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
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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: SB01-145
• 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
SB01-145 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
SB01-145 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
SB01-145 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
SB01-145 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
SB01-145 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 SB01-145
• SB01-145 has passed both Houses of the
legislature, awaits Governor’s signature
• Download SB01-145 from the Colorado
legislature’s website:
http://www.state.co.us/gov_dir/stateleg.html
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 ….”