Institutional Controls - AG comments

[Lenny Siegel <lsiegel@cpeo.org>]

Below is a legal analysis of EPA's manual from the offices of some state
attorneys general.

Draft Institutional Controls: A Reference Manual

Thank you for the opportunity to review and comment on your Draft
Reference Manual. EPA
should be commended both for establishing a work group to deal with the
issue of institutional
controls as well as for developing the Reference Manual. Both should
prove to be invaluable
resources for EPA staff struggling with the very difficult issues
associated with institutional
controls. The Manual contains much useful information and, if consulted
and followed, would
significantly improve the current practice of using institutional
controls in the CERCLA process.

Particularly laudable is the Manual's emphasis on including the
evaluation of institutional
controls in the feasibility study for the site, and the need to perform
very detailed analysis on the
enforceability of the institutional control as well as the effectiveness
of monitoring and funding of
oversight activities over the long term. Clearly this is contrary to
current practice where vague
references to institutional controls tend to be referenced in a ROD, and
where the long term
funding and enforceability issues are never addressed. However, some
suggestions for
improving the document follow:

 1. Although in parts of the Reference Manual, the work group recommends
that EPA staff
conduct thorough and detailed analysis of any institutional controls
before including them in a
selected remedy, other provisions recommend that ROD language providing
for institutional
controls be flexible. Without further explanation, these two
recommendations could be
interpreted to be at cross purposes. If, for example, a feasibility
study thoroughly evaluates
proprietary controls, applying the nine NCP remedy selection criteria,
but EPA instead uses
governmental controls, it is not clear that an adequate record would be
created to support the
reliance on governmental controls. The Manual should therefore clarify
that any institutional
controls ultimately relied upon must be evaluated in the feasibility
study and found to be
appropriate in the ROD.

In addition, there are downsides to having vague and flexible language
in the ROD. In particular,
the less explicit the language, the more difficult to enforce. Many
assistant attorneys general
believe it preferable to identify contingent remedies in the ROD. Such
an approach would not
only create a better record demonstrating the protectiveness of the
selected remedy, but it would
also improve the ability of a regulatory agency to enforce institutional
control provisions in the
ROD.

 2. The discussions regarding traditional common law problems with many
of the proprietary
institutional controls should more clearly reflect the fact that these
issues are unsettled. The
Manual creates the impression that these common law problems no longer
exist. Such
conclusions greatly overstate the degree of certainty that can be
assumed. The Manual should
acknowledge that the conclusions of the workgroup are mere speculation -
perhaps correct,
perhaps well-reasoned, but still speculation. Although a discussion of
the proposed restatement
language, and the anticipated successful litigation strategies and
arguments to support the use of
use restrictions is appropriate to include in the Manual, these views
should be presented as
predictions, not as uncontroverted representations of the current state
of the law. To strengthen
your argument you might discuss the rate at which proposed restatement
provisions have
historically been adopted by the judiciary. If their track record is
good, your argument would be
somewhat more persuasive. It should be noted, however, that state
assistant attorneys general
who have researched the issue have reached the opposite conclusion, and
are very concerned
about the enforceability of such deed restrictions. For example, the
second sentence in the third
paragraph of page 20th and the second sentence in the second full
paragraph on page 21
underestimate the current legal impediments and should be deleted.

In addition, certain impediments such as the need for privity and the
possible invalidity of
easements in gross are given extremely short shrift. In most states the
enforceability of
easements in gross was sufficiently questionable that legislatures felt
compelled to pass statues
creating conservation easements. These laws were passed approximately
10 years ago, and
many specifically state that legislation was desirable as the judiciary
had not defined such
easements.

 3. The Manual discusses the possibility of allowing local government
entities or third parties to
enforce institutional controls. It does not discuss the fact that this
would result in a delegation of
regulatory enforcement authority to such third parties and local
entities. Such delegation has
traditionally been considered extremely problematic to say the least.
How can EPA ensure the
protectiveness of the remedy if it does not have the authority to
enforce such institutional
controls?

 4. One issue that is not addressed by the Manual at all is the
substance of institutional controls,
i.e., how to describe uses that would be restricted. The current
practice tends to rely upon
zoning categories; for example, commercial, industrial, residential, and
open space. However,
such categories do not necessarily reflect exposures. EPA should
encourage interaction between
program managers and risk assessors to define acceptable exposures at
any site at which
institutional controls are used. For example, a land use restriction
that allows only commercial
development would not necessarily preclude the construction of a day
care facility or a hospital
even though such uses would result in exposures far beyond those found
to be acceptable in a
risk assessment conducted for the site.

 5. In several sections of the Manual, the work group discusses takings
and compensation issues.
Although it is appropriate to identify the issue, the discussions of
these issues should indicate that
takings would not necessarily occur and compensation would not
necessarily be required. The
current language implies that any time a regulator imposes a use
restriction, such restriction
would effect a takings. The current state of the law, however, does not
support such a
conclusion. Rather, some case law indicates that it is the
contamination, and not the regulatory
action, that effects the loss of use and value.

 6. On page 9 the Manual states that a notice placed by a land owner
would not be effective
without a transfer of the property because the landowner could
unilaterally remove the notice.
This paragraph should be revised to acknowledge that if a land owner
were required by an
administrative order or consent decree to put such a notice in the real
property records, unilateral
removal of such a notice would constitute a violation of the order or
the consent decree and
would subject the land owner to penalties.

 7. On page 10 the work group states that "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." The manual does not explain under what
circumstances such an
interpretation would be allowed. Further discussion of this issue would
be useful.

 8. The general consensus of regulators and commentators examining the
issue of institutional
controls is that all institutional controls are problematic, and that,
therefore, redundancy is the
preferred approach. The need for redundancy should be discussed in the
Manual.

 9. The Manual does not discuss use restrictions on ground water.
Institutional controls for
ground water create additional thorny problems, especially in western
states. Because
restrictions on the use of ground water are some of the most frequently
used institutional
controls, the work group should specifically and comprehensively address
the problems with such institutional controls.

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org