[CPEO-MEF] Comments on EPA's Draft IC Guidance

[CPEO Moderator <cpeo@cpeo.org>]

The following is a copy of Arc Ecology's comments on  EPA's IC
Implementation,
Monitoring and Enforcement guidance, as submitted by Lea Loizos
<lealoizos@mindspring.com>.
________________________________________


April 21, 2003

Michael E. Bellot
U.S. EPA
1200 Pennsylvania Ave., N.W., 5202G
Washington, D.C. 20460

RE: EPA Draft Guidance "Institutional Controls: A Guide to Implementing,
Monitoring and Enforcing Institutional Controls at Superfund,
Brownfields, Federal Facility, UST and RCRA Corrective Action Cleanups"

Dear Mr. Bellot;

Having reviewed the above-mentioned EPA Draft Guidance, Arc Ecology has
a few comments and suggestions to offer.

The EPA has done a credible job of addressing the legal issues
surrounding the implementation, monitoring, and enforcement of
institutional controls (ICs), particularly those requiring some type of
permit or Governmental approval, in which case behavior that might
breach the IC would be triggered by an illegal activity. There needs,
however, to be implementation methods for ICs for which no permit or
government approval is necessary. Examples of this type of IC include
restrictions against produce gardens on residential sites or the
planting of trees or installation of an irrigation system on a
residential or commercial site. As a general rule, information about the
IC needs to be available to the person who is going to breach the
control at the time when they are going to breach it.

In the section entitled “Monitoring Institutional Controls”, the
guidance recommends that monitoring requirements be layered to increase
the likelihood that breaches will be detected early, as there will be a
greater number of eyes responsible for the oversight. While layering
sounds like a good idea in theory, it has been our experience that this
can in fact cause confusion amongst those who are considered responsible
for the monitoring as well as for community members who are trying to
find the point of contact when a breach is witnessed. An example of this
occurred recently in Alameda, California, on a portion of the former
Naval Air Station that was transferred to a developer. When a community
member witnessed an activity that was out of compliance with the Site
Control Plan, he called the City to report the breach and was directed
to the State. Upon calling the State, the resident was then redirected
him back to the City. In this case, layering of the responsibilities
allowed for a passing-of-the-buck for the government agencies. The
frustration generated in cases like this only further discourages
community involvement. Such examples are numerous.

The example given above also points out that community members may have
a vested interest in ensuring compliance with ICs and can therefore be a
valuable resource for day-to-day monitoring, as mentioned on page 18 of
the guidance. At the same time, community members living near a site
that has ICs due to past or current contamination can be ambivalent
about monitoring and informing others about the ICs, knowing that ICs
generally lower their property value. Community monitoring cannot be
used as a substitute for an established, reliable monitoring method.
There may also be costs associated with community monitoring, which the
guidance does not address. Offering payment for monitoring compliance
with ICs would provide an added incentive to residents rather than
assuming they will fulfill the role free of charge.


We appreciate the opportunity to review and comment on this document.

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