From: | Lenny Siegel <lsiegel@cpeo.org> |
Date: | Mon, 29 Jun 1998 21:36:25 -0700 |
Reply: | cpeo-military |
Subject: | Institutional Controls Manual |
EPA PREPARES DRAFT REFERENCE MANUAL ON INSTITUTIONAL CONTROLS IN HAZARDOUS WASTE CLEANUP In April, 1998, a U.S. EPA workgroup released the draft of a reference manual on the use of institutional controls in the cleanup process. The manual describes and evaluates both proprietary and government controls for restricting land or water use at sites being addressed under both the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). It provides guidance, or at least suggestions, to EPA program and legal staff, but the authors believe that others may find it useful. One section specifically addresses the particulars of institutional controls at both active and closing federal facilities. The manual is 118 pages with appendices. I am not attempting to summarize it because it is both comprehensive and complex, and I am not an attorney. In releasing the draft manual, EPA requested comments - to be submitted by July 3, so I am submitting the following general analysis. It should come as no surprise that they are consistent with and even repeat some of the concerns I have raised before. (I am posting this to both our military environmental list and our brownfields list. For those people on both lists, I am sorry for the duplication.) Lenny Siegel TO: Stephen Hess, Office of General Counsel, US EPA and Sharon Frey, Office of Emergency and Remedial Response, US EPA FROM: Lenny Siegel, Director, Center for Public Environmental Oversight SUBJECT: Comments on "Institutional Controls: A Reference Manual" DATE: June 29, 1998 I appreciate the opportunity to comment on the draft Reference Manual on institutional controls. This is an important aspect of hazardous waste response that has received much too little attention, even as responsible parties and regulators have increasingly relied upon such controls to protect public health and the environment. In general, I find the manual to be comprehensive and clear. It carefully considers the value and shortcomings of each type of control mechanism under a wide range of contingencies. Since I am not an attorney, I defer to the LEGAL expertise of the authors. As guidance for project managers, however, I do not think the document goes far enough. Some of my suggestions may be beyond the scope of the manual, but they must be addressed somewhere. Otherwise, the detailed legal picture painted by the manual may give a false sense of security. 1. Each control mechanism analyzed by the manual brings with it the shortcoming of long-term uncertainty. The manual recommends strategies for managing that uncertainty, but someone has to recognize that the emperor is wearing no clothes. From reading the manual it's clear: Institutional controls, as arbitrary mechanisms designed to support incomplete cleanup, do not sufficiently protect human health and the environment. Institutional controls should be adopted as a principal remedial response strategy only if: A) Complete cleanup is technically impracticable. In these cases, institutional controls should complement, not substitute for, active cleanup. They should be adopted only if they are found to be the best way to protect public health and the environment for the life of the hazards being addressed. or B) Restrictions on property use are caused and reinforced by factors other than the desire to limit cleanup expenses. For example, where the geography of a site suggests that it will be indefinitely be dedicated to open space, a cleanup plan - such as capping an old landfill - that relies on controls restricting construction may prove appropriate. A necessary, but insufficient measure of the desirability of such a control is the open consideration, of each property restriction, by the local government with land use planning jurisdiction. This doesn't mean a phone call to the planning director. It means that there should be hearings, announced to the public the same way local zoning changes are noticed, seeking the views of the neighboring community. 2. Public awareness is not only critical to determining the acceptability of an institutional control, but for ensuring its enforcement. Institutional controls could be applied as part of cleanups managed by EPA, state environmental agencies, tribes, or other agencies, but it unrealistic to expect concerned residents to contact each agency in an effort to determine if a piece of property is encumbered with institutional controls. There should be a universal REGISTRY, accessible by 800-number, the world wide web, and other more traditional forms of communication, through which anyone can check to see if a piece of property has had use restrictions imposed in support of the goals of environmental remediation. I don't really care whether EPA or the state in which the property lies is responsible for maintaining the registry. It could even be a partnership. But there should be one-stop shopping for all. 3. The five-year reviews built into CERCLA and similar periodic reviews in other regulatory frameworks are good mechanisms for evaluating the appropriateness of a remedy, but they are insufficient for preventing violations of institution controls. To protect both the remedy and the public, there needs to be a more frequent AUDITING of the controls to see if they are being continuously observed. Auditing should be carried out by an agency other than the responsible parties, but at the time the decision document is signed, there should be a clear mechanism for funding that auditing function for as long as necessary. Depending upon the situation, that may be an endowment funded by the responsible parties. There is a tendency, once institutional controls have been written into legal documents governing a site, to think that the job is done. The manual, to address fully the goals of its authors, must warn that officials and the public need mechanisms to ensure observance of any institutional controls for the life of any environmental contamination left in place. Lenny Siegel Director, Center for Public Environmental Oversight c/o PSC, 222B View St., Mountain View, CA 94041 Voice: 650/961-8918 or 650/969-1545 Fax: 650/968-1126 lsiegel@cpeo.org |
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