[CPEO-BIF] REGULATION: EPA issues Institutional Controls guide

[Lenny Siegel <lennysiegel@gmail.com>]

Please excuse the duplicate postings.

In November 2010 U.S. EPA issued an Interim Final guidance, "A Guide to 
Planning, Implementing, Maintaining, and Enforcing Institutional 
Controls at Contaminated Sites." Picking up where the agency left off 
nearly a decade ago, the 37-page Guide is straightforward and 
comprehensive. I invite participants in this newsgroup to review the 
Guide and not only to submit their comments to EPA, but to share them 
with this list. The document may be downloaded as a 776 KB PDF file from 
http://www.regulations.gov/search/Regs/home.html#docketDetail?R=EPA-HQ-SFUND-2010-0894 


The guide addresses sites where cleanup responsibility is held by public 
and private responsible parties, volunteers, and/or EPA and its state 
counterparts. It explains the process of carrying out Institutional 
Controls (ICs) under a variety of statutes. While primarily designed for 
use by EPA personnel, it provides valuable information and insights to 
anyone inhabiting the IC universe.

What follows is not a complete summary of the Guide, but simply a number 
of key points that I found interesting in my initial review of the document.

While the primary purpose of ICs is to provide ongoing protection of 
public health and the environment, EPA makes clear its continuing 
commitment to the reuse of contaminated properties: "Although layering 
can have its advantages as an IC strategy, site managers and site 
attorneys should evaluate whether layering may lead to misunderstandings 
over accountability or to an unnecessarily restrictive response (e.g., 
preventing reuse) if ICs are not narrowly tailored to meet the response 
objectives." (emphasis added; p. 7)

EPA recognizes that robust IC planning is not only important for 
implementing the controls themselves, but it may also influence the 
selection of environmental responses: "For example, an accurate estimate 
of the full costs to all parties (e.g., EPA, the State, local 
government, property owners, federal agencies, and responsible parties) 
can help evaluate the cost-effectiveness of alternative remedies during 
response selection, where ICs are an important component of total 
remediation and/or removal." (p. 8)

It also warns that the cost estimates should consider the long 
long-term: "In addition, IC maintenance, and enforcement costs may 
extend beyond the 30-year period traditionally used in many response 
cost calculations. These continuing costs should be acknowledged when 
developing response cost estimates and can be important in evaluating 
long-term effectiveness." (p. 8)

The Guide repeatedly recognizes that other levels of government, such as 
states, tribes, and local land use planning jurisdictions, may lack the 
capacity, capability, and/or the will to take long-term responsibility 
for ICs. It counsels EPA staff to find alternate ways of implementing 
ICs in such cases, but in my opinion there is no guarantee that such 
alternatives are always available. This is the Achilles heel of good IC 
planning.

The document acknowledges the need to be aware of and possibly ask local 
governments to modify "cumulative" zoning ordinances, in which "less 
intensive uses, such as single family homes, may be permitted in zones 
designated for intensive, industrial uses. " (p. 21)

The Guide also suggests that institutional controls be reviewed annually 
in the absence of information supporting a different period. It adds: 
"When changes to site conditions are likely to take place in less than a 
year (e.g., the site is an area being redeveloped or there has been a 
change in the zoning designation), more frequent monitoring should take 
place." (p. 25)

Finally, the Guide proposes community involvement, not just in 
establishing institutional controls, but in conducting long-term 
monitoring: "Because community members who live or work near the site 
will often have a vested interest in ensuring compliance with the ICs, 
they are generally the first to recognize changes at the site. Although 
local residents should not be relied upon as the primary or sole means 
of monitoring, the site manager should encourage local stakeholders to 
become involved in monitoring ICs."

The most important take-away message I got from reading the new IC 
Guide, however, was that planning, implementing, maintaining, and 
enforcing institutional controls is complex and difficult. At some 
sites, ICs are unavoidable, because it may be impossible to remove or 
treat hazardous substances quickly. However, the uncertainty, costs, and 
other challenges associated with "cleanups" that do not allow 
unrestricted use or unlimited access suggest that active cleanup should 
remain the first choice of decision-makers, and that they should think 
twice before relying primarily on institutional controls to protect 
human health and the environment.

--


Lenny Siegel
Executive Director, Center for Public Environmental Oversight
a project of the Pacific Studies Center
278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org


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