INSTITUTIONAL CONTROLS AT FEDERAL FACILITIES: Smoke and Mirrors, or just that old Bait and Switch? NGA-DOE Task Force May 17, 2002 Daniel S. Miller First Assistant Attorney General Colorado Department of Law

How did we get here? Cleanup to unrestricted use is not always possible Cleanup to unrestricted use is not always economically desirable –DOE 1996 BEMR estimates $124 billion savings due to land use restrictions PRP’s (including Federal agencies) have advocated use of institutional controls as part of remedies

Weaknesses of institutional controls Legal constraints Long-term care becomes a low priority Maintaining institutional memory over long time frames is difficult Environmental regulator an “absentee owner” Federal agency resistance to enforceable controls

Part of a Trend? DOE has challenged Ohio’s authority to require enforceable institutional controls DOD has challenged states’ authority to require enforceable institutional controls DOD sought federal exemption in proposed uniform state environmental covenant law DOE has not committed to comply with Colorado’s environmental covenant law

Other disturbing news for LTS Air Force is challenging EPA authority to require IC’s under CERCLA –AF argument is that IC’s are not part of a CERCLA “remedy,” therefore cannot be included in ROD, and EPA does not have any authority at federal facilities post-ROD Combined with opposition to state IC laws, IC’s at federal facilities will be voluntary

NEXT UP: Hancock v. Train II? Federal agencies do not believe states can require a covenant/easement while land remains in federal ownership. They argue: –no sovereign immunity waiver –violates Property Clause of Constitution –Under Federal Property Act, only GSA may dispose of property –bill discriminates against federal agencies –CERCLA section 120(h) preempts state law

Hancock v. Train, Round I 1972 Clean Air Act: “Each department … of … the Federal Government … shall comply with … State requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.” 1976 Supreme Court: federal agencies don’t have to get state air permits that all private entities must obtain

Round II? 1992 FFCA provides: “Each department … of the Federal Government … shall be subject to, and comply with, all … State … requirements, both substantive and procedural, … respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements ….”

Consequences of Federal Agencies’ Position Even if a federal agency voluntarily complies, the control is not enforceable against the federal agency. Many IC’s at federal facilities may not be implemented due to institutional constraints. States will select more expensive remedies that do not rely on institutional controls. More remedies will fail.

Resolving the impasse Litigation Congressional hearings Legislation State-Federal cooperation