non-participating landowners, informational devices & use of … · 2017-05-30 · site example...
TRANSCRIPT
Non-Participating Landowners, Informational Devices & Use of
Recorded Notices
Anthony Austin, OSRE Craig Boehr, OSRE
U.S. Environmental Protection Agency
Overview
• New strategy memo about implementing ICs at sites with uncooperative landowners
• Informational devices • Proper and effective use of notices at cleanup
sites • New model notice of contamination
U.S. Environmental Protection Agency
Non-Participating Landowner Strategy Memo
• Purpose: provide EPA enforcement staff with strategies, practices, and tools when encountering a landowner who is reluctant, unwilling, or refuses to cooperate or implement PCs (i.e., a non-participating landowner).
• http://intranet.epa.gov/oeca/osre/doc/nonpart-landowner-mod-notice-contam-2016-mem.pdf
U.S. Environmental Protection Agency
Non-Participating Landowner
• Used in the legislative notes of UECA. • Parties who are unwilling to enter into a PC. • Under UECA, it’s also used to refer to
landowners who are unavailable.
U.S. Environmental Protection Agency
Proprietary Controls
• Agreements between the property owner and a second party, where the owner agrees to refrain from certain actions and/or to perform certain actions designed to protect the response action or human health and the environment.
• E.g., conservation easements, restrictive covenants, environmental covenants.
U.S. Environmental Protection Agency
Phase One: Early Identification of and Engagement with Landowners
• Early identification and engagement of landowners
• Communication strategies to encourage landowners to implement PCs
U.S. Environmental Protection Agency
Phase Two: Enforcement Options and Alternatives to Enforceable PCs
• PRP-landowner (i.e., a party who may be liable under CERCLA and from whom performance of the cleanup is expected)
• Non-source landowner (i.e., party whom EPA may not treat as liable under CERCLA based on liability protections or enforcement discretion policies)
U.S. Environmental Protection Agency
Enforcement Options for PRPs
• 1) Enforcement under a negotiated agreement.
• 2) Issue a UAO.
U.S. Environmental Protection Agency
Authority
• CERCLA §104(a)(1): authority to take any response measure consistent with NCP necessary to protect public health, welfare, or environment.
• NCP §300.430(a)(1)(iii)(D) specifically contemplates the use of ICs, in particular “deed restrictions.”
• CERCLA §106(a).
U.S. Environmental Protection Agency
Site Example – Blackbird Mine Site
• “Respondents shall implement the institutional controls set forth in the ROD and the SOW to ensure the long-term protection of human health and environment. This includes providing long-term, permanent, enforceable easements or comparable instruments that run with the land and are binding upon future landowners.”
U.S. Environmental Protection Agency
State Statutory Mechanisms
• UECA Sec. 4(a)(5) (contents of the EC) – requires signature of every owner the real property subject to the EC, unless waived by the Agency.
• Other state statutes, like Michigan’s (MCLS §324.20121), that may allow the PC to be implemented by judicial order.
U.S. Environmental Protection Agency
5th Amendment Takings?
• “Nor shall private property be taken for public use without just compensation.”
• Three-part balancing test: (1) character of the regulatory action; (2) economic impact of the action; and (3) extent to which the action interferes with reasonable investment-backed expectations.
U.S. Environmental Protection Agency
Options for Non-Source Landowners
• The options are arguably different for non-source landowners (e.g., bona fide prospective purchaser, contiguous property owners, innocent landowners).
• Comply with land use restrictions and do not impede effectiveness or integrity of ICs.
U.S. Environmental Protection Agency
Informational Devices
• State registries of contaminated sites and ICs
• Posted advisories
• Recorded Notices
U.S. Environmental Protection Agency
State Registries Wisconsin DNR: CLEAN
U.S. Environmental Protection Agency
Wisconsin DNR’s CLEAN, continued
U.S. Environmental Protection Agency
State Registries, continued…
U.S. Environmental Protection Agency
State Registries, continued…
U.S. Environmental Protection Agency
Wisconsin DNR’s CLEAN, continued
U.S. Environmental Protection Agency
Wisconsin DNR’s CLEAN, continued
U.S. Environmental Protection Agency
Posted Advisories
U.S. Environmental Protection Agency
Posted Advisories, continued
https://www.epa.gov/fish-tech
U.S. Environmental Protection Agency
EPA’s National Listing of Fish Advisories
https://fishadvisoryonline.epa.gov/General.aspx
U.S. Environmental Protection Agency
EPA’s National Listing of Fish Advisories
U.S. Environmental Protection Agency
Use of Recorded Notices • Informational notices when PC implementation
cannot be achieved • Used as a last resort when a PC may not be
implemented, or as a supplement to other ICs • Recorded in real property land records • Not legally binding; no use restrictions imposed • Engage landowner in drafting • Protectiveness and absence of a PC should be
monitored and periodically evaluated (FYRs, ICIAPs)
U.S. Environmental Protection Agency
Use of Recorded Notices
• DISCLAIMER: The remedy selection process and remedy amendment process must still be followed if different ICs are needed than those originally selected.
U.S. Environmental Protection Agency
UAO & Recorded Notice
• Eureka Mills Superfund Site – Utah – Region 8 issued UAO to comply with land use
restrictions. – UAO prohibits digging or developing in specific
areas on an affected parcel. – Also filed a notice of environmental conditions on
the affected parcel.
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
Types of Recorded Notices • Notice of Contamination (Deed Notice)
– Description of contamination, location of contamination, land or resource use recommendations, legal description, cautionary language on safety measures, etc.
– Should NOT include words of prohibition or suggest notice is enforceable or imposes restrictions, is binding
– Provide property owner opportunity to negotiate
U.S. Environmental Protection Agency
Greenwood Chemical – Region 3
U.S. Environmental Protection Agency
Model Notice of Contamination
• Internal document, to assist Regions with drafting notices of contamination – Database of filed notices will also be kept
• Notes that Notice does not create any interest in real estate or restrict property use
• Allows for listing of activities identified in ROD that increase risk of exposure to contamination
• Provides location of Administrative Record and EPA contact information
U.S. Environmental Protection Agency
Types of Recorded Notices
• Notice of Administrative Action – Following issuance of UAO – Same information as Notice of Contamination, but
also contains description of basis for issuing UAO, describes land or resource use restrictions in UAO
– Not enforceable but may inform potential purchaser or lender of expectations upon property acquisition
U.S. Environmental Protection Agency
Best Practices for Recorded Notices • Provide notice of intent to file and copy of
proposed notice • Provide opportunity to confer • Must clearly state that notice does not impose
enforceable use restrictions • Notices include only suggested safety measures,
recommended land or resource uses, and factual information about residual contamination
U.S. Environmental Protection Agency
Obtaining SWRAU – IC Challenges
• OSRTI Audit – Universe of CC sites not yet SWRAU – IC issues found to be prominent barrier – 34% of sites where IC challenges are the only barrier
• Tools to address regional SWRAU issues – Regional Best Management Practices – SWRAU Decision Tree
• Next Steps – Continue audit, incorporate feedback
U.S. Environmental Protection Agency
Questions?
• Anthony Austin, [email protected], (202) 564-6943
• Craig Boehr, [email protected], (202) 564-5162