EPA Guidance on ICs and Federal Transfers

[Lenny Siegel <lsiegel@cpeo.org>]

A few weeks ago we summarized the Defense Department's letter criticizing
EPA draft guidance on "Institutional Controls and Transfer of Real
Property under CERCLA Section 120(h)(3)(A),(B) or C." We have since
received a copy of the guidance, and it is our understanding that Acting
Assistant EPA Administrator Tim Fields will sign the document soon, if he
hasn't already.

The guidance is an internal EPA document, not a regulation. It
"establishes criteria for EPA to evaluate the effectiveness of
institutional controls that are part of a remedy or are a sole remedy for
property to be transferred ..." The guidance does not directly address the
appropriateness of institutional controls as remedies, and in particular
it "does not change EPA's preference for active and permanent remedies..."

EPA considers the transferring federal agency, such as the Defense
Department or the Energy Department, responsible for the implementation of
institutional controls, even if that responsibility is delegated to
transferees: "the ultimate responsibility for monitoring, maintaining, and
enforcing the institutional controls remains with the federal agency
responsible for cleanup."

Furthermore, it is necessary, but not sufficient, to "clearly identify and
define the institutional controls and set forth their purpose and method
of implementation in a Record of Decision (ROD) or other decision
document."

In reviewing proposed transfers of federal property (to non-federal
entities) where institutional controls are required, EPA expects
documentation of those controls, including a statement that the
restrictions "conform or will conform with the legal requirements of the
applicable state and/or local jurisdiction." That is, the agency must
certify that the control is "binding in perpetuity and enforceable in
state court."

Furthermore, the transferring agency must describe "who will be
responsible for monitoring the integrity and effectiveness of the
institutional controls and the frequency of monitoring." It must also
document procedures for reporting failures of institutional controls,
should they occur. There must be a provision for periodic verification, as
well.

If existing documents, such as the ROD, Remedial Design, or Operation and
Maintenance Plan do not adequately describe the implementation of
institutional controls, EPA may require the transferring federal agency to
develop an "Institutional Control Implementation Plan" (ICIP). The
guidance states, "The level of detail in the ICIP should be commensurate
with the risk at the site."

Finally, in certifying that remedies are "operating properly and
successfully," the transferring agency should demonstrate that
institutional controls - not just active treatment systems - are in place
and likely to remain effective.



While the documentation required by this new EPA guidance will add to the
pile or paperwork at a typical cleanup site, it's important to recognize
that reliance on institutional controls is a substitute for active
treatment or removal. In approving the transfer of property expected to
remain contaminated for decades, if not "forever," it's appropriate for
EPA to insist upon language and procedures designed to reinforce the
integrity of approved controls.



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
(PLEASE NOTE THAT WE ARE PHASING OUT
MY OLD E-MAIL ADDRESS: lsiegel@igc.org)
http://www.cpeo.org