INSTITUTIONAL
CONTROLS AT TCAAP
One component in the
protection of human health at TCAAP is institutional controls (ICs). Institutional controls are used in
environmental cleanup when remediation does not result in, or has not yet resulted
in, contaminant concentrations that will allow for unrestricted land use and
groundwater. One example at TCAAP is
the well drilling restrictions that the Minnesota Department of Health
maintains for the deep groundwater southwest of TCAAP, which is contaminated
with trichloroethylene (TCE), an industrial solvent. As part of the Army funded cleanup, New Brighton uses water from
these aquifers, but only after treatment to remove the TCE. The restriction will remain in place until
the aquifer is cleaned to a level that will allow for unrestricted use of the
groundwater. Another example is the
soil cleanup sites on TCAAP. The soils
were cleaned to a level that is sufficient for industrial use, but not for
unrestricted use. In the cleanup
process, the Army specified limited use (industrial) cleanup goals for soil
remediation. At a minimum, deed
restrictions will be required to assure that these sites are not used for house
lots, day care centers or other uses that require certification for unrestricted
use. In addition, some of the soil
cleanup sites have buried soils that have not been cleaned up. At these sites, limits on future excavation
will be required.
The following is a brief
overview of institutional controls.
WHAT ARE INSTITUTIONAL
CONTROLS?
They are administrative
and legal controls on property use or access to protect the public or sustain
remedies. They are generally divided
into 4 categories: Governmental Controls (laws, permits), Proprietary Controls
(easements, covenants), Enforcement Tools (consent decrees, permits), or
Informational Devices (deed notices, public advisories, etc.). There are also land use controls, which
would include engineered controls such as caps on landfills.
WHEN ARE THEY USED?
They are used to
restrict site use, modify behavior and provide information to users. They may include property title
restrictions, permit requirements, engineering requirements, zoning or easement
requirements and/or community monitoring.
WHAT ADDITIONAL CONTROLS
ARE USED?
In addition to
Institutional Controls, sites where pollution remains can be protected by
Engineered Controls. This involves
construction of barriers or physically changing a site. At TCAAP, this includes clean soil covers on
old dumpsites.
WHO IS RESPONSIBLE
Although federal, state
and local governments are generally responsible for implementing and enforcing
the controls, it is the responsibility of the land owner to ensure compliance
with the ICs, in most cases. In the
case of TCAAP, Army is finally responsible for ensuring that the ICs are being
implemented. Because TCAAP is a
Superfund site, the USEPA has a major role in defining IC requirements. In the case of TCAAP, for those areas being
remediated under the Federal Facilities Agreement, U.S. EPA and the State must
concur in the ICs that are proposed for the site. The EPA and the Army have had a long discussion about IC
requirements at Army sites that are being closed. One difficult issue is the nature of Army’s review of future IC
compliance. At TCAAP, institutional
controls are still under discussion and local governments and community members
can contribute to the discussion.
WILL THEY HINDER THE USE
OF THE SITE?
Yes, they will restrict
land and/or groundwater use.
Institutional controls are used to protect the health and safety of all
who live, work or are associated with the site, but they will only be effective
if there is compliance with restrictions on use. It may be possible to remove some ICs if a property owner is
willing to pay the costs for additional cleanup.
WHAT ARE THE CONCERNS
WITH INSTITUTIONAL CONTROLS AT SUPERFUND SITES?
The Government Accountability Office (GAO) recently reviewed the
use of ICs at EPA sites. The 66 page
report, entitled “Hazardous Waste Sites: Improved Effectiveness of Controls at Sites Could Better Protect
the Public” states that, “EPA’s monitoring of Superfund sites where cleanup has
been completed, but residual contamination remains, often does not include
verification that institutional controls are in place. [----] In addition, EPA may have difficulties
ensuring that the terms of institutional controls can be enforced at some
Superfund and RCRA sites: that is, some
controls are informational in nature and do not legally limit or restrict use
of the property, and, in some cases, state laws may limit the options available
to enforce institutional controls.” The
reference to RCRA is to sites governed by the Resource Conservation and
Recovery Act, which governs cleanup of sites, which are in current use. Only one soil site at TCAAP is a RCRA site
that was cleaned up to unrestricted use and has no future Institutional
Controls. The full text of the report
is available at: http://www.gao.gov/cgi-bin/getrpt?GAO-05-163.
Lenny Siegel, Director of the Center for Public Environmental
Oversight, an organization that promotes public discussion on environmental
cleanup at military sites, evaluated the GAO report and concluded that it does
not go far enough in discussing the problems associated with ICs at Superfund
sites. In addition to the problem of
long-term enforcement highlighted in the GAO report, there is the problem of
increased reliance on ICs, rather than doing cleanup that will result in
allowing unrestricted use. The share of
sites on the Superfund National Priorities List with residual waste remaining
after cleanup rose from 20% of 20 sites in the early 1990s to 60% of 53 sites
in the early 2000s. This results in the
transfer of costs to future users. The
full text of the comments is available at: http://www.cpeo.org/lists/brownfields/2005/msg00144.htm.
In the case
of TCAAP, the Army will be reducing the sale price to compensate future users
for the estimated costs of the impacts remaining contamination.
HOW AND WHEN CAN THE
COMMUNITY GET INVOLVED?
Individual community
members or groups should be involved in planning meetings, zoning hearings,
land use planning, permits and other regulatory processes. Community input is important in selecting,
using and monitoring IC's. The Restoration
Advisory Board (RAB) members are also available to voice public opinion to the
Army and regulatory agencies.
More information on
institutional controls is available in the Citizens Guide to Understanding
Institutional Controls, available on a US EPA website: www.epa.gov/superfund/action/ic/guide/citguide.pdf. Additional information is available from
another USEPA website: http://www.epa.gov/superfund/action/ic/index.htm. Also the Minnesota Pollution Control Agency
(MPCA) has “Draft Guidelines on Incorporation of Planned Property Use Into Site
Decisions”. This is available on the
MPCA website at:
http://www.pca.state.mn.us/cleanup/riskbasedoc.html#plannedproperty
Last Updated: July 12, 2006