|Date:||Tue, 3 Aug 1999 11:45:11 -0700 (PDT)|
|Subject:||"INSTITUTIONAL CONTROLS: THE NEXT FRONTIER"|
Please feel free to post a response to the brownfields listserve or contact Kate Probst (firstname.lastname@example.org) if you have any specific questions and comments for the author. TC Center for Risk Management Newsletter, Resources for the Future Issue No.15 Spring 1999 INSTITUTIONAL CONTROLS: THE NEXT FRONTIER Katherine N. Probst After many years of little progress, it appears that the U.S. Environmental Protection Agency's (EPA) Superfund program is making a dent in addressing the majority of sites on the National Priorities List (NPL). Finally, there is actually cleanup going on at the majority of sites. Most of those in the Superfund community can heave a huge sigh of relief that as remedies have been selected for almost all the sites on the NPL we don't have to continue to debate "how clean is clean." Unfortunately, however, there is a new issue that demands policymakers attention: the issue of the reliability and enforceability of what are called "institutional controls." Institutional controls in the Superfund context refer to legal measures-such as permitting, deed restrictions, and zoning-placed on land and groundwater use to assure that the public does not come into contact with contamination left on site. While it is hard to get reliable statistics on the use of institutional controls at NPL (or other) sites, it appears that the institutional controls are increasingly part of Superfund remedies. The lack of reliability of institutional controls is one of the hot topics being discussed at forums that focus on the future use of contaminated sites-whether these sites are privately owned sites on the NPL, sites that are the responsibility of the Departments of Defense and Energy, or "brownfields" sites. Independent research, by folks at RFF and elsewhere, suggests that there is good reason to be concerned about the lack of institutional, legal, and informational mechanisms for enforcing restrictions on the use of contaminated property. Some of the major questions being raised include: What is the legal basis for institutional controls? Who is responsible for making sure that institutional controls are monitored? Who has the authority and the resources to take legal action if institutional controls are not maintained? Are these activities the responsibility of the federal government, state governments, or local government? According to recent surveys by state and local government associations, it appears that each level of government is under the impression that assuring compliance with institutional controls is someone else's responsibility. One key question is: Who is responsible for making sure that physical barriers to contain site contamination and efforts to monitor the movement of contamination are maintained over time after all engineering controls have been implemented? Increasingly, citizens groups and state and local governments around contaminated sites are suggesting that responsibility for these types of activities be clearly spelled out at the same time as the remedy (or cleanup plan) is selected-not after cleanup is completed, as is often the case. A major issue is who is going to cover the costs of these kinds of activities. A second question is how can one be sure that whatever measures are needed to assure the integrity of institutional controls (that is, to assure long-term protection) are maintained over time? What institutions will be responsible for these activities in the decades to come, after local citizens and governments at all levels don't remember the contamination that was once so visible? Some Possible Solutions A number of steps can-and should-be taken to address these concerns. These changes do not require amendments to the Superfund law, which is in a state of perpetual congressional debate, although they do require leadership on the part of the federal Superfund program. 1. EPA and the states should set up a national web site with information on land, water, and groundwater restrictions at contaminated sites. One of the ways to ensure that sites are used in an appropriate manner is to make public the use restrictions placed on each site. Interestingly, the Superfund law requires that the Agency of Toxic Substances and Disease Registry (ATSDR), in cooperation with other federal agencies and the states, "establish and maintain a compete listing of areas closed to the public or otherwise restricted in use because of toxic substance contamination." It appears, however, that this information has not been maintained nor made easily accessible to the public. Implementing this requirement in a sensible manner and putting the information on the internet would make information on site use restrictions readily accessible. 2. EPA should amend the Superfund National Contingency Plan (NCP) to clearly set out requirements surrounding the use of institutional controls at contaminated sites. Most of the language of the NCP, the regulatory blueprint for the Superfund program, focuses on the process leading up to and including the selection of a site remedy. Little attention is paid to assuring the continued protection of the remedy over time. Because a remedy that relies on institutional controls is only effective-and protective-if these controls are complied with, it is critical that the same administrative and legal structure applied to remedy selection be applied to institutional controls. Specifying more clearly the role of institutional controls at contaminated properties, and the organization that will be responsible for monitoring, maintaining and enforcing these controls is crucial to the success of the Superfund program, and will provide a model that can be used at contaminated properties not on the NPL. 3. EPA and HUD in conjunction with the states should develop national guidelines for what kinds of information regarding site contamination should be disclosed to prospective purchasers and tenants, as well as requirements for public involvement in brownfields programs and funding for local public information programs. While it would be counterproductive to issue federal brownfields regulations, much would be gained by national guidelines articulating recommended policies regarding disclosure of contamination and risks, and the role of public involvement. This effort could culminate in a model public involvement program as well as model disclosure policies for leases and sales agreements of contaminated properties. Implementation of these three proposals alone would not "solve" the problem of enforcing institutional controls. However, the recommendations would go a long way toward dealing with a problem that , despite its importance, has gone largely unaddressed.
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