[CPEO-BIF] GAO's report on Institutional Controls

[Lenny Siegel <lsiegel@cpeo.org>]

The Government Accountability Office's January 2005 report on
Institutional Controls (GAO-05-163) demonstrates a remarkably sound
understanding of both the purpose and practice of institutional controls
in cleanup - administrative or legal controls on property use or access
to protect the public or sustain remedies. While GAO investigators did
not audit the entire universe of relevant sites regulated by U.S. EPA, 
it did systematically review a representative sample.

GAO finds progress over time. For example, at four Superfund sites where
cleanup was completed, with residual waste left in place, in the early
1990s, only two had institutional controls. A decade later, 28 or 31
such sites had institutional controls. 

Still, at many sites with institutional controls, decision documents did
not address two of the four key factors called for in EPA's guidance
documents: "the timing of their implementation and their duration; and
the party who will be responsible for implementing, monitoring, and
enforcing them." (p. 7)

GAO recognizes the importance of such shortcomings: "Without careful
consideration of all four factors, an institutional control put in place
at a site may not provide long-term protection of human health and the
environment. Furthermore, EPA?s 2002 draft guidance recommends planning
of the full institutional control life cycle early in the remedy stage -
including implementation, monitoring, reporting, enforcement,
modification, and termination - to ensure the longterm durability,
reliability, and effectiveness of institutional controls. The guidance
states that, critically evaluating and thoroughly planning for the
entire life cycle early in the remedy selection process could have
eliminated many of the problems identified to date. In addition,
according to the EPA guidance, calculating the full life-cycle cost is
an  essential part of the institutional control planning process. This
estimate is important to compare the cost-effectiveness of institutional
controls with that of other remedy elements and to ensure that parties
responsible for implementing, monitoring, and enforcing institutional
controls understand their financial liability for these activities.
Relying on institutional controls as a major component of a selected
remedy without carefully considering all of the applicable factors -
including whether they can be implemented in a reliable and enforceable
manner - could jeopardize the effectiveness of the entire site remedy."
(p. 27)

GAO also warns that in many cases decision documents specified only
informational, non-enforceable institutional controls.

GAO finds a need for better monitoring of institutional controls. For
example, at a Superfund site, a restriction on groundwater use had been
violated for more than a year before being discovered during a five-year
review. More than 25 million gallons had been extracted for drinking water.

GAO supports EPA's new Institutional Controls Tracking System (ICTS),
but it says the system needs improvement. That is, while EPA has created
a process that could track and evaluate institutional controls across
the board, it's not clear whether the resources will be available to
complete the system.

GAO concludes: "Information necessary to determine whether institutional
controls are being monitored and enforced is not currently included in
either the Superfund or RCRA tracking systems. As previously noted,
monitoring of institutional controls at Superfund sites after they have
been implemented may be inadequate to ensure their continued
protectiveness. Failure to monitor or enforce institutional controls can
lead to compromising the protectiveness of remedies put into place and,
consequently, potential exposure of the public to residual hazardous
waste. While EPA plans to include information on monitoring and
enforcing institutional controls at Superfund sites in the Tier 2 data
for ICTS, EPA's institutional controls project manager stated that it is
uncertain whether ICTS will ever be expanded to include Tiers 2 or 3
data. Further, there is no plan to include such information in the RCRA
tracking system, since EPA regulations do not require any review of
terminated RCRA corrective action sites. Currently both tracking systems
only identify where an interested party may go to obtain more
information on a particular site." (p. 41)

Warning systems for excavators are also important, but those are also a
future improvement for the ITCS. GAO explains: "As previously noted, the
objectives of ICTS include improving information exchange with
individuals interested in the productive use of a site after cleanup,
and the existing processes allowing for notification to excavators of
areas that are restricted or need protection prior to digging. EPA
acknowledges that there is an immediate need for disseminating readily
available information about institutional controls at contaminated
sites. This need will only increase in the future as sites? remediation
advances and as more contaminated land and water resources are
identified for potential reuse. Without knowledge of the controls at a
site, excavators might unknowingly contact or otherwise disturb residual
contaminated media. At this time, to obtain information about possible
institutional controls at the site of interest, excavators would need to
search many different databases and sources of information before
operations could begin. While information on institutional controls at
RCRA corrective action sites is planned to be available to the public by
April 2005 and this capability is planned for ICTS in the future, EPA
has not yet determined what information on institutional controls at
Superfund sites will be made available to the public." (p. 41)

Finally, GAO compares sites deleted from the "Superfund" National
Priorities List in 1991-93 and 2001-03. The share of sites with residual
waste remaining "after cleanup" rose significantly, from 20% of 20 sites
in the early 1990s to 60% of 53 sites in the early 2000s.

In its comments on the draft report, EPA downplays that shift: "An
increased use of ICs [meaning residual waste remains] should not be
interpreted to mean that less treatment is occurring at Superfund
cleanups or under other cleanup programs. The Superfund Program
continues to clean up sites consistent with the statutory preference for
treatment and permanent remedies." (p. 57)

I disagree. While EPA has not thoroughly abandoned the original
objectives of its cleanup programs, the recent emphasis on property
reuse has often led to cleanups where the primary, long-term risk
management strategy is the interruption of pathways, not the removal or
treatment of contamination. Without a full recognition of the long-term
management strategy necessary to support such an approach, such
improperly named "risk-based" cleanups frequently defer or transfer the costs.

To download the entire report as a PDF file, go to
http://www.gao.gov/cgi-bin/getrpt?GAO-05-163

[Note: In the interest of full disclosure, I have a consulting
relationship with the EPA office responsible for development and
implementing its Institutional Controls strategy. - LS]

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 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
_______________________________________________
Brownfields mailing list
Brownfields@list.cpeo.org
http://www.cpeo.org/mailman/listinfo/brownfields