Improving Institutional Controls: New Developments in 2005
The passage of the Small Business Liability Relief and Brownfields Revitalization Act (the Brownfields Amendments) in 20021 highlighted the critical role that institutional controls (ICs)2 play in the redevelopment of brownfields and other contaminated sites.3 The success of the brownfields redevelopment movement rests in large part upon the ability of the parties to use ICs as part of a risk-based cleanup. For this movement to succeed, the public needs better legal tools to ensure that future generations understand the reason why land uses may have been restricted to specific purposes, and why certain long-term monitoring and maintenance obligations may be required. In addition, regulators, responsible parties and the community need to have confidence that these land use restrictions will be enforced over time. Efforts are ongoing at many different levels to try to improve current tools and practices.
ASTM has led the way in developing guidance in this area. Its Standard Practice on the Use of Activity and Use Limitations, Including Institutional and Engineering Controls (E 2091), which was first published in 2000, was updated and reapproved in 2005 to incorporates changes in the law, including adoption of the model Uniform Environmental Covenants Act (UECA).
UECA is an important new development. In the past, many states relied on state property law, with its own limitations, to implement and enforce ICs. Where state statutes existed, they did not address all of the issues that have surfaced in recent years, such as the potential that these restrictions could be extinguished by eminent domain or a tax lien foreclosure, or could lapse under the time limitations imposed by state Marketable Title Acts. In response to these issues, the National Conference of Commissioners on Uniform State Laws (NCCUSL) developed a uniform model law in 2003 to provide a better tool for implementing and enforcing land use restrictions.4 The model law, known as the Uniform Environmental Covenant Act (UECA), provides a statutory vehicle for overcoming common law impediments to the successful implementation and enforcement of ICs. To date, UECA has been enacted in 10 states (Delaware,5 Iowa,6 Kentucky,7 Maine,8 Maryland,9 Nebraska,10 Nevada,11 Ohio,12 South Dakota13 and West Virginia14) and is likely to be introduced or re-introduced in 15-20 additional state legislatures in 2006.15
Additional pressure to improve the use of ICs came from the federal government. In January 2005, the Government Accounting Office (GAO) issued a report entitled, Hazardous Waste Sites: Improved Effectiveness of Controls at Sites Could Better Protect the Public.16 GAO prepared this study to review the extent to which (1) ICs are used at Superfund and Resource Conservation and Recovery Act (RCRA) sites, and (2) EPA ensures that these controls are implemented, monitored and enforced. GAO also reviewed EPA’s challenges to implementing IC tracking systems. The GAO report recommended that EPA: (1) clarify its guidance on when controls should be used; (2) demonstrate that, in selecting controls, sufficient consideration was given to all key factors; (3) ensure that the frequency and scope of monitoring efforts are sufficient to maintain the effectiveness of the controls; and (4) ensure that the information on ICs reported in new tracking systems accurately reflects actual conditions. The EPA generally agreed with the GAO’s recommendations and has undertaken a number of activities to improve implementation and monitoring of ICs.17
In February 2005, the EPA issued a final guidance document, Institutional Controls: A Citizen’s Guide to Understanding Institutional Controls at Superfund, Brownfields, Federal Facilities, Underground Storage Tank, and Resource Conservation and Recovery Act Cleanups.18 The purpose of the guide was to provide community members with general information about the role of ICs in Superfund, Brownfields, Federal Facilities, Underground Storage Tank (UST) and RCRA cleanups occurring in their neighborhoods. The guide also discussed the community’s role in providing input for the selection of ICs and helping to monitor them to ensure that human health and the environment are protected in the future.
In September 2005, the EPA’s Long-Term Stewardship Task Force issued a report, Long Term Stewardship: Ensuring Environmental Site Cleanups Remain Protective Over Time.19 The Task Force was asked to identify and examine the wide spectrum of long-term stewardship (LTS) issues, perspectives and ongoing activities, and to recommend potential activities for the EPA to consider in its planning. The Task Force made the following recommendations:
• EPA should continue to review its decision documents, agreements, and other tools as appropriate, to ensure that site-specific LTS roles and responsibilities are clearly delineated.
• EPA should continue to develop guidance addressing LTS implementation and assurance across its cleanup programs, as appropriate.
• EPA, state and tribal cleanup programs and other federal agencies should invest more time working with and building stronger relationships with local governments, and conduct more training and outreach, to help better define and understand their potential specific LTS roles/responsibilities.
• EPA should partner with other Federal agencies and State, tribal and local government organizations to sponsor one or more “summits” in which representatives from federal, state, tribal and local agencies can share their perspectives and insights on LTS.
• EPA should continue to facilitate the maintenance and exchange of LTS information through existing grants and other resources, and by establishing and promoting data standards.
• EPA should continue to support the development of an analysis of ICs to determine the reliance on (and burden to) state, tribal and local governments.
• To enhance the availability and reliability of ICs, EPA should encourage states to review UECA or similar legal provisions for potential state applicability.
• EPA should adopt a flexible approach for re-evaluating the effectiveness of Engineering Controls (ECs) and, if appropriate, modify ECs to optimize remedial system performance and minimize LTS costs.
• EPA should work with outside organizations to explore adequate and sustainable funding sources and mechanisms at the federal, state and local level to monitor, oversee and enforce LTS activities.
• EPA should continue to explore the role of the private sector in supporting the LTS of sites and foster their movement, as appropriate.
ICs were also highlighted in an EPA document released on October 12, 2005, the National Strategy to Manage Post Construction Completion Activities at Superfund Sites.20 According to this document, a strategic goal of the EPA is to ensure that ICs are implemented and operating effectively at Superfund sites. EPA is concerned about the long-term reliability of certain remedies and associated ICs. Although the EPA frequently relies on ICs, a particular challenge is that the responsibility for the IC is often under the jurisdiction of other levels of government and private parties.
Certain components of the Department of Defense are in a high stakes battle with local communities regarding who should bear the burden of implementing, monitoring and enforcing ICs at base closure sites. These battles are likely to become more intense as the bases affected by BRAC 2005 are offered to the private sector for redevelopment.
With the growing recognition that all parties have not done enough in the past to ensure that adequate ICs are implemented, monitored and enforced over time, practitioners should expect that there will continue to be interest and scrutiny of ICs that are needed at contaminated sites. We will continue to report these trends and developments as they unfold over the coming months.
1 Pub. L. No. 107-118, 115 Stat. 2356 (2002).Pub. L. No. 107-118, 115 Stat. 2356 (2002).
2 Institutional controls are also known as activity and use limitations (AULs), land use restrictions, land use controls (LUCs), environmental covenants, and “deed restrictions.” The terms are used interchangeably in this article.
4 Nat’l Conference of Comm’r on Unif. State Law, Uniform Environmental Covenants Act (2003), available at http://www.law.upenn.edu/bll/ulc/ueca/2003final.pdf.
5 S.B. 112, 143rd Gen. Assemb. (Del. 2005) available at http://www.legis.state.de.us/LIS/lis143.nsf/vwLegislation/SB+112/$file/2381430133.doc?open.
6 S.F. 375, 81st Gen. Assemb. (Iowa 2005) available at http://www.legis.state.ia.us/aspx/Cool-ICE/DisplayBills.htm.
7 H.B. 472, Gen. Assemb., Reg. Sess. (Ky. 2005) available at http://www.lrc.ky.gov/record/05RS/HB472.htm.
8 L.R. 2059, 122nd Legis., 1st Special Sess. (Me. 2005) available at http://www.mainelegislature.org/legis/bills/billtexts/LD155901-1.asp.
9 H.B. 679, 420th Sess., Gen. Assemb. (Md. 2005) available at http://mlis.state.md.us/2005rs/bills/hb/hb0679t.pdf.
10 L.B. 298, 99th Legis., 1st Sess. (Neb. 2005)
11 S.B. 263, 73rd Sess. (Nev. 2005)
12 H.B. 516, 125th Gen. Assemb. (Ohio 2005) available at http://archives.legislature.state.oh.us/BillText125/125_HB_516_EN_N.html
13 S.B. 143, 80th Sess., Legis. Assemb. (S.D. 2005) available at http://legis.sd.gov/sessions/2005/bills/SB143H.pdf.
14 S.B. 406, 76th Legis., Reg. Sess. (W. Va. 2005) available at http://www.legis.state.wv.us/Bill_Text_HTML/2005_SESSIONS/RS/BILLS/sb406%20enr.htm.
15 See NCCUSL, 2006 UECA Legislative Update
17 See Letter from Thomas P. Dunne and Thomas V. Skinner, EPA, to John B. Stephenson, GAO, dated January 7, 2005, available at http://www.epa.gov/superfund/action/ic/gaoresponse.pdf.
18 EPA, Institutional Controls: A Citizen’s Guide to Understanding Institutional Controls at Superfund, Brownfields, Federal Facilities, Underground Storage Tank, and Resource Conservation and Recovery Act Cleanups (2005), available at http://www.epa.gov/superfund/action/ic/guide/citguide.pdf.
19 EPA, Long Term Stewardship: Ensuring Environmental Site Cleanups Remain Protective Over Time (September 2005)
20 EPA, National Strategy to Manage Post Construction Completion Activities at Superfund Sites (October 2005), available at http://www.epa.gov/superfund/action/postconstruction/pcc_strategy_final.pdf.