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:
Last Updated: July 12, 2006