stat. Ann.
§30:2281 [Enacted in 1990, amended in 1991 and 2001]; La. Rev. Stat. Ann.
§30:74 [Enacted in 1986, amended in 1990, 1992 and 1997]; La. Rev. Stat. Ann.
§30:2195(F)(2) [Enacted in 1995, amended in 1997,
1999, 2001 and 2002].
Comments: La. Rev. Stat. Ann. §30:2281 allows the State
to file a lien against immovable property to recover response costs. The lien takes priority against all existing
encumbrances affecting the property.
Previously perfected encumbrances filed against the property shall
continue to have a priority lien only for the fair market value of the property
prior to the remedial action. The state
shall have a priority lien on the amount of the increase in the fair market
value of the property resulting from the remedial actions.
La. Rev. Stat.
Ann. §30:74 allows an environmental super lien against an abandoned oilfield
waste site scheduled for a sheriff’s sale or public auction, for monies
expended by the state to investigate the subject property.
La. Rev. Stat.
Ann. §30:2195(F)(2) allows an environmental super lien against affected
immovable property, for costs incurred by the state for closure of abandoned
motor fuel underground storage tanks and for costs associated with the
assessment and remediation of property contaminated by an abandoned motor fuel
underground storage tank.
Maine:
Where
Environmental Liens are filed
Maine adopted the Uniform
Federal Lien Registration Act – Me. Rev. Stat. tit. 33, Section 1901 et seq.
Environmental Liens are filed in the Registry of Deeds where the real estate is
located.
Super Priority Lien Statutes
Maine has a first priority
Super Lien Statute for clean up of hazardous waste. Me. Rev. Stat. Ann. Tit. 38, §1371 [Enacted
in 1987, amended in 1992].
Comments: This statute allows a super environmental
lien against real property
Maryland:
Where
Environmental Liens are filed
Maryland adopted the Uniform
Federal Lien Registration Act or similar legislation – Sections 3-401 through
3-405 “Maryland Revised Uniform Federal Line Registration Act.” Environmental
Liens are filed in the Circuit Court for the County or Baltimore City
in which the property lies.
Super Priority Lien Statutes
Maryland does not have a
statute imposing a super priority lien for clean up of hazardous waste.
Massachusetts:
Where
Environmental Liens are filed
Massachusetts has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed at the
Registry of Deeds. Environmental Liens may also be filed in the Federal District Court
for the District in which the property is found.
Super Priority Lien Statutes
Massachusetts has a first priority
Super Lien Statute for clean up of hazardous waste. Mass. Gen. Laws Ann. Ch.
21E, §13 [Enacted in 1983, amended in 1983, 1992, 1996, 1998 and 2001].
Comments: This statute allows an environmental lien
against all real and personal property owned by liable parties. However, a first priority lien applies to the
affected site only. Also, residential
property is not subject to a super environmental lien; rather, a lien on
residential property will take its place behind prior liens
Michigan:
Where
Environmental Liens are filed
Michigan adopted the Uniform
Federal Lien Registration Act – MCLA 600.4035. Environmental Liens are filed
with the Register of Deeds in the county where the property resides
Super Priority Lien Statutes
Michigan has a first priority
Super Lien Statute for clean up of hazardous waste. Mich. Comp. Laws §324.20138(2), 4 [Enacted in
1990, recodified in 1994, amended in 1995].
Comments: If the attorney general determines that a
lien which has arisen upon the facility in favor of the state for all unpaid
costs and damage relating to the cleanup is not sufficient, then the attorney
general will petition the circuit court for a "Superlien" that has
priority over all other liens on the property whenever recorded. [MCLA 299.616a(2)(a)]
When the state
conducts a cleanup of property, a lien arises in favor of the state for all
unpaid costs and damages. This lien has priority over all other liens and
encumbrances except those recorded before the date the state's lien is
recorded. [MCLA 299.616a(1)]
Minnesota:
Where
Environmental Liens are filed
Minnesota adopted the Uniform
Federal Lien Registration Act – Section 272.481. Environmental Liens are filed
with the office of the County
Recorder or Registrar of
Title in which the property is located.
Super Priority Lien Statutes
Minnesota does not have a
statute imposing a super priority lien for clean up of hazardous waste.
Comments: The Minnesota superfund
program is called the Minnesota Environmental Response and Liabilty Act (MERLA)
contained in Chapter 115B of the Minnesota Statutes. All cleanup action
expenses for which a person is liable to the state under section 115B.04 or
115C.04 constitute a lien in favor of the state. An environmental lien attaches
when: cleanup action costs are first incurred by the state with respect to a
cleanup action; the owner is provided, certified or registered mail, written
notice of potential liability; and a lien notice is filed. The lien must be
filed with the county recorder or registrar of title in the county where the
property is located. An environment lien continues until the liability from the
cleanup action costs, or a judgment against the owner arising out of the
liability is satisfied or becomes unenforceable through operation of the
statute of limitations under section 115B.11 or 541.05, subdivision 1, clause
(2), unless the lien is released. An action for recovery of response costs,
including recovery of costs and expenses may be commenced any time after costs
and expenses have been incurred, but must be commenced no later than six years
after the initiation of physical on-site construction.
Mississippi:
Where
Environmental Liens are filed
Mississippi adopted the Uniform
Federal Lien Registration Act – 86-8-5. Environmental Liens are filed in the
Office of the Chancery Clerk of the County where the real estate is located.
Super Priority Lien Statutes
Mississippi does not have a
statute imposing a super priority lien for cleanup of hazardous waste.
Comments: There is a statute which created a trust fund
for the evaluation of sites for establishing cleanup levels and they may
collect a fee and my impose penalties for failure to follow guidelines but
there is no statute for establishing a super fund lien.
Missouri:
Where
Environmental Liens are filed
Missouri has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed in the
Recorder’s Office of the county in which the property is located. Environmental
Liens may also be filed in the Federal
District Court for the District in which the
property is found.
Super Priority Lien Statutes
Missouri does not have a statute
imposing a super priority lien for cleanup of hazardous waste.
Montana:
Where
Environmental Liens are filed
Montana adopted the Uniform
Federal Lien Registration Act –Section 71-3-204 MCA. Environmental Liens are
filed in the Office of the Clerk/Recorder where the real estate is located.
Super Priority Lien Statutes
Montana has a first priority
Super Lien Statute for clean up of hazardous waste. Mont. Code Ann. §82-4-239(5)(a),
(c) [Enacted in 1973, amended in 1975, 1979, 1983, 1995 and 2003].
Comments: This
is restricted to state cleanup of former mining lands, where the property owner
is either not known or refuses permission for the state to enter the property
for restoration or cleanup. Within six
(6) months after completing the cleanup, the state may file a notice that
constitutes a first priority lien, to which only real estate tax liens are
superior, in an amount up to the increase in appraised property value resulting
from the state’s cleanup activities.
Nebraska:
Where Environmental
Liens are filed
Nebraska adopted the Uniform
Federal Lien Registration Act – NEB. REV. STAT Section 52-1001 to 52-1008.
Environmental Liens are filed in the Office of the Register of Deeds where the
real estate is located.
Super Priority Lien Statutes
Nebraska does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
Nevada:
Where
Environmental Liens are filed
Nevada adopted the Uniform
Federal Lien Registration Act – NRS108.825-837. Environmental Liens are filed
in the County Recorder’s Office in the county where
the real estate is located.
Super Priority Lien Statutes
Nevada does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
New Hampshire:
Where Environmental Liens are filed
New Hampshire adopted the Uniform
Federal Lien Registration Act – 454-B:2. Environmental
Liens are filed in the Registry of Deeds in the county where the real estate is
located.
Super Priority Lien Statutes
Nebraska does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
New Jersey:
Where
Environmental Liens are filed
New Jersey adopted the Uniform
Federal Lien Registration Act – N.J.S.A. 46:16-15, et seq. Environmental Liens
are filed in the Office of the County Recording Officer where the real estate
is located.
Super Priority Lien Statutes
New Jersey has a first priority
Super Lien Statute for clean up of hazardous waste. N.J. Stat. Ann. §58:10-23.11f(f)
[Enacted in 1979, amended in 1981, 1983 and 1985] and N.J. Stat. Ann.
§58:10B-25.2 [Enacted in 2005].
Comments: . N.J. Stat. Ann. §58:10-23.11f(f)
allows the State to file a super environmental lien against affected real
property. A non-priority lien is allowed
against all other revenues and real and personal property of a liable
party.
N.J. Stat. Ann.
§58:10B-25.2 allows the state to file a
super environmental lien against contaminated property in a brownfield
development area, where the state has awarded a grant to a municipality, county
or development entity under the New Jersey Hazardous Discharge Site Remediation
Fund, and the grantee is not the property owner. The environmental lien is removed from the
property in the event the municipality, county or redevelopment agency subsequently take title to the property. In addition, where the property comprises six
dwellings or less and is used for residential purposes only, the law allows
only a non-priority lien.
New Mexico:
Where
Environmental Liens are filed
New Mexico adopted the Uniform
Federal Lien Registration Act – Sections 48-1-1 to 48-1-7 NMSA (1978).
Environmental Liens are filed with the Clerk of the County where the real
estate is located.
Super Priority Lien Statutes
New Mexico with the exception of
mining lands and refuse does not have a statute imposing a super priority lien
for the cleanup of hazardous waste.
Comments: There
are two statutes which provide for an environmental type lien that imposes
priority over previously recorded instruments. Section 3-48-7 NMSA (1978)
provides for a lien which shall be superior to all other liens except general
property taxes for removal of refuse, waste, or other unwholesome materials
from the property by the governmental authority pursuant to Sections 3-48-1
through 3-48-7 NMSA (1978). Section 69-25B-8 NMSA (1978) permits the State of
New Mexico to file a lien on land containing an abandoned mine where the cost
incurred by the state in cleaning up or abating the adverse effects of past
mining practices where the effects of the mining operations is adversely
affecting the water supply or adjoining lands. (Abandoned Mine Reclamation Act
(Sections 69-25B-1 through 69-25B-12 NMSA (1978))
New York:
Where
Environmental Liens are filed
New York adopted the Uniform
Federal Lien Registration Act – Lien (Chapter 33), Article 10-A. Environmental
Liens are filed in the office of the Clerk of the County where the real estate
is located.
Super Priority Lien Statutes
New York has a first priority
Super Lien Statute for clean up of hazardous waste. N.Y. Envtl. Conserv. Law §56-0508 [Enacted in 2003]
and New York City
NYC Admin. Code §16-131.3 [Enacted in 1990, amended in 2005].
Comments: N.Y.
Envtl. Conserv. Law §56-0508 enacted that upon
commencement of tax foreclosure proceedings, local governmental authority may
seek a court order allowing authority to conduct an environmental restoration
investigation pursuant to state Brownfield law.
Costs of investigation are added to the taxes owed to, and tax lien of,
local governmental authority.
New York City has an Administrative
Code (NYC Admin. Code §16-131.3) which allows the Department of Sanitation to
file a first priority lien, subject only to tax liens, where the Department has
abated a property where conditions, including Solid waste, have been found
hazardous to the public health and safety.
North Carolina:
Where
Environmental Liens are filed
North Carolina adopted the Uniform
Federal Lien Registration Act – NCGS 44-68.10. Environmental Liens are filed in
the Clerk of Superior Court of the county where the real estate is located.
Super Priority Lien Statutes
North Carolina does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
North Dakota:
Where
Environmental Liens are filed
North Dakota adopted the Uniform
Federal Lien Registration Act – 35-29-02. Environmental Liens are filed in the
Office of the Recorder of the county where the real estate is located.
Super Priority Lien Statutes
North Dakota does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
Ohio:
Where
Environmental Liens are filed
Ohio has not adopted the
Uniform Federal Lien Registration Act – Environmental Liens are filed in the
Office of the Recorder of the county where the real estate is located.
Environmental Liens may also be filed in the Federal District Court for the District
in which the property is found.
Super Priority Lien Statutes
Ohio does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
Comments: The State of Ohio has the following statutes to file
non-priority environmental liens (Ohio Rev. Code Ann. §3734.22 (1980,
amended 2005 and 2006) and Ohio Rev. Code Ann §3734.20(B) (1980, amended 2006)
Oklahoma:
Where
Environmental Liens are filed
Oklahoma adopted the Uniform
Federal Lien Registration Act – 68 O.S. Section 3401 through 3407.
Environmental Liens are filed in the Clerk of the County where the real estate
is located.
Super Priority Lien Statutes
Okalahoma does
not have a statute imposing a super priority lien for the cleanup of hazardous
waste.
Oregon:
Where
Environmental Liens are filed
Oregon adopted the Uniform
Federal Lien Registration Act – ORS 205.127. Environmental Liens are filed in
the Office of the County
Clerk of the county where
the real estate is located.
Super Priority Lien Statutes
Oregon does not have a
statute imposing a super priority lien for the cleanup of hazardous waste.
Comments: Oregon
law permits a state lien (without super priority) for hazardous materials
compliance and cleanup (ORS 465.335, 466.205), underground storage tank
enforcement (ORS 466.835), and illegal drug cleanup (ORS 475.485). Upon
recording of a claim of lien, the lien attaches to real property of the person
liable for the demand. The claim of lien must include, among other information,
a description of the property charged with the lien and must be recorded in the
county where the affected property is situated. The lien's priority is
established by the recording date, except that an illegal drug cleanup lien has
priority over a local government forfeiture or a state
claim under ORS 166.715 to 166.735. The statutes do not specify an expiration
date or limitation period.
Pennsylvania:
Where
Environmental Liens are filed
Pennsylvania adopted the Uniform
Federal Lien Registration Act. Environmental Liens are filed in the Office of
the Recorder of Deeds of the county where the real estate is located.
Super Priority Lien Statutes
Pennsylvania has a first priority
Super Lien Statute for clean up of hazardous waste. 32 Pa.
Stat. Ann. §5116(a)(1) [Enacted in 1968; amended in
1970, 1972, 1976, 1980 and 1982]
Comments: The
Land and Water Conservation and Reclamation Act, (32 PS Section 5101, et seq.),
imposes a super priority lien for cleanup of hazardous waste. The liens arise
upon identification, expenditures of clean-up monies by the Department of
Environmental Resources, and issuance by said Department to the owner of a
statement of expenditures. This "statement shall constitute a lien upon
the said land as of the date of the expenditure of monies and shall have
priority as a lien second only to the lien of real estate taxes imposed upon
said land." The lien shall not exceed the amount determined by an
independent appraiser to be the increase in the market value of the land as a
result of the abatement of the pollution immediately after the Department has
completed its work. "(A)nd the lien shall extend
to only that portion of the premises directly involved in the work of the
Department of Environmental Resources under this act." (32 PS Section 5116)
These liens are filed in the judgment index in the county in which the property
is located.
The enforcement
of this lien is by issuance of a writ of execution without prosecution to
judgment of writ of scire facias. The rules for duration (20 years),
enforcement, collection, and revival are the same as for municipal liens. (53 PS Sections 7101 et seq.) Revival of the liens can be
made for 20-year periods pursuant to Section 7183 of this article.
Rhode Island:
Where
Environmental Liens are filed
Rhode Island adopted the Uniform
Federal Lien Registration Act – R.I.G.L. Section 34-34-1. Environmental Liens
are filed in the Land Evidence Records of the city or town where the land is
located.
Super Priority Lien Statutes
Rhode Island the state has no statute
imposing a super priority lien for clean up of hazardous waste.
South Carolina:
Where
Environmental Liens are filed
South Carolina adopted the Uniform
Federal Lien Registration Act – SC Code § 12-57-60. Environmental Liens are
filed in the County
Register of Deeds or
Clerk of Court where the real estate is located.
Super Priority Lien Statutes
South Carolina the state has no statute
imposing a super priority lien for clean up of hazardous waste.
Comments: Their priority relative to existing mortgages
or other liens has not been litigated. Whether the lien will be deemed to
relate back to some time prior to filling (e.g., the time the actual physical
pollution took place) is unknown. The lien has no statutory time limit. Penalty
provisions include the following:
SC
Code §48-1-350. Penalties shall constitute debts to State; liens; disposition of
moneys collected.
South Dakota:
Where
Environmental Liens are filed
South Dakota adopted the Uniform
Federal Lien Registration Act – SDCL 15-16-7. Environmental Liens are filed in
the Office of the Clerk of Circuit Court in the county where the land is
located.
Super Priority Lien Statutes
South Dakota does not have a
statute imposing a super priority lien for the cleanup of hazardous waste.
South Dakota does have a statute that
imposes a lien for clean up of hazardous waste. However, in Chapter 34A-15,
Limitation on Liability of Lenders for Environmental Damage, specific
legislation has been passed so that lenders can predict with more certainty
what the costs will be if they foreclose. They also intended to limit third
party liability for lenders who comply with certain conditions.
Tennessee:
Where
Environmental Liens are filed
Tennessee adopted the Uniform
Federal Lien Registration Act – TCA 66-21-201. Environmental Liens are filed in
the Register’s Office in the county where the land is located.
Super Priority Lien Statutes
Tennessee does not have a statute
imposing a super priority lien for the cleanup of hazardous waste.
Comments: The state's lien for hazardous waste
management is created by filing notice in the Register's Office of the county
where the land lies and its priority dates from such filing. (TCA 68-212-209)
No limitation for enforcement of the lien is provided.
Texas:
Where
Environmental Liens are filed
Texas adopted the Uniform
Federal Lien Registration Act – Tex. Prop. Code Ann. Section 14.001 through
14.007. Environmental Liens are filed in the Office of the County Clerk
in the county where the land is located.
Super Priority Lien Statutes
Texas with the exception of mining lands (16 Tex. Admin. Code
§12-816) [Enacted in 1999] does not have a statute imposing a super priority
lien for the cleanup of hazardous waste.
Comments: When the Railroad Commission of Texas (16 Tex.
Admin. Code §12-816) restores privately owned mining lands, and the restoration
results in a significant increase in property value, the Commission may file a
lien, together with proof of increase in property value, in an amount up to the
increase in property value. The environmental
lien is second only to a property tax lien.
Prior to filing a lien, the Commission must notify the landowner of its
claim and must allow the owner a reasonable time to satisfy the claim. Liens may not be filed against a party who
has owned the land since May 1977 and who did not consent to, participate in or
exercise control over the mining operation.
Otherwise, a
lien in favor of the state for remediation costs is imposed by §361.194 of the
Health and Safety Code. That lien attaches to real property upon the filing of
an affidavit executed by an authorized representative of the Texas Natural
Resource Conservative Commission. It does not have superpriority and does not
relate back to a time before the affidavit is filed with the county clerk of
the county in which the property is located. The lien may be foreclosed only by
court judgment, and a suit for cost recovery must be instituted no later than
one year from the completion of all remediation action.
Utah:
Where
Environmental Liens are filed
Utah has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed in the
Office of the County
Recorder where the real
estate is located. Environmental Liens may also be filed in the Federal District Court
for the District in which the property is found.
Super Priority Lien Statutes
Utah, with the exception of
mining lands (Utah Code §40-10-27) [Enacted in 1979, amended in 1992, 1994,
1995, 1996 and 1997] does not have a statute imposing a super priority lien for
the cleanup of hazardous waste.
Comments: The State of Utah does impose an environmental lien for
the reclamation of land adversely affected by past coal mining practices. Such
liens are to be recorded in the county recorder's office for the county in
which the land is located. (Sections 40-10-27,28 UCA)
Vermont:
Where
Environmental Liens are filed
Vermont has not adopted the
Uniform Federal Lien Registration Act. Environmental Liens are filed in the
Clerk of the County where the real estate is located. Environmental Liens may
also be filed in the Federal
District Court for the District in which the
property is found.
Super Priority Lien Statutes
Vermont does not have a
statute imposing a super priority lien for the cleanup of hazardous waste
There are no
hidden super priority liens for hazardous waste in Vermont. To obtain a hazardous waste lien
against real property, the State of Vermont
would have to file suit and obtain a Writ of Attachment. The lien would be
perfected upon recording in the Land Records and is effective until the suit is
concluded in favor of the defendant landowner or the State of Vermont. If the latter prevails, the lien of
the attachment would be superceded by a judgment lien, created by recording the
Judgment Order in the Land Records
Virginia:
Where
Environmental Liens are filed
Virginia adopted the Uniform
Federal Lien Registration Act – Virginia Code Section 55-142.1, et seq.
Environmental Liens are filed in the Clerk of the Circuit Court of the County
where the real estate is located.
Super Priority Lien Statutes
Virginia does not have a
statute imposing a super priority lien for the cleanup of hazardous waste
Washington:
Where
Environmental Liens are filed
Washington
adopted the Uniform Federal Lien Registration Act – RCW 60.68 et seq. Environmental
Liens are filed in the Recorder’s Office in the county where the real estate is
located.
Super Priority Lien Statutes
Washington does not have a statute
imposing a super priority lien for the cleanup of hazardous waste
West Virginia:
Where Environmental
Liens are filed
West Virginia adopted the Uniform
Federal Lien Registration Act – Code Section 38-10A-2. Environmental Liens are
filed in the Clerk of the County
Commission where the real
estate is located.
Super Priority Lien Statutes
West Virginia does not have a statute
which imposes a super priority lien for cleanup of hazardous waste.
Wisconsin:
Where
Environmental Liens are filed
Wisconsin adopted the Uniform
Federal Lien Registration Act – Sec. 779.97. Environmental Liens are filed in
the Office of the Register of Deeds where the real estate is located.
Super Priority Lien Statutes
Wisconsin has a first priority
Super Lien Statute for clean up of hazardous waste. Wis. Stat. §292.81 [Enacted in 1993
recodified in 1996, effective January 1, 1997, amended in 1997]
Comments: Under Wisconsin's
Superfund law (Sec. 144.442, Wis. Stats.), the Wisconsin
Department of Natural Resources (DNR)
is also empowered to take remedial action and incur expenditures in order to
control the discharge of hazardous substances on land. Effective May 13, 1994, the state
Superfund law was amended to provide that any expenditures
by the DNR shall constitute a
state lien upon the property for which expenses are incurred. (Sec. 144.73(13) Wis. Stats) After
expenses have been incurred, the DNR
may also record a non-consensual document in the office of the register of
deeds. As amended, the law affords superpriority to the DNR's
state lien: in the event a lien document is recorded, the DNR's lien relates back in time to the date on
which the expenditures were incurred, and as to nonresidential property takes
priority over certain other liens which were previously recorded.
Wyoming:
Where
Environmental Liens are filed
Wyoming adopted the Uniform
Federal Lien Registration Act – Wyo. Stat. 29-6-204. Environmental Liens are
filed in the Office of the County
Clerk of the county where
the real estate is located.
Super Priority Lien Statutes
Wyoming does not have any
statute imposing a super priority lien for cleanup of hazardous waste.
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