Re: [CPEO-MEF] EPA issues Institutional Controls guide

["Steven B. Pollack" <Steve@EcoEsq.com>]

The following is our group's public comment in opposition to the use of
institutional controls instead of treatment or removal options.

Comment by Members of the Public in Opposition to 

Institutional Controls: A Guide to Planning, Implementing, Maintaining,
and Enforcing Institutional Controls at Contaminated Sites

Blue Eco Legal Council
Steven B. Pollack, Director
P.O. Box 1370
Highland Park, IL 60035
(847) 436-9566
 
There are two main flaws in considering institutional controls as a
viable alternative to removing harmful materials to a safer location.
First, institutional controls will almost always have a favorable cost
comparison to remedies involving treatment or removal. The typical
framework for evaluating cost-effectiveness such as employed in CERCLA
usually overstates the cost advantage of long-term remedies like
institutional controls because the net present value of expenditures
made years out is depreciated to near zero today. By contrast, large
expenditures in the present for remedies like treatment or removal do
not enjoy much depreciation.  Net present value comparisons therefore
make long drawn out expenditures such as institutional controls look
cheaper than they actually are. The way to fix this flaw would be to not
depreciate the long-term expenditures by net present value calculations.
This makes sense because the future cost of an expenditure will go up by
the rate of inflation and is therefore as expensive tomorrow as it is
today. The entire lifetime expenditure for institutional controls should
be compared to the costs of treatment and removal remedies in present
dollars.

Furthermore, the typical framework for evaluating cost effectiveness
will understate the cost of institutional controls by ignoring the value
of a lost natural resource.  Institutional controls typically remove a
valuable natural resource from use by the owners, the United States
public. The cost to the public of losing unfettered access to
groundwater or beach use is never considered as an actual cost in dollar
terms whereas the cash cost of treatment or removal is assessed. Damage
to natural resources can be analyzed in dollar terms and should be
assessed as an additional cost associated with institutional controls
when the natural resource is a public resource.

The second flaw in considering institutional controls a viable
alternative to treatment or removal is that it creates a self-fulfilling
prophecy. New methods of treatment technologies will only get developed
if the polluter has no other alternative but to develop them. To allow a
polluter to say there is no feasible cleanup technology and therefore
institutional controls are a viable alternative is to allow the polluter
off the hook for developing a feasible cleanup technology in the first
place.

Nowhere is this more apparent than with the Department of Defense and
underwater munitions.  The DoD actively ignores available cleanup
technology developed by Underwater Ordnance Recovery Inc for the safe
removal of underwater unexploded ordnance. It lies to stakeholders that
there is no technology for doing this kind of work and then defends
inaction and institutional controls by saying it is too dangerous to
send divers down to remove the munitions. This is what the DoD did at
Fort Sheridan in Illinois when the Lake County Forest Preserve chose to
close the beach to public use because of munitions in the water. This is
what the DoD did at the Erie Army Depot where munitions are rolling up
the shallow nearshore zone and limiting unfettered use by riparian
property owners. Instead of using this viable cleanup technology the DoD
hides behind institutional controls that remove valuable natural
resources from the public. If institutional controls were not available
(and US EPA had the courage to uphold CERCLA, RCRA, and the Military
Munitions Rule standards against DoD) then DoD would have no alternative
but to develop and apply this technology.

For these reasons, institutional controls are not in the public interest
in that they allow polluters to avoid developing viable technology for
treatment and removal. And to the degree institutional controls are
analyzed for cost effectiveness against developed technologies, the
federal laws need to be changed to compare all costs in current dollars
and to require damages to natural resources be assessed as a cost of
institutional controls.


> -------- Original Message --------
> Subject: [CPEO-MEF] EPA issues Institutional Controls guide
> From: Lenny Siegel <lennysiegel@gmail.com>
> Date: Tue, December 07, 2010 2:31 pm
> To: Military Environmental Forum <military@lists.cpeo.org>
> 
> 
> Please excuse the duplicate postings.
> 
> In November 2010 U.S. EPA issued an Interim Final guidance, "A Guide to 
> Planning, Implementing, Maintaining, and Enforcing Institutional 
> Controls at Contaminated Sites." Picking up where the agency left off 
> nearly a decade ago, the 37-page Guide is straightforward and 
> comprehensive. The document may be downloaded as a 776 KB PDF file from 
> http://www.regulations.gov/search/Regs/home.html#docketDetail?R=EPA-HQ-SFUND-2010-0894 
> .
> 
> The guide addresses sites where cleanup responsibility is held by public 
> and private responsible parties, volunteers, and/or EPA and its state 
> counterparts. It explains the process of carrying out Institutional 
> Controls (ICs) under a variety of statutes. While primarily designed for 
> use by EPA personnel, it provides valuable information and insights to 
> anyone inhabiting the IC universe.
> 
> What follows is not a complete summary of the Guide, but simply a number 
> of key points that I found interesting in my initial review of the document.
> 
> While the primary purpose of ICs is to provide ongoing protection of 
> public health and the environment, EPA makes clear its continuing 
> commitment to the reuse of contaminated properties: "Although layering 
> can have its advantages as an IC strategy, site managers and site 
> attorneys should evaluate whether layering may lead to misunderstandings 
> over accountability or to an unnecessarily restrictive response (e.g., 
> preventing reuse) if ICs are not narrowly tailored to meet the response 
> objectives." (emphasis added; p. 7)
> 
> EPA recognizes that robust IC planning is not only important for 
> implementing the controls themselves, but it may also influence the 
> selection of environmental responses: "For example, an accurate estimate 
> of the full costs to all parties (e.g., EPA, the State, local 
> government, property owners, federal agencies, and responsible parties) 
> can help evaluate the cost-effectiveness of alternative remedies during 
> response selection, where ICs are an important component of total 
> remediation and/or removal." (p. 8)
> 
> It also warns that the cost estimates should consider the long 
> long-term: "In addition, IC maintenance, and enforcement costs may 
> extend beyond the 30-year period traditionally used in many response 
> cost calculations. These continuing costs should be acknowledged when 
> developing response cost estimates and can be important in evaluating 
> long-term effectiveness." (p. 8)
> 
> The Guide repeatedly recognizes that other levels of government, such as 
> states, tribes, and local land use planning jurisdictions, may lack the 
> capacity, capability, and/or the will to take long-term responsibility 
> for ICs. It counsels EPA staff to find alternate ways of implementing 
> ICs in such cases, but in my opinion there is no guarantee that such 
> alternatives are always available. This is the Achilles heel of good IC 
> planning.
> 
> The document acknowledges the need to be aware of and possibly ask local 
> governments to modify "cumulative" zoning ordinances, in which "less 
> intensive uses, such as single family homes, may be permitted in zones 
> designated for intensive, industrial uses. " (p. 21)
> 
> The Guide also suggests that institutional controls be reviewed annually 
> in the absence of information supporting a different period. It adds: 
> "When changes to site conditions are likely to take place in less than a 
> year (e.g., the site is an area being redeveloped or there has been a 
> change in the zoning designation), more frequent monitoring should take 
> place." (p. 25)
> 
> Finally, the Guide proposes community involvement, not just in 
> establishing institutional controls, but in conducting long-term 
> monitoring: "Because community members who live or work near the site 
> will often have a vested interest in ensuring compliance with the ICs, 
> they are generally the first to recognize changes at the site. Although 
> local residents should not be relied upon as the primary or sole means 
> of monitoring, the site manager should encourage local stakeholders to 
> become involved in monitoring ICs."
> 
> The most important take-away message I got from reading the new IC 
> Guide, however, was that planning, implementing, maintaining, and 
> enforcing institutional controls is complex and difficult. At some 
> sites, ICs are unavoidable, because it may be impossible to remove or 
> treat hazardous substances quickly. However, the uncertainty, costs, and 
> other challenges associated with "cleanups" that do not allow 
> unrestricted use or unlimited access suggest that active cleanup should 
> remain the first choice of decision-makers, and that they should think 
> twice before relying primarily on institutional controls to protect 
> human health and the environment.
> 
> 
> Lenny Siegel
> -- 
> 
> 
> Lenny Siegel
> Executive Director, Center for Public Environmental Oversight
> a project of the Pacific Studies Center
> 278-A Hope St., Mountain View, CA 94041
> Voice: 650/961-8918 or 650/969-1545
> Fax: 650/961-8918
> <lsiegel@cpeo.org>
> http://www.cpeo.org
> 
> 
> 
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