Adak Update

A view of Downtown Adak, overlooking Sweeper Cove

The institutional controls include the following land use restrictions:

The primary purpose of the institutional controls for the CERCLA and RCRA sites in the Downtown Exchange Area is to ensure compliance with land use assumptions used in establishing cleanup levels. The anticipated future use was an important consideration in determining the level of protectiveness required at the sites. For example, the CERCLA sites in the Downtown Exchange Area are found in industrial areas, and the anticipated land use was expected to remain the same based on the information available when the remedies were selected in the OU A ROD. The residual chemicals that remain onsite are safe for workers, but they may not be safe for full-time residents living on the property.

Four remedial alternatives were selected for the petroleum sites on Adak: free-product recovery, monitored natural attenuation, limited soil removal, and limited groundwater monitoring. In addition, one site (NMCB Building Area, UST T-1416-A) will be cleaned up as part of a larger remedial effort at a free-product site.

Institutional controls are applied to limit land use activities at the individual sites and to ensure the integrity of the free-product recovery and monitoring systems. These controls will include restrictions on groundwater use and soil excavations. They will be designed to reduce the potential for direct exposure in the short term, until petroleum concentrations are reduced below cleanup levels by natural processes. The petroleum sites are presently undergoing studies and cleanups, therefore none of them will be surveyed.

Land Use Restrictions

CERCLA, RCRA, and Alaska's Oil and Hazardous Substances Pollution Control (18 AAC 75) require cleanup of hazardous substances that have been released into the environment to a degree that is determined to be protective of human health and the environment. The purpose of ICs is to ensure compliance with land use assumptions used in establishing cleanup levels. How a piece of land is anticipated to be used in the future is an important consideration in determining the extent of cleanup necessary to achieve the required protectiveness. For example, if the site is an industrial area, and it is anticipated to remain industrial, residual contamination may remain on-site under the assumption that the land will not be used for residential purposes. The contaminant levels left on-site are safe for workers, but may not be safe for full-time residents living on the property if future land use became residential at some sites. In this particular scenario, institutional controls are necessary to restrict present and future land use to industrial purposes and ensure that engineering controls remain intact throughout the year. The investigations conducted by the Navy, in cooperation with the ADEC and/or USEPA, required certain restrictions on the land based on reasonable land use considerations. Those land use restrictions include areas restricted to industrial or outdoor recreational uses. Applicable land use restrictions will be noted through equitable servitudes on the title of the sites where the restrictions apply.

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Equitable Servitude

There are two types of ICs involving land transfer documents or equitable servitudes.

Notices. 40 CFR Part 373 implementing Section 120(h) of the CERCLA requires notice of any hazardous substance that was stored for 1 year or more, known to be released or disposed of in any contract for the sale or transfer of property.
Restrictive Covenants. Navy policy regarding land use controls requires that the United States insure that ICs 'run with the land' such that the immediate transferee and subsequent transferees are required to abide by the ICs. State real property laws determine the form of the restrictive covenant. ADEC draft guidance suggests that the restrictive covenant should take the form of an 'equitable servitude.'

An equitable servitude is listed as one of nine types of controls addressed in the ICMP. The definitions section of the ICMP generally defines each of the terms. Equitable servitude restrictions are slightly different from the other controls because they are the sole mechanism or primary mechanism by which the land, groundwater, and excavation restrictions are implemented. Equitable servitude notices provide information to future purchasers of property by being contained in the title records of the property for future prospective purchasers to become aware of. Restrictive covenants and (in Alaska) equitable servitudes are placed by the grantor (seller) that transfers ownership of real property to the grantee (buyer). Such covenants or servitudes indicate that the grantor is not giving the grantee every possible right of ownership that could be given. Rather, the grantor reserves certain rights, and the grantee takes the property subject to the reserved rights of the grantor. As discussed in the ICMP, the equitable servitude that transfers parcels of property that have land use restrictions will have reserved those rights and uses. The grantor has the authority to enforce those reserved uses against future owners. By this mechanism, the restrictions will be part of the title of the real property. Thus they will "run with the land" and all future owners of the parcels will not be given the rights that are reserved.

It should be noted that this page does not contain the final equitable servitude notice language; the appropriate language will be included in the Finding of Suitability to Transfer (FOST). The exact form of the equitable servitude is subject to negotiations among Department of Interior, the Navy, TAC, and the regulatory agencies. An example of a draft equitable servitude used by a state agency is shown in Appendix A. It is stressed that this is for example purpose only; it may or may not reflect what the actual equitable servitude may resemble.

The Navy will provide a copy the FOST to the Department of Interior Bureau of Land Management (BLM) to be maintained as part of the permanent file of conveyance documentation. The FOST will contain a full legal description of the properties, associated Institutional Controls, and a legal description of covenants that will be contained in the conveyance documents. Reference to these documents and their availability in the BLM permanent conveyance file will be included in the interim conveyance documents executed by BLM. This BLM permanent file of interim conveyance documents will be available to current and future owners of the real estate seeking information about past land uses. This measure will provide the current and future landowners with a source for information about institutional control sites and the type of remedial actions that have been taken. Engineering Field Activity, Northwest will manage the restrictions on behalf of the Navy.

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Soil Excavation Restrictions

There are two types of soil excavation restrictions.

IC Excavation Permit Requirements. The excavation permits are required for each proposed excavation below 2 feet at each of the institutional controls sites. The permits will be evaluated to determine whether a proposed project at an institutional control site is consistent with the land use restrictions. The permits are an additional tool for the Navy to receive timely information (in the absence of local zoning requirements) to monitor land use restrictions. The permits will also provide information to the requestor regarding the contaminants, concentrations, location, and depth encountered at the site. Such excavation restrictions will be noted on the title of the sites that have this restriction through an equitable servitude.
Absolute Excavation Prohibitions. At some sites such as SWMU 21A and SWMU 67 where the remedy in place is a protective cover, excavation by non-Navy personnel is absolutely prohibited although recreational land uses, which add additional cover (e.g. ball fields, golf course), may be permissible. Navy personnel will be allowed to excavate for the purposes of repairing caps, etc. Additionally, excavation for the purpose of digging a domestic use well in the downtown area is prohibited. It is also prohibited in the remote areas where it is necessary to protect the integrity of the ongoing petroleum cleanups. Such prohibited use will be reflected in the equitable servitude on the title of the sites that have this restriction.

Institutional Control Excavation Permits are required for all the Downtown Exchange Area and Remote Exchange Area CERCLA and petroleum sites. The excavation permits will be required for each proposed excavation below 2 feet at each of the institutional controls sites. The permits will be evaluated to determine whether a proposed project at an institutional control site is consistent with the land use restrictions. The permits are an additional tool for the Navy to receive timely information (in the absence of local zoning requirements) to monitor land use restrictions. The permit will also provide information to the requestor regarding the contaminants, concentrations, location, and depth encountered at the site.

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Downtown Groundwater Use Prohibition

Domestic use of groundwater in the downtown area is restricted due to the potential presence of petroleum compounds and other chemicals in the groundwater. Domestic groundwater use is defined as that used by households or transients for human and animal consumption, cooking, bathing, showering, gardening, irrigation, or use on consumable food products, watering animals and any other domestic use. The institutional control excavation permit program at individual sites captures one control of the drilling requirements, and the rest will be performed by visual inspections. The visual inspections will include delineating transects in the downtown area that will be followed to look for unauthorized wells in the restricted area . The groundwater use restriction will be noted through an equitable servitude on the title of sites that have this restriction.

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Enforcement of Institutional Controls

Institutional controls are part of a legally selected remedy. ICs are generally enforced through periodic inspections and periodic reports. Navy will promptly report violations of ICs to regulators. The Navy will engage in a dialogue with the landowner and entity violating the institutional control. Additionally, if there is a violation of institutional controls, the United States may bring legal action in a court of competent jurisdiction to judicially enforce the requirements of the land use restrictions. The term 'judicially enforce' means to initiate civil litigation to have a court order a violator to cease the behavior and to impose other remedies that may be fair and equitable. The incentives that individuals have to obey institutional controls are that noncompliance could be deleterious to their health and well being and that compliance is legally required.

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Removal of Institutional Controls

Equitable servitude restrictions or other institutional controls put in place to ensure the protectiveness of the remedy may need to be revised if a remedy has performed as expected and cleanup objectives have been met. Institutional controls may be removed once the Navy can demonstrate to ADEC and EPA that the site is suitable for unrestricted use. Institutional controls may be removed from a site if an intended action will alter or negate the need for the IC (e.g., a construction activity that will include removing contamination on site that form the basis for the IC). Another example is if there is documented evidence that the site has achieved its remedial action objectives and met appropriate cleanup levels such that the IC is no longer necessary to protect human health and the environment. In such a case, the Navy will initiate action to revise a equitable servitude restriction or other institutional controls, as appropriate. Sections 2 and 3 list the specific contaminants of concern, their detected concentrations, and estimated risks under different land use and exposure scenarios for CERCLA sites that require institutional controls due to potential adverse risks. The information in those tables will be used to help evaluate site conditions and future chemical levels that may warrant removal of the land use restrictions on these sites. For petroleum sites, land use restrictions can be removed once soil and groundwater levels have met the concentrations listed in the OU-A ROD Table 7-5 pursuant to 18AAC75.340 and 345.

The Navy will petition the EPA and ADEC, in writing, to remove or terminate an IC. The written petition will provide the appropriate documentation that an unrestricted land use is appropriate.

Inspections and Reporting

The institutional controls identified in this plan will be inspected and reported on an annual basis, or as necessary. The reports will assess the need for additional (or a reduction in) inspection requirements, as well as determine whether the institutional controls in place are effective. The annual reports will be the basis for evaluating the institutional controls effectiveness as part of the CERCLA 5-year review process. Due to the presence of chemicals above non-restrictive land use cleanup levels at OU A sites, the former Adak Naval Complex will continue to be subject to 5-year reviews pursuant to CERCLA � 121(c) and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) �300.430(f)(4)(ii).