Superfund Program; Revisions to Model CERCLA RD/RA Consent Decree

[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