[CPEO-MEF] Comments on EPA's draft IC guidance

[CPEO Moderator <cpeo@cpeo.org>]

[This was posted to the list by Vicky Peters <vicky.peters@state.co.us>]

attached are comments Dan Miller and I submitted on EPA's draft IC 
guidance.  Comments were due May 10.  Feel free to post if you think 
people would be interested.


STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General	State Services Building
1525  Sherman Street - 5th Floor
Denver, Colorado  80203
Phone (303) 866-4500
FAX   (303) 866-5691

Ken Salazar
Attorney General

Barbara McDonnell
Chief Deputy Attorney General 

Alan J. Gilbert
Solicitor General	

May 10, 2000
Mr. Michael Bellot
OERR
U.S. Environmental Protection Agency
Washington, D.C.  20460

RE:	Draft Institutional Controls:  A Site Manager's Guide to 
Identifying, Evaluating and Selecting Institutional Controls at 
Superfund and RCRA Corrective Action Cleanups

Dear Mr. Bellot:

Thank you for giving us the opportunity to comment on the 
above-referenced draft Guidance.  Attached are comments prepared by Dan 
Miller and me both of whom work with the Colorado Attorney General's 
office. Dan and I have been dealing with institutional controls for 
several years, and have participated in various forums around the 
country at which states and stakeholders have grappled with issues 
related to the use of institutional controls at contaminated sites.  The 
comments reflect our professional experience, as well as insights 
gleaned from these meetings and conferences.

We are gratified to see EPA headquarters paying more attention to this 
issue.  In general, we are extremely supportive of the Guidance. We 
would recommend, however, that more precautionary language be added.  
The Guidance should recognize that, in states without use restriction or 
hazardous substance easement laws, the long-term effectiveness of 
existing institutional controls is extremely questionable.

If the Guidance as currently written were implemented by the regions, 
the credibility of the program and acceptance of institutional controls 
would improve dramatically.  Unfortunately, as explained briefly in the 
attached comments, regions continue to ignore headquarters' directives 
on this subject.  In region VIII, references to institutional controls 
are thrown into Proposed Plans and Records of Decision with no 
explanatory text, no evaluation of  remedy selection criteria, and no 
regard to the preference for permanent remedies.  Until EPA headquarters 
ensures regional compliance with Institutional Control directives, 
institutional controls will be misused, and acrimony with states and 
affected citizens will undoubtedly continue.

Thank you again for the opportunity to contribute to your worthwhile 
efforts.

Sincerely,

Victoria L. Peters
Senior Assistant Attorney General
Natural Resources and Environment Section
(303) 866-5068
(303) 866-3558 (FAX)
EMAIL:  Vicky.Peters@state.co.us

Enclosure
________________________________

COMMENTS ON INSTITUTIONAL CONTROLS:
A SITE MANAGER'S GUIDE TO IDENTIFYING, EVALUATING AND SELECTING 
INSTITUTIONAL CONTROLS AT SUPERFUND AND RCRA CORRECTIVE ACTION CLEANUPS

	We commend EPA for its efforts to establish a responsible program for 
utilizing institutional controls in remedy selection.  The draft 
guidance incorporates concepts that have been endorsed by many 
individuals and organizations that have been examining the issue for the 
past several years.  We particularly appreciate several of the 
Guidance's central prescriptions; for example, institutional controls do 
not constitute "no action" and therefore should not be included in "no 
action" RODs;  RODs which rely on certain land uses to ensure 
protectiveness should generally include institutional controls; 
institutional controls must be evaluated, using the nine NCP criteria, 
as rigorously as any other remedial component; contingent remedies may 
be required where the long-term reliability of institutional controls is 
uncertain; and the effectiveness of all institutional controls is 
questionable, and therefore redundancy of such institutional controls is 
the best means to achieving true protectiveness.

	For the most part, these concepts were included in EPA's previous draft 
guidance and "Reference Manual" regarding institutional controls, and 
have been discussed by EPA representatives at various conferences 
addressing the issue.   Unfortunately, headquarters' approach is being 
largely ignored in the regions.  This is certainly the case in Region 
VIII;  other states as well as citizens have made the same complaints 
regarding other regions.  We therefore strongly encourage EPA to 
proactively train all of the regions in the implementation of this and 
EPA's other institutional controls guidance, and further that, until the 
approach is adopted by the regions, to establish procedures under which 
institutional control RODs are reviewed and approved by EPA 
representatives that are educated on the issue and the guidance.  Such 
an initiative would go a long way toward building confidence in the 
legitimacy of institutional controls as appropriate remedial actions.

	We would encourage EPA to emphasize in the final fact sheet that 
institutional controls must be enforceable by an environmental regulator 
(typically, EPA or the state) to be considered reliable.  In addition, 
where the control needs to be enforceable against subsequent owners of 
the remediated site (for example, where a risk assessment relies on land 
use restrictions to make residual contamination levels fall within the 
risk range), the environmental regulator should be able to enforce the 
control directly against subsequent owners.  Absent such direct 
enforcement, it is possible that the control could fail, and EPA and the 
state would not be able to take appropriate action against a new owner.

	In general, the draft fact sheet does a good job in highlighting the 
legal limitations on using common law property devices (e.g., easements) 
as institutional controls.  However, the final fact sheet should 
recommend that in evaluating the usefulness of state property law 
mechanisms as institutional controls, EPA RPMs should seek an opinion 
from the state's Attorney General as to whether any given mechanism can 
legally be used as EPA proposes.

SPECIFIC COMMENTS

1.	Page 12: Limitations of zoning include the constitutional 
difficulties of "spot zoning," inflexibility of blanket zoning, and the 
insufficiency of zoning because of its tendency to allow less 
restrictive uses within more restrictive zoning.  For example, 
residential and day care uses are generally in compliance with 
industrial zoning.
2.	Page 4, carryover paragraph.  This paragraph has a couple minor 
inaccuracies.  Not all proprietary mechanisms create property interests. 
 For example, in Colorado, real covenants are not interests in property. 
 Additionally, the last sentence should read ". . . they can be binding 
. . . ."
3.	Page 4, first full paragraph:  A qualification should be added at the 
end of the discussion on easements "in gross" noting that in some 
jurisdictions, courts refuse to uphold such easements. 
4.	Page 4.  The use of proprietary controls at federal facilities is 
becoming a somewhat contentious issue.  The draft fact sheet states that 
"proprietary controls may not be an option because a deed does not exist 
or the landholding Federal agency lacks the authority to encumber the 
property by placing restrictions on it."  This statement appears to be 
contrary to law.  We ask that EPA review 40 U.S.C. § 319; 43 U.S.C. § 
931a; and 10 U.S.C. § 2668.  As we read these sections, they 
respectively authorize the heads of executive agencies, the Attorney 
General, and the Secretaries of the military Departments to grant 
easements to States and others where granting such easement is in the 
interests of the United States, or is not adverse to such interests.  
Where easements are a viable institutional control, these sections 
appear to authorize their use at active federal installations, 
regardless of whether there is a deed.  Creating and recording such 
controls while the property is still in federal hands is necessary to 
ensure the controls have priority over any other subsequent easements 
that the federal agency might grant.
5.	Page 14: Under limitations and enforcement of proprietary controls, a 
couple of legal hurdles are named, but there may be others which should 
be included.  In the alternative, the discussion about transferability 
of enforcement rights should be expanded to include all such additional 
issues.   RPMs should be required to thoroughly investigate all laws, 
including case law, to determine whether the proprietary control would 
be enforceable in the relevant jurisdiction.  In particular, if the 
state is going to be looked to for enforcement, the state agency must 
have authority to assume the responsibility, and the common law in that 
jurisdiction must allow such enforcement despite the fact that the 
institutional control may be an easement in gross, lack privity, etc. 
6.	Page 15: It should be noted under limitations that many states cannot 
hold easements; therefore, compliance with §510 may not be possible.
7.	Page 16: According to case law in Colorado and American Jurisprudence 
2d, covenants need not be created as part of transfer deeds.  They may 
be created by contract.  Citations can be provided upon request.  The 
box on "enforcement" should note that not all states have recognized 
equitable servitudes, so they may not be available to overcome a 
deficiency in the creation of a real covenant.  Finally, the footnote 
describing privity does not accurately reflect the types of 
relationships courts have found to be necessary prerequisites to 
creating a covenant that runs with the land.  According to an 
authoritative property law treatise, there are three types of privity of 
estate: mutual, or simultaneous (e.g., between landlords and tenants, or 
between easement holders and owners of servient estates); horizontal 
(created only when the original covenanting parties make the covenant at 
the same time one conveys a fee estate in property to the other); and 
vertical (e.g., successors to the original benefited or burdened 
estate).  Richard R. Powell & Patrick J. Rohan, Powell on Real Property 
vol. 9, § 673[2].  Some courts have required some type of privity for 
covenants to burden successors in interest.
8.	Page 20:  While an administrative order may not bind a subsequent 
landowner, an environmental regulator may still have the legal authority 
to issue a new order to the new owner, depending on the facts of the 
case.
9.	Page 21: While EPA may not be able to enter into "CDs" with federal 
agencies, states can. RPMs should be aware of such an option.
Page 24:  Again under covenants, a conveyance of property is not 
required for covenants in some jurisdictions, such as Colorado.
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