INSTITUTIONAL CONTROLS: HERE TODAY, GONE TOMORROW? Or “Dang, I know I left my TRU waste around here somewhere!” NGA-DOE Task Force Meeting April 11-12, 2001 Daniel S. Miller First Assistant Attorney General Colorado Department of Law

WEAKNESSES OF INSTITUTIONAL CONTROLS Legal constraints limit usefulness of available mechanisms –not clear if regulator can enforce common law easements against subsequent owners, due to common law bias against “negative easements in gross” –regulator may not be able to enforce common law covenants against subsequent owner because of common law requirements for “privity of estate”

LEGAL WEAKNESSES OF INSTITUTIONAL CONTROLS CONT’D –Local government controls (e.g., zoning) may be amended or terminated without the consent of the environmental regulator –Environmental regulator generally cannot enforce local government controls –Environmental regulatory mechanisms (e.g., RCRA permits) have limited application; may not “run with the land”

OTHER WEAKNESSES OF INSTITUTIONAL CONTROLS Institutional limitations –oversight of long-term care sites may be a low priority compared to other more urgent matters –maintaining institutional and community knowledge of use restrictions over time is difficult –records may be lost; project managers will leave –environmental regulator an “absentee owner”

EXAMPLES OF FAILED CONTROLS No good database, but anecdotal evidence points to high failure rate –Love Canal -- notice that site was used for chemical disposal in 1953 deed from Hooker Chemical to town School Board; in 1954, school built over landfill –In 1990’s DOE transferred land at Oak Ridge site to local government with deed restriction prohibiting groundwater wells; within 10 years, well were dug to irrigate golf course

MORE EXAMPLES OF FAILED CONTROLS –Oregon homes built on landfill in 1990’s, despite requirement to submit local land use plans to state; domestic wells contaminated –Grand Junction UMTRCA mill site -- city did not follow deed restriction requiring submittal of construction plans to state for review –Two landfill caps at Wright-Patterson AFB in Ohio have already been breached, in violation of IC’s within 5 years of ROD.

ARE INSTITUTIONAL CONTROLS EFFECTIVE? Recent commentary expresses skepticism –“IC’s have weaknesses in terms of long-term reliability” (EPA, 1998) –“there is little or no evidence demonstrating the effectiveness of... IC’s” (DOE 1997) –“the working assumption... must be that many... stewardship measures... will eventually fail” (Nat’l Academy of Sciences 2000) –“In Colorado, we have everything we need to implement institutional controls, except institutions and controls.” (D. Miller, 1998)

CREATING EFFECTIVE INSTITUTIONAL CONTROLS Develop statutory program for overseeing and enforcing institutional controls –provides clear legal enforceability –institutionalizes mission –build in layering of controls –specify multiple enforcers –prompt communication among stewards –create funding mechanism –evaluate program effectiveness

COLORADO’S PROPOSED LEGISLATION: SB Creates statutory “environmental covenants” to restrict land or ground water use, or require actions necessary to maintain restrictions Covenant required when remedial decision requires land/water use restriction or relies on engineered structure

SB PROVISIONS cont’d Scope: RCRA, CERCLA, UMTRCA, state hazardous waste cleanups, radiation site decommissioning, solid waste sites Multiple enforcers: state agency, grantor (“the original PRP”), affected local government, any entity named in covenant –injunctive relief only; no penalties Enforceable by administrative order or suit

SB cont’d State regulator maintains registry of covenants Creation, modification or termination of covenants requires notice to holders of interest in the property –allows for resolution of conflicting interests (e.g., mineral rights, buried utility lines) State agency must approve creation, modification and termination of covenants

SB PROVISIONS cont’d Provisions for state regulator -- local government communication –state notifies local government of new, amended covenants –local government notifies state of applications that would affect land use of properties subject to covenant Covenants must be consistent with local zoning or obtain variance

CONTENTS OF COVENANTS Nature, location and duration of use restrictions notice to state of proposed transfer of property or applications for building permits or land use changes right of entry for state to monitor compliance agreement to notify affected lessees of covenant

SB PROVISIONS cont’d Waiver from covenant requirement –off-site contamination, and property owner does not grant covenant; –local ordinance imposes relevant institutional control; and –local government and environmental regulator enter into intergovernmental agreement allows regulator to enforce ordinance changes to ordinance must incorporate conditions suggested by regulator

SB cont’d Covenants subject to recording laws Covenant not subject to common law limitations (e.g., privity); not impaired by eminent domain, tax sale, abandonment

STATUS OF SB SB has passed both Houses of the legislature, awaits Governor’s signature Download SB from the Colorado legislature’s website:

NEXT UP: Hancock v. Train II? Federal agencies do not believe the state can require a covenant while land remains in federal ownership. They argue: –no sovereign immunity waiver –violates Property Clause of Constitution –Under Federal Property Act, only GSA may dispose of property –bill discriminates against federal agencies –CERCLA section 120(h) preempts state law

Hancock v. Train, Round I 1972 Clean Air Act: “Each department … of … the Federal Government … shall comply with … State requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.” 1976 Supreme Court: federal agencies don’t have to get state air permits that all private entities must obtain

Round II? 1992 FFCA provides: “Each department … of the Federal Government … shall be subject to, and comply with, all … State … requirements, both substantive and procedural, … respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements ….”