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

[CPEO Moderator <cpeo@cpeo.org>]

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

PLEASE NOTE: The previous version (posted 4/23/2003) was only a draft
version.
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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RE: EPA Draft Guidance "Institutional Controls: A Guide to Implementing,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Having reviewed the above-mentioned EPA Draft Guidance, Arc Ecology has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 a permit or
Governmental approval. In such cases, local government would have some
motivation, however small, to monitor behavior that might breach the IC.
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 people who might breach the control at
the moment when they make the critical decision.

The challenges presented by normal behavior that does not trigger
regulatory or ownership issues are even greater than those that can
borrow existing vehicles (such as zoning permits and deeds). Such ICs
require their own systems. The Guidance should not pass over this
daunting task lightly.

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 among those 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
(called for by the institutional control on the site), 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.

The example given above also confirms the observation made in the
Guidance (page 18) that community members may have a direct interest in
ensuring compliance with ICs and can therefore be a valuable resource
for day-to-day monitoring., However it is also true that community
members living near a site that has ICs due to past or current
contamination may 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 no-cost substitute for an
established, reliable monitoring method. There are costs associated with
community monitoring, which the guidance should address. A program that
institutionalizes and pays for monitoring compliance with ICs would make
this into a reliable approach, rather than assuming they will fulfill
the role free of charge.

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

Sincerely,


Eve Bach     Lea Loizos
Staff Economist/Planner  Staff Scientist

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