EPA Brownfields Alphabet Soup: Making Sense of ICs, LUCs, AULs and UECA November 13, 2006 Amy L. Edwards, Esq. (202)

What Are Institutional Controls? (i.e., Land Use Controls (LUCs) or Activity and Use Limitations (AULs)) “I say ICs; you say LUCs; she says AULs; let’s call the whole thing off.” Local Government Representative (2002)

What Are Institutional Controls? (i.e., Land Use Controls (LUCs) or Activity and Use Limitations (AULs)) “Legal or Physical Restrictions on the Use of, or Access to, a Site or Facility to Eliminate or Minimize Potential Exposures to Chemicals of Concern, or to Prevent Activities That Could Interfere With…the Effectiveness of a Response Action.” ASTM E

What Are Institutional Controls? (i.e., Land Use Controls (LUCs) or Activity and Use Limitations (AULs))  Four Basic Types of Institutional Controls  Proprietary Controls  State and Local Government Controls  Statutory Enforcement Tools  Informational Devices

Corrective Action and Institutional Controls  Deficiencies in Implementation/Enforcement of ICs Have Been Well Documented in Recent Years –EPA Strategy to Ensure IC Implementation at Superfund Sites (September 2004) –GAO Report, “Hazardous Waste Sites: Improved Effectiveness of Controls at Sites Could Better Protect the Public” (2005) –EPA’s LTS Task Force, “Long Term Stewardship: Ensuring Environmental Site Cleanups Remain Protective Over Time” (2005) –EPA’s “National Strategy to Manage Post Construction Completion Activities at Superfund Sites” (2005) –EPA’s “Enforcement First to Ensure Effective Institutional Controls at Superfund Sites” (2006)

What Are Institutional Controls? (i.e., Activity and Use Limitations (AULs) or Land Use Controls (LUCs))  Issues Raised in These Reports Fall Into Five Categories: –Implementation –Notice –Enforcement/Enforceability –Long Term Stewardship –Cost Who Pays? How Much Do ICs Cost?

Corrective Action and Institutional Controls  By Default, Parties Have Generally Had to Rely on State Property Law in Order to Implement and Enforce Institutional Controls. These Common Law or Property Law Devices are Known as Proprietary Controls.

Proprietary Controls  Weaknesses in Relying on State Property Law: –Requires horizontal and vertical privity –Frowns on “spurious” easements –Dislikes affirmative obligations –Requires appurtenant property interests –Requires covenants to “touch and concern” the land –Is limited by Marketable Title Act (generally, years)

Uniform Environmental Covenants Act ("UECA")  Recognizing these difficulties, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") began a two-year effort in 2001 to develop a model law that would provide a better foundation for institutional controls.  The result was the Uniform Environmental Covenant Act (“UECA”), approved in August 2003.

UECA  UECA has been enacted in 15 states and one territory so far: –DC - Nebraska –Delaware - Nevada –Hawaii - Ohio –Idaho - Oklahoma –Iowa - South Dakota –Kentucky - U.S. Virgin Islands –Maine - Utah –Maryland - W. Virginia See  The model law must now be passed in remaining state legislatures

Uniform Environmental Covenants Act Status as of October 2006