More Comments on Institutional Controls

[Aimee Houghton <aimeeh@cpeo.org>]

[The following are Arc Ecology's comments on EPA's reference manual for
insitutional controls. --Aimee Houghton]

Arc Ecology
833 Market Street, Suite 1107, San Francisco, CA 94103
Tel: (415) 495-1786 Fax: (415) 495-1787 E-mail arc@igc.org

July 16, 1998

Stephen Hess
Office of General Counsel US
By Fax: 202 401 1587

Sharon Frey
Office of Emergency and Remedial Response
By Fax: 703 603 9104

Re: COMMENTS ON INSTITUTIONAL CONTROLS: A REFERENCE MANUAL

Dear Mr. Hess and Ms. Frey:

The following are the comments of Arc Ecology on the Draft Reference Manual 
on
Institutional Controls prepared by the USEPA Workgroup. We apologize that we
are submitting our comments after your suggested date, and hope they will
prove useful nonetheless.

First we would like to add our voice to those welcoming this Manual. It
addresses an overdue need for critical analysis of institutional controls as 
a
working concept and as a practical reality. Many of the players involved with
CERCLA and RCRA have pinned their hopes for cheaper compliance on
institutional controls. The challenge, of course, is to ensure that remedies
incorporating institutional controls are able to meet the threshold criteria
for selection: overall protection of human health and the environment, and
compliance with ARARs (or satisfying grounds for an ARAR waiver).

To an unfortunate degree, reliance on institutional controls as a substitute
for treatment has preceded development of mechanisms with a demonstrated or
even predictable ability to uphold current risk standards. Advocates for
institutional controls have simply assumed that existing features of property
law and land use regulation can be effective in preventing people from using
still-contaminated sites in ways that will expose them to potentially
dangerous doses of toxics. This Manual examines those assumptions and finds
them to be unwarranted.

The Manual's analysis of available tools -- all evolved or designed for other
purposes -- suggests that they are extremely blunt instruments when they are
applied to the task of preventing exposure to contaminated soil or water. In
virtually all examples, the crudeness of the instrument is caused by EPA
delegation of responsibility for implementing ROD conditions to agencies or
private parties who have no particular interest or power to enforce them.
Advocates of institutional controls have blithely assumed, for example, that
zoning a property for industrial use will prevent residential use in the near
and long term even though (1)many jurisdictions allow residential uses in
industrially zoned areas, and (2)the nationwide deindustrialization of cities
is driving conversion of industrial
zones to other uses that incorporate residential uses. Expecting that a city
will shape its planning policies and zoning classifications to accommodate
responsibilities spun off by EPA is not realistic, even if some city official
at some point in time promises otherwise.

The concerns about profitability that exert pressure on EPA to substitute
institutional controls for treatment similarly affect the ability and will of
local agencies to monitor
and enforce those controls. To the extent that institutional controls at the
local level
impede real estate market opportunities,. local officials will have even
greater
difficulty withstanding those pressures than EPA, even in its weakened state.
The
mission of the local zoning official is not protection of human health and 
the
environment; it is to implement the locality's development plan. One of the
most
important ways that local government determines a community's future is
through
its land use decisions - its general plan, zoning provisions and 
designations,
use
permits, variances and the granting of other en titlements that shape
development -- decisions that determine a locality's tax base, employment
opportunities, quality of
life, as well as the return that developers will realize on their investment.
Critical
permit decisions (such as variances from zoning standards) are generally made
by appointed commissioners and are not controlled by professional staff. ROD
enforcement is likely to be low down on the list of local priorities because
it is
inconsistent with the mission and day-to-day work of planning departments. In
addition, funds are generally not provided to pay for the additional 
workload.

The Manual is also correct in its suggestion that, in general, easements,
covenants
or other restrictions tied to a property interest also fail to solve the
problem. So
long as the owner of these interests lacks a direct and primary interest in
seeing
that such restrictions on use are honored, the property interests will not be
self-enforcing. Property interests must be exercised if they are to be
effective, or even
remain in effect over the long haul.

The caution recommended by the Workgroup with respect to institutional
controls is
well founded and clearly necessary. The absence of effective instruments of
institutional controls has not discouraged EPA from incorporating them into

remedies. Between 1985 and 1991, the proportion of RODs relying on
institutional controls increased from
14% to 55%.

The information presented in this Manual indicates that EPA urgently needs to
develop specific standards to guide utilization of institutional controls,
either in a revised draft
of this Manual or in a future document. All participants in the cleanup
process, including regulators, PRPs, state and local officials, federal lead
agencies, and the public need to understand the limitations and costs of
institutional controls. An understanding of these factors should inform the
remedy selection process.

WORKGROUP RECOMMENDATIONS
We strongly endorse the Workgroup's first recommendation to evaluate
institutional controls prior to selection of the remedy. The expected
performance level of the institutional controls are as much a part of a 
remedy
as the choice of cleanup
techniques or engineered barriers. Common sense dictates that the regulator
must know what each alternative remedy entails if the selection is to be
informed
and thoughtful.

It seems obvious that regulators will have a far more difficult time meeting
their responsibility to choose the best alternative if they must negotiate 
the
terms of the
remedy after, rather than before it is selected. For this reason, we suggest
removing language elsewhere in the Manual that weakens this first
recommendation (such as
the statement on page 82 that postpones determination of the institutional
controls
until the ROD). The preparation of the Feasibility Study is the perfect
opportunity for regulators to state the conditions under which they could
accept institutional controls.

Spelling out the specifics of institutional controls in the Feasibility Study
is also
necessary to enable public participation. The Feasibility Study provides the
foundation
for the Proposed Plan, the document available for review by the public.

The Workgroup's remaining six recommendations are very weak in light of their
description of the problems associated with institutional controls. The
Workgroup
needs to convert these very general statements of concern into rigorous
performance standards and practical, useful advice to regulators in the field
about what an effective institutional control will accomplish.

It is not enough, for example, for the Manual to recommend that "deed
restrictions'
should be used carefully"; or that "deed notices should be clearly
understood". The
Manual needs lay out the shortcomings associated with "deed restrictions"
(even if
they are more accurately termed "easements"). The Workgroup's analysis needs
to
clarify conditions under which existing land use and property laws would 
work,
and
under which conditions they would be ineffective and should not substitute 
for treatment.

ADDITIONAL SUGGESTIONS
We offer the following observations and recommendations to address the
problems
raised by the Manual. Discussions to date share the unstated assumption that
institutional controls must be pieced together out of existing laws and
regulations. We propose that
the Workgroup entertain an approach that begins by visualizing the outcomes
that institutional controls are expected to achieve, and then designs legal
mechanisms
capable of achieving those outcomes. These could be a set of controls 
directly
applicable
to EPA decisions as well as specifications for controls that would need to be
in place
at the state and/or local level before responsibility for institutional
controls could be delegated to those levels.

Clearly confidence in the effectiveness of institutional controls must be
grounded in empirical evidence. What is the success rate for institutional
controls set in place to
date? There are numerous examples of dramatic failure, enough to confirm that
the theoretical problems anticipated by the Workgroup are common in practice.
Data
need to be systematically collected and analyzed, and results presented to
decisionmakers responsible for adopting the statutes and regulations that 
will
determine how institutional controls are used.

It is necessary to link the issues triggered by institutional controls with
other aspects of CERCLA. For example, a 1995 audit of EPA's 5-year review
program revealed that more than half of the reviews are not taking place. The
implications of this nonperformance for institutional controls are obvious.

A linkage also exists between the new possibilities for dirty transfer of
federal facilities, especially in relation to BRAC military bases. If the
military retains ownership of the bases through the finalization of a ROD
containing institutional controls, conveyance
terms can be devised that ensure that those measures will be monitored and
enforced.
The military could retain a property interest, require posting of
restrictions, require monitoring, and spell out enforcement responsibilities.
In contrast, disposal of a contaminated property at an earlier point in the
remediation process forfeits this opportunity. If dirty transfers are
inevitable, EPA needs to establish a set of terms that would be inserted into
all such transactions to preserve the enforcement advantages of federal 
ownership.

COMPARATIVE COSTS
Finally, there is the issue of costs. Some members of Congress, PRPs, local
governments, and EPA officials have embraced institutional controls because
they believe that remedies relying on institutional controls are cheaper than
cleanup. Yet there does not appear to be good information about comparative
costs, nor a systematic cost accounting methodology that captures all of the
expenses associated with institutional controls. Cost comparisons for 
specific
projects often assume that costs spun off to other parties cease to exist and
do not need to be accounted for.

Liability costs also have been overlooked. If institutional controls are
breached, and if an enforcement action can somehow be mounted, who will be
liable for remedying the problem and paying for any damage caused? Will
institutional controls result in litigation tangles at the back end of the
CERCLA process that echoes the expensive disputes characterizing the front 
end?

Accurate information on costs will be even more necessary as effective
mechanisms are created because they will cost more. Accounting for the full
cost of effective institutional controls over time may result in treatment
becoming the cheaper option.

Evidence that effective institutional controls are costly will no doubt be
disappointing
news for all of us interested in returning contaminated sites to 
economically,
environmentally, and socially productive use. However, cheap remedies
represent
a holy grail: a prize we are seeking, but one that still eludes us.

INSTITUTIONAL CONTROLS AS A FACTOR DETERMINING RISK
In the final analysis, institutional controls are only acceptable if they
reliably achieve
risk levels consistent with EPA's mandate to protect human health and the
environment. Institutional controls have become popular as an alternative
approach to treatment,
on the assumption that they would be simple, cheap, and effective. Closer
examination reveals that institutional controls are more complex, expensive,
and unreliable than expected, suggesting the need to apply them sparingly
unless and until new forms can
be developed that are capable of upholding risk standards. EPA must not allow
institutional controls to be the vehicle that indirectly degrades
environmental standards and exposes
an unsuspecting public to greater risk of disease.

Thank you for this opportunity to review and comment on your important work 
to
date. We are available to assist the Workgroup as they refine this Manual and
determine follow-up steps..

Yours truly,

Eve Bach
Staff Economist/Planner