2010 CPEO Military List Archive

From: Lenny Siegel <lennysiegel@gmail.com>
Date: Tue, 7 Dec 2010 12:31:03 -0800 (PST)
Reply: cpeo-military
Subject: [CPEO-MEF] EPA issues Institutional Controls guide
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. 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

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

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