State Environmental Easement Statutes as ARARs: A New Option for Enforcing Institutional Controls at Superfund Sites
Providence Spina
When cleaning hazardous waste sites, federal and state environmental agencies strive to develop cleanup plans, or “remedies,” that will protect people and the environment at the lowest possible cost. In an effort to balance protection with cost, agencies may choose a remedy that leaves residual contaminants at the waste site and implements institutional controls that limit human exposure to those residual contaminants. Institutional controls are non-physical mechanisms that restrict a cleanup site’s future use or prevent human contact with the residual contaminants at the site. These controls sometimes take the form of legal instruments like deed restrictions, covenants, or even zoning ordinances.
Federal and state environmental agencies can, however, encounter difficulties with enforcing institutional controls over long periods of time. Common law property doctrines can prevent authorities from enforcing institutional controls once a cleanup site is sold to a new owner. In some cases, the authority to enforce the institutional controls is vested only in an uncooperative government entity separate from the one seeking the enforcement.
To address this problem, many state legislatures have enacted statutes requiring their state agencies to obtain environmental easements when institutional controls are part of a state hazardous waste remedy. Environmental easements are servitudes imposing land use restrictions and cleanup obligations, including the obligation to implement institutional controls, at hazardous waste cleanup sites. As the grantees of these easements, state authorities may enforce institutional controls in perpetuity, even if the cleanup site’s owner changes or if other government entities refuse to enforce the controls. By requiring state agencies to obtain these easements, the environmental easement statutes strengthen the states’ abilities to enforce institutional controls when state authorities undertake a remedy.
Whether these state statutes similarly bind federal agencies executing remedies at hazardous waste sites remains unresolved. The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the statute that authorizes the U.S. Environmental Protection Agency (“EPA”) to conduct cleanup actions at hazardous waste sites, requires the agency to include all “applicable or relevant and appropriate” state cleanup requirements in federal remedies. If the state environmental easement requirements are “applicable or relevant and appropriate requirements” (“ARARs”), then the EPA must ensure that the owners of cleanup sites execute the environmental easements required by state law. If, however, the requirements are not ARARs, then the EPA is under no obligation to include the easements in remedial action plans. Furthermore, if the EPA does not include the environmental easement in its remedy, then the state in which the remedy is taking place might be precluded from independently obtaining an environmental easement at the site.
This Note addresses whether environmental easement statutes are ARARs and are therefore controls that the EPA must implement at hazardous waste sites. It argues that according to currently available EPA guidance documents, environmental easement statutes are potential ARARs if they intend to provide substantive cleanup standards. Recognizing those environmental easement requirements as ARARs ensures better protection against residual contaminants and also state, rather than federal, control over land use.
Part I of this Note discusses the development and significance of state environmental easement statutes within the CERCLA context and the legal frameworks that incorporate state environmental easement requirements into federal remedial action plans. Part II looks at two specific state statutes—New York’s inactive hazardous waste disposal site statute and California’s Hazardous Substance Account statute—and analyzes whether those statutes’ environmental easement requirements are ARARs according to EPA guidance documents. The constitutional implications of identifying state environmental easement requirements as potential ARARs are discussed in Part III.
