USEPA Issues Policy Guidance on Evaluation of Institutional Controls
The USEPA released on September 13, 2011 new guidance titled “Recommended Evaluation of Institutional Controls: Supplement to the Comprehensive Five Year Review Guidance” providing recommendations for the monitoring and inspection of ICs during the CERCLA five-year review process. The new USEPA guidance recommends that “ICs be mentioned specifically in the overall protectiveness statement when long-term protectiveness hinges on compliance with ICs.” The EPA guidance directly addresses the five year review process on Superfund sites, but in doing so it also adds a new ingredient in defining best practice for maintaining the integrity and effectiveness and assuring compliance with ICs. EPA’s transmittal letter explains:
This guidance supplements OSWER’s 2001 Comprehensive Five-Year Review guidance and provides recommendations for conducting five -year reviews for the IC component of remedies in a manner similar to the review of engineering or other remedy components.
At Terradex, we know this guidance will meaningfully inform the continually improving best practice for ICs, thereby increasing the reliability of this often necessary remedy component. EPA’s recommendations align with numerous technology services Terradex has constructed for states and private companies including 1) use of excavation clearance systems, 2) property mapping systems to show current owner and property boundaries, and 3) integrated communication to local government where day-to-day land use decisions are made.
So what led to this new guidance? USEPA staff began working on this supplement around 2005, and again the effort was galvanized in 2008. In 2001, when the Five-Year Review guidance was issued, the primary focus of the guidance tended to be on the physical remedy components like the pumping and treatment of ground water, while ICs were often considered to be secondary in focus. If an IC was planned but not in place, for example, this situation may not have been flagged in the five-year review and evaluated as part of the ultimate protectiveness finding. The problem was that the five year review guidance did not address ICs explicitly in the 2001 guidance. Since that time, there has been an emergence of a new perspective that lift ICs to being as equal and integral to the remedy as the engineered or physical components. The supplemental guidance provides parity with physical remedy components; the supplemental guidance offers methodologies to evaluate integrity and effectiveness of ICs in a manner similar to the physical remedy components.
The USEPA had also in November 2010 released separate interim guidance entitled “Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites (PIME).” The principles captured within the two guides interrelate. The PIME guidance is interim, and however must be viewed in light of the relatively extensive comments received by the agency.
The new USEPA guidance describes methods to evaluate IC integrity and effectiveness during document review, site interviews, inspections, and ultimately the generation of a protectiveness determination. The guidance brings new rigor to IC evaluation, including: 1) assuring clarity of use restrictions and exposure pathways, 2) identifying property information, Site parcels, and mapping of these properties, and 3) adequacy of the long-term stewardship of the ICs. And the guidance defines roles for both USEPA toward their regulatory duty, and the potentially responsible parties (PRPs) to support the protectiveness finding.
Questions A , B, and C of the Technical Assessment, which are also posited in the 2001 five-year review guidance, are now couched in terms of IC-specific situations. Evaluating these considerations can help lead the reader to an appropriate protectiveness determination.
Recommended Questions for the Technical Assessment to Evaluate Protectiveness for a Site based on the IC component of the selected Remedy.
Through these questions and other recommendations the EPA guidance first intends to assure that ICs properly protect residual risks. To do this, it directs that “All IC instruments should be reviewed to ensure that clear language is used to state the required use restrictions and that legal descriptions reflect current conditions at the sites (e.g. groundwater ordinance covers the entire current plume area).” The guidance, in turn, places new demands on the monitoring and evaluation of ICs which break down as follows:
- Status of IC Implementation. Have dated copies of ICs (e.g. a proprietary control with a recorder’s mark) been obtained to confirm that each has been implemented as envisioned in the decision documents?
- Compliance with IC Obligations. Review any monitoring, reporting (e.g. recent inspection), enforcement and certification requirements to ensure compliance with and and/or use restrictions.
- Long-term Effectiveness and Enforceability of ICs. Ensure that the parties identified in the remedy decisions documents have followed through with their obligations , which included implementing, maintaing and enforcing ICs. For example, a zoning ordinance could be amended or repealed in between five-year review reports, thereby undermining its use as an effective IC.
At Terradex, we quickly noticed and felt pleased to learn that EPA’s IC evaluation recommendations match up with the type of IC compliance monitoring performed by our LandWatch Service. LandWatch evaluates the Status of IC Implementation through property map-based queries for current owners. It helps to evaluate the condition of IC instrument in our practice for clients. In the arena of Compliance with IC Obligations, for years LandWatch has monitored land uses and activities for conflicts with ICs. And through our more recent continuing obligations module to LandWatch provides inspection and reporting capabilities that synthesize and document field inspections along with land monitoring, ultimately providing a web-based documentation tool to support IC review.
Finally, LandWatch provides monitoring tools that bolster the reliance an agency can place on the Long-term Effectiveness and Enforceability of ICs. For example, where the snapshot nature of Five Year Reviews makes it difficult to know events during the 5-year interim, LandWatch continually works during the interim to identify activities such as zoning amendments or variances, permits, excavations, wells and other activities which, in turn, inform the “A, B, C” questions listed in the EPA guidance and ultimately protect the remedy and inform the FYR.
The ability to support IC evaluations has been emerging in new web map services Terradex has built. Below is a screenshot from the Cleanup Deck (access is by authorization). The Cleanup Deck can provide national mapping to property information, sensitive use information, and the regular LandWatch monitored activity and use data stream. This Cleanup Deck supports an expedient review of IC compliance to enable protectiveness determinations.