Underground Storage Tanks

PIRI's (Partnership in RBCA Implementation) official members include representatives from the major oil companies (i.e., Amoco, BP, Chevron, Exxon, Mobil, and Shell), ASTM, EPA's OUST, and States. The paper presented here represents the points of view of the various PIRI authors and not the companies or states with which they are affiliated. This document is not an EPA document. This document will be updated as changes in technologies and policies require. It is critical that readers check with the implementing agency in their States before acting upon the policies discussed in these papers.

The use of institutional mechanisms to memorialize land and resource-use constraints and provide for safety has been used extensively throughout the United States. Federal, State and local laws and codes have required various institutional control mechanisms for conservation area protection, aquifer protection, historic preservation, development limitations, hazardous and solid waste facility closure, notice of contaminated sites, notice of buried utilities, and the like. Whenever institutional controls are used, a control requirement (or notice) is recorded with the appropriate regulatory agency (or agencies) where reasonable diligent inquiry (required by law in many instances) would uncover the existence of such notice. Examples of different types of institutional controls are: Structure-use restrictions, land-use restrictions, natural resource-use restrictions, well restriction areas, deed restrictions, deed notices, declaration of environmental restrictions, access controls, monitoring requirements, site posting requirements, information distribution, notification in closure letter, restrictive covenants, and Federal/State/county/local registries.

In the area of site remediation, returning land and groundwater to conditions acceptable for unrestricted residential use would be ideal, but the limitations of public and private-party funds tell us that this goal can never be achieved. Through the experience in risk-based corrective action and the need for remediation that is "protective [of human health and the environment]" and cost effective, the doors have opened for the use of institutional controls. In a 1995 survey of States conducted by the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), 14 of 27 responding States acknowledged the use of institutional controls in site remediation. New Jersey defines "institutional controls" as "...a mechanism used to limit human activities at or near a contaminated site, or to ensure effectiveness of the remediation action, over time, when contaminants remain at a contaminated site in levels or concentrations above the applicable remediation standard that would allow for unrestricted use of that property. Institutional controls may include, without limitation, structure, land, and natural resource-use restrictions, well restriction areas, and deed notices."

Institutional controls are effective when the definition of "what contamination can remain at a site and under what conditions" or "how clean is clean" is defined based upon current land-use and exposure scenarios; particularly when the continued existence of such "protective" conditions is beyond the control of the regulatory agency. As an alternative to cleaning a site to levels that would be considered "safe" for unrestricted use, an institutional control can provide notice of exposure elimination, system maintenance (e.g., engineering control, capping), or land-use constraints (e.g., nonresidential use only). The institutional control, for example, could require notification to the approving agency prior to any disturbance of the land or change of land use that would create an unacceptable exposure.

The goal of State and Federal cleanup programs is to provide a regulatory structure in which cost-effective remediation decisions that are protective of human health and the environment can be made; the use of institutional controls provides for flexibility in remediation decision making. Institutional controls should be designed to remain protective over time, especially when risk-based remediation decisions are made based upon current land and resource use and maintenance of engineering controls. Remediation decisions memorialized in institutional controls should "run" with the land (e.g., deed notices, use restrictions) or property file (i.e., be filed with the appropriate local/county/State land/resource-use control agencies) and, as needed, have affirmative obligations for maintenance requirements which are passed on to the prospective purchaser/operator.

Future land-use consideration should also be a critical factor in determining the nature and use of institutional controls. The scope of the remediation strategy, which should be defined early in the remediation process, should be based upon future land-use considerations. Especially if property purchasers are involved, the scope of the remediation effort and the use of any institutional controls should be consistent with the purchaser's intended use of the property. Prospective property transactions may be affected or complicated by the existence of contamination that remains above levels acceptable for unrestricted use when liability is unclear or contamination is not well defined.

Generating the data necessary to define the "scope" of the institutional control is a regulatory policy issue. The precision of soil and groundwater requirements and the reliance on field data versus modeling efforts should be considered. This is especially true for instances when the institutional control (e.g., deed notice) requires concurrence from the property owner. Delineation in these circumstances must be conducted in a manner to ensure that the ability of a property owner, purchaser, or neighboring property owner to use his/her property in a manner he/she chooses, to allow an understanding of any potential property value impacts, if any, and to allow for concurrence with the requested use restriction.

There are many factors that must be considered in designing a remediation program that incorporates and relies upon the use of institutional controls. Some of these public policy issues include:

• What are the State's land-use and population pressures for a change in the exposure scenario (e.g., conversion from industrial to residential use)?
• Should a State have penalty/enforcement capability if the maintenance requirements of the physical site are not followed (e.g., an allowance for breeches in exposure control mechanisms)?
• Will a responsible party have the option to place a "use restriction" on property he does not own? Will this be considered a taking of property?
• Should there be a preference for permanent remedies consistent with the National Contingency Plan and should the cost of permanent versus protective non-permanent remedies be considered?
• Are the repositories for the institutional controls reasonable for noticing current users, future purchasers, and resource and land-use decision makers? Is there redundancy in the multi-level notice requirements to prevent "system" notification failure? Can the diligent inquiry for such notices be required in law at the time of property transfer?
• Can the existing government structure be used to memorialize the institutional control mechanism? (e.g., will a county repository for deed notices serve to provide notice to future property purchasers?)
• Will local officials be notified of restrictions that may limit property use in a manner inconsistent with local zoning plans?
• Should the institutional control have an affirmative obligation to allow site inspections? Should this be required only if some form of "maintenance" is required?
• What level of public notice should be required?
• Is groundwater under a site considered State or private party property? If the site is located in a non-groundwater-use area, should all property owners be notified?
• Should a State establish a mechanism to evaluate the effectiveness of institutional controls over time?

References

ASTSWMO Leaking Underground Storage Tanks Task Force. 1996. "Toolbox" of Administrative Procedures for Managing Contaminated Sites - Survey Results.

Clancy-Hepburn, M. et al. 1995. Research Report "Institutional Controls In Use," Environmental Law Institute.

Gimello, R. 1995. Final Guidance Memorandum, "Classification Exception Areas." New Jersey Department of Environmental Protection.

New Jersey Department of Environmental Protection. 1994. "Future Land Use: A Key Consideration in Remedy Selection," Site Remediation News, Vol 6, No. 1.

Senate Bill 1070, Public Law 1993, Chapter 139, State of New Jersey, March 15, 1993.

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