Non-Participating Landowners, Informational Devices & Use of … · 2017-05-30 · Site Example –...

Non-Participating Landowners, Informational Devices & Use of

Recorded Notices

Anthony Austin, OSRE Craig Boehr, OSRE

U.S. Environmental Protection Agency

 

   

 

Overview

• New strategy memo about implementing ICs at sites with uncooperative landowners

• Informational devices • Proper and effective use of notices at cleanup

sites • New model notice of contamination


 

 

Non-Participating Landowner Strategy Memo

• Purpose: provide EPA enforcement staff with strategies, practices, and tools when encountering a landowner who is reluctant, unwilling, or refuses to cooperate or implement PCs (i.e., a non-participating landowner).

• http://intranet.epa.gov/oeca/osre/doc/nonpart-landowner-mod-notice-contam-2016-mem.pdf


http://intranet.epa.gov/oeca/osre/doc/nonpart

     

Non-Participating Landowner

• Used in the legislative notes of UECA. • Parties who are unwilling to enter into a PC. • Under UECA, it’s also used to refer to

landowners who are unavailable.


 

 

Proprietary Controls

• Agreements between the property owner and a second party, where the owner agrees to refrain from certain actions and/or to perform certain actions designed to protect the response action or human health and the environment.

• E.g., conservation easements, restrictive covenants, environmental covenants.


 

 

Phase One: Early Identification of and Engagement with Landowners

• Early identification and engagement of landowners

• Communication strategies to encourage landowners to implement PCs


 

 

Phase Two: Enforcement Options and Alternatives to Enforceable PCs

• PRP-landowner (i.e., a party who may be liable under CERCLA and from whom performance of the cleanup is expected)

• Non-source landowner (i.e., party whom EPA may not treat as liable under CERCLA based on liability protections or enforcement discretion policies)


 

 

Enforcement Options for PRPs

• 1) Enforcement under a negotiated agreement.

• 2) Issue a UAO.


 

 

 

Authority

• CERCLA §104(a)(1): authority to take any response measure consistent with NCP necessary to protect public health, welfare, or environment.

• NCP §300.430(a)(1)(iii)(D) specifically contemplates the use of ICs, in particular “deed restrictions.”

• CERCLA §106(a).


 

Site Example – Blackbird Mine Site

• “Respondents shall implement the institutional controls set forth in the ROD and the SOW to ensure the long-term protection of human health and environment. This includes providing long-term, permanent, enforceable easements or comparable instruments that run with the land and are binding upon future landowners.”


 

 

State Statutory Mechanisms

• UECA Sec. 4(a)(5) (contents of the EC) – requires signature of every owner the real property subject to the EC, unless waived by the Agency.

• Other state statutes, like Michigan’s (MCLS §324.20121), that may allow the PC to be implemented by judicial order.


 

 

5th Amendment Takings?

• “Nor shall private property be taken for public use without just compensation.”

• Three-part balancing test: (1) character of the regulatory action; (2) economic impact of the action; and (3) extent to which the action interferes with reasonable investment-backed expectations.


 

 

Options for Non-Source Landowners

• The options are arguably different for non-source landowners (e.g., bona fide prospective purchaser, contiguous property owners, innocent landowners).

• Comply with land use restrictions and do not impede effectiveness or integrity of ICs.


 

 

 

Informational Devices

• State registries of contaminated sites and ICs

• Posted advisories

• Recorded Notices


State Registries Wisconsin DNR: CLEAN


Wisconsin DNR’s CLEAN, continued


State Registries, continued…


Wisconsin DNR’s CLEAN, continued


Posted Advisories


Posted Advisories, continued

https://www.epa.gov/fish-tech


https://www.epa.gov/fish-tech

EPA’s National Listing of Fish Advisories

https://fishadvisoryonline.epa.gov/General.aspx


https://fishadvisoryonline.epa.gov/General.aspx

EPA’s National Listing of Fish Advisories


 

 

       

Use of Recorded Notices • Informational notices when PC implementation

cannot be achieved • Used as a last resort when a PC may not be

implemented, or as a supplement to other ICs • Recorded in real property land records • Not legally binding; no use restrictions imposed • Engage landowner in drafting • Protectiveness and absence of a PC should be

monitored and periodically evaluated (FYRs, ICIAPs)


 

Use of Recorded Notices

• DISCLAIMER: The remedy selection process and remedy amendment process must still be followed if different ICs are needed than those originally selected.


   

 

 

UAO & Recorded Notice

• Eureka Mills Superfund Site – Utah – Region 8 issued UAO to comply with land use

restrictions. – UAO prohibits digging or developing in specific

areas on an affected parcel. – Also filed a notice of environmental conditions on

the affected parcel.


 

 

 

 

Types of Recorded Notices • Notice of Contamination (Deed Notice)

– Description of contamination, location of contamination, land or resource use recommendations, legal description, cautionary language on safety measures, etc.

– Should NOT include words of prohibition or suggest notice is enforceable or imposes restrictions, is binding

– Provide property owner opportunity to negotiate


Greenwood Chemical – Region 3


 

   

 

 

Model Notice of Contamination

• Internal document, to assist Regions with drafting notices of contamination – Database of filed notices will also be kept

• Notes that Notice does not create any interest in real estate or restrict property use

• Allows for listing of activities identified in ROD that increase risk of exposure to contamination

• Provides location of Administrative Record and EPA contact information


     

 

Types of Recorded Notices

• Notice of Administrative Action – Following issuance of UAO – Same information as Notice of Contamination, but

also contains description of basis for issuing UAO, describes land or resource use restrictions in UAO

– Not enforceable but may inform potential purchaser or lender of expectations upon property acquisition


 

   

 

Best Practices for Recorded Notices • Provide notice of intent to file and copy of

proposed notice • Provide opportunity to confer • Must clearly state that notice does not impose

enforceable use restrictions • Notices include only suggested safety measures,

recommended land or resource uses, and factual information about residual contamination


     

     

 

Obtaining SWRAU – IC Challenges

• OSRTI Audit – Universe of CC sites not yet SWRAU – IC issues found to be prominent barrier – 34% of sites where IC challenges are the only barrier

• Tools to address regional SWRAU issues – Regional Best Management Practices – SWRAU Decision Tree

• Next Steps – Continue audit, incorporate feedback


 

 

Questions?

• Anthony Austin, [email protected], (202) 564-6943

• Craig Boehr, [email protected], (202) 564-5162

mailto:[email protected]

mailto:[email protected]

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