Local government is key player

In an effort to promote national consistency in the use of institutional controls (ICs), the EPA has issued A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites (implementation guide).

This lengthy document was written primarily for EPA site managers and attorneys and is intended to apply to all EPA cleanup programs, including  Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund); Brownfields; federal facility; underground storage tank (UST); and Resource Conservation and Recovery Act (RCRA) site cleanups.  As such, responsible parties in any site cleanup for which ICs are a possible route should keep the guide as a constant reference source. 

The implementation guide is intended to help those involved in a remediation:

• Understand the strengths, weaknesses, and costs of planning, implementing, maintaining, and enforcing ICs.
• Evaluate ICs as rigorously as any other response alternative.
• Develop procedures to coordinate with implementing entities early and often throughout the cleanup process. 

The EPA defines “ICs” as nonengineered instruments, such as administrative and legal controls, which help minimize the potential for exposure to contamination and/or protect the integrity of a response action.  While ICs carry lower costs than physical remediation, the implementation guide makes it clear that planning for and selecting the right IC(s) for a site, as well as its implementation, maintenance, and enforcement, are detailed regulatory, legal, and public relations tasks that should be undertaken only by knowledgeable representatives of responsible parties who can work cooperatively with equally knowledgeable government staff.

Types of ICs

• Proprietary controls, such as restrictive covenants and easements that prohibit activities that may compromise the effectiveness of the response actions.
• Governmental controls, such as local zoning, building codes, and groundwater use regulations that impose restrictions on land or resource use.
• Enforcement and permit tools, such as administrative orders, permits, and consent decrees that limit certain site activities or require the performance of specific actions such as monitoring the effectiveness of an IC.
• Informational devices, such as notices in property records or advisories informing local communities, tourists, or recreational users that residual contamination remains on-site.   

These ICs are generally available for CERCLA, RCRA, Brownfields, federal facilities, and UST cleanups, and multiple ICs may be available for large sites with multiple exposure issues.  However, some instruments may not be available for all types of sites.  For example, county zoning would not be available for an active federal facility. 

As noted, the implementation guide is extensive.  Therefore, the following points should not be viewed as a substitute for reading the relevant sections in the guide itself.  Likewise, the guide is just that—a nonbinding tool that assists in the development of ICs, some of which are legally binding, others that are not.

Also, many non-binding guidance documents and memos issued by the EPA carry significant weight in compliance obligations, including meeting cleanup requirements, as overseen by the Agency’s regional offices and state environmental agencies.  If you become involved in a cleanup where ICs are a possibility, be sure to engage in dialogs with government site managers and site attorneys on how extensively ICs will serve you in meeting your obligations.

Role of ICs

CERCLA. IC-only remedies are not common at Superfund sites.  One example where an IC may be appropriate is the control of residual contamination remaining after an engineered cleanup.  The types of ICs used at CERCLA sites are typically those that experience has shown to be enforceable. 

RCRA.  Generally, under RCRA, ICs are included as components of the corrective action and/or post-closure care requirements at a facility, and as such, may be incorporated into a permit or an order.

Federal facilities.  Federal CERCLA facilities tend to be immense and the contamination complex.  Accordingly, remediation and engineered controls rarely result in complete cleanups.  In this context, ICs become particularly important as a means to control exposure in areas that have yet to be remediated or provided with engineered controls. 

Brownfields and UST sites.  State and local governments often determine whether ICs will be allowed or are required.  Ultimately, individual property owners are required to ensure that ICs remain in place and are protective.

Implementation

At many sites, responsible parties bear the primary responsibility for implementing ICs and ensuring their long-term effectiveness.  It is therefore critical that responsible parties understand and agree to the specific language about what the ICs are intended to accomplish as well as their limitations.  This language is included in IC decision documents (e.g., CERCLA records of decision, RCRA permits, and cooperative agreements).  Implementation is achieved through the following types of ICs.

• Proprietary controls. Proprietary ICs come with legal and management complications, and the directions on implementing proprietary ICs comprise the most extensive part of the implementation guide.  The EPA notes that several states have dealt with the many issues associated with proprietary ICs by adopting model legislation based on the Uniform Environmental Covenants Act (UECA) developed by the National Conference of Commissioners on Uniform State Laws. 
  The implementation guide notes that if the responsible party is subject to a consent decree, that party is required to execute and record, in the appropriate land records office, the proprietary controls that grant rights of access to conduct any activity and the right to enforce selected use restrictions to one or more parties as determined by the EPA.  The guidance recommends that the EPA be designated as a third-party beneficiary, allowing the Agency to maintain the right to enforce the proprietary control without acquiring an interest in real property.
  Other elements discussed include implementing proprietary ICs at CERCLA sites where the EPA or the state is responsible for implementation, EPA’s acquisition of a property with state approval, and developing proprietary IC documentation.
  The implementation guide emphasizes that RCRA permits and orders must be written to ensure that the landowner may not sell the land unless the purchaser agrees to abide by ICs contained in the permit or order.
• Governmental controls. Governmental controls developed by state, local, and tribal governments can often be relied on or leveraged to serve as highly effective ICs if they are appropriately implemented, maintained, and enforced.   The EPA has no authority to require governmental ICs that operate independently of RCRA and CERCLA. 
• Groundwater use restrictions.  Two sets of laws and regulations cover groundwater use.  First are those concerned with maintaining an adequate water supply. These laws and regulations are administered by states and local agencies. Second, health regulations ensure protective water quality when groundwater is used; such regulations may be administered by state health agencies, local health agencies (e.g., county health departments), or both.
• Zoning ordinances.  Zoning ordinances divide a community into various zones, each with permitted uses.  In addition, zoning ordinances often set forth the regulations for the development of land (e.g., building height, density of population). When the zoning designation matches the goals of the IC (e.g., zoning designation is industrial and the goal of the IC is to prevent exposures to contamination by nonworkers on the property), zoning can serve as an effective instrument. 
• Fish consumption bans.  State public health agencies and/or resource agencies usually establish consumption bans.  Also, waterway use restrictions are employed when subsurface contamination remains in place and also help ensure the integrity of the remedy (e.g., sediment capping).  State and local agencies generally enforce these restrictions, but regulated navigation areas typically are coordinated with the U.S. Coast Guard and/or U.S. Army Corps of Engineers.
• Informational devices.  Informational devices are designed to provide information or notification that residual contamination remains on-site.  Among these, the implementation guide lists:
  • Recorded notices, such as deeds. 
  • State registries of contaminated sites and ICs, which include database listings and document-based inventories, among other information.  The EPA notes inconsistencies among states in how registries are maintained, potentially rendering available site information inconsistent or out of date.
  • Advisories are publicly issued warnings that provide notice to potential users of a site of existing or potential risk associated with that use.
  • Community involvement is implemented through websites, mailings, outreach to community associations, and public meetings.

Maintaining ICs

Monitoring to measure the effectiveness of the IC and reporting the monitoring results to the responsible party and government authority must occur throughout the life of the IC, including after transfer of property ownership.  The requirements of IC monitoring vary depending on site-specific circumstances, such as the types of IC instruments and monitoring tools used and how the IC is used to help ensure protectiveness. In many cases, inspections and reporting can be incorporated into other site activities, such as routine groundwater monitoring and annual reports.  Monitoring should occur annually, at a minimum, and more often when more frequent land activities or potential changes in land and/or resource uses are anticipated.

Some IC monitoring activities (e.g., title searches, Internet-based remote monitoring of land activities, and site inspections) may be contracted out.  The implementation guide points out that local residents, community associations, and interested organizations near the site will often have a vested interest in ensuring compliance with the ICs, and they generally are the first to recognize changes at the site.  Although local residents should not be relied on as the primary or sole means of monitoring, site managers often encourage local stakeholders to become involved in monitoring ICs.

Enforcement

Often, the best approach for dealing with IC enforcement is to seek voluntary compliance through early problem identification and informal communication.  “Many issues can be addressed effectively at the site manager and site attorney level with a phone call and appropriate follow-up,” states the EPA.  When a phone call is not sufficient, the implemention guide provides the following information:

• Proprietary controls.  Enforcement of proprietary ICs is usually handled by state and local governments.  But the EPA may become involved in enforcement if the Agency is the grantee (a person to whom property is conveyed).  In cases where the EPA is the grantee or has authority to enforce a proprietary control as a third-party beneficiary, the EPA regional office is directed to refer the case to the U.S. Department of Justice.
• Governmental ICs. The implementation guide seems most concerned about state, local, and tribal governments failing to enforce ICs and what the EPA should do in such circumstances.  When a violation is not enforced and results in actual or threatened imminent and substantial endangerment to human health and the environment, the EPA can issue a CERCLA or RCRA administrative order requiring that the IC be maintained.  If the IC is simply not working, the EPA may use its CERCLA authority to require different ICs or additional active remediation. 
• Permits.  Enforcing an IC contained in a permit can be done with a consent decree, federal facility agreement, unilateral administrative order, or a revised permit.  Complications arise when the responsible party is not the property owner.  In such cases, enforcement documents generally require that the responsible party use its best efforts to obtain access to implement the controls.  If access is not obtained, the EPA can use its CERCLA authority to obtain the property and then require the responsible party to reimburse the Agency.

ICs are less costly alternatives that replace or complement site remediation.  But the administrative and legal aspects connected with selecting, maintaining, and enforcing ICs compare in complexity to those associated with physical cleanup.  If you are a responsible party and ICs are an option for you, the implementation Guide will give you a good idea of what is involved and what your obligations will be.

Click here for the IC implementation guide and other EPA IC guides and documents.

William C. Schillaci
BSchillaci@blr.com