Institutional Controls Manual

[Lenny Siegel <lsiegel@cpeo.org>]

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