[Federal Register Volume 63, Number 37 (Wednesday, February 25, 1998)]
[Notices]
[Pages 9541-9544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4820]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5970-5]
Superfund Program; Revisions to Model CERCLA RD/RA Consent Decree
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: The Agency is today publishing revisions to selected
provisions of the Model CERCLA RD/RA Consent Decree. The revisions,
which will supersede counterpart provisions in the previously effective
version of the Model published in 1995, have been jointly adopted by
EPA and the Department of Justice. The primary effect of the revisions
is to amend or supplement language in the Model dealing principally
with the subjects of access to Superfund site property and
``institutional controls'' designed to restrict land/water use on such
properties. By publishing these revisions to Model language EPA seeks
to broadly inform affected members of the public of changes in the
government's policy with respect to settlements for the performance of
remedial design/remedial action (RD/RA).
FOR FURTHER INFORMATION CONTACT: Steve Botts, Mail Code 2272-A, Office
of Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency, 401 M St., SW., Washington, DC 20460, (202)564-4217.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance
Assurance.
Memorandum
Subject: Revisions to the Access and Institutional Control Provisions
of the Model CERCLA RD/RA Consent Decree
From: Steven A. Herman, Assistant Administrator; Lois J. Schiffer,
Assistant Attorney General, Environment and Natural Resources Division,
U.S. Department of Justice.
To: EPA Regional Administrators, Regions I-X.
We herewith transmit to you final language revising selected
provisions of the Model CERCLA RD/RA Consent Decree published in the
July 28, 1995 Federal Register (60 Fed. Reg. 38,817). The attached
language is designed to completely supplant that now appearing in (1)
the definition of ``Future Response Costs'' contained in Section IV of
the 1995 Model, (2) Paragraph 9 of the 1995 Model (entitled ``Notice of
Obligations to Successors-in-Title'') and (3) Section IX of the 1995
Model (entitled ``Access [and Institutional Controls]''). The new Model
language has been developed over the last two years by an Institutional
Controls Workgroup comprised of representatives from the Department of
Justice and EPA Headquarters and Regional offices. A draft of the new
Model language has been subjected to review and comment by all
interested offices.
One important impetus behind the development of this revised Model
language has been EPA's continued heavy reliance on Superfund remedies
which are designed to contain discovered contamination on-site. At
sites where the remedial strategy is to consolidate wastes on-site or
contain them in place, it is particularly important to develop
effective means of preventing the public from coming into contact with
contaminated wastes or disturbing important features of the remedial
technology. The revisions to the access and institutional control
provisions of the Model have accordingly been drafted to provide the
government with a broader range of options and more efficacious
mechanisms for ensuring not only that government representatives and
responsible private parties performing remedial work will have
continuing access to sites as necessary to implement, operate, and
maintain remedies, but also that needed restrictions on land and water
use at Superfund site properties can be enforced against all persons,
including subsequent purchasers of contaminated site property.
Legal research suggests that in most jurisdictions the most
powerful tool available to government for guaranteeing site access and
restricting site activities on a long-term basis is acquisition of a
property interest (generally an easement or restrictive covenant)
running with the land. Thus, the revised Model language contains
procedures pursuant to which owners of contaminated site property can
effectively convey to the United States (or other responsible entities)
a right of access and a right to enforce needed land/water use
restrictions that run with the land. It should be emphasized here that
State law generally governs the conveyance of real property interests.
It is therefore important that Regional offices be alert to the
possible need to modify or supplement Model language regarding any such
conveyance as necessary to comport with the requirements of applicable
State law.
We also wish to remind the Regions that whenever EPA acquires an
interest in real property in order to effectuate remedial action at a
Superfund site (as, for example, in the case where EPA is granted an
easement including access rights or the right to enforce land/water use
restrictions on certain property), EPA must comply with the
requirements of CERCLA Section 104(j) and the federal land acquisition
regulations. Section 104(j) requires that the State in which the
property is located agree in advance to accept transfer of any property
interest held by EPA upon completion of the remedial action. The
federal land acquisition regulations impose additional requirements
designed to ensure the United States obtains a valid property interest.
The Regions should consult with EPA's Office of General Counsel
[[Page 9542]]
regarding the requirements of CERCLA Section 104(j) and the land
acquisition regulations whenever they are considering acquiring an
interest in property.
The attached revisions to Model language will become effective upon
the date of this memorandum. To the extent the revised Model language
applies to the circumstances of any particular settlement, the
responsible government negotiation team should incorporate it into both
future consent decrees and those under negotiation on the date of this
memorandum.
If you have any questions regarding these revisions to the Model
CERCLA RD/RA Consent Decree, please contact Donald Frankel,
Environmental Enforcement Section, Environment and Natural Resources
Division, Department of Justice, (617) 450-0442, or Steve Botts,
Regional Support Division, Office of Site Remediation Enforcement,
Environmental Protection Agency, (202) 564-4217.
Proposed Revisions to Access & Institutional Controls Language for
RD/RA CDs
``Future Response Costs'' shall mean all costs, including, but not
limited to, direct and indirect costs, that the United States incurs in
reviewing or developing plans, reports and other items pursuant to this
Consent Decree, verifying the Work, or otherwise implementing,
overseeing, or enforcing this Consent Decree, including, but not
limited to, payroll costs, contractor costs, travel costs, laboratory
costs, the costs incurred pursuant to Sections VII, IX (including, but
not limited to, the cost of attorney time and any monies paid to secure
access and/or to secure or implement institutional controls including,
but not limited to, the amount of just compensation), XV, and Paragraph
85 of Section XXI. Future Response Costs shall also include all Interim
Response Costs, and all Interest on the Past Response Costs that has
accrued pursuant to 42 U.S.C. Sec. 9607(a) during the period from
[insert the date identified in the Past Response Costs definition] to
the date of entry of this Consent Decree.
[Note: For Consent Decrees in which there is an Owner Settling
Defendant, add Paragraph 9, below. Paragraph 9(a) may be deleted if
an easement will be recorded pursuant to Paragraph 26(c).]
9. Notice to Successors-in-Title.
a. With respect to any property owned or controlled by the Owner
Settling Defendant(s) that is located within the Site, within 15 days
after the entry of this Consent Decree, the Owner Settling Defendant(s)
shall submit to EPA for review and approval a notice to be filed with
the Recorder's Office [or Registry of Deeds or other appropriate
office], ____________ County, State of ______, which shall provide
notice to all successors-in-title that the property is part of the
Site, that EPA selected a remedy for the Site on ______, and that
potentially responsible parties have entered into a Consent Decree
requiring implementation of the remedy. Such notice(s) shall identify
the United States District Court in which the Consent Decree was filed,
the name and civil action number of this case, and the date the Consent
Decree was entered by the Court. The Owner Settling Defendant(s) shall
record the notice(s) within 10 days of EPA's approval of the notice(s).
The Owner Settling Defendant(s) shall provide EPA with a certified copy
of the recorded notice(s) within 10 days of recording such notice(s).
b. At least 30 days prior to the conveyance of any interest in
property located within the Site including, but not limited to, fee
interests, leasehold interests, and mortgage interests, the Owner
Settling Defendant(s) conveying the interest shall give the grantee
written notice of (i) this Consent Decree, (ii) any instrument by which
an interest in real property has been conveyed that confers a right of
access to the Site (hereinafter referred to as ``access easements'')
pursuant to Section IX (Access and Institutional Controls), and (iii)
any instrument by which an interest in real property has been conveyed
that confers a right to enforce restrictions on the use of such
property (hereinafter referred to as ``restrictive easements'')
pursuant to Section IX (Access and Institutional Controls). At least 30
days prior to such conveyance, the Owner Settling Defendant(s)
conveying the interest shall also give written notice to EPA and the
State of the proposed conveyance, including the name and address of the
grantee, and the date on which notice of the Consent Decree, access
easements, and/or restrictive easements was given to the grantee.
c. In the event of any such conveyance, the Owner Settling
Defendant's obligations under this Consent Decree, including, but not
limited to, its obligation to provide or secure access and
institutional controls, as well as to abide by such institutional
controls, pursuant to Section IX (Access and Institutional Controls) of
this Consent Decree, shall continue to be met by the Owner Settling
Defendant(s). In no event shall the conveyance release or otherwise
affect the liability of the Owner Settling Defendant(s) to comply with
all provisions of this Consent Decree, absent the prior written consent
of EPA. If the United States approves, the grantee may perform some or
all of the Work under this Consent Decree.
IX. Access and Institutional Controls
[Note: Subparagraphs 26(a) and 27(a) should routinely be
included in consent decrees. Subparagraphs 26(b) and 27(b) should be
included where EPA determines that land/water use restrictions are
needed on property owned by settling or non-settling landowners to
ensure the integrity or protectiveness of the remedial action.
Subparagraphs 26(c) and 27(c) should be included where EPA
determines that a property interest running with the land (granting
either a right of access or a right to enforce land/water use
restrictions) should be acquired by EPA or another grantee from
settling or non-settling landowners.]
26. If the Site, or any other property where access and/or land/
water use restrictions are needed to implement this Consent Decree, is
owned or controlled by any of the Settling Defendants, such Settling
Defendants shall:
a. commencing on the date of lodging of this Consent Decree,
provide the United States[, the State,] and its [their]
representatives, including EPA and its contractors, with access at all
reasonable times to the Site, or such other property, for the purpose
of conducting any activity related to this Consent Decree including,
but not limited to, the following activities:
i. Monitoring the Work;
ii. Verifying any data or information submitted to the United
States [or the State];
iii. Conducting investigations relating to contamination at or near
the Site;
iv. Obtaining samples;
v. Assessing the need for, planning, or implementing additional
response actions at or near the Site;
vi. Implementing the Work pursuant to the conditions set forth in
Paragraph 85 of this Consent Decree;
vii. Inspecting and copying records, operating logs, contracts, or
other documents maintained or generated by Settling Defendants or their
agents, consistent with Section XXIV (Access to Information);
viii. Assessing Settling Defendants' compliance with this Consent
Decree; and
ix. Determining whether the Site or other property is being used in
a manner that is prohibited or restricted, or that may need to be
prohibited or restricted, by or pursuant to this Consent Decree;
b. commencing on the date of lodging of this Consent Decree,
refrain from using the Site, or such other property, in any manner that
would interfere with or adversely affect the integrity or
[[Page 9543]]
protectiveness of the remedial measures to be implemented pursuant to
this Consent Decree. Such restrictions include, but are not limited to,
[LIST SPECIFIC RESTRICTIONS]; and
c. execute and record in the Recorder's Office [or Registry of
Deeds or other appropriate land records office] of ________ County,
State of ____________, an easement, running with the land, that (i)
grants a right of access for the purpose of conducting any activity
related to this Consent Decree including, but not limited to, those
activities listed in Paragraph 26(a) of this Consent Decree, and (ii)
grants the right to enforce the land/water use restrictions listed in
Paragraph 26(b) of this Consent Decree, or other restrictions that EPA
determines are necessary to implement, ensure non-interference with, or
ensure the protectiveness of the remedial measures to be performed
pursuant to this Consent Decree. Such Settling Defendants shall grant
the access rights and the rights to enforce the land/water use
restrictions to [(i) the United States, on behalf of EPA, and its
representatives, (ii) the State and its representatives, (iii) the
other Settling defendants and their representatives, and/or (iv) other
appropriate grantees].1 Such Settling Defendants shall,
within 45 days of entry of this Consent Decree,2 submit to
EPA for review and approval with respect to such property:
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\1\ If, at the time that a consent decree is being negotiated,
EPA is not able to determine which persons should be the grantees of
the easement, Paragraph 26(c) should be redrafted to insert the
phrase ``one or more of the following persons, as determined by
EPA,'' prior to the bracketed list of potential grantees.
\2\ If, at the time that a consent decree is being negotiated,
EPA is unable to determine whether it wants to obtain an easement
that runs with the land, but believes that it might want to obtain
such an interest in the future, Paragraph 26(c) should be redrafted
to insert the phrase ``if EPA so requests,'' at the beginning of the
subparagraph, and the Settling Defendants should be required to
submit the draft easement a certain number of days from the date of
EPA's request.
i. A draft easement, in substantially the form attached hereto
as Appendix , that is enforceable under the laws of the State of
________, free and clear of all prior liens and encumbrances (except
as approved by EPA), and acceptable under the Attorney General's
Title Regulations promulgated pursuant to 40 U.S.C. Sec. 255; and
ii. a current title commitment or report prepared in accordance
with the U.S. Department of Justice Standards for the Preparation of
Title Evidence in Land Acquisitions by the United States (1970) (the
``Standards'').
Within 15 days of EPA's approval and acceptance of the easement,
such Settling Defendants shall update the title search and, if it is
determined that nothing has occurred since the effective date of the
commitment or report to affect the title adversely, record the easement
with the Recorder's Office [or Registry of Deeds or other appropriate
office] of ____ County. Within 30 days of recording the easement, such
Settling Defendants shall provide EPA with final title evidence
acceptable under the Standards, and a certified copy of the original
recorded easement showing the clerk's recording stamps.
27. If the Site, or any other property where access and/or land/
water use restrictions are needed to implement this Consent Decree, is
owned or controlled by persons other than any of the Settling
Defendants, Settling Defendants shall use best efforts to secure from
such persons:
a. an agreement to provide access thereto for Settling Defendants,
as well as for the United States on behalf of EPA, and the State, as
well as their representatives (including contractors), for the purpose
of conducting any activity related to this Consent Decree including,
but not limited to, those activities listed in Paragraph 26(a) of this
Consent Decree;
b. an agreement, enforceable by the Settling Defendants and the
United States, to abide by the obligations and restrictions established
by Paragraph 26(b) of this Consent Decree, or that are otherwise
necessary to implement, ensure non-interference with, or ensure the
protectiveness of the remedial measures to be performed pursuant to
this Consent Decree; and
c. the execution and recordation in the Recorder's Office [or
Registry of Deeds or other appropriate land records office] of ________
County, State of __________, of an easement, running with the land,
that (i) grants a right of access for the purpose of conducting any
activity related to this Consent Decree including, but not limited to,
those activities listed in Paragraph 26(a) of this Consent Decree, and
(ii) grants the right to enforce the land/water use restrictions listed
in Paragraph 26(b) of this Consent Decree, or other restrictions that
EPA determines are necessary to implement, ensure non-interference
with, or ensure the protectiveness of the remedial measures to be
performed pursuant to this Consent Decree. The access rights and/or
rights to enforce land/water use restrictions shall be granted to [(i)
the United States, on behalf of EPA, and its representatives, (ii) the
State and its representatives, (iii) the other Settling defendants and
their representatives, and/or (iv) other appropriate
grantees].3 Within 45 days of entry of this Consent
Decree,4 Settling Defendants shall submit to EPA for review
and approval with respect to such property:
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\3\ If, at the time that a consent decree is being negotiated,
EPA is not able to determine which persons should be the grantees of
the easement, Paragraph 27(c) should be redrafted to insert the
phrase ``one or more of the following persons, as determined by
EPA,'' prior to the bracketed list of potential grantees.
\4\ If, at the time that a consent decree is being negotiated,
EPA is unable to determine whether it wants to obtain an easement
that runs with the land, but believes that it might want to obtain
such an interest in the future, Paragraph 27(c) should be redrafted
to begin with the phrase ``if EPA so requests,'' and the Settling
Defendants should be required to submit the draft easement within a
certain number of days from the date of EPA's request.
i. A draft easement, in substantially the form attached hereto
as Appendix , that is enforceable under the laws of the State of
____, free and clear of all prior liens and encumbrances (except as
approved by EPA), and acceptable under the Attorney General's Title
Regulations promulgated pursuant to 40 U.S.C. Sec. 255; and
ii. a current title commitment or report prepared in accordance
with the U.S. Department of Justice Standards for the Preparation of
Title Evidence in Land Acquisitions by the United States (1970) (the
``Standards'').
Within 15 days of EPA's approval and acceptance of the easement,
Settling Defendants shall update the title search and, if it is
determined that nothing has occurred since the effective date of the
commitment or report to affect the title adversely, the easement shall
be recorded with the Recorder's Office [or Registry of Deeds or other
appropriate office] of ________ County. Within 30 days of the recording
of the easement, Settling Defendants shall provide EPA with final title
evidence acceptable under the Standards, and a certified copy of the
original recorded easement showing the clerk's recording stamps.
28. For purposes of Paragraph 27 of this Consent Decree, ``best
efforts'' includes the payment of reasonable sums of money in
consideration of access, access easements, land/water use restrictions,
and/or restrictive easements.
Note: It may be appropriate to delete the preceding sentence if
the property where access or land/water use restrictions are needed
is owned by a non-settling party who EPA determines is a PRP. (See
guidance entitled ``Model RD/RA Consent Decree: Acceptable
Modifications to Model Language (Directive No. 2),'' March 25,
1992)]
If any access or land/water use restriction agreements required by
Paragraphs 27(a) or 27(b) of this Consent Decree are not obtained
within 45 days
[[Page 9544]]
of the date of entry of this Consent Decree, or any access easements or
restrictive easements required by Paragraph 27(c) of this Consent
Decree are not submitted to EPA in draft form within 45 days of the
date of entry of this Consent Decree,5 Settling Defendants
shall promptly notify the United States in writing, and shall include
in that notification a summary of the steps that Settling Defendants
have taken to attempt to comply with Paragraph 27 of this Consent
Decree. The United States may, as it deems appropriate, assist Settling
Defendants in obtaining access or land/water use restrictions, either
in the form of contractual agreements or in the form of easements
running with the land. Settling Defendants shall reimburse the United
States in accordance with the procedures in Section XVI (Reimbursement
of Response Costs), for all costs incurred, direct or indirect, by the
United States in obtaining such access and/or land/water use
restrictions including, but not limited to, the cost of attorney time
and the amount of monetary consideration paid or just compensation.
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\5\ If the obligation to obtain an easement pursuant to
Paragraph 27(c) runs from the date of EPA's request for such an
easement, as opposed to from the date of entry of the consent
decree, this language should be revised accordingly.
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29. If EPA determines that land/water use restrictions in the form
of state or local laws, regulations, ordinances or other governmental
controls are needed to implement the remedy selected in the ROD, ensure
the integrity and protectiveness thereof, or ensure non-interference
therewith, Settling Defendants shall cooperate with EPA's [and the
State's] efforts to secure such governmental controls.
30. Notwithstanding any provision of this Consent Decree, the
United States [and the State] retain[s] all of its access authorities
and rights, as well as all of its [their] rights to require land/water
use restrictions, including enforcement authorities related thereto,
under CERCLA, RCRA and any other applicable statute or regulations.
[FR Doc. 98-4820 Filed 2-24-98; 8:45 am]
BILLING CODE 6560-50-P
