1999 CPEO Brownfields List Archive

From: "cpeo@cpeo.org" <cpeo@cpeo.org>
Date: Tue, 3 Aug 1999 11:45:11 -0700 (PDT)
Reply: cpeo-brownfields
Please feel free to post a response to the brownfields listserve or contact
Kate Probst (probst@rff.org) if you have any specific questions and
comments for the author.


Center for Risk Management Newsletter, Resources for the Future
Issue No.15 Spring 1999


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

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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