International Institute for
Indigenous Resource Management

Taking Control: Opportunities for and Impediments to the Use of Socio-Cultural Controls for Long-Term Stewardship of U.S. Department of Energy Legacy Waste Sites

Appendix F: TECHNICAL REPORT

A REVIEW AND ASSESSMENT OF DOE PHYSICAL AND INSTITUTIONAL CONTROLS USED AT MAJOR WEAPONS SITES AND THE POSSIBLE ROLE OF COMMUNITY-BASED SOCIO-CULTURAL CONTROLS FOR LONG-TERM STEWARDSHIP

Introduction

Many, if not most, of the sites formerly used for nuclear weapons production will never be clean enough for unrestricted use. This will be true notwithstanding policies that favor permanent remedies or recommendations from stakeholder groups such as the Energy Communities Alliance recommendation that, “Wherever possible, DOE facilities should be cleaned up to a level that allows unrestricted use and avoids long-term stewardship liabilities for the federal government.”1 The fact is that ongoing stewardship of these sites for many generations will be necessary to protect the public from the continuing hazards, which these sites will pose.

Current DOE plans for long term stewardship entail institutional controls that restrict access to sites through physical barriers (e.g. fences, warning signs) or legal impediments (e.g. zoning or deed restrictions).2 While these types of controls are necessary, the National Research Council predicts, and experience has shown, that over time, these institutional controls will eventually fail.3 When these controls fail, the health and safety of nearby tribal and disadvantaged communities will be at risk.

Based on the study of physical and institutional controls included in the Rocky Flats Citizens Advisory Board Toolkit, following is a summary of the physical and institutional controls, enforcement tools, informational devices and planning systems used at major weapons sites, and an assessment of appropriate applications, advantages and disadvantages for long term stewardship, illustrative case studies and, where appropriate, how community based socio-cultural controls can be implemented to provide an additional layer of defense.

PHYSICAL CONTROLS

Physical controls are the primary barriers to limit unauthorized access to contaminants and to limit exposure to hazards that exist on the site after remediation is complete. These controls “physically” reside at the site of or in near proximity to the actual contamination, and may include containment structures such as caps (also referred to as engineered controls), and access barriers such as fences.

I. Caps, Covers, and Liners

A. Soils

1. Materials

Different soil types have different strength and hydraulic behaviors. Soil is composed of solid particles which do not fit together in a completely contiguous mass. The spaces between particles, called pores, may be filled with liquid (water, leachate, oil) and/or gas (air, landfill emissions). This combination of three phases causes the soil to act as a unique material.

Sand and gravel are made from large particles (two millimeters to several centimeters in diameter), and rely on gravity to hold the soil mass together. Water is able to flow through the pore spaces very easily. The large sizes of the particles imply that shear forces may be resisted by both the roughness of the particles and their interlocking geometry. Sand (and all other soils) does not have any tensile strength.

Clays, which consist of much finer particles, behave in a plastic manner because there is adhesion between the particles. Clays are the end product of weathering processes, thus individual solid particles are often smaller than 2 micrometers (colloid size). A unique property of clay minerals is their electrically negative charge. The particles attract positively charged material, which is often found in electrolyte rich groundwater. Films of water form over the clay particles, creating an adhesive mass. Because of these tightly bonded particles, water flow is impeded through the clay matrix, resulting in a much lower hydraulic conductivity than larger grained soils. Clays do not have a very high shear strength compared to sands and gravels.

2. Applications

4. Possible Community-Based Socio-Cultural Controls

Soil caps, covers, and liners will require monitoring, maintenance, repair and replacement activities.

B. Geosynthetics

1. Materials

The use of geosynthetics, including continuous, woven, or non-woven synthetic polymers in cap-liner systems, is a relatively new technology.

2. Types and Applications

Geomembranes act as hydraulic barriers, geotextiles act as filters, protection layers and soil enforcements; geonets act as drainage layers; geogrids act as soil reinforcements; geosynthetic clay liners (GCLs) act as a composite soil- geosynthetic hydraulic barrier; geocells act as erosion controls; wick drains act as vertical drains; and geopipes act as drainage conduits. There are several other types and applications of geosynthetics being investigated, and their presence is an asset to geotechnical and geoenvironmental design.

Although many of these applications (hydraulic barrier, protection layers, drains) may be accomplished using soil materials, geosynthetics tend to be more consistent in their properties and expected performance and more readily available than specific soils like clay, and require less vertical space in a landfill allowing more waste to be contained. However, geosynthetics may be more costly and prove to be more difficult to place properly in the field than soils used for these applications.

In landfills, the main uses of geosynthetics are for hydraulic barriers, drainage layers, protection layers, reinforcements and erosion controls. Hydraulic barriers limit the flow of liquid into and out of the landfill, where hazardous materials generated from the waste must be isolated. Drainage layers allow any liquid generated by or passed through the waste to be collected, or may act as leakage detection layers. Protection layers protect other geosynthetics from sharp or heavy objects that may be present in a landfill, increasing the puncture resistance and bearing capacity. Reinforcement layers provide tensile strength to a cover or liner, resisting slope failures and allowing covers to function under differential settlement of the underlying waste. Erosion layers provide a lasting stabilization to surface soils that would otherwise be eroded by surface water flow or wind.

The performance of a specific geosynthetic may be susceptible to chemical, biological and UV degradation, construction damage, and time dependent stress-strain behavior. For this reason, geosynthetics used in a landfill design must be made from polymers or configurations selected to resist the (expected) chemical and biological composition of the contained waste or leachate and should not be left in direct sunlight. Placement in the field should be done with adequate quality control and quality assurance.

Geosynthetics can be used for a wide range of functions in a cap system, such as horizontal or vertical barriers for limiting seepage into the contaminated waste, filters, leachate drains, soil reinforcement and erosion control of soil above the waste.

4. Possible Community-Based Socio-Cultural Controls

Geosynthetics may require monitoring, maintenance, repair and replacement activities.

C. RCRA Subtitle D and C Cap-Liner Systems

1. RCRA Subtitle D

This regulation applies to new municipal solid waste (MSW) landfills. The regulations provide sighting resistance for the landfills which include proximity limits to airports, floodplains, seismic zones, wetlands, and unstable areas. In addition, the regulations provide minimum design criteria for MSW landfills and require long-term financial obligations from the landfill owner.

Landfill owners are required to monitor the landfill's hydraulic performance at least one point of compliance for 30 years following closure. The owner must also prove that he is financially able to cover the costs of a landfill failure throughout the life of the landfill.

2. RCRA Subtitle C

This regulation supplies prescribed designs for new hazardous waste (HW) landfills. The information included is similar to RCRA Subtitle D, except for the landfill design requirements, which are stricter. The same long-term requirements are made for the landfill owner, but monitoring requirements and financial obligations may be greater, depending on the situation.

3. Technical Aspects

RCRA C and D caps are designed to function for 1000 years, but a conservative estimate of their lifetime is 200 years. When these caps are used for hazardous material, they must be designed according to the guidelines set forth by RCRA Subtitle C, or prove that they are equivalent.

4. Possible Community-Based Socio-Cultural Controls

Low-level waste containment systems such as cap-liner systems are not permanent long-term solutions. If used, these systems should be monitored every five years and replaced or refurbished after 200 years.

D. Evapotranspiration (ET) Alternative Covers

1. Technical Aspects

These waste cover systems are useful in arid climates where the potential evaporation combined with the movement of water through plants (evapotranspiration) greatly exceeds the annual precipitation. They function by taking advantage of a natural water balance – water infiltrates from the surface from precipitation or melting snow, and is then stored in the soil until it evaporates from the surface or transpires through the vegetative cover. The goal is of an ET cover is to avoid water percolation into the underlying waste. In addition, an increased amount of water storage in the soil layer from growing year to growing year should be avoided, but storage should never be so low as to cause wilting of the vegetative cover.

Evaporation is the dominant water removal process in the top few centimeters of the soil cover, while transpiration via root uptake is the dominant water process throughout the remainder of the soil profile. These barriers use loam, a loose silty soil, combined with natural grasses and forbs. The plant roots must be able to drain a section of soil about two meters deep, but must not grow so deeply as to infiltrate the underlying waste. A layer of dense gravel placed beneath the loose soil serves to protect the underlying waste from plant root and burrowing animal infiltration. Surface cracking, animal infiltration and local settlement of the loose soil has been shown to be a problem, but has only been seen to be a superficial problem, with no significant effect on the water balance of the ET cover. The silt-loam soil has less volumetric change (than clay soils) when water is removed from the soil matrix, so less cracking is apparent in arid climates. It is anticipated that cracking in silt-loam soils will be self-healed when water enters the soil and that extensive vegetation will help limit cracking.

Depending on the thickness and permeability of the silt-loam cover, ET barriers can also effectively control radon gas emissions.

2. Possible Community-Based Socio-Cultural Controls

These covers are not included in the prescriptive covers listed in Subtitle C of RCRA, but they are acceptable if they can be shown to be “RCRA Equivalent”. In other words, equivalent percolation performance must be demonstrated by comparative analysis, and a field test must be conducted.

3. Case Studies

ET covers were being tested at the Rocky Mountain Arsenal site for regulatory compliance (September 2000-September 2001). There are four test plots, each with different initial soil compaction characteristics and soil depths. Beneath the soil, a lysimeter collects all of the percolated water that passes through the soil barrier without being evaporated or absorbed by the vegetative cover.

Idaho National Engineering and Environmental Laboratories has been conducting studies for the past fifteen years on the proper plant cover to be used in ET covers to ensure proper water balance. The plant species are evaluated on transpiration properties throughout the growing season (via leaf-area index analysis), ability to withstand drought, ability to form diverse and stable stands, and resilience to weed infiltration and wildlife foraging.

Vegetation control is essential, the importance of which can be learned from the Burrell, Pennsylvania uranium mill tailings disposal cell. Plant roots and their effect on soil particle arrangement has increased the cell's hydraulic conductivity from the regulatory level of 10 -7 cm/s to 10 -5 cm/s, which is not sufficient to control groundwater flow according to RCRA Subtitle C. Control with herbicides and other chemicals may not be the best solution though, as these are usually hazardous themselves and may seep into the groundwater.

E. Other Alternative Cover Systems

1. Technical Aspects

Capillary barriers use the soil mechanics concepts of capillary suction and unsaturated flow to prevent water from percolating into a waste layer. These covers typically perform very well in arid climates, but do not perform well in areas where snow banks form on the ground or where there is a large amount of precipitation.

Geosynthetic clay liner barriers provide several advantages over compacted clay liners such as ease in placement, less cracking potential due to volumetric shrinkage and freeze-thaw cycles and lower product costs if there is not a local clay to use in a CCL. The main disadvantage of GCLs is the specific clay used in the product is known to have the lowest shear strength of all clays.

2. Case Studies for Cap/Liner Systems

In early 1995, CSX Railroad began an expansion project for their rail lines, which are located near the Canal Ridge Road/Mullins toxic dump site near Cincinnati , Ohio . The city of Cincinnati informed CSX Railroad about the presence of the toxic dump located near the rail line in late 1994. The company conducted numerous soil borings, and reported both strong petroleum odors and liquid sludge, but still believed that they were not working on the dump site. Excavation commenced, and metal drums containing chromium, lead and vinyl chloride were encountered. In July of 1995, the Ohio Environmental Protection Agency made five investigations of the site, and ordered CSX to collect and contain waste-laden water leaking out of the excavation. The company complied, but not until October, during which time the water was leaking into a nearby sewer inlet. The contractor for CSX claimed that it obtained all permits thought to be needed. Construction stopped and limited contaminant migration controls were put in place, but the immediate health hazard had not been identified at the time of the article, as there were no human receptors living near the site.

The existence of institutional controls may greatly change the effectiveness of a designed cap/liner system. At the Industri-Plex site in Woburn, Massachusetts, the institutional controls being developed by the EPA and the Primary Responsible Parties are performance standards intended to guide the way in which operators and owners are permitted to breach and restore the cap. These controls were put in place to ensure that industrial reuse of the high-value property is not limited by the existence of residual contamination. Many local commentators have criticized this institutional control plan as it is not directly linked with the remedy, which may hinder the remedy's effectiveness to provide adequate protection for human health and the environment.

3. Possible Community-Based Socio-Cultural Controls

II. Subsurface Barriers

A. Slurry Walls

1. Technical Aspects

2. Possible Community-Based Socio-Cultural Controls

B. Permeable Reactive Barriers (PRBs) and Passive Treatment Walls

1. Technical Aspects

These barriers are both a long-term remedy, passively treating contaminated groundwater, and a physical control, containing the contaminated groundwater to a certain known area. PRBs rely on a chemical slurry barrier that is permeable to normal groundwater, but not to specific contaminants such as volatile organic compounds. Adhesive forces between the chemicals in the slurry and the contaminants stop contaminant movement. The contaminants can then be removed, and the reactive chemicals can be reused.

This solution will stop only selected water-soluble contaminants, but will not stop all possible sources of groundwater contamination. Continuous monitoring is necessary to ensure proper functioning.

2. Possible Community-Based Socio-Cultural Controls

The cost of these systems is one-fourth that of pump and treat systems because of the lower amount of maintenance required. Because the effectiveness in treatment and containment of wastes by both this system and pump and treat systems is unknown, communities may favor passive treatment walls solely because of their lower costs.

III. Surface Systems

A. Fences

1. Technical Aspects

Fences and walls provide a warning to the presence of a restricted area, and prevent accidental access to the area.

2. Possible Community-Based Socio-Cultural Controls

Fences may be considered a stigma to the community. Fences might not be publicly accepted in a natural setting, but may be accepted in an industrial area.

3. Case Study:

DOE Grand Junction Long-Term Surveillance and Maintenance office has reported numerous problems with vandalism of the fencing at the 100 or more sites that it manages. It reports that 60 feet of chain link fence were stolen from one of the sites and had to be replaced [146, pg. 5].

These physical access controls may still not deter a determined trespasser. The Bureau of Land Management reported an incident in which two men ignored a fence around a closed mine near Virginia City, Nevada . The two men were found in the mine within 75 feet of the mine entrance, asphyxiated from carbon dioxide poisoning. Human intrusion to a contaminated site is less likely to occur when there is layering of multiple institutional controls combined with active management of a site.

B. Guards and Security Systems

1. Technical Aspects

Depending on the frequency of patrols or checkpoints, guards can effectively prevent human access to a dangerous site. Guards may be a good monitoring control by checking to see that fences and signs are maintained, and making sure that there are no visible signs of contamination.

2. Possible Community-Based Socio-Cultural Controls

Guards draw public attention that something is dangerous at a site. This perception may lower local real estate and property values, but may also boost public awareness.

3. Case Study

At the Oak Ridge Reservation in Oak Ridge, Tennessee, the Department of Energy Office of Inspector General found that a subcontracted security firm, Wackenhut Inc., had a contract in place that did not limit worker overtime hours. This contract allowed the security firm to maximize its profits by hiring several part-time guards and having the full-time guards work more overtime. The security company maximized overtime worked by hiring more full-time guards. This contract could have led to $8.1 million being spent for avoidable overtime, and may force the Department to pay $3.2 million in excessive award fees on the contract.

C. Signs and Markers

1. Technical Aspects

Signs are good warning mechanisms, and have varying lifetimes and effectiveness depending on the material from which the sign is made. Signs require at least annual monitoring for operational effectiveness, and frequent maintenance or replacement if problems are noted.

2. Possible Community-Based Socio-Cultural Controls

Signs are passive devices that rely on an individual realizing the importance of the warning and acting in a manner that is in his or her best interest.

3. Case Study

Concrete and metal markers have been used at many sites where cover systems hold radioactive waste. The signs often identify the type, volume, and radioactivity of material when it was buried. These markers will last for many years, but there are still problems with corrosion and visibility.

Signs were used at the Oak Ridge Reservation site in Tennessee, and several metal signs did not last longer than five years because of vandalism and wear. It is not uncommon for signs to be stolen or obliterated by bullet holes, especially in remote locations. D. Ponds and Ditches

1. Technical Aspects

On sites with contaminated soil or groundwater, surface water must be collected and stored as there is a potential that a contaminant may move into the surface water. Ditches are often used to collect and transport surface water to a holding pond, where heavy particles will settle out. Ditches are important if the surface water on the site has a potential to move offsite.

These ponds may be lined with a low hydraulic conductivity clay, or with a double layer of HDPE geomembranes. It may be important to remove the sediments from these ponds on a regular basis to ensure that any eroded contamination is safely removed.

2. Possible Community-Based Socio-Cultural Controls

The public may see accessible ponds and ditches as dangerous, so fences or a surface barrier may be warranted.

E. Phytoremediation

Phytoremediation is the use of plants to remediate groundwater or soil. The contaminants may range from metals and radionuclides to agrochemicals and hydrocarbons to waste solvents and nitroaromatics. These contaminants may be present in surficial soils or in deeper soils and groundwater. Phytotechnologies target the contaminants using various mechanisms, including
plant uptake (followed by harvesting the plants to collect the concentrated contaminants),

For groundwater applications, intensive water use trees (phreatophytes such as poplar and willow) may work in tandem with these approaches by providing hydraulic containment at a site.

1. Technical Aspects

Key issues in phytoremediation are:

Assessing the suitability of phytoremediation for a site and determining the appropriate plant(s) for the given contaminants, concentrations, target depth, soil type, climate, and remediation schedule,

2. Possible Community-Based Socio-Cultural Controls

INSTITUTIONAL CONTROLS

The different types of institutional controls have different aspects that work to solve different problems over different spans of time. The choice of institutional controls must be made on a site-specific basis so that their effectiveness is maximized. The complexity involved in the different aspects of institutional controls magnifies the importance of selecting a control to accomplish a specific task. If many specific tasks must be accomplished, then a combination of controls must be used to achieve this; there is no institutional control that applies to every situation.

I. Governmental Controls

Description

Governmental controls use the authority of the government to either limit the activities that a landowner may undertake or limit the size and location of the structure on the property. These controls are generally the most effective and accepted of the institutional controls.

However, bBecause neither the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nor the Resource Conservation and Recovery Act (RCRA) specifically authorize the EPA to regulate land use in a comprehensive manner, the EPA must rely on state or local governments to establish such controls.

Governmental controls usually work well because they require no negotiation, which is useful when there are many interested parties with conflicting needs. But governmental controls may not work well because the EPA and the state, which are the lead remedial agencies, are not the parties responsible for their implementation and enforcement. A contractual agreement between the remedial agency and the responsible party (usually the municipality) may be useful.

The effectiveness of governmental controls depends directly on the willingness and capability of the governmental entity to inspect and enforce the control.

The US Nuclear Regulatory Commission (NRC) recommends that governmental controls be used when there are any long-lived radionuclides present at a site. The NRC assumes that government institutions will last longer than private institutions.

Governmental controls are generally direct controls, as the government creates them for a specific purpose.

A report by the International City/County Management Association pointed out the importance of working closely with local governments and the need to increase the Association's level of expertise with respect to institutional controls. It has been identified that 75% of local governments presently do not have experience implementing institutional controls related to hazardous waste sites. The report also mentioned that the majority of institutional controls implemented by local governments could be breached without their knowledge.

A. Zoning

1. Purpose

Zoning is the breakdown of a municipality into areas of compatible use, such as industry, commercial, or residential. It also regulates building size and features. Exclusionary zoning is the most probable zoning control that would be used for contaminated sites, because it allows only specified uses within the zone and excludes all others.

2. Specific Zoning Controls

a. Overlay District

This control involves overlaying a new zoning classification and imposing a new set of regulations on previously zoned areas. The overlay district may include the development of a Historical Preservation Zone or an Environmentally Sensitive Area.

The overlay district will not change the existing regulations, but will require the submittal and approval of a development plan in order to obtain permits.

b. Rezoning

Rezoning include map and language amendments. Map amendments change the use of a particular parcel by showing changed circumstances or mistakes on the existing map. Language amendments change the text of an ordinance by obtaining a declaratory judgment action.

The Board of Adjustments for the city and county may grant variances from the literal enforcement of zoning regulations. Rezoning that is inconsistent with a comprehensive plan may be attacked as spot zoning.

c. Transferable Development Rights (TDR)

Transferable Development Rights is a voluntary, market-based implementation tool that promotes the conservation of high-value agricultural land, environmentally sensitive areas and strategic open space by shifting development to areas communities deem appropriate for development. The development rights of areas to be protected (referred to as "sending areas") are transferred to appropriate, community-designated areas (“receiving areas”) that can accommodate growth through existing and/or planned provision of infrastructure.TDRs are used to transfer development rights from an environmentally sensitive area to more appropriate areas. TDRs have been used in the past to limit residential overcrowding in some areas and encourage growth in other areas. TDRs can be used to reduce the risk of takings, if there is developable land to give to the owner of the development rights.

d. Performance Zoning

This method of zoning establishes criteria to control the effects of landowner activity or building at a site, such as pollution, water removal, water use, glare, dust, vibrations, etc. This type of zoning limits the use of the land to those that conform to these criteria.

e. Zoning with Other Types of Controls

Most often, a violation of a zoning law is reported by a neighbor. An informational device directed at the public explaining why there is a severe zoning restriction on the property will help to ensure the public watches for any blatant violations. This informational device also helps the public nature of zoning by forcing representatives in the local government to be aware of the community's desire to maintain the law, and thus decreases the chances that the law will be repealed for short-term gains.

3. Advantages for Long-Term Control

This method of allocating land use has been widely used since 1916, so it is known to work effectively as long as it is monitored and enforced. It will not require changes to the current legal system or new statutory authority.

4. Disadvantages for Long-Term Control

5. Possible Community-Based Socio-Cultural Controls

The zoning laws are made in accordance with state, not federal, statutes, and is enacted and enforced by local governments. Local government is usually the best candidate for zoning enforcement because of proximity to the site, resulting in effective monitoring. In addition, it has police power to enforce zoning in the interest of public safety, and usually mirrors the interests of the people living around the site.

6. Case Study

Arguably, the most well known failure of institutional controls is the Love Canal site near Niagara Falls , New York . The site consists of a landfill containing 21,000 tons of highly toxic chemical wastes generated by the Hooker Plastics and Chemical Corporation, which closed in the early 1950's. At closure, zoning restrictions were placed on the area forbidding residential use, and Hooker placed a deed notice on the property deed when it transferred the land to the Board of Education in 1953. The deed notice included a “hold harmless” clause that stated that “the Board of Education had been advised by the Hooker Chemical Company that the premises described above have been filled to the present grade level thereof with waste production resulting from the manufacture of chemicals”. Despite all of these controls, the Board of Education built a school directly on top of the landfill, and many houses were constructed adjacent to the site. By the summer of 1978, contamination had migrated to the basements of the houses, and was seeping into the schoolyard. This case was the first evidence that institutional controls such as zoning and deed notices have serious limitations in providing long-term protection of human health and the environment.

B. Local Permits

1. Purpose

Permits are issued by the government to a land user who would like to perform a certain activity, informing the potential user of any restrictions before the activity is authorized. At hazardous waste sites, permits can be used to restrict the construction of new wells, limit soil excavation of contaminated subsurface soils, or limit the ability to alter a cap.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

4. Possible Community-Based Socio-Cultural Controls

5. Case Study

A Building Permit Survey system has been in place for 25 years at the Uranium Mill Site in Grand Junction . This system forces builders to search the Colorado Department of Public Health and Environment (CDPHE) records for information on uranium mine tailings on the property, then check to see if tailings still remain. The use of permits eventually failed because a project to build a recreational path through the site was carried out by the city itself, which was not required to obtain a permit.

A “miss-utility” program (called “One Call for Brownfields”) is being used in Portland, Oregon This program uses the format of the Oregon Utility Notification Center, which allows excavation contractors to call in to find where the subsurface utility lines run at a site. The Notification Center then works with the Oregon Department of Environmental Quality to notify the contractor if he is working in a contaminated area and where any caps or subsurface contaminants are located. This program is also a good method of finding if any construction on the city's Brownfields is taking place of which the regulators may not be aware. The pilot project was a success, with over 200 calls on eight Brownfield sites in eight months.

C. Tailored Ordinances

1. Purpose

Tailored ordinances are placed on access or use of certain areas, such as a ban on fishing or swimming. They are based on the police power of the local government.

2. Advantages for Long-Term Control

They can take advantage of existing permit restrictions by applying them to site-specific situations.

3. Disadvantages for Long-Term Control

These controls must be communicated through a posting of the ordinance. Postings alone may not be effective in preventing incidental contact with the contamination.

4. Possible Community-Based Socio-Cultural Controls

5. Case Study

At the Cannons Engineering site in Bridgewater , Massachusetts , the town of Bridgewater used an ordinance to enter into a Declaration of Restrictions with the EPA that limited future municipal uses of the site. The ordinance worked, but there were limitations on recording the Declaration because the State of Massachusetts uses the name of the property owner to search for the Declaration, instead of the site name and location.

D. Land Use Planning or Siting Restrictions

1. Purpose

Siting restrictions can be used to prevent certain land uses to areas that are prone to natural hazards, such as flood plains or fault lines, and may also be applied to a highly contaminated area. California requires an environmental impact review of proposed construction or other activities approved by state or local governments. The review might be a good check to ensure that any new construction plans will not affect the physical controls on a site, or will not be in danger of releasing subsurface contamination at the site. Several restrictions exist for developing in a floodplain, which are laid out by the US Army Corps of Engineers or the Federal Emergency Management Agency. The long-term stewardship plan for land use at a contaminated site and a floodplain may contain similar restrictions.

2. Advantages for Long-Term Control

There are often set laws for siting restrictions at all levels of government, and there are agencies that have successful management systems laid out.

3. Disadvantages for Long-Term Control

Site restrictions usually apply to new construction, so current laws may not apply to existing structures.

4. Possible Community-Based Socio-Cultural Controls 5. Case Studies

t the Mound Site near Miamisburg , Ohio, the DOE established an Interim Land Use Policy, because the DOE had not yet released control of the land to the local government, but wanted to lay out land use controls for companies subletting the land. The policy identified fifteen categories of authorized uses, established performance standards including avoidance of hazards and pollution, laid out requirements pertaining to radioactive waste, and required a risk assessment of the sublessees' work. This policy was enforced by prohibiting a business from receiving a lease or conveyance without being issued a “Certificate of Appropriateness” by a committee.

E. Groundwater Use Restrictions

1. Purpose

These restrictions are directed at limiting or prohibiting certain uses of groundwater, and may be implemented by establishing groundwater management zones, or by capping or closing wells according to the state well permitting system. Several states include water use restrictions in their regular construction permits or in a deed restriction for sites surrounding contaminated water.

2. Advantages for Long-Term Control

These restrictions can take advantage of existing water use restriction laws, and apply them to the specific site situation. Provision of an alternate source of drinking water strengthens compliance with groundwater use restrictions. In addition, a water testing program will help groundwater well users determine if their water is contaminated.

3. Disadvantages for Long-Term Control

These water use restrictions vary from state to state in technicalities. The use of groundwater restrictions must be checked to ensure that an individual state's guidelines for using these restrictions are not too vague or too specific for a hazardous waste site.

4. Possible Community-Based Socio-Cultural Controls

5. Case Study

At the Paducah Gaseous Diffusion Plant in Paducah , Kentucky , DOE created a zone delineating an area of contaminated groundwater, which extended through a residential neighborhood. Any resident within this zone was eligible for a free hookup to city water sources, on the condition that they close all wells and promise not to use groundwater on their property. This control failed at one property, where a lessee used contaminated groundwater for eleven years, because his landlord did not want to give up the water rights for the property, which extended much further than the DOE's zone. There was no contingency for renters in DOE's plan, so the family suffered multiple health problems over the years.

II. Proprietary Controls

Description

Proprietary controls are related to the intricacies of owning private property. Private property owners have certain rights and responsibilities that have been established over time in the common law system specific to each state. A proprietary control involves one owner exerting his rights to control the land use of another owner.

The proprietary control itself should contain, at minimum, the following information as recommended by the NRC:

  1. A legal description of the property affected
  2. The name(s) of the current owner(s) as reflected in public land records and the conditions of payment for the property interest
  3. The parties who can enforce the control and are responsible for payment
  4. A statement of the hazard posed by the contamination on the site and the nature of the restriction, limitation or control
  5. The duration of the control, or conditions that would allow an end to the control
  6. Permission for regulators to monitor compliance with controls
  7. Permission to install and maintain physical controls
  8. The location of the public copy of the final radiation status report
  9. The name of owners and enforcers so that any changes in the future do not limit the power of the control

Development of new proprietary controls is a function of state law. Relatively little state or federal government staff time would be needed to administer a proprietary interest (depending on the owner of the rights), but periodic site visits are necessary for high risk sites. Most propriety controls can be written in a way that restrictions can be passed onto subsequent owners (i.e. it “runs with the land”).

Deed restrictions encompass all enforceable instruments such as easements and covenants, but are not a specific control tool alone.

Possible Community-Based Socio-Cultural Controls

A. Easements

1. Purpose

An easement is a conveyance of a property right from a principal landowner to another party, which gives the second party rights with regard to the first party's land. It may be given freely, or may be sold by the owner of the property.

The most important part of writing an easement is to state its intent and scope clearly so that its purpose is not questioned or misinterpreted over time.

2. Specific Types of Easements

a. Conservation Easements

This easement limits uses of the property to those that are compatible with the conservation of natural resources, environmental values, scenery, or other specified purposes. These easements are binding on future users of the property, and may be held by land trusts, charities, or government agencies. These easements are generally used to protect open space, not to limit exposure to dangerous contaminants.

Another method of creating a conservation easement would be to have a land trust or charitable institution buy the development, natural resource, and water rights on the property.

b. Hazardous Waste Easements

This easement would be similar to a conservation easement, but would be used primarily to limit human and ecological exposure to contaminants.

State laws govern property rights, thus the development of a hazardous waste easement should be enacted at the state level. This easement has been enacted in only three states. Still, the method of drafting a model or uniform law and encouraging states to adopt it has worked in almost every state.

3. Case Study

At the Mound Site near Miamisburg , Ohio , the DOE polluted an offsite city owned area with plutonium. The DOE obtained an easement to clean up the land by gaining ownership of the land for five years. The DOE was required to pay $4.6 million to the city for damages, but the easement served its purpose by restricting access to the public during cleanup.

B. Covenants

1. Purpose

A covenant is a promise made by one landowner to another, in connection with a conveyance of property, generally agreeing to refrain from using the property in a certain manner.

In a minority of the states, including Colorado, a covenant is not a legal interest in a property, but a binding contract. In other states, a covenant is both an interest in the property and a binding contract. A covenant must “touch and concern the land”, not the owners, to be binding. As an example, if a federal agency transfers real property to a non-federal entity, CERCLA Section 120(h) requires the agency to include a covenant asserting that all remedial action necessary to protect human health and the environment from any hazardous substances has taken place. This covenant also states that any action which disturbs or contributes to existing contamination makes anyone involved in that action a PRP.

2. Advantages for Long-Term Control

Covenants can serve as an institutional control when remediated property is transferred from one owner (such as the DOE) to another (a developer or private individual).

3. Disadvantages for Long-Term Control

C. Restrictive Covenants

1. Purpose

A restrictive covenant is similar to zoning in that it prohibits specific types of development or construction on a property. Restrictive covenants are different in that zoning is a policing mechanism while a restrictive covenant relies on private controls. Rather than being between two parties, like the covenant explained above, a restrictive covenant is usually a promise between a group of landowners in a certain area. There is no central enforcer, but the landowners enforce each other using state courts.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

4. Case Study

At the Mound Site near Miamisburg, Ohio, the DOE is considering several deed restrictions that still may be put in place when it transfers its property to the city of Miamisburg . One will restrict use to industrial buildings, one will prevent the installation of potable water wells until the groundwater can be proved to be at acceptable standards, another will restrict any excavation on the site, one will monitor all contaminated soil transported from the site to avoid spreading contaminants to the community, and a final restriction will allow regulatory agency access to the site. These restrictions are to be enforced both by the regulatory agency and by mutual monitoring by the different site users.

The DOE Oak Ridge Operations Office in Oak Ridge , Tennessee transferred land to a local community with deed restrictions prohibiting the use of groundwater because there is a contaminant plume that might eventually migrate into the area. DOE did not conduct regular monitoring to ensure the deed restriction was being enforced and discovered that the community later drilled groundwater wells to irrigate a golf course. DOE then mandated immediate removal and threatened a reversion of property interest.

5. Possible Community-Based Socio-Cultural Controls

D. Reversionary Interest

1. Purpose

A reversionary interest is created when a landowner deeds property to another landowner, but the deed specifies that the property will revert to the original owner under specified conditions. This control places a condition on the transferee's right to own and occupy the land.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

4. Case Study

At the Mound site near Miamisburg, Ohio, the DOE is using lease controls, which can be considered a form of reversionary interest. This institutional control binds both the development corporation and its sublessees to avoid releasing any new contamination or disturbing existing contamination. The penalty for violations is loss of the lease and a return of the land to DOE. This control is working fairly well, but there has been one incident of a copper discharge in the site's wastewater that could not be traced to DOE or the sublessee. In addition, all lease controls would become invalid if the property were sold by the development corporation.

5. Possible Community-Based Socio-Cultural Controls

E. State Use Restrictions

1. Purpose

State statutes provide owners of contaminated property with the authority to establish use restrictions specifically for contaminated property.

Colorado has passed Bill 01-145, Concerning the Enforceability of Environmental Real Covenants, which establishes a state program for controlling land uses in areas with residual contamination.

F. Governmental/Proprietary Control Hybrids (Wildlife Refuge)

1. Purpose

When the land in question is owned by a government agency, it may be transferred to another government agency for management, or an act may be passed to protect the area. The land ownership by the government constitutes the proprietary control while the act constitutes the governmental control.

In the case of the Rocky Mountain Arsenal and Rocky Flats, the enabling legislation specifies that the contaminated portions of the sites remain in the control of the Department of Defense or DOE, respectively.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

4. Case Study

Under the Rocky Mountain Arsenal National Wildlife Refuge Act of 1992, legislation was enacted to create a wildlife refuge on that site ( Id. ). The site cleanup has been proceeding successfully because the Army, the EPA, and the Bureau of Fish and Wildlife Services are cooperating on several projects. A benefit of government ownership is the ability to use many different experimental physical controls, such as ET covers.

DOE is carrying out preservation activities at Idaho National Engineering and Environmental Laboratory, Savannah River , Oak Ridge , Los Alamos , Lawrence Livermore National Laboratory, and Rocky Flats.

The Rocky Flats Wildlife Refuge Bill of 2001 establishes a refuge at Rocky Flats after the completion of cleanup activities. The definition of what land will be transferred will be determined in the Memorandum of Understanding between DOE and DOI, to be drafted by December 2002. By June 2002, the Department of the Interior must establish a Comprehensive Planning Process that would involve the Rocky Flats Coalition of Local Governments, the Rocky Flats Citizens Advisory Board and others.

5. Possible Community-Based Socio-Cultural Controls

G. Historic Preservation

1. Purpose

The National Historic Preservation Act (NHPA) is a consultation and mitigation mechanism to protect historic resources. This act establishes the National Register of Historic Places (NRHP) and protects properties “eligible” for the Register, whether or not they have been registered in the past.

2. Advantages for Long Term Control

3. Disadvantages for Long Term Control

4. Case Studies

The NRHP has listed a massive crater that was created by a nuclear explosive excavation experiment in New Mexico and another unspecified highly polluted site. The nomination process is difficult and time consuming because there is no central agency to research and record the necessary information to gain eligibility. The landowner has the responsibility to complete the nomination process and, if accepted, maintain the site according to the NHPA's guidelines.

Cemeteries are historically preserved institutions that have existed almost as long as man has existed. They utilize monitoring and maintenance, passive physical controls such as fences and tombstones, institutional access restrictions, and burial records. Experience shows that cemeteries still are vandalized or built over (examples are Pere-Lachaise cemetery in Paris ). Many have a historical governmental or religious institution meant to protect them over many generations. They may have large costs as well, such as Arlington Cemetery, which has a budget of $11 million a year, while others have a perpetual care trust fund to avoid falling into neglect.

5. Possible Community-Based Socio-Cultural Controls

H. Liability Following Property Transfer

1. Purpose

Section 3158 of the National Defense Authorization Act of 1998 allows the Secretary of Energy to hold harmless a person or entity to whom property has been transferred against any claim for injury related to the release or threatened release of a contaminant as a result of DOE activities at a defense nuclear facility. This exemption does not apply if that the person or entity knowingly contributed to any such release.

CERCLA states that anyone who contributes to the contamination at a site may be held liable as a PRP. This liability includes waste that is transferred from one property to another. An implication of this liability may be that sites will store waste onsite rather than accept a share of the responsibility of a failure at a site to which they transferred waste.

EPA may grant an agreement “not-to-sue” if a person reuses a contaminated site while following any restrictions placed on the site

III. Enforcement Tools

Description

Possible Community-Based Socio-Cultural Controls

A. Administrative Orders

1. Purpose

An order directly restricting the use of property by a named party. This order can also be used to restrict the use of land by a non-liable party.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

4. Case Study

The Uranium Mine Tailings Radiation Control Act program was carried out by the DOE in Grand Junction, Colorado, in a similar manner to an administrative order. The DOE worked to remove uranium mine tailings from thousands of sites in the city that had used the tailings as fill. The program was based on the compliance of the landowners, allowing them to choose if they wanted the tailings removed from their property. Many accepted the offer, but 200 out of 5000 declined the cleanup, exemplifying the limitations of a voluntary order.

5. Possible Community-Based Socio-Cultural Controls

B. Consent Decrees

1. Purpose

A consent decree is signed by a judge and documents the settlements of an enforcement case. The purpose of restricting land use is the same as an administrative order.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

The Institutional Controls Workgroup for the EPA believes it is not good practice to rely exclusively on the terms of a consent decree for a long-term land use control. A settlement between the PRP and the EPA does not bind other parties. Consent decrees are most effective in forcing the PRP to institute other long-term controls.

4. Case Studies

The EPA often requires local governments to place an ordinance on a property as part of a Superfund consent decree, and has held the municipality liable when the municipality failed to strictly enforce the terms of the ordinance. The EPA has in at least one case used its broad authority under a consent decree to assess stipulated penalties against a municipality for failing to obtain a permit under its own ordinance. This threat of liability may make local governments refuse to accept the terms of the consent decree. This threat may be avoided if the EPA provides the local government or reuse organization with a covenant not to sue in the consent decree. At the Denver Radium Site, the EPA provided Home Depot (the reuse organization) such a covenant because of the benefits the company may bring to the community.

At the Industri-Plex site in Woburn, Massachusetts, a custodial trust was developed by the PRPs to handle the site's redevelopment and some cleanup. The custodial trust has been able to function successfully in creating private/public partnerships because of a consent decree from the EPA which effectively severed liability for the trust's redevelopment activities. There are two reasons, however, why this consent order may not be in the best interests of public health and the environment. For one, the EPA is using the site as an example of national initiative that aims to establish the beneficial reuse of Superfund sites, and is therefore considering less stringent institutional controls. Second, the Industri-Plex site is in a high-value area, thus the PRPs are more interested in the future use of the site than in the cleanup and long-term control processes.

5. Possible Community-Based Socio-Cultural Controls

C. Comprehensive Five-Year Review

1. Purpose

The CERCLA five-year review process is required of all National Priority List sites that leave residual contamination behind after closure. The National Contingency Plan, as implemented in 40 CFR 300.430(f)(4)(ii), states:

The five-year review must include an assessment of every possible factor that may influence the long-term protection of human health and the environment. The CERCLA five-year review should contain three elements:

Executive Order 12580 establishes the requirements for conducting five-year reviews at DOE sites. DOE is responsible for conducting the five-year reviews and EPA issues a finding of concurrence or non-concurrence.

2. Advantages for Long-Term Control

3. Disadvantages for Long-Term Control

4. Possible Community-Based Socio-Cultural Controls

IV. Informational Devices

Description Possible Community-Based Socio-Cultural Controls

A. Deed Notices

1. Purpose

A deed notice is an informational document filed in public land records that alerts anyone searching the records to important information about the property. This information may include where the site is located, what kinds of contaminants are present, and what the risks of exposure are, and describe undesirable activities on the site.

2. Advantages for Long-Term Control 3. Disadvantages for Long-Term Control 4. Longevity

This informational control will last as long as the public land records last. Its effect is non-enforceable so it will retain its passive sense through perpetuity.

B. Public Education

1. Purpose

Public education can be carried out through meetings, information packets, public service announcements, children's education, etc.

2. Advantages for Long-Term Control 3. Disadvantages for Long-Term Control 4. Case Studies

V. Planning Systems

Description

These devices are institutional controls that are an integral part of stewardship, but do not fit into the categories of restricting access or informational devices.

Possible Community-Based Socio-Cultural Controls

A. Planning Systems

1. Purpose

Planning systems can be considered an informational basis for controls, a template or protocol for actions, and an informational reference. Thus, these controls may fit into the categories as parts of governmental, proprietary and enforcement controls, or may not fit into a category at all.

2. Aspects of Long-Term Control

A planning system is a way to ensure future decisions will be consistent with currently known concerns, such as the protection of human health and the environment, by not breaching physical controls at contaminated sites. These planning systems first compile all useful and relevant information on a subject of concern (such as groundwater contamination), and then develop a future course of action. It should be constantly updated with any new information, and old or irrelevant information should be discarded.

3. Examples of Planning Systems

a. Environmental Master Plan (EMP)

This is a plan used on the state or county level that integrates land use controls and controls on new development in a particular type of site. For instance, an EMP may be written to forbid any future development on all uranium mining sites in a state or county.

b. Base Master Plan

This is the plan for land-use consistent with a ROD for a closed military base. The EPA stresses that these are not dependable devices because they are only used for construction projects and can easily be changed by a commanding officer.

c. Geographic Information Systems (GIS)

Federal facilities are beginning to develop extensive computerized databases that track land uses and restrictions on properties. GIS can be a very useful institutional control as it is a visual device. A ROD may specify that a site must be marked on these maps. In Commerce City , Colorado and Emeryville , California , local governments are setting up environmental information databases that include locations of soil and groundwater contamination. The databases include GIS maps that show properties with historical contamination such as brownfields and properties that have land use restrictions. The annual costs for Commerce City are $170,000 and $36,000 for Emeryville.

 

 

 

1 Energy Communities Alliance, ECA 2001-2002 Policies, II. Environmental Remediation and Long-Term Stewardship, http://www.energyca.org/policies_erlts.htm.

2 U.S. Department of Energy, Office of Environmental Management, Office of Long-Term Stewardship, Report to Congress on Long-Term Stewardship, Vol. I, Summary Report, DOE/EM-0563, Washington, DC, 2001, p. 2.10-2.11.

3 National Research Council, Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites, National Academy Press, Washington, DC, 2000, p. 53-57.