The Sleeping Giant Awakens: The Growing Public Debate About Institutional Controls
 
October 5, 2001
 
Amy L. Edwards- Washington

The issue of institutional controls is much like the sleeping giant in the fairy tales you heard as a child. After sleeping peacefully for many years, this issue, like the sleeping giant, has taken central stage in the brownfields movement and on several other fronts. Are institutional controls being implemented as planned? Who has authority to enforce these controls? Do the public and local regulators have notice about the existence of these controls? Who is responsible for monitoring and enforcing these controls over the long term? Many are now demanding answers to these questions.

Institutional controls (also referred to as activity and use limitations (AULs) or land use controls (LUCs)) have been used in the Superfund and RCRA programs for many years. Only in the past couple of years, however, have we begun to appreciate that many of these controls have been poorly implemented, or not implemented at all. We have also begun to question whether any regulatory agency truly has authority to enforce these controls. Equally as important, we have come to appreciate that, even when effective institutional controls have been implemented, no one may be responsible for monitoring their integrity over the long-term, frequently because of financial or other constraints.

At the same time, many believe that institutional controls are critical to the long-term success of the brownfields movement and to reducing risks at contaminated sites. We recognize that we do not have sufficient resources to clean up all sites to pristine, background levels, or that further cleanup may be technically impracticable. So, the recent public debate has focused upon the question of how do we make institutional controls work better.

There are four principal issues in this debate: (1) how do we improve the implementability of institutional controls; (2) how do we improve the enforceability of institutional controls; (3) how do we ensure that the public and regulators have notice about the existence of these controls; and (4) how do we improve the long-term viability and enforceability or stewardship, of these controls? This article will briefly describe some of the recent developments addressing these concerns.

Recent Developments

EPA Region V Memorandum, "Use of Institutional Controls in the RCRA Corrective Action Program" (March 2000). This memorandum first flagged EPA Region V's concerns about the lack of enforceability of institutional controls at RCRA corrective action sites and similar sites. The memorandum states that EPA Region V will rely upon permits and orders unless it obtains assurances from the states in Region V that they both have the ability and the willingness to maintain the controls over time.

ASTM Standard Guide on the Use of Activity and Use Limitations, Including Institutional and Engineering Controls, E 2091 (September 2000). This Guide emphasizes the importance of evaluating institutional controls with the same vigor as any other aspect of the remedial action process. The Guide emphasizes the importance of considering institutional controls early in the remedial action process; identifies and describes the types of tools that are currently available (e.g., proprietary controls; state and local government controls; statutory enforcement tools; and informational devices); emphasizes the importance of evaluating each of these tools for each "driver" chemical of concern, each exposure pathway, and each receptor; identifies suggested screening and balancing criteria; and recommends developing plans to address long-term stewardship concerns.

ELI Study "Protecting Public Health at Superfund Sites: Can Institutional Controls Meet the Challenge?" (July 2000). This study highlights the fact that institutional controls have typically been an afterthought at Superfund sites, and that there are no mechanisms in place to ensure that these controls are in fact implemented and maintained over time.

ICMA Study "Beyond Fences: Brownfields and the Challenges of Land Use Controls." This study presents the local regulators' views on institutional controls and their concerns about being burdened with the long-term inspection and monitoring obligations.

EPA Fact Sheets and "Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups" (October 2000). These documents describe the various types of tools that are available to implement institutional controls and the relative strengths and deficiencies of each method.

CPEO Forums (February and June 2000) on Land Use Controls and Interim Report, "Western Stakeholders' Forum on Land Use Controls at Federal Facilities." These forums were designed to facilitate discussions between communities near closing Department of Defense (DoD) facilities and DoD and state regulators over the thorny issue of institutional controls. The forums were co-sponsored by ICMA. An Interim Report from the February forum focused upon the following issues: the appropriateness of using land use controls; the design of land use controls; tracking and recording of land use controls; implementation and enforcement of land use controls; stewardship; and cost and funding issues.

DoD Interim Policy on Land Use Controls Associated with Environmental Restoration Activities (August 31, 2000). This Interim Policy provides guidance for implementing, documenting and managing land use controls for active and closing DoD bases. The policy recommends that feasibility studies be conducted; that decision documents describe the exposure scenarios that were used in selecting the remedy; that appropriate land use controls be incorporated into existing land management systems; that a central database be maintained; that procedures be established for modifying or terminating the controls; and that Memorandum of Agreement (MOAs) be developed to establish procedures for developing, implementing and managing the controls.

DoE Establishment of Office of Long-Term Stewardship (February 2000). The Department of Energy (DoE) established an Office of Long-Term Stewardship to address concerns about the viability of institutional controls at its decommissioned sites, which are expected to need viable institutional controls for thousands of years. DoE has been required as part of a settlement of a lawsuit to maintain some of this information on a Web site.

National Research Council Study (September 2000). This report highlights concerns about the long-term viability of institutional controls.

Tools under Development

A number of organizations and individuals have been giving substantial thought and attention to how the public's confidence in the viability of institutional controls can be increased. Some of the initiatives are described below:

Guardian Trust. Guardian Trust has obtained approximately $2 million in public and private financing to test, on a pilot-project basis, the concept of using a custodial trust backed by insurance to monitor institutional controls. The plan is to conduct a six-month pilot study.

Environmental Site Tracking and Management (ESTM) System. An Internet-based permitting system is being developed that could be used by local regulators to make quick and informed decisions about the types of institutional controls that may be needed at a specific site and to track those controls. This system is based upon the one-stop permitting system being used in Emeryville, California.

Insurance. The insurance markets are actively discussing with potentially responsible parties the possibility of developing insurance products to monitor the viability of institutional controls once they have been put in place.

Resources for the Future Study, "Public and Private Trusts and Financial Assurance Mechanisms" (draft December 2000). This study examines the potential role of public and private trusts in enforcing institutional controls.

Portland, Oregon, One-Call System. Portland, Oregon, has tested a model in which any business or homeowner who needs to call the local utility clearance system can obtain information about any environmental conditions or use restrictions at a site at the same time.

EPA IC Tracking System. EPA is developing a system for tracking institutional controls. This system is in the conceptual stages and is not expected to be available until late 2001 at the earliest.

Massachusetts Audit System. Massachusetts has enacted legislation that requires all sites at which activity and use limitations have been used to be regularly audited. This system has been in place for two years and appears to be working effectively.

New Jersey Certification System. New Jersey requires site owners to certify every two years that they have inspected their institutional controls, and that the controls are working as intended.

DoD Management Plans. The Department of Defense is requiring all bases to develop detailed base-management plans describing the goals and objectives of institutional controls, the types of institutional controls that are available under local law, and the system for monitoring those controls over the long term.

Only time will tell whether these new tools will work to alleviate concerns about the long-term viability and reliability of institutional controls. Hopefully, as awareness grows and these new tools are tested and refined, the grumpy giant will go peacefully back to sleep.

For more information, contact Amy Edwards at 1-888-688-8500 or via email at aedwards@hklaw.com.