26 ELR 10109 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Use of Institutional Controls as Part of a Superfund Remedy: Lessons From Other Programs

Editors' Summary: Institutional controls are a mechanism for providing a certain degree of safety in the absence of technology that could clean contaminated sites thoroughly. Institutional controls come in a variety of forms, each of which can be designed to meet specific site needs. Flexible but long-lasting mechanisms such as institutional controls can be used to ensure that land uses continue to be compatible with the level of cleanup at a site. If Congress amends CERCLA to require EPA to take future land use into account in selecting the type and level of cleanup required at particular sites, institutional controls will become an important and integral element of many remedial actions. This Article describes how institutional controls have been used at contaminated sites and in analogous situations. The author concludes that understanding the lessons offered by past experience with institutional controls will provide valuable knowledge to CERCLA policymakers addressing how best to protect humans from long-term risks at contaminated sites. The use of institutional controls in the broad variety of situations examined in this Article confirms that they can be useful tools for managing risk, but also confirms that no institutional control can eliminate risk entirely.

This study was prepared with funding from the U.S. Environmental Protection Agency (EPA) under Cooperative Agreement # CR-820539-01. ELI Project #922042.

John Pendergrass is a Senior Attorney at the Environmental Law Institute (ELI). He graduated from Lyman Briggs College of Michigan State University (B.S. 1976) and from Case Western Reserve University Law School (J.D. 1979). The author thanks James McElfish and Heather Wicke, who contributed substantially to this Article, as well as Meghan Clancy-Hepburn, Jamie Dycus, David Spohr, David Vaughn, and Eric Wilkinson, and Ted Sears for his helpful comments.

EPA staff contributing to this project included Harriet Tregoning, Chris Montgomery, Tom Davis, and Jeff Anderson. The author also gratefully acknowledges the help of staff from the states of Connecticut, Florida, Oregon, and Vermont, and from the U.S. Department of Energy, U.S. Army Corps of Engineers, and the Federal Emergency Management Agency. Although the information in this document has been funded in part by EPA under Cooperative Agreement CR-820539-01 to ELI, it does not necessarily reflect the views of the Agency and no official endorsement should be inferred.

[26 ELR 10109]

Many proposals to revise the federal Superfund program as part of Congress' efforts to reauthorize the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provide that future land use be considered when the U.S. Environmental Protection Agency (EPA) determines cleanup standards for a particular site.¹ Each of these proposals relies on the use of institutional controls, which are legal or institutional mechanisms employed at contaminated sites to ensure that the actual use to which such a site is put after cleanup is compatible with the level of cleanup completed.² Many of [26 ELR 10110] the proposals do not mention institutional controls explicitly, but all participants in the reform process recognize that it would be irresponsible to allowa designated land use at a site cleaned up to a standard based on continuation of an industrial use to change from industrial use to residential use.

There has been little analysis of how institutional controls would work, what types might be used, how effective they would be, or how difficult they would be to administer.³ This Article analyzes the use of institutional controls in federal,⁴ state, and local programs⁵ intended to protect public health and safety, as well as private uses⁶ of institutional controls.⁷ The Article identifies technical, economic, public health, administrative, and other practical issues associated with the implementation of institutional controls.

In assessing the potential use of institutional controls in the federal Superfund program,⁸ this Article analyzes institutional controls currently in use in terms of the situations in which they have been used, how they are used, their effectiveness, the relative difficulties of administering them, limitations placed on their use, who applies them, and any general principles that can be derived from these experiences.

Institutional Controls in the Superfund Context

Institutional controls are currently in use at some Superfund sites, most frequently as temporary measures to reduce site risks until remedial action designs are complete and construction underway. They also may be used when remediation is not technically and/or economically feasible.⁹ In order to meet CERCLA's fundamental purpose of protecting human health and the environment from the effects of hazardous substances, institutional controls are designed to restrict the use of contaminated land and groundwater and to reduce short- and long-term public health risks. With specific regard to groundwater, institutional controls must prevent situations from arising in which humans might inadvertently consume contaminated groundwater, even when it migrates away from the original site of contamination. Examples of such controls range from warning signs to fences to temporary use restrictions.¹⁰

When institutional controls are included as part of a final remedial action, they impose limitations on land uses in specific contaminated areas in lieu of requiring a more comprehensive cleanup.¹¹ The goal is to improve the cost-effectiveness of cleanups by making them consistent with the use to which the site will be put after the cleanup is completed. No matter what land use is specified, the cleanup will usually involve removal of sources of contamination, and treatment or removal of contaminated surface soils. Contaminated groundwater, on the other hand, might not be treated if the post-cleanup land use will not involve groundwater use or consumption or will involve the use of groundwater for purposes to which the contamination presents no health or industry hazard.

Institutional controls are needed during and after cleanups for at least two reasons. First, they can prevent users of a site from changing the site's use to one that might in the future expose people to the contamination left in place. Second, they can ensure that any change in use would be preceded by a risk assessment and that additional cleanup would be done as needed before a new use is instituted. For example, institutional controls might be designed to provide notice that the groundwater is not potable or to prevent drilling or excavating in sensitive areas.¹²

[26 ELR 10111]

Institutional Controls in Practice

Existing laws and regulatory programs impose institutional controls in three general contexts — (1) to protect particularly valuable features or existing uses (e.g., aquifer protection programs, wellhead protection, historic preservation, conservation easements for preservation or recreation); (2) when existing or planned land uses are incompatible with certain existing natural hazards (e.g., construction in flood-plains; siting of nuclear power plants or hazardous waste treatment, storage, or disposal (TSD) facilities on earthquake faults); or (3) when the future land uses are incompatible with certain human-created hazards (e.g., closure of hazardous waste facilities, excavations around buried utility facilities). Institutional controls also can be categorized according to the party imposing restrictions on land use — private parties or local, state, or federal government agencies — although effective institutional controls may be coordinated by any of these parties, often cooperatively. These categories of institutional controls may be further classified by their method of control — direct or indirect. A direct mechanism of institutional control involving land and groundwater use is one that is implemented by a single authority to achieve a defined outcome. Such controls include property ownership, regulatory permitting, and control of the facilities needed to use the land or groundwater. Indirect institutional controls, on the other hand, operate on assumptions that people will act in a certain manner in response to the control measure. Indirect controls include providing notice, deed restrictions, insurance requirements and ineligibility for insurance in specified situations, and one government agency requiring another to adopt regulatory controls that apply to third parties.

Protecting Valuable Land and Existing Uses

Easements, Reversions, and Restrictive Covenants in Operation

Almost since the concept of private property was created, private parties have tried to control or restrict the use of property that others own.¹³

[] Easements and Reversionary Interests. Easements limit the uses that may be made of an owner's land.¹⁴ As a standard element of property law, easements are for the most part governed and enforced by state common law and, thus, there may be minor variations among the states in how they apply and are enforced. A conservation easement restricts the fee simple owner to uses that are compatible with conservation of environmental values, scenery, or other purposes.¹⁵ Conservation easements were not a part of the common law of property due to the historical way in which the concept of easements developed; but nearly all states have passed statutes authorizing conservation easements and establishing basic rules for their use.¹⁶

In general, an owner of land grants a conservation easement to an entity that is considered the holder of the easement. If the owner violates the terms of the easement — for example, by constructing a building in the area covered by the easement — the holder of the easement may bring suit to restrain the owner's action. If the holder of the easement does not act, however, no third party has a basis to restrain the owner. Moreover, if the holder of the easement does not act promptly, the easement holder may lose the easement interest altogether.¹⁷

[26 ELR 10112]

In addition to conservation easements, reversionary interests can be used to restrict land use. A reversionary interest might arise when a landowner deeds its parcel of land to another person or entity while retaining a reversionary interest. The terms of the conveyance spell out the conditions under which the land reverts to the original owner (or the owner's successors). Essentially, the land is under a restrictive covenant with which each owner in the chain of title must comply; if an owner does not comply, the original owner (or the original owner's successors) may bring an action in court to recover the land.

Conservation easements and reversionary interests have been used effectively in the environmental context to control land uses.¹⁸ Notably, reversionary interests, particularly when the federal government holds them, can last a long time. Equitable defenses such as laches, waiver, and estoppel typically do not apply to the federal government as they would to private entities or individuals holding reversionary interests.¹⁹ Thus, although the existence of a reversionary interest is no guarantee that incompatible activities will not occur, it may halt such activities, or at least result in the acquisition of lands.

[] Restrictive Covenants. A restrictive covenant is a deed restriction that prohibits specific types of development or construction on lands. Owners may include them in deeds, but frequently it is developers that use them when land is platted to determine future land use, sometimes before local zoning laws are in place. Unlike zoning,²⁰ which is a policing mechanism operated by state and local governments, restrictive covenants are private controls between a developer or a past owner and the current owner of property, and they might not protect public health or safety. Although some restrictive covenants have been removed by judicial order, especially those that were racist in their intent, many remain in deeds today.²¹ Like conservation easements, restrictive covenants are governed by state property law and, thus, vary from state to state.

Easements, Reversions, and Restrictive Covenants Evaluated

Consersation easements typically are used by a private-property owner and another individual or organization to impose restrictions on the use of a property according to the agreement reached between those parties. The flexibility conservation easements allow makes them an ideal tool to solve a variety of problems through adjustment of specific terms. The easement is also widely available, but in normal use depends on willing property owners and private parties that can afford it. Easements rely on existing property law, including state statutes authorizing conservation easements, and property records systems, both of which will continue to operate regardless of whether greater use is made of easements. Thus, no major systemic changes would be necessary to allow the use of easements as an institutional control component of remedial actions at Superfund sites.

Relatively little state or federal government staff time would be needed to administer an easement or reversionary interest as part of a Superfund remedial action, but periodic site visits would be necessary to ensure that the terms of the easement were being observed. More problematic for EPA would be the differences in property law governing easements and reversionary interests from state to state. EPA's adoption of a nationwide strategy of using easements or reversionary interests as institutional controls would present significant administrative burdens for those charged with ensuring that the applicable rules were followed in each state, including EPA attorneys who do not generally need to know the property law of specific states. Compliance with each state's particular rules would be a far less significant burden if the states were authorized to administer the Superfund program, because attorneys in each state could be expected to know the rules for their state.

Restrictive covenants are less appealing as a method of control. First, restrictive covenants have drawn controversy because of the injudiciousness with which they were originally applied.²² Many were intended to maintain elite neighborhoods. Second, the variability of state law applicable to [26 ELR 10113] restrictive covenants may be greater than the variability for easements, particularly, conservation easements. From the federal government's perspective, restrictive covenants are less attractive than easements when applied as an institutional control for sites under direct federal supervision. If states were authorized to administer the federal Superfund program, however, restrictive covenants would be relatively easy to administer. Moreover, the concept of a restrictive covenant may be useful in the context of Superfund as an example of how to indicate prohibited future uses in a deed. And the flexibility of restrictive covenants allows them to be used on an individual plot of land or an entire subdivision. Nonetheless, to be an effective institutional control under Superfund, mechanisms would need to be developed to ensure enforceability at the state level, because a covenant, like an easement, needs the support of state law to be enforced.

Aquifer and Wellhead Protection Programs

[] Program Operation. The Safe Drinking Water Act (SDWA) provides for the protection of sole source aquifers EPA designates.²³ Applications accepted for the designation must include a comprehensive management plan for the proposed protection area. They also must include specific actions and management practices to be implemented, and may include limits on government financially assisted activities and projects affecting the watershed, as well as land-use control techniques such as clustering, transfer of development rights, and other innovative measures. The SDWA also provides for state programs for wellhead protection areas.²⁴ Each of these may include institutional controls.

Federal designation of a sole source aquifer as such gives the designated area a higher profile and means that EPA has stronger powers to work with federal agencies to safeguard public health by protecting the aquifers. EPA has agreements with federal agencies, e.g., Department of Transportation, that specify that EPA can review proposed projects located in sole source aquifers. Attempts are made to include sole source review in other review procedures, such as an environmental impact statement (EIS). A regional EPA office will often comment on draft EISs until the EIS meets federal standards. Other preventive measures EPA takes include documenting cumulative and secondary impacts and drafting spreadsheets to predict the potential effects of a given project on a sole source aquifer. Generally, EPA has worked closely enough with other federal agencies to assure protection of the aquifers or to mitigate any damage. If necessary, however, EPA may veto a proposed federal action in a sole source aquifer if the action poses a threat to public health or safety.²⁵

To protect well-water quality, states have adopted a variety of strategies that limit the uses allowed of contaminated water.²⁶ The types of controls used in these states and municipalities might also be used as part of a Superfund remedial action.

The four states reviewed for this Article take several different approaches to restricting use of contaminated groundwater and issuing notices of acceptable uses.²⁷ In general, states will employ a specific classification system and/or a more general approach. For example, as part of its groundwater law,²⁸ Connecticut maintains a published map of existing quality and classified uses of its groundwater resources. The lowest class (GB) allows no human consumption of groundwater. Groundwater underlying Super-fund sites and other known contamination sites has been placed in this class and mapped for the public.

Vermont also has a groundwater classification system and has reclassified groundwater at two Superfund sites from Class 3 (suitable for individual water supply) to Class 4 (not suitable for human consumption).²⁹ This reclassification was ordered by the state Secretary of Natural Resources and will be entered into a state geographic information system that is currently under development with EPA Superfund support. In addition to this specific classification system, Vermont employs a state land-use permit system, which is an example of a more direct control mechanism. Under legislation enacted in 1970,³⁰ any development or new land use must meet 10 criteria in order to obtain a construction and use permit. One of these criteria is that the use will not contaminate groundwater or surface water. These permitting conditions have prevented potentially harmful activities that might otherwise have gone unnoticed until problems developed. As part of its wellhead protection program, the state has recently conditioned permits for public water system operation (three-year term renewal) or waivers from unnecessary monitoring requirements on the submission of groundwater source protection plans. These plans are required to identify potential contamination sources and measures needed to protect groundwater within designated wellhead areas, as well as to provide contingency plans for alternative supplies.

Oregon has both a classification system and a more general, comprehensive land-use planning statute. Under its classification scheme, the state can place a deed restriction on the use of groundwater underlying land that is sold after being cleaned up, if there is reason to suspect that any contamination remains.³¹ The deed restriction is filed at the title office and a record is also kept at the Department of Environmental Quality. Oregon's land-use planning statute is an example of an indirect form of institutional control, but one that relies less on idiosyncratic human compliance [26 ELR 10114] with warnings. Under the statute, Oregon's municipalities are required to submit land-use plans to the state on a periodic basis for review.³² Additionally, Oregon's counties currently are authorized to condemn land on which public wells are located, in order to protect the quality of water supplies.³³ The proposed wellhead program was portrayed as an extension of this existing authority to areas of suspected contamination around private wells.³⁴

Florida has both a classification scheme³⁵ and a program to delineate aquifers or portions of aquifers known to be contaminated by a toxic substance.³⁶ The most extensive delineation has been done for aquifers contaminated by ethylene dibromide used in citrus growing. These delineated areas are subject to additional well restrictions. The five water management districts which issue well permits require more stringent siting and construction specifications for new wells in these areas. These requirements add an estimated $ 5,000 to the cost of drilling a well. Once new wells are drilled, the water is tested for contamination. If contaminated in excess of state groundwater and federal drinking water standards, the state must "fix" the well or provide alternative drinking water supplies. If an existing public or private well in a newly delineated area is found to be contaminated, the state must also fix it or provide alternative water supplies.

[] Aquifer and Groundwater Program Institutional Controls Evaluated. The effectiveness of permits in preventing changes in land use depends on the conditions included in the permits and the extent of compliance with the permits. Ensuring compliance may require an extensive administrative system of compliance verification and some type of action to bring violators back into compliance. Such action may include reminders, compliance assistance, or enforcement actions. In many situations, such a system will be in place for other reasons and the permit program may become an additional responsibility of existing staff, which may create an unmanageable burden. All of these techniques are indirect controls and thus rely to a greater or lesser extent on human interactions to be effective.

Notably, some regulatory and permitting approaches have been challenged as "takings" of private property for public use without just compensation.³⁷ Few such challenges have legal merit, however. For example, even the required dedication of an easement — a property interest — is not a taking if it bears a sufficient relationship to the impact of the regulated activity.³⁸

Historic Preservation

[] The National Historic Preservation Act. The National Historic Preservation Act (NHPA) is a consultation and mitigation mechanism to protect historic resources.³⁹ It establishes the National Register of Historic Places and protects properties "eligible" for the Register, whether or not they have been registered. NHPA § 106 limits federal agency actions (activities agencies conduct, fund, subsidize, or license) that may affect a property eligible for listing by requiring the agency to consult with the State Historic Preservation Officer (SHPO) and/or the Advisory Council on Historic Preservation; it does not prohibit such undertakings, but it is a procedural safeguard.

[] NHPA Institutional Controls Evaluated. Consultation can be an effective institutional control to prevent harm to historic properties if the federal agencies actually consult the SHPO or the Advisory Council and then modify their proposed actions to avoid harming the property. This requires an extensive administrative system, including appointing SHPOs and an Advisory Council and publicizing the consultation requirement to all federal agencies. The system was not expected to prevent harm to all eligible properties and it does not. Consultation, thus, is not effective as an institutional control where the goal is to prevent changes in land use, but it could be effective as a mechanism for alerting an environmental agency that a land owner intends to change the use of a contaminated parcel.

Protecting Land and Existing Uses From Natural Hazards — Siting Restrictions

Land-use controls may be necessary in areas prone to natural hazards such as earthquakes, fires, or floods. Apart from federal laws concerning floodplains,⁴⁰ there are few general federal controls on siting of industrial facilities in such areas.

In contrast, states and localities may have substantial restrictions reflected in land-use planning requirements and permitting. California, for example, requires comprehensive land-use planning by local governments⁴¹ and requires environmental impact reviews of proposed construction or [26 ELR 10115] other activity approved by state or local governments.⁴² Other states with comprehensive land-use planning requirements include Florida, New Jersey, Oregon, and Vermont.⁴³

Floodplain Programs in Operation

The U.S. Army Corps of Engineers (the Corps) and the Federal Emergency Management Agency (FEMA) restrict development in floodplains.

[] U.S. Army Corps of Engineers. While the Corps is not authorized to regulate the use of private lands directly, the Corps can, in conjunction with a Corps-sponsored project, influence land use in and around these areas by requiring state and local land-use controls. State and local governments are responsible for enacting and enforcing these land-use controls, but the Corps is authorized to require beneficiary communities to take such actions when potential development would affect Corps-sponsored projects.⁴⁴ The Corps rarely uses this authority.⁴⁵

The Corps' projects⁴⁶ are undertaken under a 50-50 cost-share with the sponsoring community. The sponsoring community can be a city, county, or any other entity with authority to tax, regulate, and enter into binding agreements.⁴⁷ To ensure that land-use restrictions the Corps stipulates are enforceable and enforced, the Corps includes these institutional controls in the Local Cooperative Agreement (LCA) it signs with the community sponsor at the outset of a project. LCAs normally include provisions that (1) establish the responsibility of the community sponsor to analyze potential effects from any proposed development; (2) prohibit the sponsor from allowing new development that might adversely affect the completed project; (3) require the sponsor to obtain the Corps' concurrence that any new development in the identified area will not in fact have any adverse effect; and (4) require the local sponsor to participate in the National Flood Insurance Program (NFIP) before, during, and after construction of the project.⁴⁸

Authority for such control, administered by the Flood Plain Management Services and Coastal Resources Branch of the Corps, derives both from the need to protect federal investments in related projects⁴⁹ (although the majority of projects protect the private sector), and from the Corps' mandate to ensure local participation in the NFIP.⁵⁰ Such development controls must be thoroughly discussed during the feasibility stage of the planning process and must follow the same public participation process as other aspects of the Corps' projects.⁵¹

To ensure compliance, the Corps accompanies the responsible local officials on periodic (at least annual) site inspections.⁵² If the locality is in violation and refuses to comply with the terms of the contract, the Corps may undertake legal action, but this is rarely necessary.

Although the Corps does not generally seek to institute development controls for upstream or non-floodplain areas,⁵³ such areas may be affected by shifts away from development in the floodplain areas.

[] Federal Emergency Management Agency. FEMA covers a broader area than does the Corps, but the controls it uses are also indirect. To be eligible for FEMA flood insurance, the local government responsible for regulating land use must apply for coverage for the entire area within its jurisdiction. The state government must also apply for coverage of property in its jurisdiction. This prevents a state or community from allowing uninsured development in certain areas of its flood-plains while the majority of the community remains eligible for insurance. Thus, FEMA provides communities with an incentive to restrict floodplain development. Such development is likely to be opposed, for example, by citizens not living in the floodplain who would be denied insurance. Some states reinforce this incentive by requiring inclusion of the NFIP as a part of the state floodplain program.

Community applicants for insurance must submit "ordinances authorizing actions regulating land use," including "zoning, building, and subdivision regulations, health codes … and any other corrective and preventive measure enacted to reduce or prevent" flood damage.⁵⁴ In order to qualify for flood insurance, communities must also adopt "adequate flood plain management regulations consistent with Federal criteria."⁵⁵ These regulations must be legally enforceable, must be uniformly applied to all the community'sland (both public and private), and must take precedence over "any less restrictive conflicting local laws, ordinances or codes."⁵⁶ Communities are encouraged to adopt more restrictive criteria.⁵⁷

Minimum standards for local land management regulations [26 ELR 10116] include requiring permits for all proposed construction, reviewing proposed development to assure that all required state and federal permits have been received, reviewing permit applications to determine if proposed development will be safe from flooding, and requiring any necessary modifications.⁵⁸ FEMA regulations specify criteria for the community to consider in formulating development goals and floodplain management regulations, including "full disclosure to all prospective and interested parties (including but not limited to purchasers and renters) that (i) certain structures are located within flood-prone areas, (ii) variances have been granted for certain structures located within flood-prone areas, and (iii) premium rates … substantially increase as the elevations decrease."⁵⁹ The criteria also include "consistency between state, regional and local … programs."⁶⁰ Communities should include in their planning process the importance of steering development away from flood and erosion-prone areas; the possibility of reserving such areas as open space; coordination with state and regional efforts; and preventative actions such as setbacks, relocation, and acquisition.⁶¹

If eligible communities fail to enforce these requirements adequately, the FEMA Administrator may begin probation proceedings by informing the community, issuing press releases, and advising policyholders of the impending probation and accompanying premium increases. The community has 90 days to correct deficiencies (or demonstrate compliance) and avoid probation.⁶² If the community fails to satisfy FEMA, and is placed on probation, premiums are increased and the community is subject to suspension of eligibility. Suspended communities are not eligible for flood insurance. A community may be subject to suspension (without a probation period) not only for failing to enforce flood-plain requirements, but for repealing any floodplain restrictions. FEMA may void policies erroneously sold or renewed in a suspended community. A suspended community may only be reinstated by submitting local legislative or executive orders enforcing floodplain requirements.⁶³

Though a community may have some latitude in defining its floodway, once the floodway has been determined the community must prohibit development in that area, unless such encroachments would not result in increased flood levels. The community may apply for a conditional Flood Insurance Rate Map and floodway revision,⁶⁴ and may, with possible FEMA review, grant a variance from its requirements. Such a variance will not, however, prevent insurance premiums from increasing.⁶⁵

Implementation of the floodplain management programs is a shared responsibility of the Corps and FEMA. As with any shared-authority situation, these entities are likely to have differing ideas of how their responsibilities should be discharged, which can result in some responsibilities being forgotten, or in one entity assuming that another is discharging a duty when the other is not acting on it. This may be occurring to some extent with the floodplain management programs. Although one of the Corps' responsibilities is to ensure that localities participate in the NFIP and other programs, FEMA regional directors are responsible for placing communities on probation if their floodplain management programs are not in keeping with NFIP criteria.⁶⁶

A report by the Inter-Agency Flood Plain Management Review Committee to the Administrator of the Flood Plain Management Task Force⁶⁷ indicates that no agency has real enforcement power over floodplains.⁶⁸ The greatest impediment to implementing the program is the lack of an enforcement mechanism. And while the Corps has a constant stream of enforcement work under the § 404 program, there has been little enforcement activity within the Flood Plain Management program. Because the Corps has no direct enforcement authority, it usually negotiates with local authorities if the Corps' annual review of floodplain management projects reveals any problems, and the Corps is almost always able to work things out.

FEMA also has enforcement problems in this area. It appears, however, that FEMA spends little time or effort on investigation or active enforcement. It has chosen to allocate its scarce resources to other problems rather than enforcement of this program. Over 18,400 communities participate in the flood insurance program, creating a potentially great administrative burden of determining compliance. Only 413 communities have been suspended for having either repealed or not adopted the necessary restrictions or regulations. And due to a lack of enforcement, only 6 communities have ever been suspended (and 1 of these has since been reinstated). FEMA attributes this to the difficulty of determining or proving the lack of enforcement and to the fact that once a community is put on probation and faces the loss of subsidized insurance, public pressure usually forces the relevant authority to take the necessary action to avoid suspension.⁶⁹

Floodplain Management Institutional Controls Evaluated

The limits of indirect controls for floodplain management are illustrated by the fact that FEMA's floodplain management restrictions on flood insurance have not succeeded in preventing flood damage. The destruction that occurred in the midwestern floodplains in 1993 was due in large part to the fact that flooding levels exceeded the 100-year flood planning benchmark. Nonetheless, extensive habitation of the floodplain had occurred despite the federal flood insurance [26 ELR 10117] requirements, in part because structures existing when eligibility requirements became effective in 1970 were grandfathered. These structures were to become ineligible for insurance if 50 percent or more of the building were damaged in a subsequent flood. The percentage of damage was often assessed by local builders whose interests lay with the community and who had an incentive to promote insured rebuilding. The disparity between local and federal interpretations of eligibility requirements and land use is one of the program difficulties a Presidential task force on floodplain management and mitigation plans to address.⁷⁰

Meanwhile, FEMA is encouraging floodplain residents to participate in a locally or state-coordinated buyout program. The Hazard Mitigation Grant Program gives grants to local governments to cover up to 75 percent of the costs of acquiring properties or relocating residents to nonfloodplain areas. The Department of Housing and Urban Development Community Development Block Grant is another source of funding for buyout and relocation. Other policies and procedures used in hazard mitigation are categorical exclusion, environmental contract, deed restriction, and title conveyance, all of which either seek to prevent further settlement on hazardous land or enhance the process of identifying potentially threatening land. Such programs and tools aim to prevent future flood loss or injury permanently by paying residents to leave their properties and accompanying structures and move to "higher ground."

These programs are institutional controls that discourage people from reinvesting in floodplains and from moving into communities that have been evacuated. Their other obvious benefit is that people who participate in the programs are safe from the dangers inherent to living in a floodplain. As of May 1995, EPA considered drafting a new federal policy that would increase the Agency's ability to relocate people living near Superfund sites.⁷¹ This example demonstrates that an institutional control like that of floodplain resident relocation can also translate into other types of situations where human life requires protection from hazards.

Earthquake Zone Institutional Controls

Federal restrictions on land use in areas with known active fault lines (earthquake zones) are relatively rare and, when used, are limited to particular kinds of facilities.

[] Earthquake Zone Development Controls in Operation. Any new Resource Conservation and Recovery Act TSD facility may not be sited in earthquake zones (within 200 feet of faults displaced in Holocene times).⁷² Any TSD facility that is constructed or rehabilitated with EPA funds must first receive the approval of the EPA Seismic Safety Office. A TSD facility cannot obtain a permit if it violates these siting criteria and, therefore, this has proven to be an effective mechanism for ensuring that all new projects meet the written standards of the Seismic Safety Office.⁷³

In the wake of the 1987-1994 earthquake activity in California, EPA recommends performance standards to avoid destruction of mechanical and electrical units in buildings. The concern is that if ducts are not seismically resistant, there may be hazardous releases as a result of an earthquake. While performance standards that would prohibit such emissions are currently only recommendations, it is possible that they will become policy akin to the existing seismic standards.

Similarly, nuclear power generating facilities must meet certain siting criteria to receive a construction license from the Nuclear Regulatory Commission (NRC).⁷⁴ Nuclear waste disposal facilities are also subject to siting criteria. The federal regulations governing the siting of such facilities list a variety of "potentially adverse conditions," including seismic and igneous activity. If any of these conditions exists at a prospective disposal site, the applicant must demonstrate that the ability of the site to meet applicable performance criteria has not been compromised.

[] Earthquake Zone Institutional Controls Evaluated. Because to date there have not been releases of hazardous waste from TSD facilities or from nuclear power generators as a result of earthquake activity, it is believed these controls have been successful. Each of these siting restrictions relies on an existing permit system and enforcement of the requirement to obtain a permit. But given that those systems exist, implementing the siting restrictions adds relatively little administrative burden. The public concern over siting of these types of facilities helps to assure compliance with the restrictions because citizens verify that all rules and procedures are followed. The effectiveness of siting restrictions is also aided by the fact that they typically prevent a use in a high-risk area. Thus, only one decision is necessary for them to be effective and they do not require continual vigilance.

Protecting Land and Existing Uses From Man-Made Hazards

Land-use controls are also necessary in areas subject to man-made hazards, such as hazardous waste and nuclear waste releases, as well as accidents involving buried utility facilities. These controls include federal, state, and local precautionary measures that are based in law, regulation, and policy, and in appropriate instances involve privateparty warnings.

Hazardous Waste Facility Closure and Cleanup Controls in Operation

Sixteen states require in certain circumstances that their land recordation systems (deed records) used in proving the title to land include information on hazardous wastes or substances that were present on the site.⁷⁵ A number of [26 ELR 10118] these states require this information for permitted hazardous waste TSD facilities.⁷⁶ Others require such recordation in connection with the cleanup of sites on the state's inventory of hazardous sites.⁷⁷

EPA regulations require permitted hazardous waste disposal facilities to record a notice in local deed records upon closure of their first and last units within 60 days after certification of such closure.⁷⁸ The notice must "in perpetuity notify any potential purchaser of the property that — (i) the land has been used to manage hazardous wastes; (ii) its use is restricted under 40 C.F.R. Subpart G regulations; and (iii) the survey plat" providing information on the wastes and their locations has been filed with the local zoning or land-use planning authority and the EPA Regional Administrator.⁷⁹

The use restrictions in 40 C.F.R. subpart G are simply postclosure monitoring and maintenance for 30 years (if required), and limitation of access during all or part of the postclosure period if hazardous wastes may remain exposed or if "access by the public or domestic livestock may pose a hazard to human health."⁸⁰ Also, postclosure use of property "must never be allowed to disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the facility's monitoring systems" except as authorized by the EPA Regional Administrator as "necessary to the proposed use of the property," or to reduce a threat to health or the environment.⁸¹

Hazardous Waste Facility Closure and Cleanup Controls Evaluated

Because these restrictions on use during the postclosure period are regulatory, they bind only the owner/operator. There is no direct regulatory authority assuring that others — including purchasers of the land — may not undertake incompatible activities; the regulation controls only the owner/operator. The deed notice concerning use restrictions does not itself restrict the use; at most, it notifies potential purchasers and establishes a possible basis for an assertion of EPA jurisdiction over the purchaser.

Nuclear Waste Disposal Site Controls(NEWLINE)

Federal regulations call for a variety of institutional controls on radioactive waste disposal sites. The licensing requirements for land disposal of low-level radioactive waste acknowledge that "it is possible but unlikely that persons might occupy the [disposal] site in the future and engage in normal pursuits without knowing that they were receiving radiation exposure."⁸² Accordingly, the regulations provide for controls to protect such persons, whom they term "inadvertent intruders."

The regulations for low-level disposal units require that all units be located on land owned in fee (with no property interests held by others) by the federal or a state government.⁸³ They also require that "the land owner or custodial agency shall carry out an institutional control program to physically control access to the disposal site following transfer of control of the disposal site from the disposal site operator."⁸⁴ This program must include an environmental monitoring program, surveillance, custodial care, and the administration of funds to cover the costs of these activities. The regulations further indicate that "institutional controls may not be relied upon for more than 100 years."⁸⁵

The types of controls required at a particular low-level waste site depend on the hazards posed by the waste disposed of at that site. The regulations note that two types of controls are available for preventing inadvertent intrusion: institutional controls and physical barriers.⁸⁶ At sites used for the disposal of waste designated as Class A (waste containing such small amounts of radionuclides as to be of little concern and which might be physically unstable, such as ordinary trash) or Class B (waste which is expected to present an acceptable hazard within 100 years of its disposal), institutional controls that will be reliable for 100 years are required.⁸⁷ These controls need not constitute a prohibition on use of the land; during this 100-year period, "the government landowner administering the active institutional control program has flexibility in controlling site access which may include allowing productive uses of the land."⁸⁸ At sites used for the disposal of more hazardous Class C waste (waste that will not present an unacceptable hazard to an intruder within 100 years), physical barriers which will be effective for 500 years, such as deep disposal or concrete covers, must be employed.⁸⁹ At all low-level waste sites, the boundaries and locations of disposal units must be mapped with land surveys, and near-surface units marked with permanent survey marker control points referenced to U.S. Geological Survey or National Geodetic Survey control stations.⁹⁰

Also subject to requirements for institutional controls are sites at which high-level radioactive waste is placed in geologic repositories. Such sites may be located only on acquired land under the jurisdiction and control of the Department of Energy (DOE), or on lands permanently withdrawn and reserved for its use.⁹¹ Lands used for such sites must also be free of encumbrances, including mining rights, right-of-way easements, and all other rights arising under lease, rights of entry, deed, patent, mortgage, appropriation, prescription, or otherwise.⁹² The DOE must exercise any jurisdiction and control over surface and subsurface estates which is necessary to prevent human actions that could [26 ELR 10119] threaten the integrity of the geologic repository, and must obtain water rights at the site.⁹³

Before closing a high-level waste site, the DOE must submit to the NRC an application to amend its disposal license. This application must indicate measures to be employed (including land-use controls, construction of monuments, and preservation of records) in order to "regulate or prevent activities that could impair the long-term isolation of emplaced waste within the geologic repository and to assure that relevant information will be preserved for the use of future generations."⁹⁴ At a minimum, these measures must include identification of the site with monuments "designed, fabricated and emplaced to be as permanent as is practicable," and the placement of records "in archives and land record systems of local, State and Federal government agencies, and archives elsewhere in the world, that would be likely to be consulted by potential human intruders."⁹⁵

Although disposal methods for high-level waste are intended to render the waste inaccessible to potential intruders, physical barriers are required to prevent both inadvertent intrusion and migration of high-level waste. The regulations note that "during the first several hundred years following permanent closure of a geologic repository … special emphasis is placed upon the ability to contain the wastes by waste packages within an engineered barrier system."⁹⁶

Nuclear Waste Disposal Site Controls Evaluated

No permanent low-level or high-level waste disposal sites are yet in operation so these regulations have not been applied to date. It is clear from their terms, however, that they are the most stringent institutional controls adopted in the United States. They depend on multiple institutions of federal, state, and local government. Multiple institutions are necessary due to the assumption that during the long time over which the controls must be effective at least some of these institutions will fail to maintain the controls for which they are responsible. Thus, these rules rely on the principle of redundancy to improve the possibility that some controls will remain effective at protecting future generations throughout the period of risk. These controls will thus entail a high degree of effort to administer, but that effort will be diffused over a wide variety of institutions.

Institutional Controls at Buried Utility Facilities in Operation

A variety of institutional controls applying to numerous potential actors and governing bodies may be used to ensure that buried power and gas lines are not disturbed. For example, the Federal Department of Transportation requires that each state have a "one-call" telephone hotline law.⁹⁷ And states can require that "one-call" centers be established by local governments and be joined by all local utility operators or be operated by those utilities. Citizens are urged to call these hotlines before beginning any kind of excavation.⁹⁸ Utility companies may also engage in public information campaigns that include television, radio, and print media reminders to "call before digging," and may be required to mark the location of underground gas and power lines located on private lands with warning signs.

Local governments also may have requirements to meet. They may have to provide builders and excavators with information about the location of underground facilities.⁹⁹ Moreover, they may have to inform utility companies about planned construction or excavation that might affect their facilities.¹⁰⁰

And those engaging in construction or excavation projects that might affect buried utility facilities also may have requirements to satisfy. Municipal construction codes may require that citizens notify utility companies before engaging in any construction or excavation in areas where buried facilities are present. Builders or excavators may also be required to plan their operations so as to minimize interference with buried facilities, and to maintain a specific clearance between buried facilities and mechanized excavation equipment. Violators may be required to pay damages to the utilities and may be subject to civil penalties if they fail to comply by ignoring a one-call law, or fail to dig in a safe and prudent way.¹⁰¹

Institutional Controls at Buried Utility Facilities Evaluated

Like the institutional controls planned for nuclear waste disposal sites, those used to avoid damage to buried utilities are redundant. Several factors contribute to the need for this redundancy: the risk that damage to gas or electrical lines could cause death, serious injury, or property damage; the difficulty of determining the precise location of the utilities without specialized knowledge or equipment; and the many actors who could damage buried utilities or who have some responsibility for them. These controls rely on existing institutions to provide frequent reminders to the public about the risk and the resources available to avoid the risk. The signs, public service advertisements, staff time to answer inquiries and maintain accurate maps of the location of utilities are a considerable administrative burden and cost. These burdens and costs are spread across several institutions including federal, state, and local governmental agencies and the utility companies themselves. Unfortunately, these controls sometimes fail, causing significant property damage, injury, and loss of life, but it is not surprising [26 ELR 10120] given the ubiquity of buried electrical, gas, and oil lines and the number of people excavating.¹⁰²

Principles for Designing and Implementing Institutional Controls at Superfund Sites

Analyzing the efficacy of the institutional controls applied in the various contexts discussed provides useful information for addressing how best to use institutional controls to reduce risks at Superfund and other contaminated sites. Principles for applying institutional controls at Superfund sites are set forth below.

Designating Authority for the Controls and Creating Multiple Levels of Control

Experience to date with government ownership and control of land as a direct form of institutional control has been successful, although none of these cases have yet achieved final success in outlasting the risks with which they are associated. The Rocky Mountain Arsenal, Fort Meade, and other U.S. Department of Defense and DOE sites that have been transferred to the U.S. Fish and Wildlife Service (FWS) as wildlife refuges are operating as refuges without harm to humans. They will need to maintain this record for decades to be fully successful, but there is not reason to believe they will not. There is a slight risk that the FWS or other owning agency will fail to maintain appropriate restrictions on the use of contaminated land as time passes. One method of reducing this risk is to make the restrictions part of the written public records of the creation of the refuge or other land use. This increases the likelihood that land managers, agency attorneys, agency heads, or the public will be aware of the restrictions and the reasons for their existence.

The experiences with indirect controls suggest common institutional problems, including overlapping jurisdiction, lack of coordination among multiple responsible agencies, and limited regulatory authority. The shared responsibility or control between government and/or private entities, which is common with indirect controls, can result in contaminated properties "falling through the regulatory cracks." This may be due to the lack of institutional coordination and/or differing interpretations of restrictive requirements.

Examples of the limited efficacy one can expect from indirect controls that rely on interjurisdictional decisionmaking include Oregon's experience with its land-use planning law;¹⁰³ the number of accidents involving buried utilities resulting in explosions, electrocutions, and oil leaks;¹⁰⁴ and the common practice of building homes and other structures within floodplains despite the controls intended to discourage or prevent such development.¹⁰⁵ These problems demonstrate the advantage of designating one authority as the lead authority for designing, implementing, and enforcing a particular institutional control. If responsibility must be shared, communication and coordination between institutions is critical to reduce the chance that a site is forgotten.

The problems also demonstrate the need for developing multiple levels of institutional controls, or redundancy, to reduce the risk of overall failure. The principle of redundancy can significantly decrease the odds of failures. This principle can be applied in at least three ways: (1) layering of controls allows for one control to fail by providing another control that will operate on anyone the failed control missed; (2) designing different types of controls that would operate on different populations or in different time frames; and (3) altering implementation schemes, so that some controls are passive while others depend on active administration by human institutions.

With redundant controls, any failure of the first level of controls are likely to be caught by the second level of controls, and the few failures that are missed by both of those levels of controls would likely be caught by a third level of controls. The amount of overlapping, or redundancy, of controls should increase as the risk associated with a single failure increases. For instance, the risk of a high-level radioactive waste repository failing could be huge, therefore may layers of redundancy are appropriate. Buried utilities demonstrate that even several layers of redundancy can fail to be 100 percent successful if the number of actions or actors to be protected is huge or the risk is ubiquitous.¹⁰⁶ Particularly in situations where there is shared responsibility for controls, layers of overlapping controls can provide a safety net if a contaminated site falls through a crack between agencies' authority. The rules for high-level radioactive waste¹⁰⁷ demonstrate how applying the principle of redundancy can create effective institutional controls at Superfund sites.

Providing Notice and Maintaining Records

If the property is not government-owned or condemned, maintaining the continuity of institutional controls depends on effective notice of remaining contamination and restricted use. The same is true of government-owned property containing radioactive waste, or other long-lived toxic substances, where risks will outlast multiple generations. Notice [26 ELR 10121] must be given to any person or entity using the property, as well as to any future users. The notice should also serve as a continuing or frequent reminder of the restrictions so that long-term users do not forget and so that new users begin their use with notice. Thus, the timing of notice should be sufficient to avoid lapses during which uses could change at the site.

The effectiveness of controls can also be improved by publicizing them, as well as the need for them, and involving the public. Public participation in the choice of controls and in their operation might reveal which controls people are most likely to heed and to what incentives they are likely to respond. Creating incentives in designing institutional controls can help to maintain the effectiveness of a control, because records and notice may fail simply because people do not consult them or choose not to behave as the notice giver expected them to behave after receiving notice of the risk. Creating incentives to satisfy a control's requirements can change such behavior at contaminated sites.

Land-Use Classification Schemes

Consumption of groundwater is a land use that presents the primary risk that may be unaddressed at Superfund sites. No state has the authority to prevent consumption of contaminated groundwater from private wells. While most people would not choose to drink contaminated water if aware of it, the required sampling of public wells does not extend to private wells. Therefore, contamination of private wells by a plume from an institutionally controlled site could go undetected and uncorrected. In response to this concern, a number of states, including Oregon, provide limited free sampling of private well water.¹⁰⁸ In most of these states, however, water testing is limited primarily to suspected nitrate contamination,¹⁰⁹ which requires a relatively inexpensive test. In contrast, testing for numerous chemical compounds, which is likely to be necessary where contamination from a Superfund-type site is suspected, could be costly and technically difficult.

A more complete institutional control is a groundwater classification system, and most states have one. But even if groundwater is classified as nonpotable, it does not mean that private wells will necessarily be condemned or replaced. Florida has a fairly well-developed classification scheme and associated enforcement mechanism. The state delineates areas of contamination, and in such areas conditions private well permits with stringent siting and construction requirements. New wells and existing wells in newly delineated areas are subject to state sampling. This approach might be effective at unremediated sites. Regulations or deed restrictions would apply to anyone drilling a new well within, or downgradient from, a site where subsurface contamination has been allowed to remain, and could require the driller or well owner to test the water before allowing its use for human consumption.

Monitoring groundwater contamination movement at sites where contamination is allowed to remain should be an important part of any institutional control scheme for such sites. Mechanisms should also be established to re-evaluate the classification scheme as relates to the compatibility of land and water uses with cleanup levels if the uses change. Any of these types of changes, whether in uses or migration of the contamination, should trigger reconsideration of the cleanup and uses of the site or of new areas of contamination. Thus, for institutional controls to be effective in reducing the risks associated with Superfund sites, some controls may need to operate outside the contaminated area. For example, restrictions on some off-site activities may be needed if they would promote activities that would be incompatible with the remedial action.

Accounting for Administrative Burdens and Implementation Costs

Mapping and understanding contaminant movement and groundwater migration at Superfund and other contaminated sites are resource-intensive activities. The primary obstacle to state wellhead protection programs is the lack of technical and financial resources to undertake the necessary hydrogeologic assessment and cataloging of contamination sources for wellhead areas. Determining acceptable future use of land and underlying groundwater is contingent on a thorough hydrogeologic assessment, and if these analyses are not undertaken, there is no assurance of public health protection or prevention of further contamination.

While the economic infeasibility of remediation to residential standards may weigh in favor of institutional controls, the importance of, and the resources required for, rigorous analyses and monitoring to ensure that institutional controls do not fail must also be considered.

Deciding When Institutional Controls Are Appropriate

It is important to discern when institutional controls are appropriate at specific Superfund sites. Institutional controls are generally static mechanisms designed to deal with particular, identified risks. Thus, they may not be effective in coping with dynamic risks, such as continuing or new sources of contamination of groundwater, or even the uncertain movement of plumes of contamination. This is critical because there will always be some remaining potential for migration of contamination, even if land and groundwater uses are restricted. Therefore, a thorough analysis of the hydrogeologic vulnerability of a site is advisable before institutional controls are considered. Adoption of vulnerability and/or mobility criteria could provide a basis for evaluating the suitability of a specific site for the use of institutional controls.

For example, the Connecticut Legislature deemed its groundwater resources hydrogeologically vulnerable and has adopted a protective groundwater program for the state's groundwater resources, which provide the majority of the state's water supply.¹¹⁰ One premise behind the legislation is that deed restrictions on the use of groundwater are not sufficiently protective. When a site is not completely cleaned up, state officials believe migrating groundwater will inevitably produce contamination downgradient, and, therefore, decisions to employ institutional controls should [26 ELR 10122] be based on technical infeasibility, and not economic infeasibility.¹¹¹

The state also uses mobility criteria — not risk to human health — as the basis for cleanup requirements.¹¹² To date, the state has not approved a less stringent cleanup standard coupled with a use restriction at any hazardous waste site. The institutional control legislation that the state passed in 1994 identified three situations in which use restrictions would apply after mobility criteria had been met:¹¹³

(1) allow cleanup of chemical compounds in soil to industrial or commercial exposure levels (rather than residential) if the deed restricts use of land and groundwater;

(2) allow contaminated soil beneath an existing building to remain in place if no threat to groundwater or direct exposure exists, deed would require maintenance of the structure; and

(3) allow waste to remain under a cap if there is no other technologically feasible way to dispose of it, and deed restriction would ensure no subsequent activity could disturb it.¹¹⁴

Accounting for the Duration of Contamination and the Selected Controls

The DOE can exercise direct control in the placement of institutional controls at radioactive waste sites,¹¹⁵ but the key issue for the DOE is whether it and other subsequent institutions can survive as long as the waste and property needs to be controlled.

The types of incentives that could be created for longterm recordkeeping are an important issue at DOE sites with radioactive waste. Two approaches presented to the DOE for restricting human interference at a high-level radioactive waste site over the long-term were: (1) to establish a new community in proximity to the site (risk levels permitting) that would have an historical knowledge of the property and could monitor any violations or interference at the site; and (2) to locate other compatible waste material storage and disposal systems at the site to further isolate it and increase the incentive for thorough recordkeeping.¹¹⁶ Both of these options seek to increase the likelihood that the institutional controls will outlast the risk from the contamination.

Although the persistence of radioactive risk over many thousands of years presents a set of issues different from those EPA and the states confront at sites contaminated by nonradioactive toxic substances, the issues are similar. In the Superfund context, a mechanism for increasing the likelihood that the institutional controls will outlast the risk from the contamination is to transfer title to the contaminated land to an independent entity. That entity's sole interest then would be in the land and it would have the incentive to maintain the effectiveness of the controls.

There are a number of other factors to consider when addressing the durability of controls in relation to the "life" of the contamination. Even the most frequently used agency-implemented institutional controls will fail when the institutions fail or stop performing their function due to changes in priorities and funding or fundamental changes in the governmental system. Records and notices may fail because the institutions charged with maintaining the records or publicizing the notice fail to do so. Moreover, controls such as fences, signs, or markers may fail over time because they wear out, are buried or otherwise obscured by unrelated activities, or because they are removed by vandals or even as part of legitimate activities at Superfund sites. Furthermore, fences, signs, markers, and other methods of notice may not deter some people from entering or using the restricted area, because they do not understand them, do not believe the warning, believe that they can avoid harm, or are curious about what is in the restricted zone.

Determining the Most Appropriate and Effective Options

The assessment of current and future risks that a site poses affects decisions regarding the suitability of the site for institutional controls. For example, implicit in Connecticut's policy on groundwater protection, with its emphasis on mobility criteria,¹¹⁷ is that no future groundwater contamination risk is acceptable regardless of the level of human health risk.

A study of current and future risks that Superfund sites pose presents a different set of institutional control policy alternatives based on risk assessment.¹¹⁸ The study examined 77 of the 276 sites for which EPA issued a record of decision (ROD) between 1991 and 1992 and found that an "overwhelming preponderance of risks" (90 percent of all the risk-weighted pathways) is to future populations for potential land and groundwater uses that represent a change from current uses. The study concluded that the predominant view that Superfund cleanups are intended to protect current residents located near Superfund sites is generally false. For the sites studied, risks to current residents are significant for only a small number of sites.

The study applied the risk assessment methodology that EPA used for its ROD determinations and collected additional data, when necessary, to determine exposure risks. Exposure by ingestion of contaminated groundwater was found to constitute 37 percent of the total exposure pathways and 31 percent of cancer risk pathways. The percent of current cancer pathway risk (frequency weighted by total magnitude of risk) associated with groundwater was 33 percent as compared to future pathway risk of 49 percent.

[26 ELR 10123]

The study also revealed that maximum risk, rather than the assessment of risk-weighted pathways, is emphasized in RODs.¹¹⁹ Consequently, EPA remediation decisionmakers have given excessive attention to "groundwater hazards since these risks are frequently the maximum site pathways."¹²⁰ And the analysis of the frequency of exposure pathways as well as their severity suggests that the role of groundwater contamination is much less than indicated by maximum risk assessment.¹²¹ The study concluded that effectively restricting the future use of groundwater at a site may be a viable method of protecting human populations from the risks Superfund was intended to address.¹²²

In designing institutional controls to reduce risks to humans, attention should also be paid to the variability of human response to institutions, rules, warnings, and restrictions. Some people will do what they want regardless of rules, warnings, or restrictions. Some people will find ways around rules or physical barriers. And others will ignore certain kinds of risks, such as invisible ones like buried cables or pipes, rare floods, and contaminated soil or groundwater.

Finally, every institutional control needs an effective enforcement scheme. No matter what party imposes the restriction, that responsible party should describe the methods for implementing the control and have in place a practical and guaranteed enforcement scheme. Without clearly delineated implementation schedules and pragmatic enforcement strategies for infractions, an institutional control may not achieve the desired effect and may prove to be dangerous or lead to more problems.

Conclusion

These cautionary considerations suggest some principles that should improve the effectiveness of institutional controls at Superfund or other contaminated sites. There is a tendency to assume that all Superfund issues are new because the program was a new concept in 1980, but the nation has had quite a lot of experience with institutional controls. It would be foolish to rely heavily on institutional controls to manage risk at contaminated sites without learning from past experience in analogous situations. This Article's analysis of the use of institutional controls in a broad variety of situations confirms that they can be useful tools for managing risk, but it also confirms that no institutional control can eliminate risk. Thus, institutional controls, like other options for remedial action, should be evaluated on a site-specific basis using the lessons learned from past experience.

1. See, e.g., The "Superfund Reform Outline," released on June 28, 1995, by Sen. Bob Smith, Chairman, Subcommittee on Superfund, Waste Control and Risk Assessment. Senator Smith proposes that quantification of actual or planned future use of contaminated land and water be required, and that the remedy for groundwater cleanup be determined based on considerations of current and future use. The report also contains a stipulation about institutional controls: "EPA shall be directed to consider all options for addressing contamination at a site including, containment, treatment, institutional controls, natural attenuation, or a combination of these alternatives, and select the remedy that protects human health and the environment at the lowest cost." Id. at 8. See also A Remedy for Superfund: Designing a Better Way of Cleaning Up America, 3, 47-51 (Clean Sites, Feb. 1994); A Proposal to Reform the Superfund Remedy Selection Process, 3, 8, 10 (Chem. Mfrs. Ass'n, Oct. 1993); Improving Remedy Selection and the Settlement Process, 6 (Int'l City/County Management Ass'n's Superfund Consortium, Aug. 1993); Testimony of Dr. Benjamin F. Chavis Before the Senate Subcommittee on Superfund, Recycling, and Solid Waste Management, 10 (Alliance for a Superfund Action Plan, Apr. 1994); Report to the House of Delegates, 2 (ABA, Feb. 1994).

2. An example is the cleanup of a site previously used for industrial purposes to a standard that would protect human health and safety at the site where it continued to be used for industrial purposes. Presumably residual contamination would be greater than if the site were cleaned up for residential use. In this context, institutional controls are legal and institutional mechanisms used to ensure that such a site continues to be used for industrial purposes and to trigger a review of the need for further cleanup if a user proposes to put the site to residential use, or to another type of use for which the residual contamination might present unacceptable risks.

3. David F. Coursen, Institutional Controls at Superfund Sites, 23 ELR 10279 (1993); Douglas J. Sarno, Risk and the New Rules of Decisionmaking: The Need for a Single Risk Target, 24 ELR 10402 (1994); PRELIMINARY REPORT: INSTITUTIONAL GROUNDWATER USE CONTROLS IN THREE SELECTED STATES (Envtl. L. Inst. Working Paper 1986) [hereinafter PRELIMINARY REPORT].

4. Federal programs that use institutional controls include programs involving disposal of high- and low-level radioactive waste; flood-plain management; protection of sole source aquifers under the Safe Drinking Water Act; siting of hazardous waste treatment, storage, and disposal (TSD) facilities; siting of nuclear power plants; closure and post-closure care of hazardous waste TSD facilities; and prevention of development on coastal barrier islands.

5. State and local programs that use institutional controls include well-head protection programs; cleanups of nonnational priority list contaminated sites under state authorities; and protection of buried utility facilities.

6. Conservation easements and restrictive covenants are examples of institutional controls private parties use to preserve beneficial land uses or to prevent harmful land uses.

7. For further background information on institutional controls, see SURVEY AND ANALYSIS OF STATE GROUNDWATER PROGRAMS (Envtl. L. Inst. Working Paper 1990) [hereinafter SURVEY AND ANALYSIS]; SURVEY AND ANALYSIS OF STATE GROUNDWATER CLASSIFICATION SYSTEMS AND PROGRAM OPERATIONS (Envtl. L. Inst. Working Paper 1990); and PRELIMINARY REPORT, supra note 3.

8. The analysis is also applicable to cleanups of non-Superfund, contaminated sites, such as state mini-Superfund programs, state voluntary cleanup programs, and cleanup and redevelopment of brown-field sites.

9. See Coursen, supra note 3, at 10282 (discussing the use of several overlapping institutional controls coupled with extensive cleanup as the only publicly acceptable method of dealing with the extreme contamination at the Rocky Mountain Arsenal Superfund site near Denver, Colo.). Institutional controls used that the Rocky Mountain Arsenal Superfund site included federal ownership and direct control of the property through the U.S. Department of the Interior, legislation specifying the approved land use, and legislation requiring any future conveyances to include perpetual land-use restrictions. Id.

10. See id. at 10279.

11. Id.

12. Some states have experimented with various types of institutional controls as a part of their own cleanups of contaminated sites. Connecticut has struggled recently with the issue of effective notice and recordkeeping for contaminated property. The Connecticut Department of Environmental Protection (DEP) favored a bill that would have provided for DEP enforcement of institutional controls with civil penalty and citizen suit provisions. The citizen suit provision was intended to serve as a key aspect of implementation by encouraging community oversight of contaminated property. Annual notice of a property's cleanup/contamination status was to be given to neighboring property owners, the deed office and any other relevant local government regulatory and planning agencies.

The legislation that the state legislature eventually adopted, however, did not include these provisions. The new law allows an "environmental use restriction" to be placed on contaminated property and filed in a DEP registry if the property cannot meet remedial criteria. CONN. GEN. STAT. § 22A-133n to -133s (Public Acts 94-198, 95-190). For example, if hazardous matter such as contaminated metal is found under a structure, the structure need not be torn down, but the contamination will be noted on the deed so that new owners will be aware of the condition and can perform a cleanup if the structure is ever torn down. In the case of volatile organics, owners must put in ventilation systems and then receive approval from the DEP to avoid having a restriction placed on the deed. Telephone conversation with Jan Czeczotka, Property Transfer Program, Connecticut DEP (July 17, 1995). Any subsequent dealings with the property, including access to title, would have to proceed through the DEP. The new law is not effective until the DEP promulgates regulations. The agency is uncertain how it will administer this new responsibility for property transactions.

13. See James M. McElfish Jr., Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, 24 ELR 10231 (1994).

14. An easement is a grant of an interest in land that entitles a person to use the land possessed by another, or to restrict the possible uses of the land subject to the easement. A party who is the owner of a fee simple interest (the most complete level of ownership, allowing the owner's heirs to inherit) in a parcel of land may be subject to an easement owned by another. The easement may have been sold to the other party by the fee simple owner, or it may have been retained by a predecessor in the owner's chain of title.

Easements are either affirmative or negative. The owner of an affirmative easement has the right to go onto another's land (the "servient land"), and do some act on that land. Most easements are affirmative. A typical example would be a landowner granting a right-of-way over her land from a public highway to her neighbor's land.

The owner of a negative easement can prevent the owner of the servient land from doing some otherwise privileged act on the servient land. A negative easement is rare and is generally not permitted unless it is an easement for light, air, subjacent or lateral support, or the flow of an artificial stream.

All easements are either appurtenant to other land or in gross. An easement is appurtenant when it was created to benefit and does in fact benefit the possessor of land with regard to her interest in the land. The land benefitted is called the dominant land; the land burdened is the servient land. The servient land usually is, but does not have to be, adjacent to the dominant estate. If an easement does not benefit its owner in the use and enjoyment of her land, but merely gives her the right to use the servient estate, the easement is in gross. The benefit to the holder is personal rather than in connection with her land. ROBERT R. WRIGHT & MORTON GITELMAN, LAND USE 172-78 (West 1991).

15. A property owner uses a conservation easement to restrict the type and amount of development that may take place on his property. In general, a conservation easement "runs with the land," binding the original owner and all subsequent owners by the restriction of the easement. The easement may be characterized as negative in gross, because it restricts the possible uses of the land without benefitting another parcel of land. Commissioners' Prefatory Note to Uniform Conservation Easement Act, National Conference of Commissioners on Uniform State Law (Chicago 1992).

Since courts traditionally have disfavored negative easements, states have been forced to pass specific legislation permitting the use of conservation easements. The Uniform Conservation Easement Act of 1982 served as a model for legislation in 14 states and the District of Columbia. Six other states enacted conservation easement statutes using a modified approach. Interview with Stefan Nagel, Attorney, Law Offices of Stephan J. Small (Jan. 17, 1996). Conservation easements may be created for a specific term or may be easements in perpetuity.

A state or charitable organization may establish a conservation easement by buying the development rights to a parcel of land. This technique, called "purchase of development rights" (PDR), has been increasingly used to preserve farmland. In the agricultural context, PDR involves the purchase of an easement on qualified farmland that restricts the land to agricultural uses.

Alternatively, a land owner may donate development rights to a charitable organization or a land trust. In addition to protecting the land, a conservation easement donation may result in significant income tax and estate tax savings for the donor. This allowance has contributed greatly to the popularity of conservation easement donations, and resulted in an increase in the use of land trusts and conservation easements as a method of conservation. STEPHEN J. SMALL, THE FEDERAL TAX LAW OF CONSERVATION EASEMENTS, ch. 2 (Land Trust Exchange, 1986).

16. Conservation easements are not authorized in Alabama, Oklahoma, and Wyoming. Interview with Stefan Nagel, former attorney for the National Trust for Historic Preservation and currently with Law Offices of Stephen J. Small (Dec. 20, 1995).

17. If the owner of the servient estate violates the terms of the easement openly and the holder of the easement fails to act for a sufficiently long period (defined by statute) then the easement may be extinguished, like any interest in land, under the doctrine of adverse possession. Uniform Conservation Easement Act, § 2(a) (1982).

18. For example, the Nature Conservancy holds conservation easements over numerous parcels of land that are in private ownership. Governmental entities also own conservation easements.

One fairly complex case involving both conservation easements and reversionary interests was Friends of the Shawangunks, Inc. v. Clark, 754 F.2d 446, 15 ELR 20169 (2d Cir. 1985). New York State had acquired a conservation easement over privately owned forest lands using monies from the federal Land and Water Conservation Fund (LWCF). The LWCF contains a provision that if lands acquired with its resources are taken out of public recreational uses, the lands revert to the federal government unless the federal government approves the substitution of other recreational lands. A private resort company purchased the lands that were subject to the state's conservation easement and proposed to build a golf course on them. If the golf course had been incompatible with the conservation easement, the state had the power, but not the duty, to stop the golf course project by asserting its easement in court. The state, however, took the position that the golf course was compatible with the easement. The federal government could then have asserted its reversionary interest in the easement, but instead indicated that there was no action triggering a governmental reversion. At this point, a citizen group filed suit against the federal government on the grounds that the federal government's position that there was no action was arbitrary and capricious. The Second Circuit agreed with the group and ordered the federal government to review the proposed action.

19. In United States v. Florida, 482 F.2d 205 (5th Cir. 1973), the United States successfully asserted a reversionary interest more than 20 years after a state had ceased to use former federal lands for "public park purposes" as required in a 1947 deed from the War Assets Administration.

20. The most common form of local land-use control is zoning. Under a typical zoning system, all or part of a city or community is divided geographically into zones, and different regulations are written to apply to each zone. The regulations set out in zoning ordinances differ from zone to zone, but they apply uniformly to all parcels of land located within a zone.

Zoning ordinances generally regulate the size of land parcels, the size of structures on the land, and the nature of the activity which occurs on the land or in the structure.

Zoning is best known for its creation of use districts, zones where certain activities are prohibited, although those same activities are permitted in other zones in the community. An original premise behind zoning was that some uses of land are incompatible and must be kept separated for the protection of one or both of them. In particular, residential areas were zoned to protect them from commercial and industrial intrusion.

21. Evidence from Columbus, Ohio, for example indicates that restrictive covenants played a large role in determining the present layout and character of the city. Developers and subdividers could use covenants to ensure that the neighborhoods they were creating would continue to be exclusive; they limited by covenant future ownership, architectural design, the presence of "nuisance" buildings, and the number of people allowed to live in a house. Patricia Burgess Stack, Deed Restrictions and Subdivision Development in Columbus, Ohio, 1900-1970, 15 J. URB. HIST. 42 (1988).

22. See McElfish, supra note 13, at 10245 nn. 169-70 and accompanying text (covenants prohibiting sale to racial minorities held invalid); Stack, supra note 21, at 47 (restrictive covenants or occupancy by members of specific racial or ethnic groups).

23. 42 U.S.C. § 300h-6, ELR STAT. SDWA § 1427.

24. Id. § 300h-7, ELR STAT. SDWA § 1428.

25. Telephone Interviews with Robert Mendoza, Section Chief; Groundwater Management, U.S. EPA Region 1 (June 1995); Telephone Interviews with David Chin, Environmental Engineer, Groundwater Management, and Water Supply Branch, U.S. EPA Region 1 (June 1995).

26. See PRELIMINARY REPORT, supra note 3; SURVEY AND ANALYSIS supra note 7.

27. This Article examines states' experiences with institutional controls in place for state Superfund and drinking water supply programs in Connecticut, Florida, Oregon, and Vermont. These particular states were chosen based on their geographical distribution, established groundwater programs, and reliance on groundwater supplies. In conducting research for this Article, state staff were asked about authorities and programs for (1) preventing the consumption of contaminated groundwater and (2) restricting land use to protect public health and/or groundwater. The second category includes wellhead or aquifer protection efforts which illustrate some of the issues associated with placing controls on both existing and future land uses.

28. CONN. GEN. STAT. § 22a-3546 (1995).

29. SURVEY AND ANALYSIS, supra note 7, at App. A, M-169.

30. VT. STAT. ANN. tit. 10, § 6001 (1993).

31. OR. ADMIN. R. § 340-40-050(3) (1995).

32. Id. §§ 197.010(5), .175(2)(a). The advantages of such submissions are readily apparent. For example, state employees recently discovered a housing development that had been constructed on top of a closed landfill. The state had previously notified the county that no use could be made of the site without state approval, but that control had failed. The state sampled wells of the residents of these homes and found contamination. The state has prevented further development of the site, but current residents are using bottled water. This type of situation is a growing problem in Oregon with the proliferation of development in previously rural areas that may have been used as disposal sites.

33. OR. REV. STAT. § 451.550(3) (1994).

34. Despite Oregon's existing land-use planning law, land-use restrictions intended to protect groundwater supplies have become politically controversial. The state's recent effort to establish a wellhead protection program was blocked by dominant agricultural interests that represented it as an expansive "taking" of private property.

35. SURVEY AND ANALYSIS OF STATE GROUNDWATER CLASSIFICATION SYSTEMS AND PROGRAM OPERATIONS, supra note 7, at 66.

36. OR. ADMIN. R. § 17-28130(3)(c)2.c.

37. See supra note 34. A land-use regulation that causes a severe economic burden to the property owner may be attacked as a taking of property without the payment of just compensation, in violation of the Fifth Amendment of the U.S. Constitution. See Coursen, supra note 3, 23 ELR at 10282; Sarno, supra note 3, 24 ELR 10402.

A variety of factors appear with some regularity in judicial consideration of this issue. They include the nature of the government activity, the nature of the owner's property interest, the extent of the loss, the public benefit, the uniformity of the loss, mitigation and compensation measures, and relief.

38. Dolan v. City of Tigard, 114 S. Ct. 2309, 24 ELR 20151 (U.S. 1994).

39. 16 U.S.C. § 470.

40. See infra text accompanying notes 45-72. An example of a federal siting restriction is the Resource Conservation and Recovery Act's, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012, regulatory restriction that TSD facilities be located in 100-year flood-plains if the project is designed to prevent washout of hazardous waste. 40 C.F.R. § 264.18 (1993).

41. CAL. GOV'T CODE § 65860 (1995).

42. CAL. PUB. RES. CODE §§ 21000, 21100, and 21151 (1995).

43. FLA. STAT. § 163.3177(6) (1995); N.J. REV. STAT. §§ 40:550-62 (1995); OR. REV. STAT. § 215.050 (1995); VT. STAT. ANN. § 4401(a) (1995). See generally 1 RATHKOPF'S THE LAW OF ZONING AND PLANNING ch. 12 (by Joseph D. DiMento) (1992).

44. Draft, U.S. Army Corps of Engineers' Memorandum from Dan M. Mauldin, Chief, Planning Division Directorate of Civil Works, Corps Authority Over Flood Plain Development Relating to Local Flood Protection Projects 1 (May 1988) (on file with author).

45. The only recent incident in which the Corps exerted such authority occurred with respect to Four Mile Run (Alexandria, Va.), where the local authorities of that highly populated area had to agree to submit any further land-use plans to the Chief of the Corps for review. Because the area was so densely populated and developers were overtopping properties, the Corps insisted on review before building higher levies, and local officials readily agreed to such review.

46. The Corps' projects include levees, emergency warning systems (riverine and hurricane), retaining and detention structures, flood-proofing buildings, and property acquisition.

47. Telephone Interview with Bob Plot, Economist, U.S. Army Corps of Engineers (May 1994); Telephone Interview with Jerry Peterson, Chief ofFloodplain Management Services and Coastal Resources Branch, U.S. Army Corps of Engineers (July 1995). See also Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082 (codified at various titles of U.S.C.).

48. Mauldin, supra note 44, at 2.

49. Flood Control Act of 1936, 33 U.S.C. §§ 701a-701f, 701h; 33 C.F.R. § 208.10.

50. Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082 (codified at various titles of U.S.C.). See also Mauldin, supra note 44, at 2.

51. Mauldin, supra note 44, at 2.

52. For example, the Corps may travel with the local authority to inspect a levee to make sure that the grass is mowed and trees are not allowed to grow on the levee.

53. Id. at 4.

54. 44 C.F.R. § 59.22 (1993).

55. Id. § 60.1.

56. Id.

57. Id.

58. Id. § 60.3.

59. Id. § 60.22(c)3.

60. Id. § 60.22.

61. Id. § 60.24.

62. Id. § 59.24.

63. Id.

64. Id. § 60.3.

65. Id. § 60.6(a).

66. FEDERAL EMERGENCY MANAGEMENT AGENCY, ANSWERS TO QUESTIONS ABOUT THE NATIONAL FLOOD INSURANCE PROGRAM (FIA-2), Mar. 1992.

67. INTERAGENCY FLOODPLAIN MANAGEMENT REVIEW COMMITTEE OF THE FLOODPLAIN MANAGEMENT TASK FORCE, SHARING THE CHALLENGE: FLOODPLAIN MANAGEMENT INTO THE 21st CENTURY (Washington, D.C., U.S. GPO 1994).

68. But see Rutherford H. Platt, Report on Reports, 37 ENV'T 25 (Jan./Feb. 1995) (noting FEMA's obligation to disqualify communities that do not meet the standards for flood insurance and apparent unwillingness to do so).

69. Under the 1973 Flood Disaster Protection Act, which mandated the purchase of flood insurance as a condition of receiving federal funds for flood disaster assistance, lending institutions in a community that is not participating inthe program are required to notify prospective borrowers that they will not get assistance if their property is damaged by a flood and the President declares the area a disaster area. 42 U.S.C. §§ 4001, 4106(b).

70. See supra note 67.

71. Inside EPA, May 17, 1995, at 4.

72. 40 C.F.R. § 264.18.

73. Telephone Interview with Lance Swanhorst, Seismic Safety Coordinator, U.S. EPA (June 6, 1995). In the future written standards might be drafted in conjunction with EPA's grants administration department to subject to seismic controls any construction project to which the Agency grants money. If this were to become a condition of grants, EPA could guarantee an even higher rate of seismic compliance for facilities. Id.

74. 10 C.F.R. §§ 100.10, 50.34(a)(1) (1993).

75. U.S. EPA, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, 9375.6-08C, EPA 540/R-94/008, PB94-963230, AN ANALYSIS OF STATE SUPERFUND PROGRAMS: 50-STATE STUDY 34-6 & 102-4 (Dec. 1993) (update).

76. Id.

77. In Missouri, the state places in the deed records notice that a site has been placed on or removed from the state registry. Id. In North Carolina, property owners must prepare and file the notice. New York required its county clerks to index by July 1, 1993, all sites listed in the Registry of Inactive Hazardous Waste Sites in the land records. Id.

78. 40 C.F.R. § 264.119(b)(1).

79. Id.

80. Id. § 264.117.

81. Id.

82. 10 C.F.R. § 61.7(b)(3) (1993).

83. Id. § 61.14(b).

84. Id. § 61.59(b).

85. Id.

86. Id. § 61.7(b)(3).

87. Id. § 61.7(b)(4).

88. Id.

89. Id. § 61.7(b)(5).

90. Id. § 61.52(a)(7).

91. Id. § 60.121(a)(1).

92. Id. § 60.121(a)(2).

93. Id. § 60.121(b) and (c).

94. Id. § 60.51(a)(2).

95. Id.

96. Id. § 60.102(e)(1).

97. 49 C.F.R. §§ 198.31-.39 (1993) (implementing Natural Gas Pipeline Safety Act of 1968, § 20) (49 App. U.S.C. 1687).

98. For example, by calling "Miss Utility," the District of Columbia's hotline, citizens can get information about the location of power and gas lines and may request that a utility representative visit the site of their proposed excavation in order to test for the presence of underground facilities.

99. Each state has a provision in its "one-call" bill that sets out requirements for municipalities and local areas. See, e.g., MD. ANN. CODE art. 78, § 28a (1995). The District of Columbia is the only municipality to have been exempted from such requirements. Telephone Interview with Mike Warmack, General Manager, Maryland Miss Utility (July 7, 1995). The District of Columbia maintains a public database for this purpose.

100. The District of Columbia's Department of Transportation is required to provide utilities with copies of all approved permit drawings for projects in areas where utility facilities are present. D.C. CODE ANN. § 43-1703 (1994).

101. See, e.g., MD. ANN. CODE. art. 78, § 28a.

102. According to Robert J. Eiber, Director, Pipeline Transitions Programs, Battelle National Laboratory, "On the average for U.S. gas pipelines, there are 18 injuries and 7 fatalities per year." Robert J. Eiber, Proceedings, National Pipeline Safety Summit: Newark, New Jersey, June 20, 1994, U.S. Department of Transportation Research and Special Programs Administration, Office of Pipeline Safety, at B2-16. U.S. Department of Transportation Gas Pipeline Incident Data from July 1984-1990 indicates that outside force or third-party damage resulted in 214 incidents over 315,000 miles (0.105 incidents/1000 mile-year). Of those incidents, 36.4 resulted from third parties, 0.3 resulted from subsidence, and 2.3 resulted from earth movement. In all, 122 injuries and 44 fatalities occurred during the time period. Id. at B2-14.

103. See supra text accompanying notes 31-34.

104. Annually, an average of 18 injuries and 7 deaths are caused by damage to gas pipelines and third parties are the cause of an average of 136 incidents of damage per year. Robert J. Eiber, supra note 102, App. B at 16. Similarly, third parties cause 41 incidents of damage annually to liquid pipelines. U.S. DOT Liquid Pipeline Incident Data 1992, U.S. DOT Research and Special Programs Administration, Office of Pipeline Safety. The rate of incidents caused by third parties is very low, but there are hundreds of thousands of miles of pipelines, which means that millions of people are potentially affected by failures or could cause a failure by their actions. One incident per 10,000 mile-year for gas pipelines. U.S. DOT gas Pipeline Incident Data, July 1984-1990, in Eiber, supra note 102 (315,000 miles) and 2.42 incidents per 110,000 mile-year for liquid pipelines (169,514), Liquid Pipeline Incident Data, supra.

105. See supra text accompanying notes 44-71.

106. See supra note 102 and accompanying text.

107. See supra text accompanying notes 94-96.

108. OR. REV. STAT. § 448.150 (1995).

109. Nitrate contamination is common in agricultural areas due to the large quantities of fertilizer in use, typically in close proximity to private wells.

110. Executive Summary, Proposed Remediation Standard Regulations. Connecticut Department of Environmental Protection, 3 (Oct. 3, 1995) [hereinafter Executive Summary].

111. Id. at 4.

112. Id. at 2; Proposed Remediation Standard Regulations § 22a-133k-3 (Oct. 3, 1995).

113. See CONN. GEN. STAT. § 22A-133n to -133s (1994).

114. Id. § 22A-133d to 133r; see also Executive Summary supra note 110.

115. A NRC rule requires that a radioactive waste repository be sited on lands under jurisdiction and control of the DOE or on land permanently set aside by the U.S. government. 10 C.F.R. § 60.102(a)(1). In addition, a controlled area surrounding the "geologic operations area" is to be established. Id. § 60.102(c). The DOE is to maintain jurisdiction over, and control of, surface and subsurface uses to prevent adverse human action.

116. HUMAN INTERFERENCE TASK FORCE, PREPARED FOR OFFICE OF NUCLEAR WASTE ISOLATION, BATTELLE MEMORIAL INSTITUTE, REDUCING THE LIKELIHOOD OF FUTURE HUMAN ACTIVITIES THAT COULD AFFECT GEOLOGIC HIGH-LEVEL WASTE REPOSITORIES (May 1984).

117. See supra text accompanying notes 111-14.

118. W. Kip Viscusi & James T. Hamilton, Superfund and Real Risks, THE AM. ENTERPRISE, Mar./Apr. 1994, at 38-45. A more extensive discussion of the study appears as James T. Hamilton & W. Kip Viscusi, Human Health Risk Assessments for Superfund, 21 ECOLOGY L.Q. 573 (1994).

119. Viscusi & Hamilton, supra note 118, at 44.

120. Id.

121. Id.

122. Id. at 45. Actually, they assume that institutional controls are absolutely effective, but as this Article demonstrates, institutional controls do fail and so reliance on them will not eliminate risk, though it certainly can reduce risk.

26 ELR 10109 | Environmental Law Reporter | copyright © 1996 | All rights reserved