:
; 3.'
. . ¦
'UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 2 0460
APR 1 3 1997
( FI ICE OF
SOLID WA AND EMERGI
I'K PONSE
MEMORANDUM
SUBJECT: Request for Comments on Draft 'Institutional Controls: A Reference Manual
Thank you for your interest in the "Institutional Controls: A Reference Manual."
Attached for your review is a copy of the draft document. We would appreciate any comments
you may have regarding this draft document by close of business July 3, 1998 (see below for
address information)
'fins document was prepared by EPA"s Institutional Controls Workgroup, which consists
of attorneys from the Office of General Counsel, the Office of Enforcement and Compliance
Assurance, and EPA Regional offices, as well as representati ves of a number of headquarters
program offices including the Office of Emergency and Remedial Response, and the Office of
Solid Waste. It was drafted by the Institutional Controls Workgroup as a general reference tool.
The Reference Manual has been prepared for use by EPA staff involved in evaluating and
implementing institutional controls in cleanup programs — primarily under the Comprehensive
Environmental Response and Compensation Liability Act (CKRCI.A) and the Resource
Conservation and Recovery Act (PC.RA), although the information contained in it may be
relevant in other cleanup com. i- is well. TR < t ,t p« i Manual is not intended to be Agency
guidance. The drafters hope 'iu n will be um fu , » ; k rai introduction to institute i d
controls., the purposes thes can servo, and is;-a es d i aisi in their implementation. i e it
provides informal ion thai may be used by bolli iu> • m and legal staff, it is expected to be of
particular value for regional counsel.
FROM: Stephen Hess, Office of General Counsel^^V'^^^"
Sharon Frey, Office of {emergency and Remedial Response
FT):
Interested Parties
Background
-------
Implementation
Controls on. the use of land and other resources are often a key eksnu vt of envi - n nental
cleanups. Such controls can play an Important role in limiting risk, and ao <¦ *. i need a
ensure that engineered remedies are not affected hy later activities.
The Reference Manual identifies the kinds oftegai and otlier vehicles that can serve as
institutional controls, and discusses in detail the legal and practical considerations that may arise
in putting such controls' :n place. It also provides a general introduction to the role of such
controls in applicable n ons and. program guidance. The Workgroup believes that this
information can he vail Wt both in the assessment cat" institutional controls during the remedy
selection process , m m i5i. n ^lementatiori of institutional controls. In addition, the reference
manual contains i . of m k it <. ns that the Workgroup believes can improve future efforts to
evaluate and implement institutional controls.
As noted above, the information contained in the reference manual is relevant to the use
of institutional controls under both CERCLA and RCRA, except where a focus on one program
is specifically noted. In addition, some of the information in the manual is not applicable at
federal facilities; therefore, a discussion focused on federal facilities can be found in Section XI.
How to Comment
We welcome your input. Our plan is to consider all comments we receive, and then
prepare a final document. Please submit your comments by close of business July 3, 1998 via
mail, fax, or E-mail to either of the following:
Stephen Hess, Office of General Counsel phone: 202-260-7512
Mail code 2377
USE. P. A. 401 M St., S.W.
Washington D.C. 20460
E-mail: hess.stephen@epamail.epa.gov
fax: 202-401-1587
Sharon Prey, Office of Emergency
phone: 703-603-8817
fax: 703-603-9104
and Remedial Response
Mail code 5204G
US E.P.A. 401 M St., S.W.
Washington D.C. 20460
E-mail: frey.sharon@epamail.epa.gov
-------
Institutional Coo:-o^ : A i;. i rence Manual
Prepared by the U.S. EPA Workgroup on Institutional Controls
[WORKGROUP DRAFT - MARCH 1998]
-------
Institutional Controls: A Reference Manual
Overview 1
X.. .An introduction to institutional controls 3
A. What are institutional controls? . . 3
B. Typical uses of institutional controls ......... 4
II. Workgroup Recommendations 6
III. The role of institutional controls in remedies ' 11
A. CERCLA 11
B. RCRA ........................................... 12
XV. Integrating institutional controls into the remedy
selection process 14
A. Consideration of ICs in the RI/FS ............... 14
B. Discussion of ICs in the ROD ................... 15
C. Post-ROD oversight, funding and compliance
assurance ..................................... 16
D. ICs in removals ............................... 17
V. Tools for Creating Institutional Controls 18
A. Proprietary controls ........................... 18
. 1. What is a proprietary control? . . 18
2. A real property primer ......................... 18
a. Real property interests ................... 19
i. Traditional real estate interests ......... 21
ii. state use restriction statutes ........... 27
iii . conservation easements . . 2 8
b. Informational devices . . . . 3 0
c . ""Deed restrictions" ...... 32
i
-------
-------
ci. General advice on easements and covenants 34
B . Governmental controls ; 3 7
1. Types of governmental controls ................ 37
a. Land Use Restrictions .................... 37
i. zoning ................................... 38
ii. specialized zoning tools ................ 38
iii. local permits .......................... 4-0
iv. iMis s-Utilityf| systems .................. 41
v. Tailored ordinances ...................... 41
b. Groundwater Use Restrictions 41
c. Advisories ............................... 42
d. State Registries . . . . 43
e. Condemnation, of property 43
2. Advantages and disadvantages of governmental
controls ..................................... 44
C. Enforcement authorities ....................... 46
1. Administrative orders 'as . land use controls .... 46
2. Are consent decrees effective ICs? ............ 49
VI. Choosing among types of institutional controls .... 51
VII. Establishing Institutional Controls 56
.A, Establishing Proprietary Controls under
CERCLA " » 56
1. PRP-lead .remedies ............................. 56
a. Restricting use of land owned by the
settling PRP ............................ 57
b. Restricting land not owned by the
settling PEP .............................. 57
-------
-------
. .2 . Fund-lead remedies 58
3. Prospective purchaser settlements .............. 53
4 . Choosing the grantee . ... .. ......... .¦ ........... . 5,9
a. EPA as grantee ............................ 60
b. State as grantee 61
c. PRP as grantee ............................ 61
d. Other grantees ............................. 62
5. Drafting Effective Deed Restrictions ........... 62
6. Establishing governmental controls ............. 64
B. Establishing institutional controls under RCRA 64
1. Mechanisms for establishing controls ........... 65
a. Permits and orders .......................... 65
b. Proprietary controls ...................... 65
c. Governmental controls 67
d. Further direction, anticipated ............. 67
VIII. Enforcing institutional controls 63
A. Enforcing agreements and orders to establish
controls .................................. 1 ... . 6 9
1. Action on CERCLA Consent Decree or Consent Order 6 9
2. Action on Unilateral Administrative Order ...... 70
3. Commence New Enforcement Action ................ 70
4. Reopening or modifying the ROD. 71
B. Enforcing established controls ................. 73
i i i
-------
-------
IX. State roles and state assurances 75
A. Institutional controls as part of operations
E. Section 104(j) assurance ....................... 76
X. Institutional Controls and RCRA 7 8
XI. Institutional Controls and Federal Facilities ...... 80 ¦
REFERENCES
APPENDIX A: MODEL CONSENT DECREE PROVISIONS
APPENDIX B: MODEL EASEMENT
APPENDIX C: OVERVIEW OF FEDERAL PROPERTY ACQUISITION PROCEDURES
iv
-------
-------
I. An introduction to institutional controls
A- What: are iristitar.::, ?nal controls?
T': pp, "¦ c: "i ^ 'j[• " ryn i yv-vp r "v"*r~> \ ,;:u ( r" T" — '' i •—> 3
non-engineering measures -- usually", bur not always, legal
controls -- intended to affect human activities in such a way as
to prevent or reduce exposure to hazardous substances, Examples
of institutional controls cited in the preamble to the 1990
CERCLA National Oil and Hazardous Substances Pollution
Contingency Plan ("NCP") include "land and resource (e.g., water)
¦use and deed restrictions, well-drilling prohibitions, building
permits and well use advisories and deed notices."d Under this
definition, institutional controls include but are not
necessarily limited to legally enforceable measures (e.g.,
providing risk information to potential site users could be
considered a form of institutional control) . However, they are
distinct from physical engineering measures such as treatment and
containment systems.3
Institutional controls'are only one category of the
many kinds of tools that can be used to•reduce exposure to
acceptable levels in environmental cleanups. They are generally
used in conjunction with, or as a supplement to, other measures
such as waste treatment or containment, rather than as the sole
remedy. The role of institutional controls relative to other'
remedial methods is discussed in Section III below.
2 See 55 "Fed. Reg. at 8706 (March 8, 1990) .
3 Trn; term is sometimes used in the Agency to include very
limited, passive engineering measures such as fences. However,
the definition above seems most consistent with the way the term
is used in the NCP. The NCP does not define institutional
controls, but its preamble, in discussing their use, says' that
they "limit human -activities at or near facilities",
distinguishes them from "engineering controls" and "active"
response measures/ and elsewhere draws a distinction between
"treatment and permanent, remedies" on one hand, and ylegal
controls" on che other. See 5 5 Fed. Reg. at 8 70 6 (March 8,
1990) .
3
-------
Institutional controls can be created in a variety of
ways. Property law devices, or "proprietary" controls, are
perhaps the most common type of control. Controls established
through some governmental entity's regulatory authority, such as
2c restrictions or controls on well drilling, are a second
category. Enforcement tools, such as unilateral or consent
orders issued under CERCLA s. 106 or RCRA s. 3008(h), can also
be used to limit land use. Each of these types of controls is
discussed in detail below.
It is important to keep in mind that: these types of
controls are not mutually exclusive. One or more types of
controls may be appropriate for a particular site depending on
site-specific conditions. In fact, "layering" -- the use of
redundant controls can be a way of enhancing the overall level
of reliability of the controls.
It is also important to remember that these controls
are established as part of a program for protecting human health,
and the environment. Therefore, while legal tools based on
private property law may be used to create controls, EPA is not
acting simply as a buyer of property when it uses those tools.
These tools should instead be viewed as part of the measures the
agency uses to enforce restrictions that are within its authority
to create under its cleanup programs.
B. Typical uses of institutional controls
ICs are extremely flexible, and can be used to serve a
variety of purposes. Some of the situations in which,
institutional -controls may be necessary to ensure that the remedy
is protective include the following.
* Where the cleanup is protective for industrial or
commercial, but not residential exposures, institutional controls
may be needed to prevent residential use from taking place at the
site.
* Where groundwater will remain contaminated for some
period,of time (either during remediation, or because remediation
has- been found impracticable), restrictions may have do be placed
on well drilling , to prevent use of the groundwater for drinking
purposes.
4
-------
* Similarly, where surface water will remain
contaminated above safe levels during the remediation process, it
may be necessary to issue fis ring advisories or restrictions,
* Where soils are decontaminated near tie s,
but contamination is left at higher levels in subsurf; c c 'lIs
(e.g., because of the-difficulty of excavating under structures
or over a very'wide area), restrictions may have- to be placed on
excavation to prevent exposure.
* In some cases, soil may be decontaminated enough to
allow for continued residential use, but certain activities such
as gardening may result in unacceptable exposures. Restrictions
on such activities may therefore be appropriate.
* Where contamination is capped to prevent direct
exposure and/or reduce leaching of contaminants to groundwater,
it is generally necessary to prohibit activities that could
degrade the cap.
As these examples show, institutional controls may be
needed in a wide variety of situations. The challenge for the
Agency is to identify the kinds of legal and other tools
available to try to serve these needs, and to ensure that they
are implemented effectively. This reference manual is intended
to assist in meeting that challenge.
5
-------
II. Workgroup Recoinmen.dat.ions
1. Institutional controls should be' evaluated carefully before
the remedy is chosen.
The workgroup recommends careful analysis of ICs in
the studies that precede remedy selection (e.g., the feasibility
study, under CERCLA, or corrective measures study under RCRA).
Such analysis should be as detailed and complete as that
conducted on any other part of the remedy.
Close attention should be paid to (1) the potential
for use of institutional controls, (2) the specific types of
controls that may be available and (3) potential impediments to
their successful implementation and long-term enforcement. • As
later portions of the manual will explain, a variety of barriers
can exist to the establishment and enforcement of reliable
institutional controls, which need to be anticipated before the
remedy is selected.
The workgroup believes that early and careful
consideration of institutional controls may affect the design -of
the remedial alternatives. For example, whether a containment
remedy will be considered adequately protective, or whether
removal and treatment of contaminated soil is necessary, may
depend in part on whether controls to prevent access or
interference with the containment system will be reliable and
enforceable. Therefore, institutional controls should not be
considered an automatic "add-on" or afterthought; they should be
seriously evaluated in comparing the remedial alternatives before
remedy selection.
2, Goals of institutional controls should be described clearly in,
the remedial decision document.
The workgroup believes that the remedial decision
document (ROD under CERCLA, or permit or order under RCRA) should
clearly state the purposes that; the institutional controls are
intended to.achieve, setting objective performance standards
wherever possible. In CERCLA RODs, these should be among the
remediation goals. The workgroup believes it is generally
desirable to retain flexibility in decision documents as to the
precise type of institutional controls to be implemented (leaving
6
-------
seine flexibility, for example. :o change from proprietary to
.governmental controls if the preferred approach proves to be
unworkable J . However, wherever a particular type of control is
anticipated, the workgroup oelieves that should oe indicated 1:1
trie key decision document:.
This recommendation reaffirms what is already stated
in the Agency's guidance on considering land use in CERCLA remedy
selection: "While the ROD need, not always specify, the precise
type of control to be imposed, sufficient analysis should be
shown in the FS and ROD to-support a conclusion that effective
implementation of institutional controls can be reasonably
expected,"4
It is also good practice to note in the remedial- ¦
decision document, that the remedy is intended to include any
institutional controls needed to implement the engineered.portion
of the remedy or maintain its long-term effectiveness (e.g.,
access easements or easements prohibiting excavation into a cap)
without necessarily specifying the nature of all such controls.
Such controls may be specified to the extent they are known, but
a more general statement, is desirable including any institutional
controls that may be needed to implement or protect the
engineered remedy. Omitting this clarification can lead to
disagreement later over whether the institutional controls are
within the scope of' the remedy (and thus potentially within the
scope of enforcement actions or agreements). Specifically
including such a discussion can avoid such disputes.
-3 . State and local agencies have a vital rele in developing,
establishing and maintaining effective and enforceable
institutional controls.
Establishing effective institutional 'controls will in
some cases depend on the authority of state or local governmental
entities to' impose such controls. - Even where such authority is
not being used, local governments have a strong interest in any
actions that affect land use. Therefore, it is extremely
important to identify as early as possible (such as during the
4 OSWER Directive No. 9315.7-04, "Land Use in the CERCLA
Remedy Selection Process," (Hereinafter; "Land Use Guidance.")
7
-------
EI/?S at a CERCLA cleanup) what state and local authorities may
have jurisdiction over a particular property, and what state and
¦local provisions may provide cne basis tor institutional
controls. In addition, EPA should attempt, to outline the
expected basis and scope of institutional c i ^ls as early as
possible arid determine what is needed to en that there is
sufficient local and state government "buy-in" to make such
controls an effective part of the remedy, EPA should then
consult with state or local-governmental authorities to determine
whether they would be willing to take the lead on enforcing
institutional controls, and what concerns they may have should
they be asked to play this role. Such consultation should occur
during the analysis and evaluation process, not postponed until
after the remedy is selected. Where a private party is
performing the analysis of alternatives, it may be appropriate
for that party to carry out such consultation; this will depend
on the circumstances.
4. Misconceptions about the effect of simply specifying use
restrictions in. a deed should be corrected.
There appears to be a common misconception that
enforceable controls may be established simply by having the
landowner enter a notation in "the deed" to 'the property. There
is no "deed", in most cases., that lists all ownership interests
in and restrictions applying to -a piece of property. A deed is
simply the document executed when one party conveys an interest
in the property to another party.. In such a transaction, the
selling party may place restrictions on the future use of the
property, However, a landowner may not. impose restrictions on
its own property later by unilaterally altering that deed;
property law requires a conveyance of a property interest (such
as an easement) from the landowner to another party for a
restriction to be enforceable.5 Nor can restrictions be imposed
simply by having the landowner record a notice in the land
5 Some states, have recently adopted statutes allowing
controls that run with the land to be established by the
landowner through an agreement with a state agency, or by' the
agency itself, without a conveyance. See page 26 below.
However, unless one of these laws clearly applies, the general
principle above.should be assumed, to be true.
8
-------
records, without a conveyance of rights to some ol. '.;r. party.
Even if a unilateral document were accepted for recording, the
landowner who filed it could remove it at any time. At most', che
f f such a document might nave some informational value
s to costing a sign cn the premises that: could be removed
at any time by the owner.
The workgroup believes that avoiding confusion on this
point xs important because misunderstandings about what is
required to establish effective controls could lead decision-
makers to underestimate the complexities involved in remedies
that involve institutional controls, or to inadequate
implementation of such remedies- Therefore, the workgroup
recommends that both agency staff and members of the public be
fully .informed about this aspect of institutional controls.
5. The term "deed restriction" should be used carefully.
The confusion described above sometimes seems to arise
from use' of the term "deed restriction" . The term "deed
restrictions" can be useful (and.is used in this document) as a
generic term that encompasses any instruments such as easements
and covenants that are legally enforceable (as opposed to
documents that are simply fried by the owner and therefore have
no legal effect) . However, it is not a traditional or clearly-
defined property law term. The workgroup recommends that to
avoid confusion, when the term "deed restriction" is used with a
general audience an explanation of what it means should be
provided. In addition, in a context where clarity of intent is
particularly _ important, a more specific terra, such as "easement",
should generally be used.
6, The limitations of deed notices should be clearly understood.
Unenforceable "deed notices" are sometimes used to
alert those searching land records to important information about
the property. For example, they may note that the property is
located within a Superfund site, identify the kinds.of
contaminants present and the risks they create, or'describe
activities that could result in unacceptable exposures to the
contaminants left on site after a remedial action wag- taken.
9
-------
However, recording a deed notice has little or no
effect on a property c legal rigftts regarding the future
use of the property. - the present: owner nor any
successors would oe 1^ ;curid by any use restrictions
referred eo m a deed Therefore, the workgroup
recommends that deed notices be used with caution because they
may create an impression that legally enforceable controls have
been established when that is not the case. They should not be
used where enforceable controls are necessary to ensure a
protective remedy. Use of deed notices is, of course,
appropriate where specifically required in applicable regulations
(e.g., RCEA closure rules at 40 CFR 264.119).
7. Where it is important for the control to run with the land, it
is generally not advisable to rely on a consent decree, alone,
without execution of a separate instrument such as an easement.
Under CERCLA, consent decrees ("CDs")are used to
memorialize settlements with responsible parties who agree to
implement the remedy. Consent decrees can limit land use by a
settling party, and in¦some cases the terms of the consent decree
might be construed as the conveyance of a property interest so as
to be binding against subsequent purchasers as well. However, to
make the intention of the parties clearer, the workgroup strongly
recommends that separate documents explicitly conveying a real
estate interest be drafted and filed. The consent decree should
reference the intent to execute such documents, but should not
itself be used as the instrument of conveyance. Similarly,
filing of the consent decree, by itself, should not be relied' on
•to establish effective controls. New model language for consent
decrees consistent with this recommendation, has recently been
issued; see Appendix A.
10
-------
III.,. The .role of institutional controls ir. remedies
The role that institut io.nal controls should play in
the remedial program as a whole, is a policy choice that is bevond
the scope of this document. However, a general overview of
principles that, have been adopted by the Agency as policy to date
may be worthwhile.
A. CERCLA
The NCP contains the following "expectation" regarding
the use of institutional controls:
EPA expects to use institutional controls such as
water use and deed restrictions to supplement
engineering controls as appropriate for short-'and
long-term management .to prevent or limit exposure to
hazardous substances, pollutants or contaminants.
Institutional controls may be used during the conduct _
of the remedial investigation/feasibility .study
(EI/FS) and implementation of the remedial action -and,
where necessary, as a component of the completed
remedy. The use of institutional controls shall not
substitute for active response measures (e.g.,
treatment and/or containment of source material,
restoration of ground, waters to their beneficial uses)
as the sole remedy unless such active measures are-
determined not to be practicable, based on the
balancing of trade-offs among alternatives that is
conducted during the selection of remedy.
40 CFR 300.430(a) (1) (iii) (D) . 6
6 A reference to institutional controls also appears in 4 0
CFR 300.430(e)(3)(ii), providing that for source control actions,
the lead agency shall develop, as appropriate, "one or more
alternatives that involve little or no treatment, but provide
protection of human health arid the environment primarily, by
preventing or controlling exposure... through engineering
controls, for example, containment, and as necessary,
institutional controls,..."
-------
-------
This expectation reflects the ' remedy. selection,
criteria in the NCP, under whicn alternatives chat meet the
threshold requirements of protectiveness and ARAE compliance are
evaluated and compared using five balancing criteria: long cerm
effectiveness, use of treatment, implement-ability, snore - term
effectiveness, and cost. In some cases, this balancing process
may favor use of engineering controls; in others it may lead to
greater reliance on institutional controls. The appropriate
balance among these considerations is made on a site-specific,
basis .
The NCP does not forbid the use of institutional
controls as the sole remedy; rather, as noted above, it states as
an expectation that this will occur only where other measures
"are determined, not to be practicable, based on- the balancing of
trade-offs among alternatives." Practicability, as used here,.is
determined through the evaluation of alternatives under the nine
CERCLA remedy selection criteria "including cost and other
factors." See 55 FR at 8706 (March 8, 1990). However, "[w]here;
institutional controls are-used as the sole remedy, special
precautions must be. made to ensure that the controls are
reliable." 5 5 FR at'8706..
More commonly, institutional controls are used because
treatment and containment measures do not address risks entirely
so that the remedy must include activity restrictions to ensure
that it is fully protective. For example, over the time that is
required to pump and treat contaminated groundwater, other
measures may be needed to ensure that residents are. not
inadvertently exposed by drilling new wells. Containment
remedies may have to be supplemented with institutional' controls
to ensure that future land users are aware of the wastes left on
site and that, they do not take actions that might interfere with
the containment system.
Further guidance on the use of institutional controls
under CERCLA can be found in the NCP preamble, 5 5 FR at 8706-07.
B. RCRA
Cleanups may be conducted under RCRA in a variety of
contexts -- most, commonly in connection with closure of regulated
12
-------
-------
units and facility-wide corrective action under a permit or
order. Cleanups may also be ordered under s. 7003 of RCRA.
In a Notice publichec 1, 19 96, EPA stated that it
xs "committed to consistency of - 1 Its between the RCRA
corrective action and Superfund remedial programs" and stated
expectations for corrective action that were based on those
published in the CERCLA NCP. Accordingly, the expectations for
the use of institutional controls in corrective action are the
same as under the CERCLA NCP. Specifically, the Notice stated
that :
EPA expects to use institutional controls such as
water and land use restrictions primarily to
supplement engineering controls as appropriate for
short and long term management to prevent or limit
exposure to hazardous waste and constituents. EPA does
not expect that institutional controls will often be
¦ the sole remedial action. ¦ .
61 FR at 19448 (May 1, 1936) .
In addition, RCRA closure rules specifically require,
for units where waste is left in place, that the owner or
operator must "record, in accordance with State law, a notation
on the deed to the facility property" that will in perpetuity
notify any potential purchaser that the land had been used to
manage hazardous wastes and that its use is restricted under the
closure regulations. See 40 CFR 264.119(b) (1.) .
-------
IV. Integrating Institutional controls into the
remedy selection process
Issues relating to institutional cent .n arise at
a nurooer joints in the procsr: selecting a i - Under
CERCLA, remedy selection begins > a remedial > iigation and
feasibility study ("RI/FS"), with the final decision documented
in a record of decision ("ROD"). Under RCRA, the process is
similar although different terms are used: it generally begins
with a RCRA facility investigation ("RFI") , followed by a
corrective measures study ("CMS"), with final documentation in a
permit or order (or modification thereof) , For simplicity, the
following discussion uses the CERCLA terminology, but the
conclusions apply under both programs.
A. Consideration of ICs in the RI/FS
The feasibility study identifies remedial alternatives
and assesses them against the remedy- selection criteria. ICs may
be one of the alternatives considered, or may be one element of
an alternative (e.g., supplementing a particular cap design).
The workgroup believes .that the standard of care and
degree of analysis in the FS should be as high for ICs as for
other elements of the remedy. Carefully studying ICs in the'FS
can serve two purposes. First, it can identify factors affecting
the overall choice of the remedy under the nine criteria (e.g.,
legal or practical impediments to implementation, estimated cost
of long-term monitoring and oversight, etc.) . Second, creative
evaluation of institutional controls may identify innovative ways
of using thes.e legal devices to accomplish remedial objectives.
Thus, the FS can help identify both opportunities and risks in
the use of institutional controls.
The OSWRK Land Use Guidance states that: "In
developing remedial alternatives that include institutional
controls, SPA should determine: the type of institutional control
to be used, the existence of the authority to implement the
institutional control, and the appropriate entity's resolve and
ability to implement the institutional control.'"7 This guidance
7 Land Use Guidance at 10.
14
-------
reflects the importance cf long term effectiveness arid
implement icy as'criteria bearing on the evaluation cf
insticuv; controls. Depending on the circumstances, other
remedy ion criteria, such as cost and community acceptance
may be leant as well (although, of course, all nine
enter. oe considered in each case) . In evaluating cose,
the estimated cost of implementing, monitoring and enforcing the
control, particularly against non-liable parties, should not be
overlooked.
The Land Use Guidance also points out that "an
alternative may anticipate two or more options for establishing
institutional controls, but should fully evaluate all such
options."3
A proper analysis of impleraentability can be complex,
considering such diverse factors as patterns of land ownership,
the extent to which land being restricted is owned by liable
parties, and the degree of cooperation anticipated from the local
government with authority to establish land use controls.
Therefore, to evaluate IC options intelligently, it may be
necessary to expand the scope of the remedial investigation to
include gathering information such as the identity of property'
owners, current zoning or land use plans, etc.. (Much of this'
informati on is already identified in the general guidance on
information needed to consider land-use in remedies; see OSWER*
Land Use Guidance at 5.) Therefore, the workgroup believes that
improving evaluation of ICs needs to begin as far back as the
process of scoping the RI. The workgroup believes that regional
counsel can provide valuable assistance in this aspect of the
RI/FS.
B. Discussion of ICs- in the ROD
The workgroup believes that the proposed plan and ROD
should clearly and fully describe the goals to be attained by
institutional controls. If the ROD is vague about the goals to
be attained by institutional controls to be implemented, and
gives little consideration to whether they can realistically be
implemented, both the opportunities for, and the complexities of
6 Land Use Guidance at 10
-------
using institutional controls may be underestimated. In addition,
if the role of the institutional controls is not adequately
described, public acceptance of the- remedy may be difficult to
obtain because the full Drotections provided oy the remedy are
not clear.
The workgroup believes that the ROD should focus on
the goals to be achieved, by institutional controls, rather than
specifying the precise form of ICs to be implemented, in order to
provide adequate flexibility after the ROD is signed. This.is
consistent with OSWER's Land Use Guidance, which states that
"While the ROD need not always specify the precise type of
control to be imposed, sufficient; analysis should be shown in the
FS and ROD to support a conclusion that effective implementation
of institutional controls can reasonably be expected."9
However, the workgroup believes that the ROD- should
discuss in some detail the kinds of controls envisioned and, as
noted above, contain enough information to show that effective
implementation can reasonably be expected. In part 2. C "Li ..L 3. r,
"Performance standards" should be clearly specified, setting
forth the aims that the ICs are intended to achieve (e.g.,
prevent exposure to contaminated groundwater by prohibiting well
drilling).
Another important consideration is long-term
monitoring of compliance with institutional controls. The ROD
should include, and discuss, plans for monitoring land use and
other aspects of the remedy that depend on institutional
controls. The required 5-year review may serve this function,
but in some cases more frequent monitoring may be considered
important.
Finally, a mechanism for enforcement'of the controls
is critical to their long term reliability. The ROD or other
decision document should generally contain enough discussion to
indicate that this need has been considered and what enforcement
mechanisms are anticipated.
9 Land Use Guidance (see- note 4) at 10.
16
-------
C. Post-ROE) oversight, funding and compliance
assurance
The legal steps involved in establishing ICs are
discussed in Section VII. However, other pest ROD work will also
be appropriate in many cases. Effective oversight: is important,
especially where she ICs are critical to protectiveness and
failure is a significant possibility. Under CERCLA, five-year
review is one method of providing'such oversight; other steps may
be provided for in individual ,RODs. Another means of assuring
compliance may be to use the O&M inspections as an opportunity to
evaluate the effectiveness of the ICs. Under RCRA, special
provision may have to be made in the permit or order for a
periodic review of implementation and compliance.
¦ As noted earlier, enforcement is critical to the long-
term reliability of institutional controls. Therefore, it Is
important, as controls are established, to ensure that
satisfactory enforcement mechanisms are created.
Funding, both for long-term oversight and for any
necessary future remedial action, is another important
consideration. Especially at enforcement -lead sites, the need to
provide financial assurance for future contingencies should not
be overlooked.
D . ICs in remova 1 s
Institutional controls may be' used in connection with
removals as well as remedial actions. While the NCP discussion
above focuses on response actidns taken under remedial authority,
nothing -in the NCP precludes using institutional controls In
connection with a removal. In such cases they would usually be
considered part of the '"post - removal' site control". See OSWER
Directive 3360.2-02, "Policy on Management of Post-Removal Site
Control", December 3, 1990.
-------
V. Tools for Creating Institutional Controls
Since neither CERCLA nor RCRA contains provisions
specif . - addressing trie establishment: of institutional
control i must turn to a variety' of legal and other devices -
- either under those statutes or under other authorities -- :o
accomplish the goal of controlling land use. This Section
introduces the tools that can be used to create institutional
controls
In general, these tools fall into four categories; (1)
"proprietary" controls, which rely on property law, (2)
governmental controls, which rely on regulatory authorities
(usually of a state or local government), (3) enforcement tools,
and (4) non-enforceable informational devices. Since
informational devices often rely on property recordation systems,
they will be discussed in connection with proprietary controls.
A. Proprietary controls
1. What is a proprietary control?
Private property law provides a variety of tools that
can be used to restrict or affect the use of property. 'Common
examples include covenants or easements restricting future land
use or prohibiting activities that may compromise specific
engineering remedies.' The term "proprietary controls'5 'is used
here to refer to these kinds of controls.10 A distinctive
feature of proprietary controls is that,, because they are based
on generally applicable property law, they can be implemented
without the intervention of any federal, state or local
regulatory authority.
2. A real property primer
Effective selection, implementation and enforcement of
proprietary ICs requires a basic understanding of real property
10 The term "deed restriction" is commonly used to refer to
this type of control. However,, as was pointed out inr Section II,
that term has no clear legal meaning in property law; see page
30.
18
-------
law. Principles of real property law will dictate whether a
proprietary control can be used in a particular circumstance and
what limitations may apply to it.
The following is a verv general introduction to the
relevant principles of pi - ty law. If a prepr_ - "" - interest
is being seriously consico , counsel should do v u r research
to .familiarize themselves more fully with this area of the law.u
The Office of General Counsel can -provide support in this regard
as well.
It is also important to bear in mind that the •
development, implementation and enforceability of proprietary ICs
is almost always a function of state law. Consequently, regional
counsel, and to a lesser extent project managers, should become
familiar with the property laws of the state in which a site is
located before proceeding on the assumption that such controls
can be easily or reliably established,
a. Real Property Interests. Ownership of property is
often analogized to-holding a bundle of sticks, any one of which
can be either retained or conveyed to another party. Thus, more
than one party can own some interest in a particular parcel of
land. The ways in which any given bundle of sticks may be
divided up is almost infinite. For. example, the principal or
"fee" owner may sell to another party the mineral rights while
retaining all other rights in the property. Signing a mortgage
is another transfer of limited rights (i.e., the right to seize
the property as collateral if payment is not made).
11 A general introduction to the relevant property law
principles' can be found in Arthur Gaudio, ed., American Law /.of
Real Property (1994). Articles specifically applying these
principles to institutional controls include Susan Borinsky, The
Use of Institutional Controls in Superfund and Similar State
haws. 7 Fordham Env. L. J. 1 (19 95), and John Pendergrass, "Use
of¦Institutional Controls as Part of a Superfund Remedy: Lessons
from Other Programs", 26 Environmental haw Reporter- 10109, 10111-
12 (March 19 96) .
19
-------
Interests in land can be either possessory or non-
possessory. The most common possessory interests are fee simple
and leaseholds (landlord-tenant} . Non-possessory interests may,
among other things, give one party the right to enter onto
another persons land, or the right to restrict the other's use
of his or her own land. In most cases, institutional controls
will be non-possessory, although in some cases full ownership
(i.e., ownership in fee simple) of property might be acquired in
order to restrict its use.
Under traditional real property law, a number of
different non-possessory devices evolved under which one party
could control another's use of its own land. The most notable of
these devices include easements, covenants and. equitable
servitudes. Historically, because they evolved in different
contexts, each of these devices had its own distinctive
requirements, and limitations resulting in a very complex and
confusing set of legal rules and terms. More recently, however,
courts have begun moving toward a. more unified, pragmatic
approach that allows the parties to fashion their own agreements
as they wish, and override common law doctrines, so long as their
intentions are clearly specified and notice is properly given to
other parties against whom the agreements aire being enforced
(e.g., subsequent purchasers).
Therefore, for a general understanding of
institutional controls it is not essential to become immersed in
the complexities of traditional real estate law and terminology
governing these devices. Rather, at least initial steps can be
taken in most cases with the general expectation that a document
clearly stating the parties' intentions with regard to key issues
will likely be enforced according to its terms. However, counsel
should become familiar with the kinds of problems that common law
doctrines can present, and should plan to research the law of the
state to determine whether, in that state, those doctrines are
still likely to be recognized. If the- risk of an adverse result
appears too great, this should be taken into account in deciding
.whether to rely on a particular form of control.
The primary Issues that are likely to arise, and
should be addressed in the instrument that evidences phe .
conveyance are (1) the nature and extent of the control to be
imposed, (2) whether the.control will oe binding on subsequent
-------
owners of the property 'i.e., whether it "runs with the land"),
,and (3) whether the right to enforce the control (i.e., tne
"benefit") can be transferred to other parties. Historically,
the answers to th« usstions denended on which form, the
property interest . Again, issues of form appear to be less
critical in moderr ctice, and clarity of intent is probably
more important. I er, a general under ling of the
traditional distinctions is important to j ,t ills potentially
lurking in jurisdictions where more traditional doctrine is still
enforced.12
i. Traditional real estate interests
The most flexible traditional property interest is the
easement. An easement is a property right conveyed by a
landowner to another party, which gives the second party rights
with regard to the first party's land.13 Easements may be
"affirmative" or "negative". An affirmative easement allows the
holder of the easement to enter upon or use another's property
for a particular purpose (e.g., an access easement). A negative-
easement imposes limits on how the landowner- can use his or her
own property. For institutional controls, negative easements are
most relevant. A negative easement might, for example, prohibit
a particular parcel from being used for residential'purposes, or
prohibit well-drilling on that parcel.
At one time,, the common law discouraged negative
easements. Today, however, negative easements are fully
enforceable as long as the intent of the parties as to the nature
and scope of the easement is clear.
Traditional property law also distinguishes between
easements that are "appurtenant" and those that are "in gross."
12 If EPA is the recipient of the proprietary easement, the
need for a state assurance under CERCLA s. 104 (j) (2) should be
evaluated. See Section IX.
13 It is important to remember that for an easement to be
created there must be a conveyance from one party to another. An
easement cannot be established unless there is some party willing
to hold the easement. See discussion below on "deed
restrictions."
-------
This terminology is still commonly used, although the legal
implications are becoming less crucial. Axi easement is
"appurtenant" if it is created to benefit an adjacent parcel of
land (and it is held by the owner of that land) . For example, an
easement allowing the owner of one parcel the right to cross an
adjoining parcel in order to gain access would be an
"appurtenant" easement,14 An easement is "in gross" if the
benefit is not related to any property owned by the holder of the
easement. Easements used in applying institutional controls will
generally be "in gross" because the restrictions are generally
not for the benefit of any' particular neighboring parcel owned by
the holder of the easement.15
Traditional common law doctrines limited the
usefulness of easements in gross as long-term controls on land
use. Most importantly, the benefit of an easement in gross
(i.e., the right to enforce it) was not considered transferable
because it was considered purely personal. If this doctrine were
applied to an easement acquired by EPA, it would prevent EPA from
transferring the easement to a third party (e.g., to a state).
Modern doctrine generally does allow the benefit to be
transferred where the easement is "commercial" -- that is,
produces an economic benefit. Institutional controls might be
analogized to commercial easements, in thaP 'they serve a long-
term social purpose rather than simply a personal one (such as a
right to hunt or fish on another's property) . Furthermore, many
14 In such cases, the benefited parcel is referred to as the
"dominant" and the burdened parcel as the "servient" estate.
15 There are circumstances in which an appurtenant easement
might be created in the cleanup context: for example, if the.
purpose of the control were to prevent a particular adjoining'
parcel from being threatened by migration of contaminants (e.g.,
to protect a cap that prevents leaching). Even here, however,
the easement would be considered appurtenant only if it was held
by the owner of that parcel; if it. were held by a regulatory
agency, it would be-"in gross".
-------
states new allow non-commercial easements to be transferable if
this intent is clearly stated in trie easement.1'
A second critical issue is whether tne "burden" cf the
easement -- that is, trie restrictions it imposes runs wits the
land. Again, easements in gross did not historically run with
the land (but easements appurtenant did). Modern doctrine tends
to allow an easement in gross to run with the land so long as the
intent to do so is clear, and subsequent purchasers receive
notice (e.g., by recording the easement in land records).17
However, in some jurisdictions the traditional rule may still
prevail.
Finally, at common law easements are 'generally not
enforceable by third parties. This is a significant
consideration at cleanup sites; for example, a common practice is
for EPA to require a settling PRP to acquire easements from
adjoining landowners. Unless the regulatory agency can enforce
the easement, its only recourse is to compel the PRP to enforce;,
this is a cumbersome arrangement that may fail if, e.g., the PRP
becomes insolvent or the PRP refuses to enforce the easement. In
some¦states, enforcement by a third party may be allowed where
the party is specifically identified in the easement. Attorneys
should review the law of the relevant state to see if this option
is- available.
A second type of traditional non-possessory real
estate interest is the covenant. Covenants are similar in many
respects to easements, but covenants have traditionally been
subject to a somewhat different set of formal requirements, and
some of these.requirements have survived to a greater extent than
in the case of easements'. These constraints, in conjunction with
the fact that covenants are used in connection with a transfer of
a possessory interest from one party to another, make it
generally preferable to frame the documents establishing
institutional controls as easements.
16 See Amer.i.pa.B Law M...^.ah_,PxQB.e.idoy at 6 4 9 and- S -- S0¦.
17 See AjiericaiLJoii^^ «t .6-55 and 6-16.
-------
A covenant is a promise by one landowner to another,
made in connection with a conveyance of property. Generally, a
covenant is a. promise by the holder of a t r interest in
property to use or refrain from using the property in a certain
manner. A covenant could be used to establish an institutional
control where the remediated property is being transferred from
the current owner to another party.
C J„ O S 0 ly related to covenants are equi i servitudes.
The notion of an equitable servitude arose when courts of equity
enforced agreements that did not meet all the requirements for a
covenant. In effect, therefore, whether an instrument needs to
meet the criteria for a covenant depends upon whether the
plaintiff is seeking equitable relief (i.e., enforcement of the
terms of the agreement) or money damages. If enforcement of the
agreement is being sought (which would typically be the case with
institutional controls) the rules governing equitable servitudes
are relevant,, and It is not necessarily critical to meet all the
preconditions for establishing a .real covenant.
Moreover, art equitable' servitude does not need to
satisfy all the requirements that have traditionally been
imposed. An agreement can run with the land as an equitable
servitude so long as (1) notice Is given to the subsequent
landowner (provided by recording the document), (2) there is a
clear statement of intent to bind future owners, and (3) the
agreement "touches and concerns" the land. The third requirement
should be met by any agreement that restricts what the owner can •
do with the land. Covenants run with the land only If they meet
the three requirements above and, in addition,, there is both
"vertical privity" and "horizontal privity" between the
parties.13
Historically, covenants (like easements) would not run
with the land unless they benefited other, adjoining property; in
other words, courts did not recognize a covenant "in gross".
However, this doctrine now appears to be the minority rule.19
19 For an explanation of these requirements, see American
Law-_Q.f .Real Property at 6-80 to 6-84... .
13 See American. haw QX-EeaJ_Pr.Qp^.rty. at 6-99,
24
-------
Somewhat surprisingly, however, for equitable servitudes the
traditional ; to survive to a greater extent.
That: is, the :e an equitable servitude "tin gross"
against suose is 'less lively to be recognized,
although this uopenos cieati/ on the jurisdiction.-- This
iimitation unfortunately limits tne usefulness of an equitable
servitude in the cleanup context.
An equitable servitude is most likely to have value as
an institutional control whersi a party responsible for cleanup
expects to own neighboring property for a long period, of time (as
might be the case in partial military base closures).21 Even
here, however, it important to review the law of the jurisdiction
to determine whether the traditional formalities applied to
covenants must still be met, and if so to ensure that they are
me tr,.
Still another traditional real property device that
may be used to create an institutional control in some cases is
the reversionary interest. A reversionary interest is created
when a landowner deeds property to another, but the deed
specifies that the property will revert to the original owner
under specified conditions. The reverter clause is binding upon
any subsequent purchasers. In the cleanup context, failure to
abide by specified restrictions on property use could be made a
ground for having the property reverb to the original owner.
This would be most useful where it can be assumed that the
original owner will be available over a long time period to
conduct any further response that is necessary (e.g., where a
federal agency is selling the contaminated property), although
the risk, of "reversion by itself would create a. substantial
incentive, for future landowners- bo comply with the restrictions.
*:0 See American Law of Real Property at 6-111.
21 If a decision is made to use a covenant, the attorneys
drafting such instruments should familiarize themselves with the
common law of the jurisdiction involved. As noted above, a
variety of detailed drafting considerations have evolved under
the common law, which need to be met for the covenant to be
effective.
25
-------
In summary, although the law may appear to be complex,
many of these complexities are more of historic than current
concern, and emerge; • cases where- courts were
construe documents »h - intent was not clear. under modern real'
agreement chat clearly states intent of the parties. How
that document xs labeled is secondary; it is probably safest to
identify it as an easement, but the same document could also be
identified as a restrictive covenant (which renders it an
equitable servitude if the aim is to seek performance later). If
it becomes necessary to enforce the agreement, the doctrines
applying to any and all of these instruments can be invoked.
This does not mean that the complexities can be simply
ignored. As recommended above, counsel should review the lav/ of
the state to determine whether the state still applies older
doctrines limiting the extent to which such agreements run with
the land or are transferable to other parties. However, where
state law does not create such obstacles, a clearly drafted
agreement can be considered at least reasonably reliable.22
Aside from favorable developments m state law, an
argument can be made that the effect of any state law doctrines
is limited under the holding in North Dakota v. United States.23
which involved easements purchased by the federal government to
protect wetlands that serve as habitat for migratory birds. The
State of North Dakota adopted legislation significantly impairing
the value of such easements, setting a maximum term of 99 years
on nonappurtenant easements, and allowing the draining of certain
wetlands notwithstanding the terms of the easement. The court
ruled that where an acquisition '"is one arising from and bearing
22 Proposed revisions to the Restatement of Property would
reverse entirely the presumption against long-lived.easements- and
covenants, and remove most or all of the restrictions described
above. A draft reporter's note specifically identifies allowing
governmental bodies to enforce restrictions in gross as a reason
for abandoning the traditional doctrine. If followed by courts,
this approach would significantly improve the reliability of
institutional controls.
23 460 U.S. 30(3 , 103 S, Ct , 1095, 75 L.Ed.2d 77 (1983).
26
-------
heavily upon a federal regulatory program...the choice-of-law
task is a federal cask for federal courts," ark Although
state law may be borrowed if appropriate, "specific aberranc or
hostile state rui.es do not provide appropriate 3 for
federal law.'" It found trie Nona Dakota la tstiia to
federal interests", and held chac they couic be applied to
federal easeaientsk4 While the scats laws there were
specifically adopted with the intention of defeating the federal
program, the case is not expressly limited to that situation.
Furthermore, an earlier Supreme Court case held that "In a
setting iia which the rights of the United States are at issue in
a contract to which it is a party and the issue's outcome bears
some relationship to a federal program, no rule may be applied
which would not be wholly consistent with that program."25 These
cases may provide a basis for arguing that, even in states that
still apply the traditional doctrines limiting the value of
easements in a cleanup context, such doctrines are similarly
inapplicable to easements acquired by the federal government as
part of a federal program.
ii. state use restriction statutes
A number of states have enacted statutes providing
authority to establish use restrictions specifically for
contaminated property, which override the common law impediments
to the long term enforceability of real property interests.26
24
103 So Ct. at 1105-06.
25 IIlli-tfetL^Sta.tep ..v., Little hake Mi sere Land, C_ck_ 412 U.S.
58 0/ 602', 93 S. Ct . 2389, 2402, 37 L.Ed. 2d 187 (1973).
26 See, e.g., Cal, Health and Safety Code s. 253 96.1; Conn.
Gen. Stat. s. 22a-133k; Mass. Gen. Laws Ann. c. 21E s. 6; Mich.
Comp. Laws Ann. s. 3 24.20120b; Ohio. Rev. Code Ann. s. 3746.14.
A valuable review of state statutes is contained in Susan
Borinsky, The Use of Institutional Controls in Superfund and
Similar State Laws, note 3. An article focusing more closely on
the Massachusetts law is Paul Nightingale,, "Land Use Restrictions
and Waste Site Cleanups-. Lessons from the States", BNA Toxics Law
Reporter (April 5, 1995). .
2 7
-------
Attorneys should investigate whether the state in which their
site is located has such a stacute and if so whether the
authority can be used to implement the EPA remedy. In somes
cases, the auchority to acquire or enforce such restrictions is
conferred only on. the state, so they are not available co EPA
without assistance from the state. It is also important :o
determine whether the restriction can be federally enforced. If
not, it may nevertheless be worth investigating whether the state
agency is willing to take on the role of enforcement.27
iii. conservation easements
Many states have adopted statutes providing for.
conservation easements. These sr. g override common law-
barriers to the long term enforce! i of easements by parties who
do not own adjacent property. Easements created under such laws
may be possible vehicles for institutional controls. Generally,
conservation easements may only be used for a narrow range of
possible purposes,, which limits their usefulness as institutional
controls, but. in some cases a control might fit within the
conservation easement framework.28
While these laws vary to some extent from state to
state, they are all patterned on a model statute, the Uniform
Conservation Easement Act ("UCEA") .29 The model statute provides
for the establishment of Conservation Easements for the purposes
Of :
27 State willingness to enforce a conbrol of this type
raises issues similar to those discussed below with regard to
whether local governments can enter into binding agreements with
EPA to establish and enforce land use controls.
28 See Pendergrass, note 9 at 10111-12.
29 Model statutes are developed by the National Conference
of Commissioners on Uniform State Laws, and can be found in the
Uniform Laws Annotated. However, in connection with, remedies at
any particular.site, the statutes of the 'relevant state should be
consulted. . .
-------
"-"staining or protecting natural, scenic, or open-
space values of real property, assuring its
.availability for agricultural, forest:, recreational,
or open-space use, protecting natural resources,
maintaining or enhancing air or water quality, cr
preseru ithe historical, architectural,
archaec < sal, or cultural aspects of real property.1'
Some types of institutional controls may fit within
this framework. For example, where open space, or recreational
space, is maintained to prevent exposure or prevent uses that'
might degrade a landfill cap, a conservation easement might be
useful. Controls that can be characterized, as . "protecting
natural resources" or "maintaining or enhancing air or water
quality" could also be implemented through this device. (For
example, a control intended to maintain the integrity of a cap,
so as to minimize leaching to groundwater, might be viewed as
protecting natural resources.) On the other hand, controls
designed solely to prevent human contact with contamination
(eng., well drilling restrictions) would not seem to fit the
conservation easement framework.
In general, conservation easements function similarly
to other easements: they effect a conveyance of a property right
from one party to another, allowing the latter to control the
former's use of property in some respect. The primary advantage
of using such easements is that they are not subject to some of
the traditional requirements under the common law of easements
and covenants. Thus, according to Section 4 of the IJCEA, a
conservation easement is valid even though: "(1) it is not
appurtenant to an interest in real property; (2) it can be or has-
been assigned to another holder; (3) it is not of a character
that has been recognized traditionally at common law; (4) it
imposes a negative burden; (5) it imposes affirmative obligations
upon the owner of an interest in the burdened property or upon
the holder; (6) the benefit does not touch or concern real
property; or (7) there is no privity of estate or of contract."
Thus, the UCEA would allow the EPA to create an institutional
control restricting land- use that resembled either an easement or
a covenant without the risks about validity or future, enforcement
that would arise under common law. '
29
-------
In general the holder of the easement must be a
governmental body or a charitable corporation, association or
trust; this may limit the value of conservation easements where
there'is a desire to have some other kind o£ entity (e.g., a
responsible party) hold trie easement- In some states, the
governmenta1 body must be a state or local agency, apparently
precluding EPA from being the holder of the easement. Some
states allow any entity entitled to be a holder of the easement
to be given third-party enforcement rights even if it is not the
holder of the easement.
b. Informational devi Efforts to provide better
public information about risks from contamination can serve as a
form of institutional control, even if they bo not involve
legally enforceable requirements. While these might not,
strictly speaking, be considered proprietary controls, they often
.rely on the land recordation system and are commonly discussed
together with enforceable property interests.
The most commonly cited example of such- a device is
the deed notice. The concept of a "deed notice" was not
recognized under traditional real property law, and its legal
meaning is therefore not clearly established. (For example, in
some contexts, the term "deed notice" is used where it appears
that the intention is to establish a legally enforceable
restriction.) Most commonly, however, the term Meed notice" is
used to refer to a non-enforceable, purely informational document
filed in 'public land records that alerts anyone searching the
records to important information about the property. (For
example, it may state that the property is located within a
•Superfund site, identify the kinds of contaminants present and
the risks they create, or describe activities that could result
in undesirable exposures to the contaminants left on site after a
remedial action was taken.)
Because deed notices are not a traditional real estate
interest, proper practice in using them is. not well established.
However, they appear to have been used at some Superfund. sites
arid have been accepted for recording. In addition, some state
statutes specifically" allow deed notices to be filed in
3 0
-------
connection with cleanups.30 Therefore, such notices should be
considered one of the available tools, but state law and local
practice should be invest iera ted in advance to determine whether
such a notice will be : i (even though it does not evidence
any transaction). how Id he drafted, and who would be
entitled to revoke ion1
The critical difference between deed notices and deed
restrictions (such as easements and covenants) is that a deed
notice is not an interest in real property, so that recording a
notice has little or no effect on a property owner's legal rights
regarding the future use of the property. Neither the present
owner, nor any successors would be legally bound by any use
restrictions referred tc in a deed notice. The notice would
merely serve to place them (and others such as lenders) on notice
that the property either is, or was, contaminated. Accordingly,
the 1935 OSWEK Land Use Guidance32 states that "Where exposure'
must be limited to assure protectiveness, a deed notice alone
generally will not provide a sufficiently protective remedy."33
' Deed notices can have value; for example, they may'
effectively discourage inappropriate land users from acquiring
the property, if filed in a way that provides adequate notice.
In addition, notices may be easier to implement than easements
because they do not require a conveyance to be negotiated
(although the owner's consent may be required and in any case is
generally desirable in order to avoid the risk of claims for
slander of title.) However, the workgroup believes that deed
notices should be used with caution because they may create an
30 See, e.g., Mich. Comp . Laws Ann . s . 324 . 20120b (2) .
31 The NCP preamble and the discussion on RI/FSs at
§ 3 00.430 mention deed notices without providing further-
explanation. RCRA closure requirements also refer to recordation
of "a notation on the deed to the facility property" to alert any
potential purchaser to the property's historic use for hazardous
waste management. See 40 CFR 264.119(b) (1) .
32 See note 4.
33 Land Use Guidance at 10.
3.1
-------
impression that legally enforceable controls have been
established when that is not the case.
Other means of alerting the public to the presence of
contamination, can be developed that focus less on giving notice
to purchasers and more on informing the general public. ¦ In some
cases, systems already exist for this purpose (see, e.g., the
discussion of state registries below). In other cases, site-
specific measures could be set up; for example, records on
contaminated property, easily identifiable by locality, could be
kept at the regional office (or a local government might be
persuaded to maintain the files), and their existence generally
publicized so that community members, or potential purchasers,
will know how to find them.
" It is important to keep in mind that poorly-drafted
deed notices and other informational measures, which do not
clearly explain the.types of risks presented at a site, can
discourage even appropriate development, The workgroup therefore
recommends that consideration be given to leg.itim.ate
redevelopment concerns in drafting such documents. EPA has
developed strategies for addressing redevelopment, a full
discussion of which is beyond the scope of this document. Well
designed measures that'specify the types of activities that
present risk, the degree of risk involved, and the kinds of uses
that can be carried out without undue risk, may further the goal
of informing the public without preventing land uses that are
appropriate to the site.
c. "Deed restrictions." The term "deed restrictions"
commonly appears in Records of Decision, consent decrees, and
other agency materials (including the NCP) . However, it is not a
traditional real property term and does not have a precise legal
.meaning... ¦
The term "deed restrictions" should be understood as
¦simply a catchall term for proprietary controls such as easements
and covenants that are legally enforceable against subsequent
owners (and that is how it is used in this document) . However,
its use seems to have led in some cases to the misconception that
enforceable controls on the use of land may be established simply
by having the landowner record them on a deed, or file a document,
called a "deed restriction" in the land records. As should be
32
-------
clear from the earlier discussion, that is not the -case; absent
some special authority under state law, only the conveyance of
some property interest, such as an easement, ?r .
enforceable confrl . 34 'Even if a one-party cio< > it-." ><(. -e
reflecting a tr :tion between two parties), j < . have no
legal effect on subsequent landowners, probably would not be
enforceable even against the current landowner, and could
probably be revoked by the landowner at any time. At most, the
filing of such a document might have some informational value
similar to that of a deed notice.35
Because of this confusion, the workgroup has concluded
that it is important to make sure that all those involved in
evaluating remedies using proprietary controls understand that to
establish legally enforceable restrictions, rather than merely
informational notices, a conveyance or-contract of some kind will-
likely be required.36 If the term "deed restrictions" is used
with a general audience, the workgroup believes that it is
important to explain what it means. In addition, where clarity
34 A "conveyance" can take many forms: the term simply
refers to any agreement under which a property interest is
transferred from one party to another. Thus, an enforcement
agreement (e.g., consent decree) could conceivably effect a
conveyance if it clearly states the intention to create rights
that will run with the' land (but see discussion below on use of
CDs as institutional controls). The critical point above is that
a document simply executed and filed by one party cannot create
an enforceable control because it is not a conveyance.
35 Similar issues arise in connection with the common
practice of filing consent decrees. Recommended practice with
regard to filing consent decrees is discussed in Section V.C.2.
35 As noted earlier, some states liave by statute created
.procedures for establishing use restrictions that' run with the
land but that do not involve a conveyance (usually by agreement
with ox* order from the state environmental agency) . „ Where such
statutes apply, they would be an exception to the general concern
noted above,
33
-------
of intent is important, and especially where EPA wishes to ensure
that the IC is enforceable, a more precise term, such as v
easement, should generally be used.
d. General advice on easements and covenants
Easements and similar property interests are probably
most useful in situations, where a single parcel of land is
involved, and the current owner of the land is subject to
regulation under CERCLA RCRA. On the other hand, easements are
generally less useful where a large number of parcels are
involved and the owners are not responsible parties, (For
example, easements may not be a practical way of preventing
exposure to contaminated groundwater where a plume has spread
over a wide area.)
Traditional common law doctrines can limit the
enforceability of easements against successors in- title, although
the trend in the law is toward'greater enforceability,
particularly for easements created by government entities for the
public benefit. Therefore, the 'law of the relevant state should
be carefully examined to determine whether the common law
principles discussed above have been modified in a way that makes
these instruments'potentially more useful. In general there is
no harm in drafting instruments to provide that they will run
with the land, or are enforceable by third parties, even if the
law in the state' is unclear on that" topic. However, where that
is done those relying on the easement,(e.g., program staff
designing a remedy) should be made fully aware of any
uncertainties involved. - . -
An' important- consideration is who will hold the
easement. - It is common in CERCLA cleanups for settling PRPs to
¦agree to acquire easements from other landowners, as part of
their implementation of the remedy as a whole. This has the
advantage of placing the burden of negotiating and paying for
such controls on a responsible party. At the same time, such an
arrangement can make enforcement by EPA more difficult. As a
third party, EPA may not have the right to.enforce the easement;
its only remedy may be to try to compel the PRP to enforce (the
effectiveness of which may depend' upon the PRP1s willingness and
financial capability to do so).¦ This should be taken into
account in deciding whether the grantee of the easement should be
34
-------
the PRP EPA. (Note that it would be possible: to require the
PRP to otiace and pay for the IC, but to have EPA,,or a state
or local government, named as the.grantee.)
Conveyance no SPA raises ether issues, however.
First, federal procedures for acqu real property muse oe
followed where an easement is ooriv. to EPA. Such procedures
should not be a barrier to using this approach, but staff should
familiarize themselves with those requirements to avoid
unnecessary delays (a brief introduction to that process is
attached as Appendix C). Second, in CERCLA cleanups it is'EPA's
practice to require an assurance'from the state that it will
accept the interest following completion of the remedial action
(making che state's consent necessary before the .transaction can
proceed). This assurance is discussed more fully in Section IX.
An option that may be worth considering in some cases
is'to arrange for the easement: to be conveyed to a third party,
such as a community or environmental organization, rather than to
the government. This may provide a locally based party with an
interest in enforcing the control. It also avoids any need in
Superfuna cleanups to obtain the state assurance referred to
above. If the group owns property in the vicinity, to which the
easement is arguably "appurtenant", such an arrangement may also
avoid the common lav/ restrictions on easements in gross. .Of
course, some affected parties, including local governments, may
be reluctant to put such authority in the hands of a non-
governmental organization. Furthermore, such organizations may
be reluctant to take on such a role because of concerns about
liability or resource demands. Whether this is a useful approach
will depend "entirely on the circumstances.
Finally, it is important to keep in mind that the
current "owner", may not be the only party with whom it is
.necessary to negotiate. For example, where a property is subject
to a mortgage, the current owner's agreement to.convey an
easement does not automatically bind the mortgage-holder, and
should the mortgage be foreclosed the easement would have littlQ
further effect. Others who might not be bound could include
holders of prior easements with a right of access, lie'nlnolders,
and holders of other such rights. Therefore, a title search is
important in order to ensure that agreements have been obtained
from ail necessary parties. ¦ In some cases, it may be appropriate
-------
}
to conduct the title search as
order to adequately assess the
controls.
early as the feasibility study, in
implementability of proprietary
36
-------
B, Governmental controls
A ^ ' md category of controls • the regulatory
authority of >vernmental unit to impo: striccions on
citizens or ; under its jurisdiction..37 Since CERCLA and
RCRA do not .fically authorize EPA to regulate land use in a
comprehensive manner, EPA must generally turn to state or local
governments to establish .controls of this type.
There are a variety of mechanisms available to state
and local governments to utilize as institutional controls. They
include restrictions on the use of land arid groundwater,, issuance
of advisories warning of potential risks and state registries of
hazardous waste sites. The most important consideration in their
¦use is that they are implemented by third parties (state or local
governments) and rely on those parties for monitoring,
maintenance and enforcement. They may also be subject to
variances or exceptions available from those implementing
governments.
¦ 1. Types of governmental controls
a. Land Use Restrictions
The most familiar 'form of governmental control
consists of using a local government's authority over land uses
to control exposures that are not otherwise protected by a remedy
or to place prohibitions on activities that could be disruptive
to engineered controls at a site. Such authority is potentially
extremely flexible, and can be tailored to the specific needs of
the' site.
37 The agency's general rulemaking authority might possibly
be used for this purpose (although the rule would have to be
focused on a particular site) . However,, such an approach has
never been used, and because land use determinations are
generally viewed as local in nature would probably•be
controversial. Therefore, the discussion here focuses on the use
of state or local regulatory authorities.
3 7
-------
i. Zoning
One of the most common land use restrictions is the
exercise of zoning authority by local governments specifying
allowed land uses for certain areas. Zoning can be utilized to
prohibit activities that could disturb certain aspects of a
remedy or to control certain exposures not otherwise protected
under a remedy. For example, a local government could prohibit
residential development in an area of contamination or limit
gardening in certain areas.
¦ ' Although zoning laws can be useful tools, they have
limitations as well. They are not necessarily permanent in
nature (i.e., they can be repealed or exceptions granted by the-
local government). They may also not be fully effective unless
they are monitored and enforced over the long term, and local
governments may not commit the resources necessary to such
oversight.
It is also important to recognize that under typical
zoning ordinances, an ,"industrial" or "commercial" classification
usually does not prohibit residential use. Zoning'laws were
written primarily to keep intensive uses, such as factories, out
of less intensively developed areas (e.g., residential
neighborhoods). In the remedial context, the policy goal is
usually the reverse. Therefore, even where the area is zoned
industrial an amendment may be needed to make clear that
residential development is not a permitted use.
iiv specialized zoning tools
Many municipalities retain within their zoning
ordinances the flexibility to accommodate or to limit certain,
specified land uses through such zoning tools as the overlay
district, the planned unit development (nPUD"), and transferable
development rights ("TDRs").
The overlay zoning district is used by a municipal
zoning authority to "overlay" an existing zoning classification
and to impose a new set of regulations on a designated area
within said zone.. -'For example, there may be an "Historic
Preservation" overlay district super-imposed over business or
38
-------
commercial zoning in an older section of a central business
district. This district may be shown on the community's zoning
map - as lightly shaded area encompassing several zoned properties
and having the specific designation of "HP" (Historic
Preservation).
This overlay district may or may not restrict or even
eliminate certain of the underlying zone's permitted uses; but it
will most commonly require the submittal and approval of a
development plan, in order for the developer to obtain building
and/or occupancy'permits. In the instance of environmental
protection, the municipality could implement an environmentally
sensitive area (EISA) overlay district, restricting certain uses
on the land or limiting certain uses to only certain locales on
the land. This designation would also serve to place developers
on notice to investigate the underlying reasons for the zone's
imposition.
The planned unit development was the logical offshoot.
of zoning enabling legislation allowing governmental entities to
impose land use controls. This device allowed a developer to
rezone a great number of acres at a time, usually for mixed uses.
These mixed use developments typically contained residential uses
and complementary commercial and office uses. Prom the PUD
concept has emerged the planned development concept, whereby the
developer of a smaller commercial, business or even industrial
parcel would be required to submit a development plan in order to
obtain a building and/or occupancy permit. Such plans are
usually requested when a parcel of an unusual shape or one with
some other physical peculiarity that will be expected to host
some specific, use.
Like the greater PUD, these smaller development plans
must also designate the type and exact location of each use to be
placed or the parcel. After acceptance by the governing bodies,
any variance would subject the developer/owner to default and a
forfeiting of .his building or occupancy permits. Because these
plans are typically the highest land management tool available to
the municipality, they are usually required to be filed and are
usually subject to a high degree of routine, official scrutiny
for compliance (just the thing for "living" or "dead!' caps) .
3 9
-------
In the case of environmental issues, where this zoning
exists or the municipality is enabled, co implement such zoning,
developers should be required to submit development plans for
approval, prior to the issuance of building permits and/or
occupancy permits, for those parcels designated by ordinance or
official declaration to be environmentally sensitive areas.
Development plans are an integral part of overlay zoning. Any
sort of development plan zoning has a type of built-in
permanence. Moreover, these plans, once adopted, become legally
integrated with the land, much as the underlying zoning. These
plans would "run with the land" and survive sale, transfer and
assignment.
The transferable development right allows a developer
to transfer the right to develop a plot where over-building is a
problem to an under-developed plot, thus benefiting both sites.
Under the typical TDR scenario, a would-be' developer who finds
that a proposed development would not be allowed due to concerns
about its effect on neighboring properties, could transfer his
development rights to another contiguous lot or parcel. There,
the developer could build to the limit permitted by the'TDR that
he/she possessed (or the TDR could be sold to another "needy"
developer).
TDRs may be especially valuable in situations where
the environmental hazard requires that the use of a subject site
be severely restricted. TDRs have been used to limit development
in those communities where the citizens sought to limit growth
because of limited services, resources or space. TDRs have been
used to relocate uses from condemned properties to more
worthwhile locations. TDRs can also reduce the risk of takings
claims in situations where a restriction severely narrows the
range of permitted uses.
iii. local permits
Building permits can also be utilized as a land use
restriction. For example, an ordinance could be adopted
requix-ing anyone seeking a building permit for construction
activities in a particular area to be notified- of contamination
in the area and informed of any relevant management standards.
Such an ordinance could also be used to prohibit types of
construction that would result in unacceptable exposures (e.g.,
4 0
-------
excavation in areas where subsurface contamination .has not been
fully removed) . 1c should be noted, however, that not all
excavation requires permitting (e.g., utility repair).
iv, "Miss-Utility" systems
In many states, one must contact a designated office
before excavating to ensure that buried utilities will not be
damaged. A' state or local government could adopt a similar
system for excavation or new construction in areas where there is
contamination left on site after the remedy. Such an arrangement
could be tied in with .the local permitting systems discussed
above.
v. Tailored ordinances
Many local governments have, broad land use authority,
which they could use to adopt a tailored ordinance .placing
controls on access or'use of certain areas. For example, local
governments have required fences or buffers around areas of
contamination and placed bans on fishing and swimming in
specified areas. The effectiveness of such controls again
depends on the willingness and ability of some entity to monitor
compliance and take enforcement action. Postings alone, of
course, may not be effective in preventing incidental contact or
consumption.
b. Groundwater Use Restrictions
Groundwater use restrictions are directed at limiting
or prohibiting certain uses of groundwater. implementation of
such restrictions are dependent on a state's groundwater
ownership and use laws, A number of states have adopted laws
that could be used'to restrict groundwater use at cleanup
sites.38
38 See Pendergrass, note 11, at 10113-14. For example,
under Connecticut's-groundwater law-(Conn. Gen. Stat. s. 22a-
3546, the state maintains a published map of existing quality and
classified uses of groundwater, and groundwater •underlying
contaminated sites has been placed in a class barring human
consumption. Vermont, has similarly reclassified groundwater at
41
-------
Groundwater use restrictions commonly involve water
and well use restrictions. This is a broad category and such
restrictions can take a variety of forms. They can include the
establishment of groundwater management zones or protection
areas; prohibitions or limitations on certain uses of groundwater
in particular areas; capping or closing of wells; and limitations
on the drilling of new wells.
Well construction permits can also be utilized as a
groundwater use restriction. A number of state and local
governments' have adopted statutes controlling new well
installations or requiring permits for existing wells. These
permitting programs can be utilized.as institutional' controls.
There are a number of approaches that can be utilized. They
Include requiring water quality testing; licensing of well
drillers; prohibitions orx the drilling of new wells in areas of
contamination; and requirements and controls on the operation of
wells (withdrawal rates and pumping rates) .
Some states, particularly in the west, have an entire
body .of law governing groundwater rights. The workgroup has not
attempted to evaluate the implications such laws may have on
efforts to restrict groundwater use, but regional staff should do
so on a site specific basis.
c. Advisories
Advisories are publicly-issued warnings.that provide
notice to potential users of land, surface water or groundwater
of some existing or impending risk associated with their use.
For- example, an advisory may be issued to owners of private wells
.in 'a particular area that contamination has been detected in
groundwater at levels that pose a threat to human health.
Advisories are generally issued' by public health agencies, either
at the federal, state or local level (e.g., the health advisories
issued by the U.S. Agency for Toxic Substances and Disease
Registry under s. 104(i) of CERCLA) .
t wo S up e r f und s i t e sunde r Vt. S t. a t. Ann. tit. 10, s . 6001
42
-------
Like a deed notice, an advisory does not have any
legal effect or create any enforceable restrictions. This does
not mean that advisories may not be useful parts of a remedy;
however, it is important that their limitations be clearly
understood.
d. State Registries of Hazardous Waste Sites
In certain states, legislatures have established
registries of hazardous waste sites,39 Such registries
typically contain a number of common elements that can act as
institutional controls. They include the compilation of a list
of hazardous waste sites in the state; annual reports submitted
to the legislature summarizing the status of each site on the
registry; notice with the deed for sites on the registry that the
site is contaminated; and requirements that any person conveying
title to property on the registry disclose to all potential
purchaser's the fact that the property is on the registry. Some
laws provide that the use of property on the registry cannot be
substantially changed without the. approval of the state.
A potential limitation of the use of state registries
by EPA as institutional controls is the fact that the procedure
for listing and removing them from registries is solely at the
state's discretion. Nevertheless, with the cooperation of the
state they can prove useful with other measures as part of an
overall remedy for a site, especially in providing information to
the public.
e. Condemnation of property
Local governments may. exercise eminent domain
authority to acquire property for a public purpose. . One way of
controlling land use may simply be for a•local government to
.exercise this authority to take title to the property in
question. For example, it might be decided that the best use of
a site was as a park or a public parking lot. Imposing use
restrictions of this degree might require outright condemnation.'
39 See, e.g. , Iowa Code s. 4 55B.42S; Conn. Gen.-' Stat,
s. 2 2, a -13 3 o ,
43
-------
2. Advantages arid disadvantages of governmental
controls
Governmental controls have certain advantages and
disadvantages relative to proprietary controls, Perhaps their
chief advantage is that they do not require the negotiation,
drafting and recording of parcel-by-parcel restrictions. This is
important where the restriction is intended to affect a large
number of distinct parcels, particularly where some of the
landowners are not liable parties with whom the agency is already
dealing in the enforcement context. Finally, the legal
impediments to long-run enforcement of proprietary controls can
be avoided; governmental controls remain effective so long as
they are not repealed.
The chief disadvantage of governmental controls (at
least from the perspective of the agency that selects the remedy)
is that they will almost always have- to be adopted and enforced
by a unit of government other than EPA or the state, who are the.
lead remedial agencies. At leas.t for'controls adopted on a site-
specific basis, local governments are-almost always relied upon
to implement and enforce such controls. Zoning ordinances'
sometimes allow enforcement by citizen suit, but this is not
always true, and in any case there may be no third party with the
interest or resources to do the necessary monitoring and
enforcement,
The effectiveness of governmental controls thus
depends in most cases upon the willingness of local governments
to adopt them (unless they already exist), keep them in'force,
and enforce "them over the long term. One way to address this
concern may be to establish a direct contractual relationship
(e.g., a cooperative agreement) between- EPA and the local
governmental unit responsible for implementing and enforcing the
institutional control. However, there may be constitutional,
limits on the extent to which state and local governments can
effectively be bound by contracts that limit their ability to
reject or repeal legislation.
Other approaches might be used to reduce the risk that
governmental controls once adopted will be repealed or will not
be enforced. One is to make clear that, if institutional
controls 'turn out to be ineffective, it may be necessary to
44
-------
reconsider the remedy. This may create an incentive to ensure
that they are fully implemented. In. addition, monitoring of land
use can help to crack the extent to which controls are being
enforced, While t does not ensure that the controls will be
enforced, or add ! &r s ability to compel them to be enforced,
10 will make che local government aware that failure of the
controls will be detected and become public knowledge. Such
monitoring might 'be done as part of the regular 5-year review, or
it might be conducted by the state as part of its long-term
operation and maintenance obligations at a fund-lead sited
45
-------
C. enforcement authorities
The enforcement tools available to EPA under CERCLA
and RCRA. may also be used to restrict, the use of land. This
Section discusses the potential use of enforcement: authorities as
a form of institutional control.
Enforcement authority might he used in two ways in
establishing institutional controls. First, an enforcement
instrument such as an administrative order or consent decree may
prohibit the party named in the order or decree from using land
in certain ways, or from carrying out certain activities at
specified property. Second, a consent decree may be used to
require settling parties to put in place some other form of
control, such as a proprietary control (for example, by conveying
an easement to the government, or obtaining one from a third
party).
This Section focuses on the use of orders under s. 106
of CERCLA, orders under ss. 3003 (h) and '7003 of RCRA, and consent
decrees to restrict land use wi t hout the creat ion of some
proprietary control. The use of enforcement measures to ensure
that proprietary controls are established is discussed
separately, in Section VII. ¦
1. Administrative orders as land use controls
The scope of EPA1s authority under section 106 of
CERCLA .is very broad, as it authorizes the agency to issue such
administrative orders "as may be necessary to protect public
health and we if are and the environment" where there "may be an
imminent and substantial endangerment...because of an actual or
threatened release of a hazardous substance from a facility."
RCRA contains similarly broad authority under sections 3008(h)
and 7003 . Accordingly, orders may be used for a very wide range-
of purposes including the establishment of institutional
controls.
An administrative order can directly restrict the use
of property by a named party (who need not be a named PRP in the-
CERCLA, context) . Used in this way, the order can - establish the
restriction without the execution, of any further property
instrument. This approach has the advantage of relative
45
-------
simplicity. It also creates the threat of potential penalties
for violations, as an incentive to properly maintain the control.
The chief disadvantage of such an approach is that the order does
noc bind subsequent owners, or users not named in the order
(e.g., lessees).
To enhance the long-term effect of an. order, the order
could be drafted to require the property owner to notify EPA of
any anticipated change in ownership, the identities of any
potential purchasers or lessees! and other information that; would
allow EPA to assess whether a new order should be issued to the
new purchaser ox* lessee. The original order might also require
the landowner to disclose the order's existence to any potential
purchaser or lessee.
While orders generally do not "run with the land" in
the same way as property interests do, they may have more value
as institutional controls than is generally recognized. Their
chief advantage is that they may be easier to establish. An.
order does not require an-agreement with the landowner; while
consent order's are generally considered desirable, unilateral
orders can be issued if agreement cannot be reached. Negotiating
consent orders may be somewhat easier than negotiating the
transfer of a property interest. Furthermore, unilateral orders
can be modified more easily than negotiated property interest
transfers in the'event that the control needs to be modified or
withdrawn due to new information or changed conditions at the
site.40
While orders may have disadvantages in terms of
enforceability against transferees, proprietary controls can run
into similar problems as well. Furthermore, the importance of
these disadvantages depends on how likely it is that the property
will be transferred during the period that the restriction is
necessary. • If ownership seems unlikely "to change for a long
time, an order may be a relatively effective means of control.
Finally, steps can be taken in the drafting of the order, as
noted above, to ensure that a regulator is aware of any
'40 If a consensual agreement constitutes a settlement within
the meaning of s. 122(d) (1) (A) of CERCLA, it must be in the form
of a consent decree.
47
-------
subsequent transfer and can re-issue the order to the
transferee.41
Finally, a CERCLA s, 106 order can potentially be used
to restrict the use of land owned by a non-liable party,42 This
approach would primarily be useful if no other method (e.g.,
negotiating the transfer of a proprietary control, or obtaining a
local government's agreement to impose regulatory controls) is
successful. A number of complexities can arise in enforcing
orders against non-liable parties (including, but not limited to,
the potential for a claim for compensation under s. 106(b)).
However, the need to pay such claims is not, by itself,
necessarily a bax to imposing the controls as the cost of the
reimbursement may still be less than the added cost of the kind
>41 Questions sometimes arise as to whether an order may be
issued "in rem" - - that is,, either naming a parcel of property
rather than a person as the recipient of the order, or naming the
current owner "and all subsequent owners". Although it does not
appear that such an order has ever been issued, it is not clear
that such authority does not exist. (Possible precedent exists
in case law on in rem injunctions; see, e.g. , United States v.
Dean Rubber Mfa. Co. , 71 F. Supp. 36, 98 (W.D. Mo. 1946); United
States v. Hall. 472 F.2d 261, 265-66 (5th dir. 1972) ; United
.States v. Crookshanks. 441 F. Supp. 268, 27,0 (D. Or. 1977).)
Since such an approach is untested, it's long run reliability
should be considered uncertain but in unusual circumstances it
might be considered. Notice could be given to subsequent owners
by filing the order in the land records, if the local land record
custodian permits it.
42It may be noted that nothing precludes use- of a- CERCLA
order in -connection with a RCRA cleanup, if the conditions for
issuance of such an order are met -
48
-------
of cleanup required if institutional controls coula-not be
imposed.43
In short, while the estimate 1 f >st of establishing
institutional controls is clearly a con; ~ation in determining
whether to use an order under CERCLA or rcich. as a form of
control, it should be evaluated against the estimated cost of
other options, within the general framework of remedy selection.
Moreover, any costs incurred by the Agency, or by a private party
carrying out the remedy, would; constitute response costs for
which a claim could be made against any party liable under
section 107.
2. Are consent decrees effective ICs?
CERCLA consent decrees commonly specify restrictions
on use of land by the settling party. Such restrictions can
serve as an institutional control at least with respect to the
particular settling party. •
The workgroup believes, however, that where the intent
is for the restrictions to bind subsequent owners ox- users of the
land, .it is not good practice to rely simply on the terms of a
consent decree (even if the consent decree is filed in the land
records). A settlement between the United States and a
particular PRP does not generally affect the rights of others,
especially others with no current connection to the case such as
future purchasers or lessees. To have this effect, the CD would
have to be construed to be a conveyance of a property interest,
or possibly to be an injunction in rem. However, as the CD is
43 Should a party establish a right¦ to compensation under s.
106 (fa) , it would be important to distinguish between any loss in
property 'value experienced as a result of the order and other
losses not attributable to the order itself,, such as' the
diminution in value caused by the original contamination.
Especially where the restrictions are not severe in nature, as
where they allow commercial but not residential use, or simply
prohibit well drilling, the costs that could have to be
reimbursed may thus, be limited (although the ability *of claimants
to make sizable claims, and the burdens of litigating such
claims, should not be overlooked) .
49 '
-------
) - ,
primarily a document memorializing the settlement of an
enforcement case, and does not clearly take the form of a typical
easement or covenant, a subsequent party might challenge its
effectiveness as a real estate conveyance,44 Therefore, if the
intent of the settlement is to establish restrictions on. land use
that are binding on subsequent owners and occupants (as would
normally be the case) , the workgroup does not recommend reliance
on the CD alone;, regardless of whether the CD is filed for
recording. Rather, to minimize enforcement risks the CD should
require the settling parties to execute and file a separate
instrument conveying a proprietary control. Failure to file such
a document would then constitute noncompliance with the decree,
triggering penalties . Recommended practice is discussed further
in Section VII; recently-approved model CD language is attached
as Appendix A. ¦
44 Even if the CD were found to be in effect an easement or
covenant, its enforceability against subsequent purchasers would
be subject to the same common law limitations discussed earlier
for those kinds of property interests.
50
-------
VI. Choosing among types of institutional controls
Deciding whether tc u:e a proprietary control, a
governmental control, or ocher measures at a particular site will
inevitably depend on local circumstances. However, the workgroup
believes that certain generalizations can be useful, and has
highlighted below some of the considerations that, in the
workgroup's experience, most frequently affect the selection of
controls.
It is important to note that these factors do not
substitute for the regulatory criteria used in selecting remedies
(for CERCLA cleanups, see 40 CFR 300.430(f); under RCRA, see the
criteria discussed at 55 FR 30823-24 (July 27, 1990)). Rather,
they go into the analysis of such criteria as long-term
effectiveness, implementability and cost. The factors cited
below may not only affect the decision on which control to use ,
but may bear on the more fundamental question of whether
institutional controls should be used at all.
1. How long will the control have to be in effect?
The expected duration, of the control is an important
consideration, relating directly to the criterion of long-term
effectiveness and permanence. Some ICs may only be needed while
more active measures are being carried out; for example, well
drilling restrictions may only have to be effective until the
aquifer has been treated to acceptable levels. Others may have
to stay in place indefinitely, as part of the permanent remedy,
such as broad land use restrictions, or controls to prevent
disturbing a .cap or other waste left permanently in place.
If the control is expected to be relatively short
lived, or if the likelihood of the property being sold during the
life of the control seems small, an order issued to the current
landowner directing him or her riot to engage in certain
activities, along with some system for getting notice of any
change in ownership, may be adequate. Putting such an ordep in
place will generally be simpler than establishing either
proprietary or,governmental controls, particularly if it is done
on consent .(and such an order would not trigger any peed to use
51
-------
federal acquisition procedures or to obtain a state assurance
under section 104 (j) of CERCLA) . 45
In addition, where the control may need to de modified
from time to time to reflect; changing conditions or information,
use of an order may be appropriate because it is easier to modify
and may allow some parcels to be returned to unrestricted use
with it minimum of delay.
Where a longer time frame is anticipated, either
proprietary or governmental controls should generally be
considered. However, both proprietary and governmental controls
have weaknesses in terms of long term reliability as well, which
should be taken into account in selecting between them. Where
turnover in ownership is likely, common law doctrines restricting
enforcement by parties who do not own .adjoining land can render
proprietary controls ineffective; governmental controls may be
preferable in such cases. At the same time, over the long term
governmental controls may not be effectively enforced because
political and fiscal constraints may influence a State or local
government's exercise of its police power. The likelihood that
governmental controls will be kept in place and enforced over the
long term therefore needs to be evaluated.
2 . How many different parcels of land will be
affected?
The number of parcels that need to be restricted will
affect the relative implementability of different kinds of
controls. Where restrictions are to be imposed over a very wide
area, affecting many parcels, governmental controls avoid the
need for parcel-by-parcel negotiation. (For example, controlling
well drilling into a large contaminated aquifer would affect many'
parcels.) In general, proprietary controls are most useful where
a relatively small number of properties must be controlled. Of
course, the ability of the State or local government responsible
for a control to monitor and enforce over a wide area should also
45 Section 104 (j) is triggered by the acquisition of an
interest in real estate; issuance of an order" to the "current
landowner directing the owner to restrict its use of the land in
certain ways would not, by itself, constitute an acquisition.
5 2
-------
be assessed before selecting a governmental control on this
ground.
3, Are tr - .-.ted. * ' wners predominantly p.-- . s
who are potentially uiidej " _-CLA or subject to rag-.. . on
under RCRA? If not, are they generally supportive of the
controls ?
Proprietary controls are easiest to establish where
most or all of the property owners are potentially responsible
parties under CERCLA, or subject to regulation under RCRA.
Obtaining agreement from property owners who are not subject to
these authorities can be more difficult, even where the aim of
the control is to protect those owners or their successors.
Therefore, governmental controls have some advantages in these
situations. Moreover, landowners sometimes are more reluctant to
convey a property interest than they are to being subject to
equivalent regulatory restrictions. Proprietary interests can be
condemned where the property owner is unwilling to convey them
(i.e. , the government may compel the landowner to convey such an
interest with payment of compensation as appropriate), but this
process can be time consuming and resource intensive, and may be
opposed by some landowners.
It may be easier to obtain'agreement on non-
enforceable, informational devices such as deed notices, or
registries. - However, as has been emphasized, the goals of the
remedy and its long term efficacy should be carefully considered
before deciding to use non-enforceable measures.
. 41. Where governmental controls are being considered,
are local governments generally in agreement with, the goal of
restricting use? Can and will they commit the resources
necessary to effectively enforce such controls? How likely is it
that development pressure or other political and economic
considerations may tempt them to rescind such controls in the
future?
The uncertainties created by relying on other
governmental units to implement controls has already been
discussed; another consideration is the uncertainties of the
process by which such controls would have to be adopted. This
process is not controlled by. the agency leading the remediation, ,
53
-------
and can be time consuming and resource intensive. Moreover, if
the restriction is controversial, the controls as adopted may
differ from what the remedy anticipated.
5, Will some entity be willing and able to take
responsibility for enforcing the control?
The availability of an enforcer.is critical to the
long-term effectiveness of institutional controls. In the
absence of a reliable enforcement entity, remedies that rely
heavily on institutional controls may not be reliable.
The process of identifying an entity responsible for
long term enforcement can begin as early as the 'process of
evaluating remedial alternatives. Where governmental controls
are involved, the enforcer would normally be the government
entity that adopts the controls, although the possibility of
drafting the controls to allow enforcement by third parties could
be explored. Proprietary controls can be assigned to a variety .
of parties; in some jurisdictions-, it may be possible to draft
them to allow enforcement by parties other than the holder.
In this regard, it should be noted that for fund-
financed CBRCLA remedies, the State must provide an assurance
that "any institutional controls implemented as part of the
remedial action at a site are in place, reliable, and will remain
in place after the initiation of O&M." 40 CFR 300.510(c)(1).
This assurance is discussed further in Section IX.
6. Is the State prepared to take title to any property
interest involved?
Under CERCLA s. 104 (j) (2), EPA may not acquire an
interest in real property in connection with a CERCLA remedial
action unless it the state agrees to take title to the property
upon completion of the remedial action. Application of this
requirement to institutional controls is discussed in Section IX.
In some cases, states have been reluctant .to agree to
take title to easements or similar interests. If a state
assurance is required, this can obviously affect the .choice of
control to be used, or at least the structuring of the
transaction. One possibility is to have the property interest
54
-------
conveyed to a party other than EPA, such as a PRP. The' interest
could also be held by a local government, community groupr. or
trust where one has been created for iiv I - i i : i. of the
remedy. Of course, the parry holding I should be ¦ one
whose ability and willingness to enforce t .st is
considered reasonably reliable.
If a. willing, reliable holder cannot be found, other
options, such as governmental controls (e.g., a local ordinance)
should be evaluated. An administrative order could also be used
without triggering the requirement of a state assurance.
Although an order does not run with the land, it can be drafted
to require notice to the relevant agencies of any change in
ownership.
7. Can Multiple Institutional Controls be selected?
The discussion above is not meant to preclude
considering multiple IC's as part, of a remedy. Remedial
alternatives may anticipate two or more.options for establishing
IC's, but should fully,evaluate all such options. Furthermore,
'any given option may "layer" different controls to ensure long
term reliability. A variety of IC's may be used such as deed
restrictions and-deed notices, and adoption of land use controls
by a local government.46 For example, controls that do not run
with the land, such as enforcement orders, may be adopted for
short term control pending establishment of more long-term
controls such as local regulations or deed restrictions.
46 Land Use Guidance (see note 4) at 10.
55
-------
VII. Establishing Institutional Controls
Where ICs have been identified as part of a CERCLA or
I ly, a variety of iegai steps will have to be taken to
them. The steps will vary from site to site, and to
some extent will vary depending on whether CERCLA or RCRA
applies, but in any case the workgroup believes that as much care
should go into the selection and implementation of ICs as into
other aspects of the remedy.
This Section will discuss the steps needed to
establish institutional controls . The discussion, here focuses
primarily on proprietary controls, but considerations regarding
establishment of governmental controls (and enforcement of
existing governmental controls) will also be discussed.
A. Establishing Proprietary Controls under CERCLA
In general, for a proprietary control to be put in
place a transaction will have to occur in which a property
interest (e.g., an easement) is conveyed from the owner of the
land being restricted to some other party,, who will be the holder
(and enforcer) of the interest. Such a transaction may be part
of a larger transaction (e.g., sale of the entire property), or
may be a freestanding conveyance .
The specific steps required to effectuate transfer of
an interest in real property will depend on (1) whether the PRPs
are expected to perform the remedy., or whether it is fund-lead;
(2) whether the grantor is a PRP implementing the remedy, or some
other party,-" (3) whether the grantor agrees to the transfer; and
(4) who the grantee will be.
1. PRP-lead remedies
At PRP-lead sites, responsibility for securing deed
restrictions rests with the PRPs since they will be obligated,
pursuant to a consent decree or administrative order issued
unilaterally, to implement the controls as part of the remedial
action. The PRP's obligations will depend on whether it, or some
other party, owns the affected property.
-------
Generally, where the PRF owns the land .that is being
restricted, it will commit in the consent decree co effect the
conveyance that will establish an enforceable control. Cn che
other hand, if the remedy requires restricting the use of land
not owned by one sect ling PR?, che PR? muso commie co use oesc
efforts to obtain conveyances from che relevant landowners. In
either case, the PRP must commit to carrying out long term
oversight, monitoring and enforcement to ensure that the controls
remain effective.
a. Restricting use of land owned by the settling PRP
Where the land being restricted is owned by.a settling
PRP, the PRP can agree to restrict its own use of the land as
part of the consent decree. However,, for the commitment to be
binding against successors in title, the PRP should commit in the
CD to convey an easement or other deed restriction to EPA or a
third party (and .ensure, than it is suitably recorded) . ¦ The PRP
would not be entitled to compensation for such a conveyance; the.
conveyance is simply one of the' steps the PRP is agreeing to
undertake in order to settle the government's potential CERCLA
claims. Issues that can arise where an interest is conveyed to
EPA' are - discussed below under "EPA as Grantee" .
As discussed above, the workgroup does not believe
that using the consent decree itself-as the instrument of
conveyance is generally good practice .(see Section V. C . 2) .
Filing the consent decree in the land records can serve the
function of providing notice, but where there the control is
meant to run with the land, the workgroup believes that the
better approach is for the PRP to agree in the. CD to convey an
appropriate interest to some other party, with the conveyance
itself memorialized in some other document that is separately
recorded. Model language for this type of consent decree
provision is attached as Appendix A.
b. Restricting land not owned by the settling PRP
Where the owner of the restricted land is not a party
to the CD {i.e., is a non-settling PRP, or a non-PRP), the
settling PRP must commit to negotiating with the landowner to
obtain a conveyance. The conveyance may be to the PRP, or to
EPA, or to some other party (see discussion below of ''grantees") .
5 7
-------
Although the settling PRPs do not have authoricy to
compel other landowners to convey deed restrictions, they can be
required in the CD to use their best efforts to obtain
restrictions (see definition of "best efforts" in the model CI)
language attached as Appendix A) . If the best efforts of the
PRPs are unavailing, EPA may, in its discretion, acquire the
necessary property interest (either by negotiation or, if
necessary, through condemnation). If EPA must acquire the
necessary interest, the settling PRPs should be obligated under
the settlement agreement to reimburse EPA. If EPA must acquire
the interests itself the cost may be significantly higher
(especially if they are acquired through condemnation), and EPA
would seek to recover those costs from the PRPs, Therefore, it
will generally be in the PRP's own interest to acquire the
interest wherever feasible. If the PRP feels that by doing so,
it is bearing a disproportionate share of the cost of
establishing the ICs it can seek cost recovery (or contribution)
from other PRPs.
Where acquisition is negotiated by a PRP, the PRP does
not necessarily have to be the grantee. The PRP could obtain an
agreement to convey an easement to EPA or a third party. Factors
to consider in deciding who the grantee of the interest should be
are discussed in Section VII.A.4.
2. Fund-lead remedies
If the cleanup will be Fund-financed, EPA or the state
will have to take the lead in ensuring conveyance of any property
interests, . The process is similar to that taken to obtain
access, in that a voluntary conveyance is to be preferred and
sought as an initial matter; involuntary condemnation is a last
resort. Whether the acquisition is voluntary or involuntary,, the
cost of acquiring the controls is recoverable under s. 107 of
CERCLA.
If EPA attempts to acquire the property interest by
agreement, EPA will necessarily have to consider the possibility
that a non-PRP property owner might be entitled to compensation.
If a property owner refuses to agree to the conveyance, and EPA
institutes condemnation proceedings, compensation would also be
addressed in those proceedings . •'
58
-------
At a fund-lead site, the lead agency will most likely
be the grantee, although that would not ne? e e,- trily be the case
(for example, EPA could arrange for convey,- ' . of an interest :o
a third party, such as a conservancy group). Factors to consider
in deciding who the grantee should be are discussed below;
however, it is important to note that if EPA wishes to be trie
grantee of the interest:, the applicability of section 104 (j)
(regarding the state's assurance to take title to real estate
interests) must be evaluated (see Section VII. A. 4 below).
3. Prospective purchaser settlements
Sometimes ICs may be established as part of a
prospective purchaser agreement; that is, the purchaser would
agree to convey an interest restricting use as one of the
conditions for obtaining a release from liability. To further
strengthen the effectiveness of the control, the agreement may .
make the release contingent on compliance with the control. .In
that case, if the purchaser later changed the land use to one
that was not protective it might become liable for further
remediation. • ¦
4. Choosing the grantee
As has been emphasized, for an institutional control
to run with the land there must be a conveyance to a party other
than the landowner -- the grantee. Examples of possible grantees
include EPA, states, non-landowner PRPs, local government
organizations, civic or other associations (if legally cognizable
under state law), conservation organizations, and land trusts.
The selection of the grantee can have significant implications.
A preliminary evaluation' of the likely grantees of the interest
should be performed during remedy selection and can be completed
at the commencement of RD/RA.
In evaluating appropriate grantees, consideration
should be given to (i) whether the potential grantee'is likely to
be in existence for the duration of the remedy, (ii) whether the
grantee would be able to compensate the landowner (if
applicable), and (iii) whether the grantee (if other than EPA) is
willing and able to enforce the proprietary control independently
of EPA's enforcement rights.
5 9
-------
a. EPA as Grantee
Spa may be the grantee . This is likely to occur in a
fund-lead remedy because in such cases EPA will have primary
responsibility for removal or remedial activities at the sice.
EPA also may be the grantee where the land subject to
restrictions belongs to the settling PRP because, as discussed in
Section A.1 above,,the owner of the property cannot make an
enforceable conveyance to him or herself. To create a
restriction that will run with the land, the landowner must
convey the enforceable property interest to a third party. Other
factors affecting whether EPA is an appropriate grantee include:
(1) whether EPA has a significant interest in controlling the
enforcement of the deed restriction; (2) the likelihood that
another grantee will have sufficient resources or incentives to
carry out future actions to enforce the deed restriction; and (3)
whether the state will'accept transfer of the title from EPA
following the completion" of the remedial action. Other site-
specific factors also might tip the balance as well.
Naming EPA as grantee has enforcement advantages,
since EPA can enforce the control directly, rather than having to
rely on others to do so.47 However, under section . 104 (j) of
CERCLA EPA may not acquire a property interest for purposes of a
remedial action unless the state agrees to accept transfer of the
title from EPA following completion of the remedial action.
EPA's practice is to apply this requirement to proprietary
controls such as easements and covenants. Such transfer helps
ensure that EPA does not have an open-ended obligation to perform
oversight and enforcement of the IC (and at fund- lead sites is
consistent with the state's responsibility for institutional
controls' as part of operation and maintenance) . However, it also
gives the state an effective veto over the decision to acquire
the IC. If the state does not wish to be the ultimate holder of
the interest, either some other grantee must be found or a
proprietary IC cannot be used. Section IX contains a more
47 EPA may be able to enforce the restriction without being
the holder of the interest, especially if it is specifically
granted this right in the instrument.. However, the law on third-
party enforceability of deed restrictions is unclear and probably
varies from state to state. See Section V.A.2.
60
-------
detailed discussion of s. 104 (j) and the state's assurance
regarding institutional controls at fund-lead sites.
If EPA will be the grantee, the laws and regulations
governing federal property acquisitions will apply. As oarr of
the acquisition process, EPA will need to conduct an ev, ion
of trie property including obtaining an appraisal and a I " .1
search. EPA will also obtain a title opinion from DOJ or the
Army Corps of Engineers. Headquarters' Offices of Administration
and Resource Management and the Office of General Counsel may
also conduct reviews as appropriate.43
b. State as grantee
The state can also be the grantee in - the first
instance. This obviates the need to provide for transfer to the
state at a later date. In fund-lead remedies, where the state is
obligated to ensure that institutional controls are maintained
and enforced as part of its general duty to perform operations
and maintenance--, ownership of the deed restriction would be
consistent with that obligation. An agreement by the state to
acquire the interest can be memorialized in an MOU, a Superfund
State Contract, or a cooperative agreement.
c. PRP as grantee
A settling PRP may acquire deed restrictions from
other landowners, as part of its obligation to ensure that the
remedy is properly implemented. By taking title to an easement
or similar property- interest, the PRP ensures that it will be in
a position to.enforce the institutional controls. Furthermore,
it will often have an incentive to enforce the controls because a
failure of the controls could make further remedial action
necessary.
The chief disadvantage of this approach is that the
lead agency may be unable to enforce the control directly, unless
¦ 48 The acquisition process should not be viewed simply as a
procedural necessity; it may bring issues'to light that could
affect the reliability of the controls (e.g., a title search
could turn up otherwise unknown owners or lienholders).
-------
state law allows for third party enforcement.49 In that case,
EPA's only course of action may be to attempt: to compel tne PRP
to carry out its obligation" under -the CD. If the PRP is
unresponsive, or bankrupt, approach may be ineffective and
at: a minimum the enforcement of Che control may be substantially
delayed.50
d. Other Grantees
. It is possible to identify other organizations, such
as local community or conservancy groups, as grantees. In
deciding whether to use this approach, one should consider such
factors as whether the group has the resources or the incentive
to effectively enforce the control, whether the group is likely
to remain viable for the necessary life of the control, and
whether other stakeholders will be comfortable with turning over
this important role to an entity that is not accountable either
through a consent decree or through governmental processes.
Clearly, this option raises a number of concerns; however,
private groups have been used in- this way in connection with
traditional conservation easements.
5. Drafting Effective Deed Restrictions
In order to be legally sufficient, a deed restriction
must be.in a form that satisfies the real property laws of the
state In which it will be filed. The workgroup has developed a
generic deed restriction that it believes can be used as an
initial draft in most states (see Appendix B). However, the
appropriate form of deed restriction in a given state should be
verified.
Deed restrictions must contain language of conveyance
to effectuate a transfer of an interest in real estate. As a
49 This document does not address whether EPA acquires a
real estate interest (thus triggering s. 104 (j)) when it is named
as a third party beneficiary in a deed restriction.
50 One option for the agency in this case might .be to issue
an order to the party violating the control, pending enforcement
of the control itself.
-------
general rule, such language is drafted in terms of a. grantor
(seller) conveying a property interest to a grantee (purchaser).
Since deed restrictions are often used to ensure that
restrictions run witn the land, it is important that this be
clearly stated in the document. The following drafting
considerations apply to deed restrictions:
express intent clearly (to run with land or
otherwise)
~ require waiver of claims against EPA, including
takings
.~ require indemnification of EPA for costs to enforce
IC
* specify that injunctive relief is- available
* provide for stipulated penalties
* provide mechanism for review and/or expiration
~ require long-term monitoring to ensure compliance
*¦ require notif ication _ of 'EPA or state upon sale or
lease
The document should also identify the area to be restricted as
clearly as possible, where less than an entire parcel is
af f ected. Failure to be clear about the affected area may
complicate efforts to enforce the restriction.51
51 On the dangers of establishing geographically undefined
easements, see U.S. v. Johansen. 93 F,3d 459 (8th Cir. 1996),
reversing and remanding criminal conviction of private landowners
who violated a U.S. Fish and Wildlife Service Wildlife¦Refuge Act
wetlands easement whose geographic boundary fluctuated as
wetlands emerged and dried up. Because U.S. F&WS neither defined
the easements, nor subsequently attempted to assist the property
owner in understanding the boundaries of the easement., the Court
found that U.S. F&WS had not proven that defendants liad violated
the easement conditions.
-------
6. Establishing governmental controls
As discussed in Section VLB, a governmental control is
a land use restriction that is imposed under some agency's
regulatory authority. Since SPA has litnle authority to impose
restrictions of chat nature, this generally means looking to a
state, or more likely a local government, to establish the
controls. This requires working with the local government to
obtain the adoption of appropriate controls through that
government's normal administrative processes. What kinds of
controls are available, what the procedures are for adopting
them, and whether the local government will be amenable to
adopting them, will depend entirely on the local government
involved. In addition, as discussed in Section'V.B, questions
will remain regarding the long term reliability of such controls
and whether they will be effectively enforced.
It is important to recognize that any controls
established in this way would operate outside the usual CERCLA
enforcement regime. That is, they would be enforced through
local processes, not through the statutory enforcement provisions
in CERCLA. Nevertheless, the controls thus established could be
considered in concluding that the CERCLA remedy plan would be
protective.
If a governmental control approach appears promising,
a PRP could be required to take steps to see that such controls '
are adopted by the' local jurisdiction. EPA may, of course,
assist in encouraging adoption of such controls, or in a fund-
lead site would have to take the lead role in. seeking to have
them adopted." However, EPA would have no. way to compel the local
government to adopt them (unless the local government were a PRP,
and thus subject to CERCLA enforcement).
B, Establishing institutional controls under RCRA
Many of the considerations discussed above apply to
the establishment. of institutional controls under RCRA as well.
However, RCRA requirements are imposed through legal mechanisms
that are different from those used under CERCLA. Other program -
differences will affect the establishment of controls, as well;
for example, there are no "fund-lead" remedies under RCRA.
64
-------
EPA's experience witn i ;u tic rial c-..' rols under
RCRA. is less extensive than under jA, and the discussion
below is limited accordingly. What can be offered at this time
are some general guidelines on possible approaches. Better
knowledge as to which 01. enese approaches worn besc, and what
issues may arise than are noi identified here, will have to be
gained over time.
1. Mechanisms for establishing controls
a. Permits and orders
In RCRA. cleanups, enforceable requirements will ,
generally be established through a permit (e.g., the corrective
action portion of an operating permit, or a post-closure permit),
or an order under s. 3008(h) or s. 7003. As discussed in Section
V.C, permits and orders can serve by themselves as institutional
controls, by imposing enforceable restrictions on the use of
property by the facility owner/operator.
b. Proprietary controls
In some cases, it may also be desirable to establish
restrictions that run with the land and bind future landowners as
well as the current owner/operator. This would be most' likely
where there is a desire to create restrictions that, will outlive
the permit or order. To accomplish this, it will .generally be
necessary to establish a proprietary or governmental control.
To establish a proprietary control, there must generally be a
transaction conveying a property interest (e.g., an easement)
from the landowner to another party who is then the holder (and
enforcer) of that interest. A permit or order may direct the
owner/operator to convey such an interest to someone who will
then be the enforcer. Model permit and order language does not
yet exist under RCRA for this purpose; however, the model
language for a CERCLA consent decree (attached as Appendix A) may
be adapted for RCRA purposes.
In general, such an approach will work best, where it
is agreed to by the owner/operator (e.g., in the absence of
consent, takings concerns could conceivably arise).. Where the
alternative would be to require a more extensive cleanup, the
option of conducting a limited-use cleanup and creating
6 5
-------
enforceable restrictions should be relatively attractive to tne
owner/'operator.
Identifying a party to be the holder of the easement
or other irrerest is an important first step. In contrast co
CERCLA, RCRA does not expressly grant EPA authority to acquire
property interests in order to conduct cleanups. Therefore, EPA
probably cannot be' the grantee in a RCRA cleanup (unless the
cleanup can be characterized as a response action under CERCLA).
Where the cleanup is being done under an authorized state
hazardous waste program, the state may be able to use authority
that EPA does not have, if it wants to be the grantee.
If neither EPA nor the state can be the grantee, some
other party must be found to be the holder of the proprietary
control. If the property in question is being sold, the seller
can accomplish the same result by retaining a limited interest
while conveying the title to the buyer. If this is being relied
on as part of a remedial plan, however, thought must be given to.
whether the seller will be able and willing to enforce 'the
control afcer the sale occurs. If the cleanup is being done
under an order, the order can require the selling owner/operator
to effectively enforce the control; if it is being done under a
permit, steps should be taken to ensure that long-run enforcement
Is not lost, through expiration of the permit.52
If the property being restricted is not being sold, it
will be necessary to find some other party that will be
responsible for holding and enforcing the control. If no such
party exists, an alternative may be to rely on the permit or
•order to restrict land use as long as it remains in its current
ownership, and require the owner/operator to create a deed
restriction if and when the property is ultimately sold.
As discussed in Section V.A, some states have
statutory' tools, similar to proprietary controls but more closely
S2A further concern arising where the .seller retains an
interest is that the Interest must not be drafted in such a way
that it violates the "rule against perpetuities". Therefore, it
may be necessary to place a limit of some kind on the life of the
control -- potentially limiting its long term reliability.
66
-------
linked to cleanup programs, tnat can be; used to create reliable
long term restrictions on land use in a cleanup context. Where
trie corrective action is being conducted under a state program,
and such cools are available, such tools may avoid trie
cocplicacLcns describee, above.
c. Governmental controls
As discussed in Section V.B, a governmental control is
a land use restriction that is imposed under some agency''S
regulatory authority. Since EPA has little authority to impose
restrictions of that nature, this generally means looking to a
state, or more likely a local government, to estaolish the
controls. This requires working with the local government to
obtain the adoption of appropriate controls through thud:
government's normal administrative processes. What kinds of
controls are available, what the procedures are for adopting
them, and whether the local government will be amenable to
adopting, them, will depend entirely on the local government'
involved. In addition, as discussed in 'Section V.B, questions
will remain regarding the long term reliability of such controls
and whether they will be effectively enforced.
It is important to recognize that any controls
established in this way would operate outside the usual RCRA
regulatory system. Accordingly, they would be enforced through
local processes. Nevertheless, the controls thus established
could be considered in concluding that the remedial plan would be
protective.
If a governmental control approach appears promising,
the permit or order would likely require the owner/operator to
take steps to see that such controls are adopted by the local
jurisdiction. EPA may, of course, assist in encouraging adoption
of such controls, but would haver no way to compel the local
government to adopt them (unless the local government were the
regulated party, and thus bound by the permit or order) .
d. Further direction anticipated
Because experience with institutional controls under
RCRA is limited, a better understanding of. them will no doubt
develop as the program matures. In its May 1, 1996 Notice
67
-------
soliciting comment on various aspects of the corrective action
program, SPA invited input regarding the mechanisms that may be
used to eniu- f i it remedies remain protective over to c
term, espec oj _ vhere land use or ownership patterns ~ i--h c
iSee 61 7R at 19460 and 11463 (May 1, 1396) ) . Furthei . . - =
can be anticipated as these issues are explored over i t<_
6 8
-------
VIII. Enforcing institutional controls
Enforcement action may be needed to ensure chat
controls are implemented properly. In some cases, a party may
fail to perform its agreement; to establish a coreroi. In others
controls may be established but not adhered to,
A. Enforcing agreements and orders- to establish
controls
Where a party is required to establish a control
(either by agreement, as in a consent decree, or unilaterally as
through an order) but fails to do so,'enforcement steps must be
taken.
1. Action on CERCLA Consent Decree or Consent Order
In' a CERCLA remedy where a CD has been entered, and
the settling parties fail to carry out their obligations, the
Agency may simply petition the court to enforce the consent
decree. The remedies available may include specific performance
of the control and/or damages which may include stipulated
penalties or statutory penalties.
Where a requirement to establish institutional
controls has been imposed in a CERCLA administrative consent
order ("AOC") , EPA can seek judicial enforcement of the order
under section 106 of CERCLA, and seek injunctive relief and/or
statutory penalties.
It- should be noted that in any case where a remedy
being performed by PRPs 'includes establishment of institutional
controls, final approval of the remedy should not be given until
it is clear that the required controls have been implemented.
An action on the CD ox- AOC. will be effective only
against the settling landowner, and not against successors in
title.. . For example, a requirement in a CD or AOC requiring that
the settling landowner PRP record a covenant or restriction ' ¦
preventing a particular land use could not be enforced, by the
grantee against any successor in title because the successor was
not a signatory to the CD/AOC.
6 9
-------
If institutional controls are needed on property that
is .not owned by, a settling PRP, the consent decree will generally
require chat the settling PRPs use "best efforts" to obtain from
the landowner an agreement to restrict res use of the property
and/or an agreement to file ;as . restricting use of the
property. The term "best e :s" is defined' in the model
consent decree to include the payment of reasonable sums of money
in consideration for the restrictions. If the settling PRPs are
unable to obtain the restrictions 'and the settling PRPs will be
required to reimburse EPA for all costs incurred in obtaining the
restrictions, including any compensation that EPA may have to pay
for the restriction.
2. Action on Unilateral Administrative Order
Where EPA has issued a unilateral administrative order
(nUAO") which includes a requirement to'establish institutional
controls, EPA can seek judicial enforcement of the UAO under
section.106 of CERCLA, and seek injunctive relief and/or
statutory penalties. As discussed in Section A,1 above, however,
an action to enforce the requirements of the UAO will be
effective only against the respondent(s) to the UAO, and not as
against any successor in title.
3 . Commence New Enforcement Action
In some cases, it may be necessary to commence an
enforcement action against the settling PRPs by filing a new
action- under CERCLA s. 106 or issuing a unilateral administrative
order. For example, -if the initial IC program relied exclusively
on governmental controls such as zoning to control'land use, a
subsequent revision of the local zoning ordinances may compromise
the protection afforded by the initial zoning. A UAO could be
used to require that a PRP acquire or record an agreement
limiting future land use consistent with the initial zoning
restrictions. However, it must be determined whether the new
enforcement action Is barred by the covenant not to sue given to
the settling PRP in the prior settlement.53
53 As discussed below, it may be necessary to change the
remedy because unanticipated barriers prevent the implementation
of controls originally required. In such cases, a PRP that has
70
-------
Enforcement action may also be brought against a non-
settling PR? that owns property within the site or is¦otherwise
liable and has not settled with EPA under section 107. While a
non-settling ?R.P is not bound by a Consent Decree or
Administrative Order, and thus not coneracruaii.y obligated to
implement an IC, it would clearly be subject to enforcement
actions. As discussed above, EPA likely would be barred from
taking further enforcement action against a settling PRP if the
covenant not to sue was in effect.
4. Reopening or modifying the ROD
Where failure to establish controls calls the long-
term protectiveness of a remedy into question', another option is
to reconsider elements of' the remedy. For example, if the remedy
included property restrictions preventing residential
development, a property owner's subsequent refusal to impose
enforceable restrictions would compromise the plan to limit
future land use to industrial purposes. In that case, it might •
be necessary to reconsider the cleanup levels in the ROD to make
them consistent with a residential land use scenario.
Procedurally, this might require a ROD amendment, or an
explanation of significant differences ("ESD"), depending on the
significance of the change in the remedy.
Reconsidering the remedy would in most cases be an
alternative of last resort. However, it can be useful to keep
the responsible parties aware that this may be the only option if
institutional controls are not properly implemented. It should be
made clear to those implementing the remedy that failure to
establish or -enforce ICs may trigger reconsideration and
received a covenant not to sue may try to argue that it cannot be
•compelled to do anything more than was required under the
original consent decree. That is, if might argue that EPA could
at most bring an action to require enforcement of the original
controls, and could not force it to implement a substitute
remedy. On the other hand, the discovery that the controls
originally selected are not reliable may constitute new
information that justifies imposing additional cleanup
requirements. The relative weight of these arguments will depend,
on the circumstances.
71
-------
imposition' of additional requirements so that the remedy remains
protective. Since trie responsible parties will face added costs
it failure of controls leads to a more stringent remedy,'this
will create a strong incentive to see that controls are put in
place and fully comolied with.-"1
As noted above, however, if settling PRPs have
implemented .a remedial action pursuant to -a consent decree,, it
must be determined whether the covenant not to sue would bar
efforts to require the settling PRPs to implement the ROD
amendment.
54 In some cases, a contingent ROD might be?, appropriate
(making clear that a higher degree of cleanup would be required
if ICs are not established).
7 2
-------
B. Enforcing established controls
A second enforcement proolem arises where controls are
established, but not: complied with. The mechanism for enforcing
established controls will depend on the type of control used and
one way in which it is structured. For example, if EPA is made
the grantee of a deed restriction, it may simply enforce the deed
restriction as a matter of real property law. If a PRP is the
grantee, EPA (or the state, where oversight of controls is the
state's responsibility) may have to bring an action on the
consent decree to enforce 'the 'PRP's obligation to enforce the
control.55 As noted earlier, deed restrictions can be drafted to
state that EPA or the state is entitled to enforce thera direccly,
even where they are not grantees, but traditional doctrines did
not allow third-party enforcement of such interests, and whether
'such terms will be enforced will depend on the law of the state.
The threat of penalties for noncompliance with the CD may be a
stronger tool to obtain effective enforcement of a control held
by a PRP (although it will have little effect if the PRP is no
longer in business). Where governmental controls are used, the
government that imposed them will generally have to be the
enforcer, with little direct EPA influence on enforcement
decisions.
¦ Attempting to compel other parties (e.g., PRPs or
.local governments) to vigorously enforce controls may be
difficult. If nothing else, the controls may go unenforced while
the obligation to enforce them is litigated. Therefore, an
alternative approach, at least as an interim measure, may be to
use statutory enforcement measures to prohibit inappropriate uses
of land or 'other resources. As discussed in Section V.C,
enforcement authorities can be effective institutional controls
in themselves, at least for the short run.
In addition, just as . in the case of failure to
establish controls, if controls are established but cannot be
55 It should be noted that the model consent decree language
(Appendix A) is designed for the case where EPA will be the
grantee. Therefore, it does not require enforcement by the
settling PRP. In cases where the PRP is expected to be the
grantee such a requirement should generally be added.
7 3
-------
enforces effectively it may be necessary to reconsider the
rernecv, This Doserbility may provide an incentive for parties to
nty to enforce the controls. As noted above,
it must be determined whether the covenant not: to sue would bar
such claims against the prior settlors.
Because of the potential importance of institutional
controls in accomplishing the overall objectives of a remedy/ it
would be appropriate for EPA or the state to periodically review
the effectiveness of the control. At CERCLA remedial sites, for
example, the five-year review process would be an appropriate
mechanism through which to review whether the control is
performing effectively and as expected.. However, five-year
review alone may not be sufficient in all cases. Therefore, an
'important aspect of designing a system of institutional controls
is to evaluate how frequently compliance should be monitored, and
establish mechanisms to carry out that oversight. Under RCRA,
periodic review may -be imposed as a specific requirement of a
permit or order.
74
-------
IX, State roles and state assurances
States will very often have to be : l j .1 r
-------
B. Section 104(j) assurance
Section 104 (j) (2": of [ 1 .n i 'T from
acquiring interests in real property necessary for conducting a
remedial action, unless the state agrees to take title to the
property following completion of the remedy.56 EPA's practice is
to require such an assurance in connection with proprietary
controls granted to EPA. Ideally, the state's general indication
that it will provide the necessary assurances should he obtained
at the time it concurs on the ROD, since the assurances are' a
precondition 'to full implementation of the remedy.
The state assurance requirement is not a concern, of
course, where the state is willing to take title to the interest
involved. However, states appear to be cautious about taking
title in a significant number of cases.' The reasons for such
caution should be explored with the state. For example, it may
be pointed out that to the extent liability is a concern, section
104 (j) (3) provides that no agency 'shall be -liable under section •
107 solely as a result of acquiring an interest under this
section. Furthermore, the owner of a nonpossessory easement is
not necessarily an "owner and operator" for purposes of CERCLA.
If the state remains unwilling to accept title, a
number of other options can be considered. One is to use non-
proprietary controls. Governmental controls, and orders under s.
106, do not trigger s. 104(j) (2) . -Another is to have the
interest conveyed to some party other than the United States.
For example, if a settling liable party acquires proprietary
interests from third parties, and holds them in its own name, the
104 (j) assurance is not triggered.
Where the interest will not have to be held after the
remedial action is completed, it is EPA's view that the s. 104 (j.)
assurance is not required. This may be the case, for example,
with controls that prevent contact with hazardous substances
pending removal of the contaminated soil. '
56 Note that this assurance is not on its face limited to
fund-lead remedies (in contrast to the O&M assurance discussed
earlier). It has been EPA's practice to request an assurance in
connection with enforcement -lead remedies as well.
76
-------
In exploring the possibilities of a state assurance,
it is important that she implications of refusal to accept title
so .the property be fully understood by the state. Under s.
104(j), EPA does not tare the option cue properry
and waiving the stace's assurance, T ling co provide
In such cases, EPA could jeopardize trie statutory requirement to
establish protective remedies if it simply proceeded with the
rest of the remedy, ignoring the need to acquire property. If no
satisfactory alternative can be found, the necessary consequence,
in order to- ensure that a protective remedy is carried out, may
be to adopt a different remedy. Again, to minimize disruption
the best practice is to raise "he issue of the assurance early,
such as during the development of the proposed plan, or before
the state concurs on the ROD.
It is important to note that acquisitions of
proprietary controls also must follow the usual process through
which the federal government acquires property. The earlier
recommendation that consent decrees be drafted to provide for a .
separate, subsequent conveyance reflects a desire to avoid dela^ys
in the consent decree negotiation resulting from the federal
acquisition process. An overview of that process is attached as
Appendix C. ;
77
-------
X. Institutional Controls and RCRA
Cleanups are conducted under RCRA as w as under
CERCLA. It is EPA's policy that RCRA and CSRCLA nups should
generally be equivalent in substance, even though they take place
in different regulatory settings,57
Accordingly, institutional controls can play a role in
•RCRA cleanups similar to their role under CERCLA. Much of the
earlier discussion of the types of institutional controls is
applicable in RCRA, as well 'as CERCLA. There are, however,
certain differences.
Some of these differences are more a matter of form
than of substance. .For example, most RCRA cleanups do not
'involve consent decrees, but most of the discussion of using
consent decrees to implement institutional controls can apply to
permits or RCRA consent orders as well. Similarly, the
discussion of imposing restrictions through orders under CERCLA ¦
. s. 106 can generally be extended to orders under RCRA ss. 3008(h)
or 7003.
A more substantive difference is that under RCRA, the
permitting authority can itself be used as an institutional
control. That is, prohibitions on certain land uses or
activities can be made a condition of the permit. The more
difficult problem is how to restrict property use after a permit
expires, especially when property changes hands. At this point,
some kind of. control of the kind discussed earlier- may have to be
used.58
57 See September 24, 1996 Memorandum from Assistant
Administrators Steven A. Herman and Elliott P. Laws to
RCRA/CERCLA National Policy Managers, "Coordination between RCRA
Corrective Action and Closure and CERCLA Site Activities".
,58 EPA recently solicited comment on means for long-term
restriction of land use at RCRA. facilities (or former" RCRA
•facilities). See Advance Notice of Proposed Rulemaking, 61 Fed.
Reg. 194 3 2, 19463 (May 1, 1996) .
78
-------
Because RCRA does not c
to s. 104 (j) of CERCLA, the Agency
proprietary controls is not
nothing would prevent: conve'
third party. Moreover, man-
states, which may have auxin
law. In addition, governmental co
state or local government.
ontain any provision comparable
' s authority t<
under RCR. ' I • v / rf
a prop net. co a
eanups are < i -n ' ^ y
acquire property under state
rols may be established by a
59 However, to the extent such authority does exist there is
no requirement to obtain the state's assurance that it will
ultimately accept title.
7 9
-------
XI. Institutional Controls and Federal Facilities
The general rules and policies governing CERCLA and
RCRA cleanups apply with equal force at Federal Facilities.
Section 120(a)(2) of CERCLA, 42 U . S . C . § 9620>a)(2)? provides
thac all guidelines, rules, regulations, and criteria applicable
to remedial actions under CERCLA are applicable to facilities
that are owned or operated by Federal departments, agencies, or
instrumentalities. Similarly, Federal Facilities are subject to
the corrective action requirements under §§ 3004(u) and (v) of
RCRA, or may be subject to cleanup orders under §§ 3008(h) or
7003 of RCRA. Under CERCLA, the NCP designates the Federal
department, agency or instrumentality that has jurisdiction,
custody or control of a facility where the release is on, or the
sole source of the release is from the facility (hereinafter
referred to as "Federal Facilities") as the lead agent for
purposes of investigating releases or potential releases of
hazardous substances and conducting removal or remedial actions.
At NPL sites, CERCLA rem.edi.al actions are conducted in
accordance with a Record of Decision (ROD), concurred in by EPA.
At non-NPL sites, the Federal owner will select 'the CERCLA
remedial action through a ROD. or other similar type of decision
document. 60 In either case, NCP requirements apply, including
rules and policies regarding institutional controls. Federal
agencies, accordingly, may consider institutional controls as a
component of a cleanup action at Federal Facilities, in the same
way that they would be considered in other CERCLA or RCRA
cleanups.
Much of the earlier discussion of the'types of
institutional" controls that exist and their enforcement may be
60The U.S. Army Environmental Center's Installation
Restoration Program Management Plan, for example, provides that
CERCLA remedial action decisions at non-NPL sites may be embodied
in '"decision documents" which can be less elaborate than RODs.
EPA involvement at non-NPL sites and its' opportunity to comment
on the contents of decision documents generally stems from EPA's
CERCLA section 120(h) role at Base Realignment and Closure
facilities or facilities where property is slated to be
transferred by Federal agencies. For purposes of this
discussion "ROD" means the appropriate decision document.
80
-------
applicable to Federal Facilities. However, certan.- proprietary
or governmental controls discussed above cannot be applied on
Federal property thai is not included in local land registries61
or subject co local coning or" land use ordinances^ . There are,
however, additional controls chac may be applied on Federal
Facilities. That said, not all Federal Facilities are similarly
situated, thus, a case by case review of the circumstances
applicable to the Federal Facility will determine what
proprietary, governmental, or enforcement tools are appropriate.
The kinds of institutional controls potentially available will
also depend on whether the Federal property will remain in.
Federal operation and control, will be transferred to private
parties (e.g., at a closing military base) or will remain
Federally owned but privately operated (e.g., by contractors at
Department of Defense facilities or miners on Bureau of Land
Management property) .53
This section focuses on Federal Facilities that will
remain in Federal operation and control and Federal Facilities
that will be transferred to private entities through the Base
Realignment and Closure Act (BRAC) or other transfer processes.
Although not an- exhaustive discussion of the institutional,•
legal, or statutory differences with Federal Facilities as they
relate to implementing institutional controls, this section will
attempt to identify major legal or regulatory differences at
Federal Facilities to guide Regional Attorneys and Remedial
Project Managers working with other Federal agencies in
developing protective and effective remedial actions. This
"Some Federal Facility lands were acquired before states
and counties established recording systems. Reportedly, no deed
yet exists for the property.
62Some Federal Facility lands are zoned "Military
Reservation", which does not readily lend'itself to classifying
permitted uses or restricting certain categories of activities of
subsequent private transferees of the land.
63It is hoped that this handbook in its,entirety will help
to identify issues to consider at Federal Facilities of any
variety.
81
-------
section .-/ill also make specific recommendations related to
Federal Facilities.
A. General .issues for Non-Closing Federal Facilities
1. Discussion of Institutional Controls in Federal
Facility RODs
Federal Facility RODs should clearly describe the
goals and Performance Standards of the institutional controls.
Federal Facility RODs should contain plans for monitoring the
performance of the ICs as well. Unlike RODs related to
privately-owned sites, however, Federal Facility RODs also should
specify the particular type of IC that will be used to implement
the control. It is appropriate to be specific in the ROD about
ICs that will be used at Federal Facilities for the following
reasons:
a. At privately-owned sites, the landowner of the
property to be affected, usually must be involved in effectuating
the IC. Thus, because there is no opportunity to get a
commitment from the landowner prior to issuance of the ROD, there
needs to be flexibility in the ROD for deciding what type of
control can be implemented through, negotiations. This is not the
case at Federal Facilities, where the Federal agency is the owner
or manager of the property. As the landowner and as either the
lead or co-lead for issuing the ROD, the Federal agency is in a
better position to select the Performance Standards and the type
of control that will be used to implement, them.54
b At Federal Facilities the ROD is the primary
enforceable document for implementing the remedial, action to be
taken, which is a significant difference between Federal
64 Federal Facility RODs can be drafted to be flexible.
Federal agencies may want to write contingent IC provisions in
their RODs to address possible future transfer of the facility to
nongovernmental entities. Nonetheless, if contingencies are
included, it should be clear in the ROD what events or
circumstances would trigger a change in the institutional
control.
82
-------
Facilities and privately-owned Superfund sites. At private
sites, EPA will seek to negotiate a RD/RA, Consent Decree which
will contain the obligations and duties of the parries agreeing
to perform the remedial act: ion in che ROD. including irnpiemericing
the ICs ae the site. During negotiations agreements are reaches
with PEPs about the type of control to be used.
At Federal Facilities the lead Federal agency will be
responsible for performing the work and there will not be RD/RA
Consent Decree negotiations. At NPL 'Federal Facilities, CERCLA
section 120 Federal Facility Agreements'' (FFA) are negotiated that
acknowledge that the ROD will be enforceable and incorporated
into the FFA upon issuance. Therefore, there is no implementing
step after the ROD in which details such as the type of control
to be used may be specified. Because the ROD, in essence, is the
enforceable document for ensuring that the remedial action is
implemented, it should specify the type of IC that will be used
to implement the Performance Standards. At non-NPL Federal
Facilities, since neither FFAs nor RD/RA Consent Decrees are
negotiated, the decision document may be the only document
generated which details the remedial action selected for
implementation.
2. Deed Restrictions
Deed restrictions may not be a practical means for
implementing land use restrictions on operating Federal
Facilities because Federal property is not typically a part of
local land registries. Even if the Federal property were
included in the county registry, a deed notice or restriction may
not be an effective means to notify Federal personnel of land use
restrictions because title searches are not conducted before
making land use decisions or issuing permits, licenses, or leases
allowing parties to conduct activities on Federal land. Thus,
for Federal land that will stay in Federal ownership and control,
alternative ways to institutionalize-the restricted uses are
required. Such alternatives primarily.consist of ways the
Federal agencies can do business differently both in managing the
Federal property and developing it, as well as in permitting
private parties to conduct activities on Federal property. RPMs
and Regional Attorneys should coordinate closely with, their
Federal agency counterparts' to explore effective, long-terra means
for implementing land use restrictions on the Federal property.
83
-------
A short list of possible, alternative mechanisms are
discussed below. This list is not exhaustive and there may be
other methods to record, document, or otherwise institutionalize
the ROD'S restrictions and other requirements through management
changes and standard mg procedures. The following list
provides a few examp the types of mechanisms that may be
used. These mechanisms may be implemented differently by each
facility (e.g., base, Forest Service District or Region or BLM
Management District). Therefore, the effectiveness and long-term
reliability of these mechanisms must be researched on a site-
specific basis.
a. FFA The FFA itself is an enforceable document, :
binding on the Federal agency, so that any use restrictions
specified in RODs, which become incorporated into the FFA, also
will be enforceable. Thus, while not a deed restriction, the FFA
can serve to establish legally binding controls on land use at
the facility. The chief limitation of the FFA as an
institutional control is that its effectiveness cotti.es into
question when the agency that signed it proposes to transfer the
facility. At that point, EPA must evaluate property transfer
issues (see subsection B, below) . In addition, the FFA by itself
does riot necessarily give effective notice of the restrictions' to
those who make subsequent land use decisions at the facility.
The following mechanisms can be used in addition to the FFA to
provide such notice.
b. Base Master Plans Military bases typically
develop Base Master Plans to designate land uses or purposes for
different areas of the base. Such Plans could serve as the'
equivalent or.a governmental control that could restrict
particular uses as determined by the ROD on military
installations. Base Master Plans may be a mechanism for
documenting land use restrictions and notifying military
personnel of the ROD and who to contact if there is an
inconsistent use proposed.
Base Master Plans, however, have many limitations and
do not provide the level of assurance that governmental controls
(e.g., local zoning ordinances) provide. Base Master Plans,
including any restrictions and controls 'contained therein, may be
84
-------
enforced only by the commanding officer65;' may be changed by
commanding officers at their discretion; usually do not impose
sanctions for violations of the Plans; and visually
are consulted only in relation so construction planning rather
than activities involving vehicular or foot traffic (e.g., tanks
and troops during military exercises),
As a result, EPA and states very carefully should
evaluate against the NCP's "Long-term effectiveness and
permanence" criterion the specific aspects of institutional
controls proposed to be implemented at specific facilities. This
criterion requires, for example, that the proposed reliance on a
Base Master Plan be assessed for wche degree of certainty that
the alternative will prove successful." 40 C.F.R, §
300.430(e)(S)(iii)(C). The issue of.the adequacy and reliability
of institutional controls, in general, and Base Master Plans, in
particular, has led to the development of facility-specific
protocols and procedures involving compliance monitoring and
"Restrictions in Base Master Plans are not independently
enforceable by EPA and the states. ROD requirements at
facilities on the NPL, where a CERCLA section 120 FFA exists,
however, are enforceable by any person pursuant to CERCLA section
310(c). In the alternative, EPA and the state may elect to
reopen the ROD and change the remedy on the grounds that the
institutional controls have failed to be protective.
8 5
-------
periodic reporting to EPA and states in the base master planning
process66 as well as sanctions for violating the Plan.57
— : i 1 ' r ou-- i ' ' 5 Master
Plan may include base-wide maps, or at some military bases a
central file of maps are known to be a central part of the
planning process for future uses or development. Some Federal
Facilities even have developed a computerized data base,, a
Geographic Information System (GIS), to track uses or
restrictions for. property. Similar types of resource maps may be
kept up to date by other Federal land management agencies. If
such a master set of maps are used at the Federal Facility, RODs
could specify that such maps be stamped or otherwise marked to
designate where remedial action has left hazardous substances on
site and specify the restrictions on land uses.
S6For example, EPA, some states and military services have
established either general action plans for facilities or ROD-
specific" assurance plans. Generally, use restrictions and other
institutional controls have been incorporated and retained in the
base master planning process throughout the applicable
remediation' period; adherence to such use restrictions shall be
routinely reviewed; annual reports of such compliance reviews
shall be provided to EPA and the state; any proposals to engage
in restricted use shall be coordinated with EPA and the state;
and any violations of the use restrictions shall be reported
immediately to EPA and the state for collaborative determination
of an appropriate remedy.
"For. example, the commanders at three Florida Navy bases
have been issued "Instructions", orders for all personnel on the
bases, to abide by the base master planning process and the use
restrictions contained in the Base Master Plans. Violations of
any recorded institutional control presumably will be punishable ¦
qffenses under military law.
In the alternative, having the ROD specify (by job title)
the base personnel who shall be responsible for maintaining
institutional controls as a part of their jobs may create the
incentives to assure maintenance of restrictions.
86
-------
As discussed in relation to Base Master Plans,
reliance on these type' " and plans must be evaluated with
regard to the adequacy and reliability of institutional controls.
Separate protocols may need to be established either
ind'_ < tently of or as a part of the - i - rfic ROD remedy to
pro .• an adequate level of reiiabii and enforceability for
the' particular use or risk involved.
d. Forest Plans Forest Plans are the primary planning
and resource management tool used by the U.S. Forest Service on
the National Forest level.68 All outstanding and future permits,
contracts, cooperative agreements, and other instruments for
occupancy and use of affected lands are required to be consistent
with the Forest Plan. 36 CdP.E. §219.10 (e) . The Forest Service
may be subject to challenge through the MEPA process or the APA
if it conducts or permits an activity that is inconsistent with
the Forest Plan. Likewise, permits or licenses given to private
parties to conduct activities on national forest lands would have
to be consistent with the Forest Plan. There are planning
documents on a larger geographic scale used by the Forest
Service, however,' if contamination occurs on a parcel within a
particular National Forest, the more practical and effective
level to effectuate institutional controls probably will be the
forest level.69
e.' Land Status Records System Another place where use
restrictions on Forest Service lands may be recorded is in the
Land Status Records System. This Records System is the permanent
repository for all agency realty records and land title documents
for the National Forest Service System lands. A Land Status
Atlas is maintained at each National Forest administrative unit
68See 36 C.F.R. Parts 200 through 2.97 for U.S. Forest
Service regulations. In particular, 3 6 C.F.R. Part 219, Subpart
A, "National Forest System Land and Resource Management Planning"
regulations.
59 RPMs arid Forest Service personnel should consult with
their Regional Counsel concerning necessary administrative
procedures to appropriately amend the Forest Plans t© make
institutional controls legally enforceable through the Forest
Plan.
8 7
-------
and Regional Office. The ROD could require that the restricted
land uses be designated on. this system.
-C * Rssouitcp McinHCT0IT10ri t PJ .-tps Rftsourc^ l
Plans are the Bureau of Land Management' s planning tool on a
resource area level.10 Resource Management Plans may be
considered as one mechanism for institutionalizing selected
institutional controls for remedies constructed on BLM lands.71
g. . ndC-'j' L=t irr. _d u •"« Notices - Actual
notice of the ROD and restricted, uses could be one; tool for
notifying different departments or offices within the owning
Federal agency and notifying other Federal agencies that may have
a role in future uses at the Federal Facility of the ROD and the
IC requirements contained in it. Notices should be sent to key
offices at the local, regional, and national level of the owning
Federal agency which may have a role in future use decisions.
Likewise, notices should be sent to appropriate offices of the
Government Services Administration, which is the agency that
disposes or leases most Federal property.72 Such notices do not,
of course, create legally enforceable obligations;.they are
purely informational. However, if legal duties are created in
other mechanisms the notice can call attention to that fact.
h. Permits and Licenses The Federal government issues
permits, licenses, and leases under numerous statutory
authorities,' allowing various activities to occur on Federal
land. If property to be remediated is or may be in the future
subject to a permit, license, or lease, ways to incorporate
70 See 43 C.F.R. Part 1601.0-5 (k) for a definition of
Resource Management Plan.
'^Appropriate procedures for amending Resource Management
Plans also must be researched prior to selecting this mechanism
as an institutional control.
72Where and to whom to send such -notices should be explored
by the lead Federal agency. At this time, it is not known
whether GSA has a ¦central database for such, notices or where the
most appropriate office at 'GSA would be.
88
-------
appropriate use restrictions as enforceable terms of such
documents should be considered. For example, there exist"Forest
Service regulations relating to the issuance of permits which
allow private entities co conduce certain activities on Federal
lands- As a part of the permit conditions, the Federal
government may be able to specify use restrictions.
3. Enforcement Authorities
Although some or all of the enforcement tools
discussed previously may apply to a particular Federal Facility,
CERCLA provides additional means for EPA and Federal agencies to
enforce. Federal Facility ROD requirements.
As previously discussed, the ROD is the primary
enforceable document for ensuring the remedy is implemented on
Federal Facilities. The FFAs that are entered into prior to or
during commencement of the Rl/FS contemplate that -the ROD will be
incorporated into the FFA upon issuance and the enforcement
provisions, including stipulated penalties, of the FFA will be
applicable to performance of the ROD. In other words,-ROD
requirements become enforceable requirements of FFAs. Failure to
create controls which are selected as ROD remedy components would
constitute a failure to perform an enforceable condition of the
FFA.73 Moreover, as discussed earlier, as long as the lead
agency continues to hold the property the ROD and FFA can be an
effective control by themselves.
Section' 310 of CERCLA authorizes states and citizens
to sue the Federal government where there is alleged a failure of
the Federal government to comply with the terms of a FFA, or a
failure to comply with the statutory requirements of section 120,
73CERCLA section 120 FFAs contain, as part of the
Enforceability provisions, the following model language: "All
terms and conditions of this Agreement which relate, to interim
and final remedial actions, including corresponding timetables,
deadlines or schedules, and all'work associated with the remedial
actions, shall be enforceable by any person pursuant to CERCLA
section 310(c), and any violation of• such terms or conditions
will be subject: to civil penalties, under CERCLA sections 310(c)
and 10 9.1.,."
83
-------
generally. This section allows statas and citizens-to monitor
compliance with stats and Federal environmsnta" :anup
requirements at Federal facilities arid sue the Federal agencies
to comply with substantive provisions or seen . :0 and to
impose civil penalties for any violation of a FFA. Failure oo
implement institutional concrols or to enforce such controls
contained in the ROD would be a violation of section 120.
For circumstances where third parties may be violating
land use restrictions, Federal agencies have CERCLA section 106
authority at sites where EPA is not the lead agent, i.e., non-NPL
cleanup sites. Orders under section 106 can be used to enjoin
inconsistent uses or violations of institutional control
restrictions. At NPL Federal Facilities, the Federal agency
could request that EPA issue any necessary orders.
4'. States' Roles and Responsibilities
At Federal Facilities there is no requirement that
states take over long-term O&M. Likewise, there is no legal
requirement that the state perform monitoring or other duties
related to the enforcement of ICs on Federal Facilities where no
transfer is proposed. However, states may agree to take such
responsibility and the possibility may be explored with the them.
Where a Federal Facility is subject'to RCRA corrective
action, the state will be the regulatory authority if it is
authorized for corrective action. In that case, the state's
usual RCRA authorities can be used to establish controls, as well
as other mechanisms discussed in this section.
B. Property Transfers and CERCLA Segjpicm 12Olhi
Section 12 0 (h) of CERCLA provides what Federal
agencies must do when contaminated property is transferred to a
non-Federal entity. 42 U.S.C. § 9620(h). Although these property
transfer provisions are applicable to any Federal agency in any
transfer situation to private parties, it has been applied most
frequently in the BRAC context. Many DoD installations targeted
•to close or be realigned under the Base Closure and Realignment
Act of 1988 or the Defense Base Closure and Realignment Act of
90
-------
19 9 0 74 will be transferred to private entities. Under agreements
with .DoD, on both NPL ana nori NPL 3RAC sites, EPA has
responsibilities to participate on the 3RAC Cleanup Team,
' nciing of Suitability to Transfer (FOSTi and ail supporting
documentation, A significant part of this review and comment
process involves the DoD component's CERCLA section 120(h)(3)
determination that Vlali remedial action necessary to protect
human health and the environment with respect to any such
[hazardous] substance remaining on the property has been taken";
this implicitly requires EPA's evaluation of the RODs75.
Before the CERCLA 120(h)(3) determination can be
made, the FOST should contain information about what
institutional controls were required, how they were or will be
implemented, and how and who will maintain them, and enforce them
after transfer.'76 FOSTs reflect 'DoD policy that its
"environmental restoration efforts for property to be transferred
out of Federal control will attempt, to the extent reasonably
practicable, to facilitate the land use and redevelopment needs
stated by the community in plans approved prior to the remedy
selection decision."77 By the same token, consistent with EPA's
"Land use in the CERCLA Remedy Selection Process" Directive, a
site proposed for industrial reuse need not be remediated to
74 Pub. L. No. 100-526, 102 Stat. 2623 and Pub. L. No. 101-
510, 104 Stat. 1808, respectively.
"Section 300.430(f) (4) (iii) provides that, at NPL sites,
EPA shall select the remedial action jointly with the responsible.
Federal agency, unless mutual agreement on the remedy is not-
reached, in which case the selection of the remedy is made by
EPA. No such 'formal role in the remedy selection process is
provided to EPA. at non-NPL sites .
'7 6 See subsection C, below, for discussions regarding
maintaining and enforcing institutional controls at property
proposed for transfer.
77DoD''s July 25, 1397 policy memorandum entitled
"Responsibility for Additional Environmental Cleanup*-after
Transfer of Real Property." (Hereinafter referred, to as "DoD's
Future Land Use Policy".)
31
-------
residential cleanup levels, provided that future residential use
of the property is restricted.
Since ICs are a part of the remedial actions in such
cases, it is necessary chat all controls required by RGBs an
place and effective before the section 120(h) (3) covenants Ci. iU,
be granted. Thus, even at non-NPL BRAC sites, EPA will be
involved in the decision-making regarding the selection of
appropriate institutional controls .
C. Special Issues at Closing Federal Facilities
1. Mechanisms for restricting land use
At closing facilities, matters are more complex
because the anticipated land users will not be parties to, and
legally bound by, the FFA (assuming the facility is on the NPL
and an FFA has been negotiated). Therefore, in such cases the.
FFA by itself does not establish a reliable long term control and
it will be necessary for the agency to create other mechanisms
that will be enforceable against subsequent landowners.
The transfer of Federal property to private owners
opens the .door to a wider range of traditional governmental and
proprietary controls than is available for operating Federal
facilities. With regard to governmental controls, if the
property is not already included in the local land registry, it
will be included as a result of the deed- transfer to the private
transferee. Furthermore, the land likely will become subject to
the- various zoning, permitting, licensing and other authorities ¦
of state, county and local governments.
With regard to proprietary controls, since the Federal
government is the transferor of the property, it may retain the
property interests necessary to establish the institutional
controls selected in a ROD. Its direct involvement in the chain
of title overcomes many of the hurdles posed.in the context of
private sites. Restrictive covenants or equitable servitudes
could be placed in the conveyance documents. Because the United
States would be in privity of estate with the transfeiree/grantee
and its successors, the United States could, enforce violations of
the restrictive covenants.
92
-------
2. Discussion of Institutional Controls in Federal
¦Facility RODs and FGSTs
As at ricn - closing Federal Facilities, RODs should
clearly describe she goals and Performance Standards of the
plans for monitoring the performance of the ICs as well. These
details regarding the ICs then should he included in the FOSTs
and subsequent transfer documents as a part of a focused
discussion on how the ICs were or will be implemented; how and
who will maintain or monitor them; and who will enforce them
after transfer.78 The degree of specificity that is appropriate
for a particular ROD or FOST will depend on several factors:
a. Under BRAG law, the local redevelopment authorities
have principal responsibility for reuse planning. While
redevelopment plans may identify the proposed land use in terms
of local zoning categories (e.g., light industrial or
commercial), identification of specific construction "footprints"
or associated uses (e.g., day care for a office park) may not
occur until after the issuance of a ROD. At. the ROD stage, then,
the transferring Federal agency only may select the Performance
Standards and specify the type of control that will be used to
implement them. The transferring agency, however, may decide to
defer detailing the specific monitoring and post - transfer
enforcement mechanisms until very specific reuse plans can be
developed at the FOST stage.
b. Although private transferees of Federal property
need not necessarily be involved in effectuating the IC79, the
78DoD's Future Land Use Policy states that the "DoD
Component disposal agent will ensure that, [the] transfer
documents reflect the use restrictions and enforcement mechanisms
specified in the remedy decision document."
79Transferees of Federal property -are acquiring land with
pre-existing environmental limitations and must, abide by certain
restrictions in the transfer documents in order to maintain the
benefit of the CERCLA section 12 0(h) (3) covenants' and the
indemnification provisions of section 330 of,Public 'Law 102-484,
as amended. Responsibility for monitoring, maintaining and^
-------
private parties can choose to make certain commitments with
respect to monitoring, maintaining or enforcing ICs. In other
situations, the prospective transferees may seek to negotiate
modifications to the original plans for monitoring or maintaining
ICs . 30
c. At BRAC facilities the ROD is still the primary
enforceable document for implementing the remedial action to be
taken. The lead Federal agency will be responsible for performing
the work arid there will not be RD/RA Consent Decree negotiations.
Although the Federal agency may negotiate with the proposed
transferee post-transfer IC details, EPA and the states are not a
party to those transfer documents and they must still look to the
Federal agency for compliance with ROD- required ICs.
d. Federal agencies transferring facilities in remote
locations may seek to transfer the responsibility for monitoring,
maintaining and enforcing ICs to states, local governments,
transferees, or other third parties in.transfer or other
agreements. EPA needs to evaluate the specifics of the ICs which
are contained in enforceable documents in terms of adequacy and
reliability.
3 . Enforcement Authorities
In addition to the enforcement tools previously
discussed, Federal agencies will have the property law right to
enforcing the use restrictions, unless modified at the time of
the property transfer, remain with, the Federal transferor.
80As noted in the subsection concerning operating
facilities, Federal agencies may want to write contingent IC
provisions in their RODs to address possible future transfer
needs. For example, where residual lead levels in soil pose a'
potential direct contact risk to children, an IC prohibiting any
land use involving children in an area designated "commercial"
may provide a contingency for regulator approval of a plan to
construct a barrier layer (e.g., asphalt) on the affected parcel
in order to allow for a day-care facility as part of an office
park.
94
-------
enforce the controls where third parties may be violating land
use restrictions and as well as possible contract rights in the
event a transferee violates transfer agreement.81
This would be in addition tc 1.06 authority that they
may have. It should be riots ild not have authority
to enforce such controls directly; it would have to rely on the
Federal agency to do so,
4. Roles arid Responsibilities of States, Local
Governments and Third Parties
For closing Federal facilities, there is no
requirement that states take over long-term O&M, perform
monitoring or other duties related to the enforcement of ICs on
Federal Facilities. Furthermore, if proprietary controls are
contemplated for property being transferred, the Federal
government will be reserving rights, not acquiring them,
therefore, eliminating the need for the states to agree to take
such property interests in the future. The transferring Federal,
agency is responsible for those activities. However, states may
agree to take such responsibility and the possibility may be
explored with the them. By the same token, local governments and
third parties my express a desire to assume some responsibility
for monitoring and enforcing institutional controls.
As part of a conveyance, the Federal agency may
transfer an easement to a state In order to give the state the
right to enforce the deed or use restrictions. The ability to
transfer this right, however, may depend both on the property law
of the relevant state as well as the legal authority of the state
to accept voluntarily a property right. Such considerations also
apply in the case of local governments and third parties.
Where a Federal Facility is subject to RCRA corrective
action, tne state will be the regulatory authority if it is
authorized for corrective action. In that case, a state's usual
81DoD's Future Land Use Policy states that w [i] f it becomes
evident to the DoD Component that a deed restriction or other
institutional control is not being followed, the DoD„Component
will attempt to ensure that appropriate actions are•taken to
enforce the deed .restriction."
9 5
-------
RCRA authorities can be used to establish controls, as well as
other mechanisms discussed in thxs section.
As the foregoing discussion makes clear, early
identification and planning and thorough evaluation of ICs is
critical to the timely completion of remediation at Federal
Facilities slated for transfer. The evaluation of CERCLA section
120(h)(3) determinations benefit greatly from Feasibility Study
reports (FSs) that contain detailed evaluation of site-specific
ICs, including implementation and monitoring considerations.
Even at. Federal Facilities which are not slated for transfer,
such early evaluation of ICs affords a more thorough examination
of remedial alternatives using the NCP's nine evaluation
criteria. Furthermore, since no RD/RA Consent Decree will be
negotiated, EPA's involvement in the preparation of the ROD is
the last opportunity to detail enforceable remedy implementation
provisions. •
The experiences at BRAC sites provide valuable lessons
which may be adapted to the remedial process at non-transfer
Federal Facilities. The BRAC process incorporates enhanced public
participation by the local community by the establishment of Land
Reuse Authorities which comment and coordinate on cleanup issues,
particularly future land uses. Tine BRAC process then provides
additional opportunities and coordination tools for establishing
appropriate institutional controls at BRAC sites. Early
coordination with the Land Reuse Authority at BRAC facilities and
the states on institutional control issues, i.e., implementation
and enforcement, will help the lead Federal agency develop
realistic and implementable remedial action alternatives.
For BRAC facilities or other Federal property that
will be transferred to non-Federal governmental entities,
coordination with the local government that will take
jurisdiction of the transferred property should occur to explore
how the transferred property is or may be zoned. The local
authority may need to amend its zoning ordinance or conduct
other legislative action to implement zoning regulations, so such
coordination should begin as soon as the 'Federal property is
slated for transfer and the projected future use is determined.
96
-------
REFERENCES:
r " R Directive No. 9355.7-04, "Land Use in the CERCLA Remedy
etion Process." (Hereinafter, "Land Use Guidance.")
Memorandum, "Use of Institutional Controls at. Superfund Sites",
from David F. Coursen to Howard Corcoran, dated July 27, 1992.
Coursen, "Institutional Controls at Superfund Sites", 23 ELR
10279 (1993).
Susan Borinsky, The Use of Institutional Controls in Superfund
and Similar State Laws, 7 Fordham Env. L. J. 1 (19 95).
Arthur L. Gaudio, ed. , The . AmerigaiL.Jle.al^x.QpjSXty: (19 94).
Paul Nightingale, "Land Use Restrictions and Waste Site Cleanups
Lessons from the States", BNA Toxics Law Reporter (April 5,
1995) .
John Pendergrass, "Use of Institutional Controls as Part of a
Superfund Remedy: Lessons from Other Programs", 26 Environmental
Law Reporter 10109, 10111-12 (March 1996).
97
-------
-------
A":-'5NDIXA
Access & Institutional Controls Language for RD/HA CDs
"Future Response Costs" shall mean all costs, including, but
not limited to, direct and. indirect costs, that the United States
incurs in reviewing or developing plans, reports and other items
pursuant to this Consent Decree, verifying the Work, or otherwise
implementing, overseeing, or enforcing this Consent Decree, -
including, but not limited to, payroll costs, contractor costs,
travel costs, laboratory costs, the costs incurred pursuant to j
!
Sections VII, IX (including, but not limited to, the cost of
I
attorney time and any monies paid to secure access and/or to j
secure or implement institutional controls including, but not
limited to, the amount of just compensation) , XV, and Paragraph
8 5 of Section XXI. Future Response Costs shall also include all
Interim Response Costs, and all Interest on the Past Response
Costs that has accrued pursuant to 42 U.S.C. § 9607(a) during the
period from [insert the date identified in the Past Response
Costs definition] to the date of entry of this Consent Decree.
****************************************************
[NOTE: For Consent Decrees in which there is an Owner Settling
Defendant, add Paragraph 9, below. Paragraph 9(a) may be deleted
if an easement will be recorded pursuant to Paragraph 26(c)]
9 * Notice to Successors-in-Title .¦
a. With respect to any property' owned or controlled by
the Owner Settling Defendant(s) that is located within the Site,
-------
a notice to be filed with the Recorder's Office [or Registry .of
Deeds ox" o t hie r cippr opr i 3. t e off ic & ] f Co tin t v*,
,Qf f o of* wh i r« h cha 1 1 Hp not™ 'i r*p- fOTo ^ I 1 qiirro.qqnrQ..
V—• '—4. W"- g V> - -a- J» few* ¦** A ***>&• Ja~ w v V_4i i -I- V^' V.*** l»«4* «i~» U."- >w >~eJ .Xb Kj
ln-titxe that the property is part ot the Sits, their, EPA selected
a remedy for the Site on , and that potentially responsible
parties h.3.ve entered into si Consent - Decree recxuirinQ*
implementation of t:he remedy. Such notice (s) shall identify the
United States District Court in which the Consent Decree was
filed, the name and civil action number of this case, and the
date the Consent Decree was entered by the Court. The Owner
Settling Defendant(s) shall record the notice (s) within 10 days
of EPA's approval of the notice (s) . The Owner Settling
Defendant(s) shall provide EPA with a certified copy of the
recorded notice(s) within 10 days of recording such notice(s).
b. . At least 30 days prior to the. conveyance of any
interest in property located within the Site including, but not
limited to, fee interests, leasehold interests, and mortgage
interests, the Owner Settling Defendant(s) conveying•the interest
shall give the grantee written notice of (i) this Consent Decree,
(ii) any instrument by which an interest in real property has
been conveyed-that confers a right of access to the Site -
(here xrici f t e r referred to ss "sccbss essence Tits ?l) pi>ir3xi3.nt to
Section IX (Access and Institutional Controls), and (iii) any
instrument by which an interest in real property has been
-------
3
conveyed that confers a right to enforce restrictions on the use
of sucit property (hereinafter referred to as ^restrictive
easements^) pursuant to Section IX (Access and Institutional
Controls). At least 30 days prior to such conveyance, the Owner
Settling Defendant(s) conveying the interest shall also give
written notice to EPA and the State of the proposed conveyance,
including the name and address of the grantee, and the date on
which not ice of the Consent Decree, access easements, arid/or
restrictive easements was given to the grantee.
c. In the event of any such conveyance, the Owner
Settling Defendant's obligations under this Consent Decree,
including, but not limited to, its obligation to provide or
secure access and institutional controls, as well as to abide by
such institutional controls, pursuant to Section IX (Access and
Institutional Controls) of this Consent Decree, shall continue to
be met by the Owner Settling Defendant (s) •. In no event shall the
conveyance release or otherwise affect the liability of the Owner
Settling Defendant(s) to comply with all provisions of this
Consent Decree, absent the prior written consent of EPA. If the
United States approves, the grantee may perform some or all of
the Work under this Consent Decree.
•k-k-k-kic-k-k'k'k-k-k-k-k-k-k-k-k-k-k-ic-k-k-k'k-k'k'jc-k'kic-k'k'k-k'kic-k
IX. ACCESS AMD INSTITUTIONAL CONTROLS
[NOTE; Subparagraphs 26(a) and 27(a) should, rou,tinely' be included,
in consent decrees. Subparagraphs 26(h) and 27(b) should fee
included where EFJL determines that land/water use restrictions
-------
4
are needed on property owned by settling or non-settling
landowners to ensure the integrity or protectiveness of the
remi action. Subparagraphs 2 6(c) and 27(c) should be
included where EPA determines that a property interest running
with, the land (granting either a right of access or a right to
enforce land/water use restrictions) should be acquired by EPA or
ana i. wr , . < • „ ^ from . ' ng or non- settling landowners . ]
26. If the Site, or any other property where access and/or
land/water use restrictions are needed to implement this Consent
Decree, is owned or controlled by any of the Settling Defendants,
such Settling Defendants shall:
a. commencing on the date, of lodging of this Consent
Decree, provide the United States[, the State,] and its
[their] representatives, including EPA and its contractors,
with access at all reasonable times to the Site, or such
other property, for the purpose of conducting any activity
related to this Consent Decree including, but not limited
to, the following activities :
i. Monitoring the Work;
ii. Verifying any data or information submitted to
the United States [or the State];
iii. ' Conducting investigations relating to
contamination at or near the Site;
iv» Obtaining samples;
v'. Assessing the need for, planning, or
implementing additional response actions at or near the
-------
Site;
vi. Implementing the Work pursuant to trie
conditions set forth in Paragraph 85 of this Consent
Decree;
vii. Inspecting and copying records, operating
logs, contracts, or -other documents maintained or
generated by Settling Defendants or their agents,
consistent with Section XXIV (Access to Information);
viii. Assessing Settling Defendants' compliance with
this Consent Decree; and
ix. Determining whether the Site or other property
is being used in a manner that is prohibited or
restricted, or that may need to be prohibited or'
restricted, by or pursuant to this Consent Decree;
b. commencing on the date of lodging of this Consent
Decree, refrain from using the Site, or such other property,
in any mariner that would interfere with or adversely affect
the integrity or protectiver.ess of the remedial measures to
be implemented pursuant to this Consent Decree. Such
restrictions include, but are not limited to, [LIST'SPECIFIC
RESTRICTIONS]; and
c. execute and record in the Recorder's Office [or
Registry of Deeds or other ¦ appropriate land records office]
of County, State of . an easement, running
with the land, -that (I) grants a right of access for the
purpose of conducting any activity related to this Consent:
-------
6
Decree including, but not: limited to, those activities
listed in Paragraph 26(a) of this Consent Decree, and (ii)
grants trie right to enforce the land/water use restrictions
listed in Paragraph 26(b) of this Consent Decree, or other
restrictions that EPA determines are necessary to implement,
ensure non-interference with, or ensure the protectiveness
of the remedial measures to be performed pursuant to this
Consent Decree. Such Settling Defendants shall grant the
access rights and the rights to enforce the land/water use
restrictions to [ (i) the United States, on behalf of EPA,
and its representatives, (ii) the State and its
representatives, (iii) the other Settling defendants and
their representatives, and/or (iv) other appropriate
grantees] .1 Such Settling Defendants shall, within 45 days
of entry of this Consent Decree,2 submit to EPA for review
and approval with respect to such property:
i. A draft easement, in substantially the form
attached hereto as Appendix , that is enforceable
under the laws of the State of , free and
If, at the time that a consent decree is being
negotiated, EPA is not able to determine which persons should be
the grantees of the easement, Paragraph-26 (c) should be redrafted
to insert the phrase |one or more of the following persons, as
determined by EPA,^ prior to the bracketed list of potential
grantees,
¦2 If, at the time that a consent decree is being
negotiated, EP.A is unable to determine whether it wants to obtain
an easement that runs with the land, but believes that it might
want; to obtain such an interest, in the future. Paragraph 26(c)
should be redrafted to insert the phrase "if EPA so requests," at
the "beginning of the subparagraph, and the Settling Defendants
should be required to submit the draft easement a certain number
of days from the date of BPA's request.
-------
"'"ir of all prior liens and encumbrances 'except as
roveci by EPA) , and accepcacle under the Attorney
' -'-jral's Tide Regulations prcmuiqated pursuant to 40
U.3.C. § 255; and
ii, a current title commitment or report prepared
in accordance with the U.S. Department of Justice
Standards for the Preparation of Title Evidence in Land
" - .Pi - 1 'lited States (1970) (the
"Standards").
Within 15 days of EPA'3 approval and acceptance of the
easement, such Settling Defendants -shall update the title
search and, if it is determined that nothing has occurred
since the effective date of' the commitment or report to
affect the title adversely, record the easement with the
Recorder's Office [or Registry of Deeds or other appropriate
office] of County. Within 3 0 days of recording the
easement, such Settling Defendants shall provide EPA with
final title evidence acceptable under the Standards, and a
certified copy of the original recorded easement showing the
clerk's recording stamps.
2.7. If the Site, or any other property where access and/or
land/water use restrictions are needed to implement this Consent
Decree, is owned or controlled by persons other than any of the
Settling Defendants, Settling Defendants shall use best efforts
to secure from such persons:
a, an agreement to provide access thereto for Settling
Defendants, as well as for the United States on behalf of
EPA, and the State, as well as their representatives
(including contractors)., for the purpose of conducting any
activity related to this Consent Decree including, but not
-------
limited to, those activities listed in Paragraph 26(a) of
this Consent Decree;
b. an agreement, enforceable by the Settling
Defendants and the United States, to abide by the
obligations and restrictions established by Paragraph 26(b)
of this Consent Decree, or that, are otherwise necessary to
implement, ensure non-interference with, or ensure the
protectiveness of the remedial measures to be performed-
pursuant to this Consent Decree; and
c. the execution and recordation in the Recorder's
Office [or Registry of Deeds or other appropriate land
records office] of County, State of , of
an easement, running with the land, that (i) grants a right
of access for the purpose of conducting any activity related
to this Consent Decree including, but not limited to, those
activities listed in Paragraph 26 (a) of this Consent Decree,
and (ii)_ grants the right to enforce the land/water use
¦restrictions listed in Paragraph 26(b) of this Consent
Decree, or other restrictions that EPA determines are
necessary to implement, ensure non-interference with, or
ensure the. protect iveness of the .remedial measures to be
performed.pursuant to this Conseht Decree. The access
rights and/or rights to enforce land/water use restrictions
shall be granted to [(i) the United States, on behalf of
EPA, and its representatives, (ii) the State and' its
representatives, (iii) the other Settling defendants and
-------
9
grantees) . ' Within 45 days of entry of this Consent
Decree,'* Settling Defendants shall submit to EPA for review
and approval with respect to such property:
i. A draft easement, in substantially the form
attached hereto as Appendix , that is enforceable .
under the laws of the State of , free and
clear of all prior liens arid encumbrances (except as
approved by EPA), and acceptable under the Attorney
General's Title Regulations promulgated pursuant to 40
U.S.C. § 255; and ' ' '
ii, a current title commitment or report prepared
in accordance with the U.S. Department of Justice
Standards for the Preparation of Title Evidence in hand
Acquisitions bv the United States (1970) (the
"Standards").
Within 15 days of EPA's approval and acceptance of the
easement, Settling Defendants shall update the title search
and, if it is determined that nothing has occurred since the
effective date of the commitment or report to affect the
title adversely, the easement shall be recorded with the
Recorder's Office [or Registry of Deeds or other appropriate
office] of __ County. Within 30 days of the recording of
J If, at the time that a consent decree is being
negotiated, EPA is not able to determine which persons should be
the grantees of the easement, Paragraph 27(c) should be redrafted
to insert the phrase |one or more of the following persons, as
determined by EPA,^ prior to the bracketed list of potential
grantees.
4 I'f, at the time that a consent decree is being
negotiated, EPA is ,unable to determine whether it .wants to obtain
an easement that runs with the land, but believes that it might
want to obtain such an interest in the future, Paragraph 27(c)
should.be redrafted to begin with the phrase "if
requests," and the Settling Defendants should be required to
submit the draft easement within a certain number of days from
the date of EPA's request.
-------
. 10
the easement, Settling Deferdants shall provide EPA with
final title evidence acceptable under the Standards, and a
certified copy of the original recorded easement showing the
clerk's recording stamps.
28, For purposes of Paragraph ' 27 of this Consent Decree,
"best efforts" includes the payment of reasonable sums of money
in consideration of access, access easements, land/water use
restrictions, and/or restrictive easements. [NOTE: It may be
appropriate to delete the preceding sentence if the property
where access or land/water use restrictions are needed is owned
by a tion-settling party who EPA determines is a PEP, (See
guidance entitled "Model RD/RA Consent Decree: Acceptable
Mcg^„ - . j a.i to Model Language (Directive No. 2) , " March 25,
1992)] If any access or land/water use rest riction agreements
requi red by Paragraphs 27 (a) or 27 (b) of this Consent Decree are
not obtained within 4 5 days of the date of entry of this Consent
Decree, or any access easements or restrictive easements required
by Paragraph 27(c) of this Consent Decree are not submitted to
EPA in draft form within 4 5 days of the date of entry of this
Consent Decree,' Settling Defendants shall promptly notify the
United States in writing, and shall include in that notification
a summary of the steps that Settling Defendants have' taken to
attempt to comply with Paragraph 27 of this Consent Decree. The
b . If the obligation to obtain an easement pursuant to
Paragraph 27(c) runs from the date of EPA's request for such an
easement, as opposed to from the date of entry of the consent
decree, this language should be revised accordingly.
-------
• -7: * OF, AND ENFORCEABLE BY, THE UNITED STATES
OF AMERICA.
Within t; j. < t Jays of the date any such instrument of conveyance is executed, Grantor
must pre tr. i tee with a certified true copy of said instrument and, if it has been recorded
in the public land records, its recording reference,
17. Administrative jurisdiction: The federal agency having administrative
jurisdiction over the interests acquired by the United States by this instrument is the EPA,
18. Enforcement: The Grantee shall, be entitled to enforce the terms of this
instrument by resort to specific performance or legal process. All remedies available
hereunder shall be in addition to any arid all other remedies at law or in equity, including
CERCLA. Enforcement of the terms of this instrument shall be at the discretion of the
Grantee, and any forbearance, delay or omission to exercise its rights under this instrument in
the event of a breach of any term of this instrument shall not be deemed to be a waiver by the
Grantee of such term or of any subsequent breach -of the same or any other term., or of any of
the rights of the Grantee under this instrument.
19. Damages: Grantee shall be entitled, to recover damages for violations of the
terms of this instrument, or for any injury to the remedial action, to the public or to the
environment protected by this instrument. . ¦
20. Waiver of certain defenses: Grantor hereby waives any defense of laches,
estoppel, or prescription.
21. Covenants: Grantor hereby covenants to and with the United States and its
assigns, that the Grantor is lawfully seized in fee simple of the Property, that the Grantor has a
good and lawful right and power to sell and convey it or any interest therein, that the Property
is free and clear of encumbrances, except those noted on Exhibit I) attached hereto, and that
the Grantor will forever warrant and defend the title thereto and the quiet possession thereof.
22. Notices: Any notice, demand, request, consent, approval, or communication
that either party desires or is required to give to the other shall be in writing and shall either be
served personally or sent by first class mail, postage prepaid, addressed as follows;
To Grantor:
To Grantee:
-------
23.
General provisions:
a) Controlling law: The interpretation arid performance of this instrument
shall be governed by the laws of the United States or. if there are no applicable federal laws,
by the law of the state where the Property is located.
b) Liberal construction: Any general rule of construction to the contrary
notwithstanding, this instrument shall be liberally construed in favor of the grant to effect the
purpose of this instrument and the policy and purpose of CERCLA. If any provision of this
instrument is found to be ambiguous, an interpretation consistent with the purpose of this
instrument that would render the provision valid shall be favored over any interpretation that ,
would render it invalid.
c) Severability: If any provision of this instrument, or the application of it
to any person or circumstance, is found to be invalid, the remainder of the provisions of this
instrument, or the application of such provisions to persons or circumstances other than those
to which it is found to be invalid, as the case may be, shall not be affected thereby.
d) Entire Agreement: This instrument sets forth the entire agreement of the
parties with respect to rights and restrictions created hereby, and supersedes all prior
discussions, negotiations, understandings, or agreements relating thereto, ail of which are
merged herein.
e) No Forfeiture: Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
f) Joint Obligation: If there are two or more parties identified as Grantor
herein, the obligations imposed by this instrument upon them shall be joint and several.
g) - Successors: The covenants, terms. conditions, and restrictions of this
instrument shall be binding upon, and inure to the benefit of, the parties hereto and their
respective personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property. The term "Grantor™, wherever used herein,
and any pronouns used m place thereof, shall include the persons and/or entities named at the
beginning of this document, identified as "Grantor" and their personal representatives, heirs,
successors, and assigns. The term "Grantee", wherever used herein, and any pronouns used in
place thereof, shall include the persons and/or entities named at the beginning of this
document, identified as "Grantee" and their personal representatives, heirs, successors, and
assigns. The rights of the Grantee and Grantor under this instrument are freely assignable,
subject to the notice provisions hereof.
h) Termination of Rights and Obligations: A party's rights and obligations
under this instrument terminate upon transfer of the party's interest in the Easement or
Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
-------
11
United States may, as it deems appropriate, assist Settling
Defendants in obtaining access or land/water use restrictions,
extner in trie form of contractual agreements or in the form of
easements running with the land. Settling Defendants shall
reimburse the United States in accordance with the procedures in
Section XVI (Reimbursement of Response Costs), for all costs
incurred, direct or indirect, by the United States in obtaining
such access and/or land/water use restrictions including, but not
limited to, the cost of attorney time and- the amount of monetary
consideration paid or just compensation.
29. If EPA determines that land/water use restrictions in
the form of state or local laws, regulations, ordinances or other
governmental controls are needed to implement the remedy selected
in the ROD, ensure- the integrity and protectiveness thereof, or
ensure non-interference therewith, Settling Defendants shall
cooperate with EPA's [and the State's] efforts to secure such
governmental controls.
30. Notwithstanding any provision of this Consent Decree,
the United States [and the State] retain[s] all of its access
authorities and rights, as well as all .of its [their] rights to
require land/water use restrictions, including enforcement
authorities related thereto, under CERCLA, RCRA and any other
applicable statute or regulations. ¦
-------
APPEh j, ; t
ENVIRONMENTAL PROTEC ' -ir EASEMENT
AND
DECLAMATION OF RESTRICTIVE COVENANTS
1. This Environmental Protection Easement and Declaration of Restrictive
Covenants is made this clay of » 19; , by and between
... ? ("Grantor")., having an address of
__ , and,
" ("Grantee"), having an address of
WITNESSETH:
2. WHEREAS, Grantor is the owner of a parcel of land located in the county of
, State of . more particularly described on Exhibit A attached
hereto and made a part hereof (the "Property"); and
3. WHEREAS, the Property is part of the _________ Superfund Site
("Site"), which the U.S. Environmental Protection Agency ("EPA"), pursuant to Section 105 of
the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42
U.S.C. § 9605, placed on the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix
B, by publication in the Federal Register on . 19 ; and
4. WHEREAS, in a Record of Decision dated . 19 (the "ROD"), the
EPA Region _____ Regional Administrator selected a "remedial action" for the Site, which provides,
in part, for the following actions:
and
-------
5.
WHEREAS, with the exception of
, the remedial action has been implemented at the Site: and
6. WHEREAS, the parties hereto have agreed I) to gram a permanent right of
access over the Property to the Grantee for purposes of implementing, facilitating and monitoring
the remedial action; and 2) to impose on the Property use restrictions as covenants that will run
with the land for the purpose of protecting human, health and the environment; and
7. WHEREAS, Grantor wishes to cooperate rally with the Grantee in the
implementation of all response actions at the Site;
NOW, THEREFORE:
8. Grant: Grantor, on behalf of itself, its successors and assigns, in consideration of
[the terms of the Consent Decree in the case of v. , etc.], does hereby covenant and
declare that the Property shall be subject to the restrictions on use set forth below, and does give,
grant and convey to the Grantee, and its assigns, with general warranties of title, 1) the
perpetual right to enforce said use restrictions, and 2) an environmental protection easement of '
the nature and character, and for the purposes hereinafter set forth, with respect to the Property.
9. Purpose: It is the purpose of this instrument to convey to the Grantee real
property rights, which will run with the land, to facilitate the remediation of past environmental
contamination and to protect human health and the environment by reducing the risk of exposure
to contaminants.
10. Restrictions on use: The following covenants, conditions, and restrictions apply
to the use of the Property, ran with the land and are binding on the Grantor:
11. Modification of restrictions: The above restrictions may be modified, or
terminated in whole or in part, in writing, by the Grantee. If requested by the Grantor, such
writing will be executed by Grantee in. recordable form.
12. Environmental Protection Easement: Grantor hereby grants to the Grantee an
irrevocable, permanent and continuing right of access at all reasonable times to the Property
for purposes of:
-------
a)
Implementing the response actions in the ROD, including but not limited to.
b) Verifying any data or information submitted to EPA. .
e) Verifying that no-action is being taken on the Property in violation of the terms
of this instrument or of any federal or state environmental laws or regulations:
d) Monitoring response actions on the Site and conducting investigations relating to
contamination on or near the Site, including, without limitation, sampling of air,
water, sediments, soils, and specifically, without limitation, obtaining split or
duplicate samples;
¦ e) Conducting periodic reviews of the remedial action, including but not limited to,
reviews required by applicable statutes and/or regulations; and
f) Implementing additional or new response actions if the Grantee, in its sole
discretion, determines i) that such actions are necessary to protect the
environment because either the original remedial action has proven to be
• ineffective or because new technology has been developed which will
accomplish the purposes of the remedial action in a significantly more efficient
or cost effective manner; and, ii) that the additional or new response actions
will not impose any significantly greater burden on the Property or unduly
interfere with the then existing uses of the Property.
13. - Reserved rights of Grantor; Grantor hereby reserves unto itself, its successors,
and assigns, all rights and privileges in and to the use of the Property which are not
incompatible with the restrictions, rights and easements granted herein.
14. Nothing in this document shall limit or otherwise affect EPA's rights of entry
and access or EPA's authority to take response actions under CERCLA, the NCP, or other
federal law.
15. I- .olic Access and Use; No right of access or use by the general public to
any portion of the Property is conveyed by this instrument.
16. Notice requirement: Grantor agrees to include in any instrument conveying any
interest in any portion of the Property, including but not limited to deeds, leases and
mortgages, a notice which is in substantially the following form:
NOTICE: THE- INTEREST CONVEYED HEREBY IS SUUJECT
TO AN ENVIRONS _L f kOTECTIOM EASEMENT AM)
' DECLARATION OF RESTRICTIVE COVENANT! ) *
, 19 » RECORDED IN THE PUBLIC LAND RECORDS
ON ,19 , IN BOOK , PAGE ' , IN
-------
APPEP . 'J V
Procedures for the Acquisition by EPA of Interests is
Real Property lplementation of Institutional Controls
An acquisition by any Federal agency of an interest in real property must comply with, the
following:
1. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C,
4601)("URA") and the implementing regulations at 49 CFR part 24;
2. 41 U.S.C. 14, Restriction on Purchases of Land;
3. 40 U.S.C. 255, Approval of Title Prior to Federal Land Purchases;
4. "Standards for Preparation of Title Evidence in Land Acquisitions by the United States," LIS.
Department of Justice (DO J), 1970;
5. "Uniform Appraisai Standards for Federal Land Acquisitions," Interagency Land Acquisition
Conference, 1992; and
6. If applicable - 40 U.S.C. §§257, 258a, 258b "Condemnation of realty for sites and other uses".
Also, FRCP 7 LA "
Additionally, acquisition by EPA of an interest in. real property in connection with a NPL
site must be authorized in accordance with the following:
1. CEPvCLA §1040, Acquisition of Property, "property or any interest in real property ... needed
to conduct a remedial action."
2. EPA Delegation 14-30, CERCLA Acquisition of Property (Office of Solid Waste and
Emergency Response (OSWER) and Office of General Counsel (OGC) review and concurrence);
and
3. EPA Delegation 1-4-B, Real Property and Space (Facilities Management and Services
Division ("FMSD") approval and authorization).
The implementation of the acquisition procedures will vary depending on factors such as,
the interest to be acquired, the duration of the interest to be acquired, the parties involved in the
transaction, the amount of compensation to be paid (if any), and 'the party paying the
compensation. The portions of the acquisition procedures that require the most lead time are,
obtaining the appraisai required under the • ~ i »i completing the title review required under
40 U.S.C. 255. Both the appraisai and the title review are valuable tools to assure the validity
-------
and enforceability of the interest to be acquired and that any compensation/takings issues are
adequately addressed.
The general process for property acquisitions by EPA is as follows:
1. Under Delegation 14-30, the Region makes a determination that the interest in real property is
required for the remedial action, arid obtains a "state assurance" under §104j(2).
2. Under Delegation 14-30, OGC must concur in the acquisition and the Assistant Administrator
for OSWER must authorize FMSD to make the acquisition. The Director of FMSD acquires the
interest in real property under the authority delegated in. Delegation, 1-4-B, or authorizes the
Region or the Corps of Engineers ("COE") to carry out the acquisition.
3. The approvals set forth above are accomplished by the Region submitting a mem.ojoin.tly to
OGC and OSWER. The memo serves a dual purpose; (i) to help the Region address all relevant
issues aid plan the steps necessary to complete the acquisition, and (ii) to set forth the facts and
legal issues for efficient OSWER and OGC review.
4. Issues to be addressed in planning the acquisition include:
a. Determining the parties involved in the transaction, including the owner of the property
to be controlled (PRPs, non-PRPs, state or local governments, bankruptcy court);
b. Determining that EPA will be the party that will hold and enforce the property interest
used for the institutional controls, i.e., EPA will be the "Grantee" of the property interest.
c. Type of property interest to be acquired (easement, fee, restrictive covenant);
d. Compensation issues (donation v. payment of market value) (contaminated property v.
clean property), (negotiated settlement v. condemnation);
e. Decisions as to the party or parties that will hire and monitor the appraiser, title
insurance company, and surveyor, as needed, (ORC, COE, DOI or PRP); and
f. Timing concerns, including contracting for additional support (COE, appraiser, title
work, survey).
5. 40 U.S.C. 255, "Approval of Title Prior to Federal Land Purchases" requires that DOT or COE
legal staff prepare a title opinion. This legal opinion is usually based on a commitment for title
insurance. After the closing, the title insurance company will issue an insurance policy in
accordance with "Standards for Preparation of Title Evidence in Land Acquisitions by the United
States." U.S. Department of Justice (DQJ), 1970. Note: The title opinion from DO! or COE, and
title insurance, are separate requirements.
6. Appraisal review and approval by DOJ or COE, may be required under the URA. The ¦ .
appraisal must meet the "Uniform Appraisal Standards for Federal Land Acquisitions,"
Interagency Land Acquisition Conference, 1992.
7. Closing (delivery and recordation of documents) is handled by the Region or COE and the title
insurance company.
-------
i) Captions: The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
J) Counterparts: The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by both parties: each counterpart shall be
deemed an original instrument as against any party who has signet! it. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be controlling.
TO HAVE AMD TO HOLD unto the United States and its assigns forever.
¦ IN WITNESS WHEREOF, Grantor has caused this Agreement to be signed in
its name.
Executed this day of , 19 .
By:
Its:
STATE OF _____)
) ss
COUNTY OF ______) '
On this day of 19 before me, the undersigned, a Notary Public in and for
the State of . duly commissioned and sworn, personally appeared
, known to be the of , the
corporation that executed the foregoing instrument, and acknowledged the said instrument to
be the free and voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute said instrument.
Witness my hand and official seal hereto affixed the day and year written above.
Notary Public in and for the
State of
My Commission Expires:
This easement is accepted this _ day of ,19 .
-------
i
UNITED STATES OF AI iERIC A
the persons anxi/or entities named at the beginning of this document, identified as "Grantor"
and their personal representatives, heirs, successors, and assigns.
U.S. ENVIRONMENTAL PROTECTION
AGENCY
Bv:
Attachments:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
legal description of the Property
identification of proposed uses and construction
piaris, for the Property
identification of existing uses of the Property
list of permitted title encumbrances
------- |