Hazardous Waste Sites
Improved Effectiveness of Controls at Sites Could Better Protect the Public Gao ID: GAO-05-163 January 28, 2005The Environmental Protection Agency's (EPA) Superfund and Resource Conservation and Recovery Act (RCRA) programs were established to clean up hazardous waste sites. Because some sites cannot be cleaned up to allow unrestricted use, institutional controls--legal or administrative restrictions on land or resource use to protect against exposure to the residual contamination--are placed on them. GAO was asked to review the extent to which (1) institutional controls are used at Superfund and RCRA sites and (2) EPA ensures that these controls are implemented, monitored, and enforced. GAO also reviewed EPA's challenges in implementing control tracking systems. To address these issues, GAO examined the use, implementation, monitoring, and enforcement of controls at a sample of 268 sites.
Institutional controls were applied at most of the Superfund and RCRA sites GAO examined where waste was left in place after cleanup, but documentation of remedy decisions often did not discuss key factors called for in EPA's guidance. For example, while documents usually discussed the controls' objectives, in many cases, they did not adequately address when the controls should be implemented, how long they would be needed, or who would be responsible for monitoring or enforcing them. According to EPA, the documents' incomplete discussion of the key factors suggests that site managers may not have given them adequate consideration. Relying on institutional controls as a major component of a site's remedy without carefully considering all of the key factors--particularly whether they can be implemented in a reliable and enforceable manner--could jeopardize the effectiveness of the remedy. EPA faces challenges in ensuring that institutional controls are adequately implemented, monitored, and enforced. Institutional controls at the Superfund sites GAO reviewed, for example, were often not implemented before the cleanup was completed, as EPA requires. EPA officials indicated that this may have occurred because, over time, site managers may have inadvertently overlooked the need to implement the controls. 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. Moreover, the RCRA corrective action program does not include a requirement to monitor sites after cleanups have been completed. 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. To improve its ability to ensure the long-term effectiveness of institutional controls, EPA has recently begun implementing institutional control tracking systems for its Superfund and RCRA corrective action programs. The agency, however, faces significant obstacles in implementing such systems. The institutional control tracking systems being implemented track only minimal information on the institutional controls. Moreover, as currently configured, the systems do not include information on long-term monitoring or enforcement of the controls. In addition, the tracking systems include data essentially derived from file reviews, which may or may not reflect institutional controls as actually implemented. While EPA has plans to improve the data quality for the Superfund tracking system--ensuring that the data accurately reflects institutional controls as implemented and adding information on monitoring and enforcement--the first step, data verification, could take 5 years to complete. Regarding the RCRA tracking system, the agency has no current plans to verify the accuracy of the data or expand on the data being tracked.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-05-163, Hazardous Waste Sites: Improved Effectiveness of Controls at Sites Could Better Protect the Public
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Report to Congressional Requesters:
January 2005:
Hazardous Waste Sites:
Improved Effectiveness of Controls at Sites Could Better Protect the
Public:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-163]
GAO Highlights:
Highlights of GAO-05-163, a report to congressional requesters.
Why GAO Did This Study:
The Environmental Protection Agency‘s (EPA) Superfund and Resource
Conservation and Recovery Act (RCRA) programs were established to clean
up hazardous waste sites. Because some sites cannot be cleaned up to
allow unrestricted use, institutional controls”legal or administrative
restrictions on land or resource use to protect against exposure to the
residual contamination”are placed on them. GAO was asked to review the
extent to which (1) institutional controls are used at Superfund and
RCRA sites and (2) EPA ensures that these controls are implemented,
monitored, and enforced. GAO also reviewed EPA‘s challenges in
implementing control tracking systems. To address these issues, GAO
examined the use, implementation, monitoring, and enforcement of
controls at a sample of 268 sites.
What GAO Found:
Institutional controls were applied at most of the Superfund and RCRA
sites GAO examined where waste was left in place after cleanup, but
documentation of remedy decisions often did not discuss key factors
called for in EPA‘s guidance. For example, while documents usually
discussed the controls‘ objectives, in many cases, they did not
adequately address when the controls should be implemented, how long
they would be needed, or who would be responsible for monitoring or
enforcing them. According to EPA, the documents‘ incomplete discussion
of the key factors suggests that site managers may not have given them
adequate consideration. Relying on institutional controls as a major
component of a site‘s remedy without carefully considering all of the
key factors”particularly whether they can be implemented in a reliable
and enforceable manner”could jeopardize the effectiveness of the remedy.
EPA faces challenges in ensuring that institutional controls are
adequately implemented, monitored, and enforced. Institutional controls
at the Superfund sites GAO reviewed, for example, were often not
implemented before the cleanup was completed, as EPA requires. EPA
officials indicated that this may have occurred because, over time,
site managers may have inadvertently overlooked the need to implement
the controls. 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.
Moreover, the RCRA corrective action program does not include a
requirement to monitor sites after cleanups have been completed. 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.
To improve its ability to ensure the long-term effectiveness of
institutional controls, EPA has recently begun implementing
institutional control tracking systems for its Superfund and RCRA
corrective action programs. The agency, however, faces significant
obstacles in implementing such systems. The institutional control
tracking systems being implemented track only minimal information on
the institutional controls. Moreover, as currently configured, the
systems do not include information on long-term monitoring or
enforcement of the controls. In addition, the tracking systems include
data essentially derived from file reviews, which may or may not
reflect institutional controls as actually implemented. While EPA has
plans to improve the data quality for the Superfund tracking
system”ensuring that the data accurately reflects institutional
controls as implemented and adding information on monitoring and
enforcement”the first step, data verification, could take 5 years to
complete. Regarding the RCRA tracking system, the agency has no current
plans to verify the accuracy of the data or expand on the data being
tracked.
What GAO Recommends:
To ensure the long-term effectiveness of institutional controls, GAO
recommends that EPA (1) clarify its guidance on when controls should be
used; (2) demonstrate that, in selecting controls, sufficient
consideration was given to all key factors; (3) ensure that the
frequency and scope of monitoring efforts are sufficient to maintain
the effectiveness of controls; and (4) ensure that the information on
controls reported in new tracking systems accurately reflects actual
conditions. EPA generally agreed with GAO‘s recommendations.
www.gao.gov/cgi-bin/getrpt?GAO-05-163.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact John Stephenson at (202)
512-3841 or stephensonj@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
EPA Relied on Controls at Most Sites with Residual Contamination, but
Planning of Controls May Not Ensure Protection of the Public:
EPA Faces Challenges in Implementing, Monitoring, and Enforcing
Institutional Controls:
EPA Faces Significant Obstacles in Implementing Systems to Better Track
Institutional Controls:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Environmental Protection Agency:
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Frequency of Use of or Requirements for Institutional Controls
at Superfund Sites:
Table 2: Frequency of Use of or Requirements for Institutional Controls
at RCRA Facilities:
Table 3: Provisions in EPA's Guidance Relating to Determinations on
Institutional Controls:
Figures:
Figure 1: Presence of Residual Waste and Institutional Controls at 20
Superfund Sites Deleted during Fiscal Years 1991-1993:
Figure 2: Presence of Residual Waste and Institutional Controls at 40
RCRA Facilities in Two Regions Where Corrective Action Was Terminated
before Fiscal Year 2001:
Figure 3: Proportions of Types of Institutional Controls at 4 Superfund
and RCRA Sites Cleaned Up before Fiscal Year 2001:
Figure 4: Presence of Residual Waste and Institutional Controls at 53
Superfund Sites Deleted during Fiscal Years 2001-2003:
Figure 5: Presence of Residual Waste and Institutional Controls at 31
RCRA Facilities Where Corrective Action Was Terminated during Fiscal
Years 2001-2003:
Figure 6: Proportions of Types of Institutional Controls at 28
Superfund Sites and 4 RCRA Facilities Where Cleanup Was Completed
during Fiscal Years 2001-2003:
Figure 7: Proportions of Types of Institutional Controls Mentioned in
81 Sets of Superfund and 14 Sets of RCRA Remedy Decision Documents
Issued during Fiscal Years 2001-2003:
Figure 8: Discussion of Key Elements Relating to Institutional Controls
in 93 Sets of Superfund Remedy Decision Documents Issued during Fiscal
Years 2001-2003:
Figure 9: Discussion of Key Elements Relating to Institutional Controls
in 15 Sets of RCRA Remedy Decision Documents Issued during Fiscal Years
2001-2003:
Figure 10: Digging Under Way at a Deleted Superfund Site without the
EPA Site Manager's Knowledge:
Abbreviations:
CERCLA: Comprehensive Environmental Response, Compensation, and
Liability Act of 1980:
CERCLIS: Comprehensive Environmental Response, Compensation, and
Liability Information System:
EPA: Environmental Protection Agency:
GPRA: Government Performance and Results Act of 1993:
ICTS: Institutional Controls Tracking System:
NPL: National Priorities List:
RCRA: Resource Conservation and Recovery Act:
ROD: record of decision:
Letter January 28, 2005:
The Honorable James M. Jeffords:
Ranking Minority Member:
Committee on Environment and Public Works:
United States Senate:
The Honorable Barbara Boxer:
Ranking Minority Member:
Subcommittee on Superfund, Toxics, Risk and Waste Management:
Committee on Environment and Public Works:
United States Senate:
The Honorable Lincoln D. Chafee:
United States Senate:
The Environmental Protection Agency (EPA) estimates that one in four
Americans lives within 4 miles of a hazardous waste site. To protect
the public's health, the Congress passed the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) of
1980, which established the Superfund program to clean up the most
seriously contaminated of these sites. In addition, in 1984, the
Congress amended the Resource Conservation and Recovery Act (RCRA) to
add a corrective action program to clean up contamination at facilities
that treat, store, and dispose of hazardous waste.[Footnote 1] Since
the inception of these two programs, EPA has overseen the cleanup of
over 5,000 hazardous waste sites across the country. At many of these
sites, however, EPA has selected cleanup remedies that leave at least
some waste in place because the agency believes it is impossible,
impractical, or too costly to clean up the contaminated property so
that it can be used without restriction. Cleanups at such sites often
rely on institutional controls--legal or administrative restrictions on
the use of land or water at the site--to limit the public's exposure to
residual contamination. As of December 2004, about 1,600 hazardous
waste sites were being cleaned up by the Superfund program and another
3,800 facilities were being cleaned up by the RCRA corrective action
program.
States play a significant role in the cleanup of hazardous waste sites
under both the Superfund and RCRA programs. Within the Superfund
program, states may enter into agreements with EPA to perform certain
program actions, such as initial site assessments, and EPA also
consults with states throughout the cleanup process. Under the RCRA
program, EPA has authorized 40 states and Guam to implement and enforce
their own hazardous waste regulations in lieu of federal regulations
and to carry out corrective action activities. However, regardless of
whether a particular state is authorized, either the state or EPA may
assume the lead on working with a facility to implement corrective
action. In addition, at certain Superfund and RCRA sites, state and
local government entities may be responsible for monitoring the status
of institutional controls and enforcing their terms.
The cleanup process for the Superfund and RCRA programs is similar in
many ways. For both programs, the process begins with a preliminary
investigation to determine the extent of the contamination at a site.
In this initial phase, under Superfund, EPA places the most seriously
contaminated sites on its National Priorities List (NPL).[Footnote 2]
In both programs, cleanup officials typically analyze a range of
alternatives before selecting a remedy to address a site's
contamination. In the Superfund program, the remedy is described in a
record of decision (ROD); in the RCRA program, it is usually described
in a "statement of basis." Once the remedy is selected, remedy
implementation under both programs typically involves a number of
phases, including remedy design, construction, operation and
maintenance, and completion. Under Superfund, when EPA, in consultation
with the relevant state, determines that no further remedial activities
at a site are appropriate, EPA deletes the site from the NPL. When
remedial measures are completed for a RCRA facility, the corrective
action process for that facility is terminated.
Institutional controls can be a critical component of the cleanup
process and may be used to ensure short-term protection of human health
and the environment during the cleanup process itself as well as long-
term protection once the site is deleted from the NPL or corrective
action is terminated. EPA defines institutional controls as "non-
engineered instruments such as administrative and/or legal controls
that minimize the potential for human exposure to contamination by
limiting land or resource use." In September 2000 and December 2002,
EPA issued guidance setting out, among other things, the key factors to
be considered when evaluating and selecting institutional controls at
Superfund and RCRA sites and responsibilities for implementing,
monitoring, and enforcing institutional controls at these
sites.[Footnote 3] Under this guidance, EPA generally--although not
always--requires that institutional controls be put in place at
Superfund and RCRA sites where total cleanup is not practical or
feasible. If deemed necessary, these controls may be combined with
engineering controls--such as capping or fencing--to limit exposure to
residual site contamination. For example, the remedy selected for a
hazardous waste landfill may include engineering controls, such as
placing a protective layer, or "cap" made of clay or synthetic
materials, over the contamination. At such sites, EPA may also add
institutional controls to prohibit any digging that might breach this
protective layer and expose site contaminants.
Concerned that institutional controls may not be effectively protecting
human health and the environment, you asked us to review (1) the extent
to which institutional controls are used at sites addressed by EPA's
Superfund and RCRA corrective action programs; (2) the extent to which
EPA ensures that institutional controls at these sites are implemented,
monitored, and enforced; and (3) EPA's challenges in implementing
systems to track these controls. To address these issues, we examined
EPA's use, implementation, monitoring, and enforcement of institutional
controls at a nonprobability sample of nonfederal sites where (1) the
cleanup process was completed in earlier periods, for historical
perspective; (2) the cleanup process had ended more recently; and (3)
the remedy had only recently been selected, for insight into the likely
future use of these controls. (Results from nonprobability samples
cannot be used to make inferences about a population, because in a
nonprobability sample some elements of the population being studied
have no chance or an unknown chance of being selected as part of the
sample.) Our review focused on institutional controls that remain in
place after site deletion or termination to determine whether these
controls are effective in the long run. Although both the Superfund and
RCRA programs address federal and nonfederal sites, our review did not
address federal sites because federal agencies are generally
responsible for cleaning up their own sites and EPA involvement is
limited. We also focused our reviews of RCRA facilities on those whose
cleanup was led by EPA.
To gain a broader view of past use of institutional controls, we
reviewed files for all 20 Superfund sites deleted from the NPL during
fiscal years 1991 through 1993; in addition, in the two EPA
regions[Footnote 4] with the most corrective actions, we reviewed files
for all 40 RCRA facilities at which, according to EPA's database, a
preliminary investigation was conducted and corrective action was
terminated before fiscal year 2001. Regarding sites where the cleanup
was recently completed, we examined documentation related to
institutional controls at all 53 Superfund sites deleted from the NPL
during fiscal years 2001 through 2003 and at all 31 RCRA facilities
where corrective action was terminated during the same period. For
those sites whose documentation indicated the use, or potential use, of
institutional controls, we conducted follow-up interviews with EPA or
state officials knowledgeable about the site to obtain detailed
information and additional documentation and to determine what
institutional controls were actually in place.
To gain a sense of the projected use of institutional controls in the
future, we examined all 112 Superfund RODs finalized during fiscal
years 2001 through 2003, and statements of basis for all 23 RCRA
corrective action facilities that reached the remedy decision stage
during that period. For our review, we examined only the principal
remedy decision documents for the sites in our universe, rather than
all remedy decision documents. We also interviewed RCRA program
managers from a sample of 6 states to understand the extent to which
those states implement, monitor, and enforce institutional controls. In
addition, we visited 5 Superfund sites with residual contamination and
institutional controls remaining in place after the site was deleted
from the NPL. To identify the challenges of implementing a system to
track institutional controls, we interviewed EPA and state officials. A
more detailed description of our scope and methodology is presented in
appendix I. We conducted our work from October 2003 to January 2005 in
accordance with generally accepted government auditing standards,
including an assessment of data reliability and internal controls.
Results in Brief:
Institutional controls were used at most of the Superfund and RCRA
sites we examined where cleanup was completed and waste was left in
place. In reviewing selected Superfund and RCRA sites in three
different time periods or stages of cleanup for comparison, we found an
increase in the use of institutional controls over time. We found that
one-half of the Superfund sites we reviewed where cleanup was completed
during fiscal years 1991 through 1993 and three-quarters of the RCRA
facilities we reviewed where cleanup was completed before fiscal year
2001 with residual waste remaining did not have institutional controls
in place. In contrast, we found that institutional controls were in
place at almost all (28 of 32) of the Superfund sites and all 4 RCRA
sites we reviewed that were cleaned up during fiscal years 2001 through
2003 and had waste remaining. EPA's guidance states that it generally
requires that institutional controls be placed on sites that cannot
accommodate unrestricted use and unlimited exposure; however, because
the agency's guidance does not specify when controls are necessary, it
is unclear whether any of the sites we reviewed that had residual waste
but no institutional controls were inconsistent with this guidance.
When considering remedy decisions issued during fiscal years 2001
through 2003 for sites that have not yet been cleaned up, we found that
93 of the 112 Superfund and 15 of the 23 RCRA remedy decision documents
we reviewed called for some type of institutional control. However,
while EPA's guidance advises that four key factors be taken into
account in selecting controls for a site, 69 of the 108 remedy decision
documents we examined did not demonstrate that all of these factors
were sufficiently considered to ensure that planned controls will be
adequately implemented, monitored, and enforced. In this regard, the
documents generally discussed two of these factors--the objective and
mechanisms of the institutional controls--but the language was often
vague. In many cases, the documents did not adequately address the two
remaining factors--the timing or duration of implementation and the
party responsible for monitoring and enforcing the controls. According
to EPA, discussion in the ROD may be intentionally vague because key
decisions on issues such as who may implement the remedy and
institutional controls have not yet been made. Relying on institutional
controls as a major component of a selected remedy without carefully
considering all of the applicable factors--including whether they can
be implemented in a reliable and enforceable manner--could jeopardize
the effectiveness of the site remedy.
EPA faces challenges in ensuring that institutional controls are
adequately implemented, monitored, and enforced. Although EPA has taken
a number of steps to improve the management of institutional controls
in recent years, we found that controls at the Superfund sites we
reviewed were often not implemented before site deletion, as EPA
requires. In some cases, institutional controls were implemented after
site deletion while, in other cases, controls were not implemented at
all. An EPA program official believed that these deviations from EPA's
guidance may have occurred because, during the sometimes lengthy period
between the completion of the cleanup and site deletion, site managers
may have inadvertently overlooked the need to implement the
institutional controls. Moreover, in terms of monitoring, while EPA
reviews Superfund sites where contamination was left in place every 5
years to ensure that the remedy is still protective, EPA officials
acknowledged that such site reviews may be too infrequent to ensure the
continued effectiveness of the institutional controls. For example, at
1 Superfund site we examined, an institutional control prohibiting any
use of groundwater without prior written approval from EPA had been
violated for at least a year before it was discovered during an EPA 5-
year review. In addition, while parties other than EPA, such as state
or local governments or site owners, are sometimes required to monitor
a Superfund site more frequently than every 5 years, this monitoring
does not always include a review of the site's compliance with
institutional controls or verifying that the controls are still in
place--and sometimes is not performed at all. In contrast to the
Superfund program, the RCRA corrective action program does not include
any general requirement to monitor institutional controls at terminated
corrective action sites. Some states monitor institutional controls at
RCRA sites independent of any EPA requirement; however, because not all
states are required to or, in fact, do monitor institutional controls
at RCRA sites, EPA has no assurance that such controls remain
protective. Finally, EPA acknowledges that it may have difficulties
ensuring that the terms of institutional controls can be enforced at
some Superfund and RCRA sites for two reasons. First, some
institutional control mechanisms selected for sites--such as deed
notices and advisories to the public--are informational in nature and
do not legally limit or restrict use of the property. Second, local and
state laws may limit the options available to enforce institutional
controls. For example, some states' laws do not allow enforceable
institutional controls, such as covenants, to be placed on a property.
EPA faces significant obstacles in implementing institutional control
tracking systems for its Superfund and RCRA corrective action programs.
The agency recently began implementing such systems to improve its
ability to ensure the long-term effectiveness of institutional
controls. Such controls are often key components of selected cleanup
remedies that need to be implemented, monitored, enforced, and kept in
place as long as the danger of exposure to residual contamination
remains. Because residual contamination can remain at a site long after
EPA involvement is completed and an entity other than EPA assumes
responsibility for long-term monitoring and enforcement of the
controls, effective oversight requires that EPA be able to readily
identify which sites have institutional controls in place and whether
the controls are being monitored and enforced. However, historically,
EPA has had no system in place to allow the agency to make these
determinations. Although EPA recently has begun implementing such
systems, they currently track only minimal information on the
institutional controls--as currently configured, they do not include
information on long-term monitoring or enforcement of the controls. In
addition, initial reports of tracking system data show that there may
be potential problems with the systems' implementation. For example,
because RCRA program officials asked EPA regions and states to identify
and report on only those facilities with institutional controls, the
program has no way of determining the extent to which the data are
complete. In addition, the tracking systems include data essentially
derived from remedy decision documents, which reflect plans for the use
of institutional controls, rather than the actual presence of these
controls.
To help EPA site managers and other decision makers better understand
when institutional controls are or are not necessary at sites where
contamination remains in place after cleanup, we are recommending that
EPA clarify its institutional controls guidance. Furthermore, to better
ensure the long-term protectiveness of institutional controls, we
recommend that EPA ensure that adequate consideration is given to the
controls' objectives; the types of controls to be used; the timing of
their implementation and their duration; and the party who will be
responsible for implementing, monitoring, and enforcing them. We also
are recommending that EPA take steps to ensure that the frequency and
scope of monitoring at deleted Superfund sites and closed RCRA
facilities where contamination has been left in place are sufficient to
maintain the protectiveness of any institutional controls at these
sites. In addition, we recommend that EPA ensure that the information
on institutional controls reported in the Superfund and RCRA corrective
action tracking systems accurately reflects whether controls have
actually been implemented at the site, rather than what is called for
in site remedy decision documents.
Background:
Land use and institutional controls are usually linked, and should be
considered together during the investigation phase of cleanup,
according to EPA guidance. As a site moves through the early stages of
the cleanup process, site managers should develop assumptions about
reasonably anticipated future land uses and consider whether
institutional controls will be needed to maintain these uses over time.
EPA guidance states that, if remediation leaves waste in place that
would not permit "unrestricted use" of the site and "unlimited
exposure" to residual contamination, use of institutional controls
should be considered to ensure protection against unacceptable exposure
to the contamination left in place. Even sites that are appropriate for
residential use after the cleanup process is complete may require
institutional controls if they do not allow for unlimited use and
unrestricted exposure. For example, residential properties may be
located over a contaminated groundwater plume where the properties are
not the source of contamination. In such a situation, well drilling
restrictions put in place to limit the use of groundwater may serve as
appropriate institutional controls.
EPA recognizes four types of institutional controls--governmental
controls, proprietary controls, enforcement and permit tools with
institutional control components, and informational devices:
* Governmental controls use the regulatory authority of a government
entity to impose restrictions. Generally, EPA must depend on state or
local governments to establish these controls. Examples of governmental
controls include zoning restrictions, local ordinances, and groundwater
use restrictions.
* Proprietary controls involve legal instruments placed in the chain of
title of the site or property, such as easements and covenants.
* Enforcement and permit tools with institutional control components
are issued or negotiated to compel the site owner to limit certain site
activities. These controls, which can be enforced by EPA under
Superfund and RCRA legislation, include administrative orders and
consent decrees.
* Informational devices warn the public of risks associated with using
contaminated property. Examples of informational devices are deed
notices, state registries of hazardous waste sites, and health
advisories.
Approximately 3,800 RCRA facilities have corrective action under way or
will require corrective action. EPA refers to these facilities as its
"corrective action workload." Under the Government Performance and
Results Act of 1993 (GPRA), which requires agencies to assess progress
toward achieving the results expected from their major functions, EPA
developed short-term goals for 1,714 of these facilities, referred to
as the "GPRA baseline." According to EPA's GPRA goals, by 2005, EPA and
the states will verify and document that 95 percent of the baseline
facilities have "current human exposures under control" and 70 percent
have "migration of contaminated groundwater under control."
According to EPA, over the last 10 years, the agency has focused
increased attention on understanding and overcoming the complexities
and challenges associated with using institutional controls. In recent
years, this experience has led EPA to improve its approach to these
controls. For example, the agency has hosted numerous meetings and
workshops to identify institutional control issues and develop
solutions; developed and administered national training programs for
federal, state, tribal, and local agencies; developed a national
strategy to help ensure that controls are successfully implemented; and
established a national management advisory group to work on high-
priority policy issues. Furthermore, in addition to issuing guidance in
2000 on evaluating and selecting institutional controls, the agency is
currently developing four additional guidance documents covering
specific implementation, monitoring, and enforcement issues. These
improvements have been targeted at the full life-cycle of institutional
controls from identification, evaluation, and selection to
implementation, monitoring, and enforcement.
EPA Relied on Controls at Most Sites with Residual Contamination, but
Planning of Controls May Not Ensure Protection of the Public:
In reviewing selected Superfund and RCRA sites in three different time
periods or stages of cleanup, we found an apparent increase in the use
of institutional controls over time. Two of the 4 older Superfund sites
and 6 of the 8 older RCRA facilities we reviewed where cleanup was
completed but residual contamination remained had no institutional
controls in place.[Footnote 5] In contrast, of the 32 Superfund and 4
RCRA sites we reviewed where cleanup was completed during fiscal years
2001 through 2003 but residual contamination remained,[Footnote 6] 28
and 4, respectively, had one or more institutional controls in place.
However, because EPA's guidance is vague and does not specify in which
cases controls are necessary, it is unclear whether any of the sites we
reviewed were inconsistent with the agency's policy. When considering
recent remedy decisions in both programs, we found that, of the 112
Superfund and 23 RCRA remedy decision document sets we reviewed that
were issued during fiscal years 2001 through 2003, most documents
called for some type of institutional control to prevent or limit
exposure to residual contamination. Moreover, although EPA guidance
directs staff to include four specific factors in documenting the
institutional controls to be implemented at a site, the documents we
reviewed frequently included no more than two of these factors, and the
language was often vague.
Use of Institutional Controls at Superfund Sites and RCRA Facilities
Appears to Be Increasing over Time:
In reviewing selected Superfund and RCRA sites in three different time
periods or stages of cleanup, we found an apparent increase in the use
of institutional controls over time. The proportion of Superfund sites
with institutional controls in place increased from 10 percent for
those deleted during fiscal years 1991 through 1993 to 53 percent for
those deleted during fiscal years 2001 through 2003. The proportion of
RCRA facilities with institutional controls in place increased from 5
percent for those sites we examined where corrective action was
terminated prior to fiscal year 2001 to 13 percent for those sites
where corrective action was terminated during fiscal years 2001 through
2003. Moreover, 83 percent of the Superfund and 65 percent of the RCRA
remedy decision documents finalized during fiscal years 2001 through
2003 indicated the need for some sort of institutional controls, an
increase over the proportion of completed sites with controls. (See
tables 1 and 2.)
Table 1: Frequency of Use of or Requirements for Institutional
Controls at Superfund Sites:
Time periods or stages of cleanup: Requirements for controls in 112
Superfund remedy decision documents, fiscal years 2001-2003;
Percentage of sites with controls: 83%.
Time periods or stages of cleanup: Controls in place at 53 Superfund
deleted sites, fiscal years 2001-2003;
Percentage of sites with controls: 53%.
Time periods or stages of cleanup: Controls in place at 20 Superfund
deleted sites, fiscal years 1991-1993;
Percentage of sites with controls: 10%.
Source: GAO analysis of EPA data.
[End of table]
Table 2: Frequency of Use of or Requirements for Institutional Controls
at RCRA Facilities:
Time periods or stages of cleanup: Requirements for controls in 23 RCRA
remedy decision documents, fiscal years 2001-2003;
Percentage of sites with controls: 65%.
Time periods or stages of cleanup: Controls in place at 31 RCRA
terminated facilities, fiscal years 2001-2003;
Percentage of sites with controls: 13%.
Time periods or stages of cleanup: Controls in place at 40 RCRA
terminated facilities from 2 regions, corrective action terminated
prior to fiscal year 2001;
Percentage of sites with controls: 5%.
Source: GAO analysis of EPA data.
[End of table]
While EPA recognizes that the use of institutional controls is becoming
increasingly common, the agency points out that this should not be
interpreted to mean that sites are being less thoroughly cleaned up.
The EPA project manager for 1 Superfund site deleted with residual
contamination and no institutional controls told us that if the site
were being remediated today, EPA might consider institutional controls
to restrict groundwater use. In addition, EPA is now considering
institutional controls for a site that was cleaned up to a level
allowing for unrestricted use and unlimited exposure at the time of
remediation. The levels of acceptable lead contamination have decreased
since completion of this remedy, so the levels of contamination at the
site may now exceed the new standards.
Earlier Completed Sites:
Four of the 12 older Superfund and RCRA sites we reviewed where
residual contamination remained had institutional controls in
place.[Footnote 7] Waste was left in place after cleanup at 4 of the 20
Superfund sites that were deleted during fiscal years 1991 through
1993; as figure 1 shows, one-half of these sites had institutional
controls in place.
Figure 1: Presence of Residual Waste and Institutional Controls at 20
Superfund Sites Deleted during Fiscal Years 1991-1993:
[See PDF for image]
[End of figure]
Similarly, of the 40 RCRA facilities we reviewed where corrective
action was terminated before fiscal year 2001, 8 had residual waste
after cleanup; institutional controls appeared to be in place at 2 of
these facilities (see fig. 2).
Figure 2: Presence of Residual Waste and Institutional Controls at 40
RCRA Facilities in Two Regions Where Corrective Action Was Terminated
before Fiscal Year 2001:
[See PDF for image]
[End of figure]
The most common type of institutional control in place at these older
Superfund and RCRA sites was a covenant; there was also a consent order
and a conservation easement, as shown in figure 3.[Footnote 8] A
covenant, as used in the institutional controls context, is a promise
by a landowner to use or refrain from using the property in a certain
manner. A consent order contains elements of both an administrative
order (an order issued and enforced by EPA or states directly
restricting the use of property) and a consent decree (in this context,
a court order that implements the settlement of an enforcement case,
which may restrict the use of the land by the settling party, such as
prohibiting well drilling).[Footnote 9] A conservation easement,
allowed by statutes adopted by some states, is established to preserve
and protect property and natural resources. EPA guidance encourages the
use of multiple controls--referred to as "layering"--stating that it is
more effective than using only one institutional control.[Footnote 10]
Controls were layered at only 1 of these 4 older sites.
Figure 3: Proportions of Types of Institutional Controls at 4 Superfund
and RCRA Sites Cleaned Up before Fiscal Year 2001:
[See PDF for image]
Note: In some cases, our attorneys made determinations based on
evaluations of documents in order to categorize institutional controls.
[End of figure]
Recently Completed Sites:
In contrast to sites where cleanup was completed in earlier years, 32
of the 36 Superfund and RCRA sites we reviewed where residual
contamination remained after cleanup had one or more institutional
controls in place. At most of the 53 Superfund sites deleted from the
NPL during fiscal years 2001 through 2003, institutional controls were
implemented if waste was left in place (see fig. 4). Furthermore,
future controls were being considered at 2 of the sites where
institutional controls were not originally planned.
Figure 4: Presence of Residual Waste and Institutional Controls at 53
Superfund Sites Deleted during Fiscal Years 2001-2003:
[See PDF for image]
Note: Percentages presented in this figure do not add up due to
rounding.
[End of figure]
Of the 31 RCRA facilities we reviewed where corrective action was
terminated during fiscal years 2001 through 2003, most corrective
actions did not result in waste being left in place and, therefore, the
facilities likely did not require institutional controls. As figure 5
shows, only 4 facilities had waste remaining, and all of these had
institutional controls in place.
Figure 5: Presence of Residual Waste and Institutional Controls at 31
RCRA Facilities Where Corrective Action Was Terminated during Fiscal
Years 2001-2003:
[See PDF for image]
[End of figure]
The most common types of institutional controls in place at these
Superfund and RCRA sites were covenants and consent decrees, followed
by deed notices and easements (see fig. 6).[Footnote 11] Deed notices
are informational documents filed in public land records, and these
notices alert anyone searching the records to important information
about the property. Easements are property rights conveyed by
landowners to other parties, giving them rights with regard to the
owner's land. Of the 28 Superfund sites with institutional controls, 17
included multiple controls, or layering, as encouraged by EPA guidance.
One of the 4 RCRA facilities had multiple institutional controls. In
total, there were 66 controls in place at the 32 sites.
Figure 6: Proportions of Types of Institutional Controls at 28
Superfund Sites and 4 RCRA Facilities Where Cleanup Was Completed
during Fiscal Years 2001-2003:
[See PDF for image]
Note: In some cases, our attorneys made determinations based on
evaluations of documents in order to categorize institutional controls.
Some documents included aspects of more than one type of institutional
control.
[A] "Other types of institutional controls" includes ordinances,
groundwater use restrictions, consent orders, state registries,
administrative orders, zoning, a conservation easement, and a state use
restriction.
[End of figure]
For both recently completed and older sites we reviewed, 6 of 36
Superfund sites and 6 of 12 RCRA sites with waste remaining did not
have institutional controls in place.[Footnote 12] EPA site managers
told us that the potentially responsible parties or property owners of
several sites we reviewed had agreed to file a proprietary or
informational control, such as a covenant or deed notice, to limit the
use of the contaminated land or water.[Footnote 13] However, following
our request for documents, EPA staff discovered that the controls had
not been implemented. EPA is now working to implement institutional
controls for some of these sites to ensure the protection of human
health and the environment. Finally, at several sites we reviewed where
contamination was left in place, the remedy decision documents did not
call for institutional controls. Some of these sites were delegated to
states for monitoring and possible future action. For example, in one
case, groundwater contamination was contained as long as wells at a
nearby plant continued to operate--the wells, which pump approximately
10 million gallons a day, provide protection by capturing contaminants
from a former landfill on site before they migrate into the off-site
groundwater. EPA asked the state to assume responsibility for
monitoring the continued operation of the wells and to conduct an
examination of groundwater contamination if well operation ceased.
Finally, deleting Superfund sites and terminating corrective action at
RCRA facilities where waste remains without implementing institutional
controls may be contrary to EPA guidance. Guidance issued in 2000
states that an institutional control is generally required if the site
cannot accommodate unrestricted use and unlimited exposure. However,
the guidance does not specify under what circumstances controls are
necessary. Instead, it uses language like "generally required" and
"likely appropriate." Four of the sites deleted during fiscal years
2001 to 2003, after the guidance was issued, had residual contamination
but no institutional controls in place. However, because EPA's guidance
is vague and does not specify in which cases controls are necessary, it
is unclear whether any of the sites we reviewed were inconsistent with
the agency's policy. EPA's institutional controls project manager
believed that some of these deviations from EPA's guidance may have
occurred because, during the period between the completion of the
cleanup and site deletion, site managers may have inadvertently
overlooked the need to implement the institutional controls.
Recent Remedy Decisions:
In reviewing files for 135 Superfund and RCRA remedy decisions that
were issued during fiscal years 2001 through 2003, we found that most
of the documents we reviewed called for some type of institutional
control to prevent or limit exposure to residual
contamination.[Footnote 14] As previously mentioned, we reviewed the
principal remedy decision documents issued during this time period;
however, other remedy decision documents may also include information
about institutional controls. Of the 112 Superfund remedy decisions, 85
called for institutional controls. In 8 additional cases, remedy
decision documents called for institutional controls under certain
circumstances but not others. For example, one Superfund remedy
decision document outlined the need for institutional controls if
excavated contaminated soil were to be disposed of on-site, rather than
at another facility. Finally, some of the Superfund documents we
examined were interim remedy decision documents; while some of those
documents did not call for institutional controls, future documents may
include provisions for such controls if waste is left on-site after
remedy construction is completed. Of the 23 RCRA remedy decisions
issued between fiscal years 2001 and 2003, 15 called for institutional
controls.[Footnote 15]
Many remedy decision documents did not identify the specific
institutional control mechanism, or type of control, to be used. Of the
93 sets of Superfund remedy decision documents we examined that called
for institutional controls under all or certain circumstances, 81
discussed the mechanism to some degree. Almost all of the 15 sets of
RCRA remedy decision documents we examined that called for
institutional controls discussed the mechanism to a certain extent.
However, in both sets of documents, these discussions were often vague,
gave a list of options, or discussed mechanisms for one planned control
but not another (e.g., a document only specified an institutional
control mechanism for restricting the use of groundwater and did not
specify a control for contaminated soil). For those documents that
discussed specific institutional controls--including those that listed
options rather than a selected control or controls--deed notices and
groundwater use restrictions, followed by covenants and zoning, were
most commonly mentioned, as shown in figure 7. Twelve of the documents
were vague in describing a mechanism, and, in 13 cases, the documents
did not mention a mechanism at all.
Figure 7: Proportions of Types of Institutional Controls Mentioned in
81 Sets of Superfund and 14 Sets of RCRA Remedy Decision Documents
Issued during Fiscal Years 2001-2003:
[See PDF for image]
Note: In some cases, we made determinations based on EPA language in
remedy decision documents in order to determine the type of planned
institutional control. Some controls mentioned in remedy decision
documents appeared to include aspects of more than one type of
institutional control.
[End of figure]
Remedy Decision Documents Often Do Not Demonstrate Sufficient Planning
of Controls to Determine the Adequacy of Public and Environmental
Protection:
Thorough planning is critical to ensuring that institutional controls
are implemented, monitored, and enforced properly. EPA guidance
specifies that staff should evaluate institutional controls in the same
level of detail as other remedy components. Furthermore, it advises
staff to make several determinations regarding a number of key factors
(see table 3) and to describe them in the remedy decision documents.
Table 3: Provisions in EPA's Guidance Relating to Determinations on
Institutional Controls:
Factor: Objective;
Guidance provisions: Managers should clearly state what will be
accomplished through the use of institutional controls where
contamination remains on the site;
Sample language: General: Protect human health and the environment;
Sample language: Specific: Restrict the use of groundwater as a
drinking water source until the Maximum Contaminant Levels are met.
Factor: Mechanism;
Guidance provisions: Managers should determine the specific types of
institutional controls that can be used to meet the various remedial
objectives;
Sample language: EPA will work with the local jurisdiction to develop
ordinances to restrict well drilling or prohibit groundwater access
until cleanup goals are met.
Factor: Timing;
Guidance provisions: Managers should investigate when the institutional
control needs to be implemented and how long it needs to remain in
place;
Sample language: General: A deed notice may be required in the short
term, and a formal petition for a zoning change may be necessary in the
long term;
Sample language: Specific: The institutional control should be filed
before the Remedial Action is final.
Factor: Responsibility;
Guidance provisions: Managers should discuss and document any agreement
with the proper entities on exactly who will be responsible for
implementing, monitoring, and enforcing the control or outline
potential parties;
Sample language: Work with the state to determine whether it is willing
and able to hold an enforceable easement to ensure appropriate land
use; in addition, determine whether the local government is willing to
change and enforce the applicable zoning requirements.
Source: EPA guidance, September 2000.
[End of table]
As EPA's draft guidance on institutional controls[Footnote 16] points
out, without specific information on the institutional controls--such
as their objectives; the mechanisms (or kinds of controls) envisioned;
the timing of their implementation and duration; and who will be
responsible for implementing, monitoring, and enforcing them--the site
manager and site attorney may be unable to interpret the intent of the
remedy selection document. For example, managers currently responsible
for some sites we reviewed were not involved with the remedial
investigation or preparation of the ROD for the sites and, therefore,
may not fully understand what types of controls were envisioned when
the document was written. In addition, without specific information on
the proposed institutional controls for a site, the public may not
fully understand the restrictions on site use necessary to prevent
exposure to residual contamination. Vague language may also result in
creating unintended rights and/or obligations.
As shown in figures 8 and 9, the remedy decision documents we examined
generally discussed the objective of the institutional controls.
Figure 8: Discussion of Key Elements Relating to Institutional Controls
in 93 Sets of Superfund Remedy Decision Documents Issued during Fiscal
Years 2001-2003:
[See PDF for image]
[End of figure]
Figure 9: Discussion of Key Elements Relating to Institutional Controls
in 15 Sets of RCRA Remedy Decision Documents Issued during Fiscal Years
2001-2003:
[See PDF for image]
[End of figure]
Eighty-six of the 93 sets of Superfund documents we reviewed that
addressed institutional controls (whether under all or certain
conditions), and all of the document sets for the 15 RCRA sites,
discussed the objective, at least in general terms. For both programs,
however, the level of detail in the discussion of the objective varied
greatly. For example, one Superfund ROD called for "the use of
institutional controls to help prevent human exposure to any residual
contaminants at the site following the completion of remedy
construction," which is a general purpose of institutional controls
rather than a specific objective. Other decision documents included
more detailed discussions of objectives; for example, one document
discusses institutional controls "for future development that would
prevent inappropriate disturbance of remediated mine sites and
potential remobilization of contaminants" and "to prevent the use of
new drinking water wells where contaminated aquifers exist."
Of the 93 sets of Superfund documents and 15 sets of RCRA documents we
examined, 81 and 14, respectively, discussed the mechanism to be used,
at least generally. However, the specific mechanism for each
institutional control was identified in only 35 of the sets of
Superfund documents and in 5 of the sets of RCRA documents.[Footnote
17] Most discussions were vague, gave a list of options, or discussed
mechanisms for one planned control but not another. For example, 24
documents mentioned "deed restrictions" without detailing how the deed
would be restricted. EPA guidance points out that the term "deed
restriction" is not a traditional property law term, but rather a
shorthand way of referring to types of institutional controls.
Furthermore, it states that site managers should avoid the generality
of "deed restriction" and instead be specific about the types of
controls under consideration. Other remedy decision documents were
incomplete, suggesting mechanisms for one medium, such as soil, but not
another, such as groundwater. In 30 of the Superfund cases and 4 of the
RCRA cases, the remedy decision documents gave several options for
control mechanisms rather than identifying those that were most
appropriate. In contrast, some documents do include a detailed
discussion of the institutional control mechanism. For example, one
document suggested implementing and monitoring deed notices to ensure
that land use is consistent with the cleanup levels selected for the
site. If the land is used for residential purposes, additional
institutional controls, such as a restrictive covenant, may be needed
to limit access to soils. Because some institutional controls--such as
informational devices--cannot be enforced, or may not transfer if the
property is sold, careful consideration of the institutional control
mechanism is generally necessary.
EPA guidance points out that since parties other than EPA often
implement institutional controls, site managers should consider the
time required to put a control in place. However, as shown in figures 8
and 9, less than one-third of the Superfund remedy decision documents
and only 1 of the RCRA documents we examined specified the timing of
institutional control implementation. Twenty-five Superfund documents
and 1 RCRA document specified when the institutional controls should be
implemented--for example, "before the RA [Remedial Action] is final"--
although some of the documents were vague or only indicated timing for
one out of several controls. Moreover, for 14 of the Superfund sites,
the institutional controls referred to in remedy decision documents had
already been implemented. Documents for 45 Superfund and 4 RCRA sites
specified how long the institutional controls should remain in place--
which was, in most cases, until the contamination was no longer present
or cleanup levels were achieved. However, some of the documents
indicated the duration of only one of several planned controls.
In the remedy decision documents we examined, many of the Superfund and
RCRA documents did not discuss any of the parties responsible for
implementing, monitoring, and enforcing institutional controls. To the
extent that responsibility was addressed, most of the discussion
centered only on the implementing party, rather than those responsible
for monitoring and enforcing institutional controls. Only 11 Superfund
and 3 RCRA document sets discussed parties responsible for monitoring
institutional controls, and only 13 Superfund and 4 RCRA document sets
discussed parties responsible for enforcing institutional controls (see
figs. 8 and 9). According to the EPA draft guidance issued in December
2002, early cooperation and coordination between federal, state, and
local governments in the selection, implementation, and monitoring of
institutional controls is critical to their implementation, long-term
reliability, durability, and effectiveness. Where EPA is implementing a
remedy, states often play a major role in implementing and enforcing
institutional controls. In addition, under the RCRA program, the state
typically imposes and oversees the remedial action. Some governmental
controls may be established under state jurisdiction. Furthermore, a
local government may be the only entity that has the legal authority to
implement, monitor, and enforce certain types of institutional
controls, such as zoning changes. EPA guidance states that while EPA
and the states take the lead on response activities, local governments
have an important role to play in the implementation, long-term
monitoring, and enforcement of institutional controls. Without the
cooperation of these other parties, the successful implementation of
institutional controls may not be ensured.
In many cases, remedy documents we examined contained no evidence that
planning of institutional controls included consideration of all
aspects of the four key elements in the remedy selection process. In
total, 34 of the 93 sets of Superfund and 5 of the 15 sets of RCRA
remedy decision documents discussed all four elements, at least in
part. For example, the documents may have discussed the duration of the
institutional controls but not when they will be implemented, or the
documents may have discussed who will implement only one of the
controls required. EPA's institutional controls project manager stated
that discussion in the ROD may be intentionally vague because key
decisions on such issues as who may implement the remedy and
institutional controls have not yet been made. He also speculated that
site managers may not have given adequate consideration to all relevant
aspects of institutional controls at the remedy decision stage. Without
careful consideration of all four factors, an institutional control put
in place at a site may not provide long-term protection of human health
and the environment. Furthermore, EPA's 2002 draft guidance recommends
planning of the full institutional control life cycle early in the
remedy stage--including implementation, monitoring, reporting,
enforcement, modification, and termination--to ensure the long-term
durability, reliability, and effectiveness of institutional controls.
The guidance states that, critically evaluating and thoroughly planning
for the entire life cycle early in the remedy selection process could
have eliminated many of the problems identified to date. In addition,
according to the EPA guidance, calculating the full life-cycle cost is
an essential part of the institutional control planning process. This
estimate is important to compare the cost-effectiveness of
institutional controls with that of other remedy elements and to ensure
that parties responsible for implementing, monitoring, and enforcing
institutional controls understand their financial liability for these
activities. Relying on institutional controls as a major component of a
selected remedy without carefully considering all of the applicable
factors--including whether they can be implemented in a reliable and
enforceable manner--could jeopardize the effectiveness of the entire
site remedy.
EPA Faces Challenges in Implementing, Monitoring, and Enforcing
Institutional Controls:
At the Superfund sites we reviewed, institutional controls often were
not implemented before site deletion, as EPA requires. Moreover,
efforts to monitor institutional controls after they are implemented
may also be insufficient. Finally, EPA may have difficulties ensuring
that the terms of certain types of institutional controls in place at
some Superfund and RCRA sites can be enforced, and state laws may limit
EPA's ability to implement and enforce needed controls.
Institutional Controls Were Often Not Implemented before the End of the
Cleanup Process:
Institutional controls were often not implemented before site deletion,
as required, at the Superfund sites we reviewed. Under EPA guidance, a
site may not generally be deleted from the NPL until all appropriate
response actions, including institutional controls, have been
implemented. Timely implementation of institutional controls is
important because, until the controls are in place at a site, there is
a greater potential for the public to become exposed to any residual
contamination. At 32 of the 53 Superfund sites deleted during fiscal
years 2001 through 2003, institutional controls were likely
appropriate, according to EPA guidance, because waste remained in place
at these sites above levels that allowed for unrestricted use and
unlimited exposure. Our discussions with cleanup officials and our
review of supporting documentation, however, indicate that all
institutional controls were implemented before site deletion at only 24
of these 32 sites. In the case of 4 of the remaining 8 sites, even
though EPA site managers believed certain of the institutional controls
had been implemented at the site, our subsequent requests for
documentation revealed that these controls had not been implemented. At
2 of these sites, there were no institutional controls in place at all.
In another 2 cases, institutional controls were implemented, but only
after deletion of the site. In 2 other cases, remedy decision documents
did not call for institutional controls, but because EPA guidance does
not specify in which cases controls are necessary, it is unclear
whether these 2 sites were inconsistent with this guidance.
Furthermore, institutional controls were implemented before site
deletion at only 2 of the 4 Superfund sites deleted during fiscal years
1991 through 1993 that had residual contamination above levels that
would allow for unrestricted use of the site. The 2 other sites were
deleted without institutional controls, even though the site manager
for 1 of these sites believed there were institutional controls in
place. EPA's institutional controls project manager believed that sites
with residual contamination may have been deleted without institutional
controls at least in part because site managers lost track of the need
to implement the institutional controls between the time that active
remediation of the site ended and the site's deletion.
Implementation of institutional controls at the RCRA facilities we
examined generally occurred by the time the corrective action was
terminated. RCRA program guidance does not address the timing of
implementation of institutional controls relative to termination of
corrective actions. Rather, owners and operators of RCRA facilities
that treated, stored, or disposed of hazardous waste must submit
documentation indicating the location and dimensions of a closed
hazardous waste facility before its closure. Facility closure in the
RCRA program occurs after all RCRA-related activities at a site,
including corrective action, end and after the facility undergoes a
closure process. Among the 6 state RCRA corrective action programs we
reviewed, state officials for 3 of the programs stated that if
institutional controls are required, they must be in place before the
RCRA corrective action is terminated. Of the 4 RCRA facilities where
corrective action was terminated during fiscal years 2001 through 2003
that likely required institutional controls, only 2 had all controls in
place by the time the corrective action was terminated. At 1 of the
remaining facilities, the sole institutional control was implemented
about 1 year after the corrective action was terminated; at the last
facility, at least one of several controls was implemented after the
corrective action was terminated.
Monitoring of Institutional Controls May Be Insufficient to Ensure
Their Protectiveness:
Monitoring of institutional controls at Superfund sites after they have
been implemented may be inadequate to ensure their continued
protectiveness. At sites where contamination is left in place above
levels that allow for unlimited use of the site and unrestricted
exposure to site contaminants, CERCLA requires reviews once every 5
years of the continued protectiveness of the remedy, including any
institutional controls in place. According to EPA's guidance, these 5-
year reviews usually consist of community involvement and notification,
document review, data review and analysis, site inspection, interviews,
and a determination of remedy protectiveness. As a part of these
reviews, EPA's guidance calls for a determination of whether
institutional controls successfully prevent exposure to site
contaminants and a specific check on whether they are still in place.
EPA officials acknowledged, however, that reviews that only occur every
5 years may be too infrequent to ensure the continued protectiveness of
the institutional controls. At some of the sites we examined, 5-year
reviews uncovered institutional control violations that could have been
discovered and stopped earlier with more frequent monitoring. For
example, an institutional control at 1 Superfund site we examined
prohibited any use of groundwater without prior written approval from
EPA. When EPA conducted its 5-year review in April 2003, agency
officials discovered that over 25 million gallons of groundwater from
the site had been pumped for use as drinking water during 2002.
Moreover, the agency official who conducted the 5-year review did not
know how long groundwater had been pumped without EPA's approval. While
many Superfund sites are no longer active, sites that are being reused
may be especially vulnerable to activities occurring on-site that may
violate an institutional control during the time period between 5-year
reviews. At 1 Superfund site we visited, for example, the institutional
control for the site requires monitoring for worker safety precautions
during digging on the site. At the time of our site visit, however,
active digging was occurring at the site about which the EPA official
charged with supervising the site was not aware (see fig. 10). The EPA
official had not visited the site since the previous 5-year review,
which had occurred 4 years earlier.
Figure 10: Digging Under Way at a Deleted Superfund Site without the
EPA Site Manager's Knowledge:
[See PDF for image]
[End of figure]
Five-year reviews, even when they do eventually occur, may not ensure
that institutional controls are in place. EPA's guidance on conducting
5-year reviews instructs officials conducting the review to verify that
(1) institutional controls are successful in preventing exposure to
site contaminants and (2) institutional controls are in place. We
interviewed officials at the 32 Superfund sites deleted during fiscal
years 2001 through 2003 and the 4 Superfund sites deleted during fiscal
years 1991 through 1993 with residual contamination. Most of these
officials stated that, during 5-year reviews, they confirmed that the
site remedy--including institutional controls--continued to protect the
public from exposure to site contaminants. However, while they usually
confirmed the protectiveness of the remedy, 8 did not also verify that
site institutional controls were in place. For example, EPA site
managers in charge of 3 sites told us they generally did not check
whether institutional controls were in place during 5-year reviews.
Managers of 4 other sites stated that they generally verified that
institutional controls were in place during 5-year reviews; our
subsequent requests for documentation, however, revealed that the
institutional controls these site managers believed to be in place were
never actually implemented. One additional site manager was unsure
whether the 5-year review process even included a check on the
continued presence of institutional controls. A determination that
institutional controls successfully prevent exposure to contaminants at
a site is meaningless if the controls that are supposed to be at the
site are, in fact, not in place, or their presence is unknown. Unless
EPA verifies that institutional controls remain in place during its 5-
year reviews, the agency cannot ensure the continued protectiveness of
site remedies.
Monitoring of Superfund sites by parties other than EPA may occur more
often than every 5 years, but this monitoring may not significantly
contribute to ensuring the protectiveness of institutional controls at
sites. Thirty-two Superfund sites were deleted during fiscal years 2001
through 2003 with contamination left in place. At 26 of these sites,
parties responsible for contamination, site owners, or state or local
government entities were responsible for conducting some form of site
monitoring in addition to the 5-year reviews. In principle, this
additional monitoring could help to ensure that site institutional
controls remain protective. Often, however, this monitoring is
unrelated to the institutional controls on the site. At fewer than half
of these 26 sites, for example, do the additional monitoring activities
specifically include a review of the sites' compliance with
institutional controls; at the other sites, monitoring either focused
on analyzing site groundwater or on other activities. Moreover, at none
of the 26 sites did monitoring include a specific check on whether site
institutional controls were in place, as 5-year reviews do. In fact, at
4 of these sites, monitoring that checked whether institutional
controls were in place would have found that controls that had
supposedly been implemented were not. In addition, some parties
responsible for site monitoring sometimes do not meet their monitoring
requirements. In 4 cases, site managers indicated that monitoring
parties had either not performed the required monitoring or they were
unable to provide documentation of this monitoring. In 1 case, for
example, an official in a town with a Superfund site refused to perform
monitoring of the site, even though there was significant evidence of
trespassing at the site, according to the responsible EPA site manager.
In contrast with the Superfund program, the RCRA corrective action
program does not include any national requirement to review facilities
with residual contamination that have been closed.[Footnote 18] As a
result, EPA has no way of knowing whether institutional controls
implemented at such facilities remain in place, or whether they remain
protective of human health and the environment. At least some states,
however, conduct their own monitoring of closed RCRA corrective action
facilities, including determining whether institutional controls remain
in place and have not been violated. This practice may be in
recognition of the necessity to track the status of RCRA facilities
that have waste in place after the corrective action process is
terminated and they are closed. Officials that we interviewed in 4 of 6
states reported some form of postclosure monitoring of RCRA corrective
action facilities in their states; an official in 1 additional state
stated that her agency is working to implement such monitoring. Two of
these states specifically require that facility owners self-certify the
continued presence of institutional controls. One state program, for
example, requires facility owners to submit a form every 2 years
certifying that facility institutional controls are still in place. In
addition, this state's officials conduct inspections of the closed
sites every 5 years, during which they verify the self-certifications
and ensure that institutional controls remain in place. As of 2001,
according to a 50-state survey that an independent research group
prepared using funding from EPA, 17 states had established schedules
for auditing sites where institutional controls have been implemented,
including 7 states that review such sites at least annually.[Footnote
19]
Ability to Enforce Institutional Controls Depends on the Nature of the
Control Selected and State Laws:
In addition to potentially inadequate monitoring, EPA may have
difficulties enforcing the terms of certain institutional controls
currently in place, or planned, for some Superfund and RCRA sites. Some
institutional controls selected for sites are purely informational and
do not limit or restrict use of the property. Informational
institutional controls, according to EPA's guidance, include deed
notices, state hazardous waste registries, and advisories to the
public. For example, while a deed notice--which is required by the RCRA
corrective action program for certain closed facilities--alerts anyone
searching land records to the continuing presence of contamination at
the site, such a notice does not provide a legal basis for regulators
to prevent a property owner from disturbing or exposing that
contamination. Seven of the 32 Superfund sites deleted during fiscal
years 2001 through 2003 with waste remaining had some form of
informational institutional control in place. Furthermore, EPA
recognizes that another mechanism used often at sites to impose
institutional controls, a consent decree, is not by itself binding on
subsequent property owners or occupants. We found consent decrees in
place at 12 of the 32 Superfund sites with residual contamination
deleted during fiscal years 2001 through 2003. The use of multiple
institutional controls at the same site could alleviate concerns about
the use of nonenforceable mechanisms, as long as one of the additional
controls is enforceable. In some cases, however, informational,
nonenforceable institutional controls were the only controls in place
at sites. This was the case at 1 of the Superfund and 2 of the RCRA
corrective action sites that we examined that had reached the end of
the cleanup process. Moreover, among the sets of remedy decision
documents finalized during fiscal years 2001 through 2003 that we
examined, 56 of 112 Superfund and 6 of 23 RCRA corrective action sets
of documents specified at least one institutional control mechanism;
among these, 6 of the Superfund and 3 of the RCRA sets of documents
specified only an informational device as the sites' institutional
control.
State property laws, which traditionally disfavor restrictions attached
to deeds and other land use restraints in order to encourage the free
transferability of property, can hinder EPA's ability to implement and
enforce institutional controls. EPA's guidance warns that state
property laws should be researched to ensure that certain types of
institutional control mechanisms can be enforced. For example, one
state only allows use restrictions attached to a deed to be enforced
for 21 years from the recording of the deed. As an EPA official charged
with managing a site with such restrictions in this state recognized,
the issue of following up on this site after 21 years presents a
planning problem for EPA. In several cases, EPA or state officials
stated that property owners had to agree before certain proprietary
controls, including covenants, could be put in place. Therefore, EPA
officials are forced to negotiate aspects of the institutional control
with the property owner. This process has the potential to compromise
or dilute the enforceability of the proprietary control that is
ultimately negotiated. Because RCRA generally does not authorize EPA to
acquire any interests in property, many proprietary controls require
that third parties such as states be willing to be involved. RCRA
officials must thus rely on states, localities, or sometimes even
adjacent property owners to hold an easement over a facility property.
At least one EPA regional official we interviewed was aware of a state
that refuses to serve as a third party in such cases, limiting EPA's
ability to put in place such institutional controls.
States have legislative options available to help ensure that
institutional controls can be enforced. Certain states have enacted
statutes that provide the state with the legal authority to restrict
land use at contaminated properties. Colorado, for example, passed
legislation in 2001 that allows the state's Department of Public Health
and Environment to hold and enforce environmental covenants. Colorado's
agreements are binding upon current and future owners of the property,
thus allowing the state to enforce these agreements should they be
violated. These covenants had been used at 11 state sites, including 1
RCRA corrective action facility, as of August 2004. In addition,
several states have adopted statutes providing for conservation
easements, which override certain common law barriers to enforcement. A
recent effort by the National Conference of Commissioners on Uniform
State Laws sought a way to allow states to implement enforceable
institutional controls.[Footnote 20] In 2003, this group finalized a
Uniform Environmental Covenants Act that is available for state
legislative adoption. According to the group, this legislation provides
clear rules for state agencies to create, enforce, and modify a valid
real estate document--an environmental covenant--to restrict the use of
contaminated real estate. The act creates this new type of
institutional control and, according to the group, ensures that it can
be enforced. Several states have shown interest in adopting the
legislation, according to the chairman of the group that drafted it.
Institutional controls help to ensure the protectiveness of remedies at
Superfund and RCRA sites where waste remains in place after cleanup. If
institutional controls are not properly functioning or cease to apply
to the site, the administrative and legal barriers between the residual
contamination and potential human exposure to site contaminants
disappear. Because of the potential danger of losing these barriers,
EPA has recognized the importance of monitoring whether institutional
controls are still in place and whether they continue to prevent
exposure to residual contamination during its 5-year reviews. Current
efforts to monitor institutional controls, however, may not occur with
sufficient frequency to identify problems in a timely manner and may
not always include checks on controls.
EPA Faces Significant Obstacles in Implementing Systems to Better Track
Institutional Controls:
Institutional controls are often key components of selected cleanup
remedies and, as such, need to be monitored, enforced, and kept in
place as long as the danger of exposure to residual contamination
remains. Residual contamination can remain at a site long after EPA's
involvement is completed, and an entity other than EPA may assume
responsibility for long-term monitoring and enforcement of the
controls. However, historically, EPA had no system in place to readily
identify which sites had institutional controls in place or whether the
controls were being monitored and enforced. To improve its ability to
ensure the long-term effectiveness of these controls, EPA has recently
begun implementing tracking systems for its Superfund and RCRA
corrective action programs. These systems currently track only minimal
information on the institutional controls--as currently configured,
they do not include information on long-term monitoring or enforcement
of the controls. In addition, initial reports of tracking system data
show that there are potential problems in implementing the systems.
Tracking Systems Can Help Ensure the Long-term Effectiveness of
Institutional Controls:
Regulators must track institutional controls at hazardous waste sites
in order to ensure that they remain effective over the long term. Such
controls are often intended to remain in place long after cleanup work
has been completed to ensure that a site's future use is compatible
with the level of cleanup at the site and to limit exposure to residual
contamination. EPA maintains that an institutional control tracking
system should include information about the selection and
implementation of the controls as well as their monitoring, reporting,
enforcement, modification, and termination.
According to EPA, several unique characteristics of institutional
controls make tracking them particularly challenging. First, the life-
span of institutional controls may begin as early as site discovery and
can continue for as long as residual contamination remains above levels
that would allow for unrestricted use or unlimited exposure. Therefore,
institutional controls may remain necessary at a site indefinitely.
Second, the long-term effectiveness of institutional controls depends
on diligent monitoring, reporting, and enforcement. Third,
institutional controls are often implemented, monitored, and enforced
by an entity other than the one responsible for designing, performing,
and/or approving the remedy. As a result, an entity other than EPA may
be responsible for ensuring that one of the remedy's critical
components--the institutional control--is both effective and reliable
in the long term.
Historically, EPA has had no way to (1) readily identify which
hazardous waste sites relied on institutional controls to protect the
public from residual contamination or (2) monitor how the controls were
working over the long term. According to EPA's institutional controls
project manager, the need for institutional control tracking systems
has been discussed since at least the early 1990s, and environmental
groups have long advocated the development of such systems. While
several existing EPA information systems track basic information on
hazardous waste sites, such as cleanup status and selected remedies,
these systems were not designed to capture information on institutional
controls at the level of detail necessary to allow for effective
tracking and monitoring of the use of these controls. As previously
discussed, our analysis of EPA's use of institutional controls at
Superfund and RCRA sites showed that the agency has generally not
ensured that institutional controls are adequately implemented,
monitored, and enforced. In some cases, for example, we found that
controls had not been implemented on a timely basis, and, in at least 4
cases, controls that agency staff thought were in place had never been
implemented. An effective institutional control tracking system may
alert EPA management to such situations.
EPA Is Making Progress in Developing Tracking Systems:
EPA has recently begun implementing institutional control tracking
systems for the Superfund and RCRA corrective action programs. The
Institutional Controls Tracking System (ICTS) was designed with the
capability to track controls used in a variety of hazardous waste
cleanup programs. However, at least initially, ICTS will only include
data for Superfund "construction complete" sites.[Footnote 21] For RCRA
corrective action sites, EPA is utilizing its existing RCRA information
database to identify sites where institutional controls have been
established. In both instances, the EPA tracking systems include only
limited, basic information. EPA has not yet decided the extent to which
ICTS may be expanded in the future to include more detailed
information. The RCRA program currently has no plans to track more
detailed information regarding institutional controls at its
facilities.
EPA began developing ICTS in 2001. According to EPA, ICTS is a state-
of-the-art tracking system that is Web-based, is scalable, and will
serve as the cornerstone for future programmatic and trend evaluations.
The system is built around a cross-program, cross-agency, consensus-
based institutional control data registry developed by the agency.
The ICTS draft project management plan notes that EPA envisioned an
integrated tracking system that would be developed collaboratively
using a work group approach that relied on existing data sources for
its information. The primary sources of the data to be entered in ICTS
include RODs and any amendments; explanations of significant
differences; notices of intent to delete; and actual institutional
control instruments, such as consent decrees, easements, ordinances,
and advisories. The objectives of ICTS are to:
* make institutional controls more effective by creating links across
all levels of government through a tracking network;
* improve EPA program management responsibilities;
* establish relationships with coregulators (other federal agencies,
along with state and local regulatory agencies);
* improve information exchange with individuals interested in the
productive use of a site after cleanup; and:
* improve existing processes allowing for notification to excavators of
areas that are restricted or need protection prior to digging.
EPA designed ICTS to be implemented in three separate phases, or
"tiers," of data collection activities. The initial data gathering
effort was focused on collecting Tier 1 data for all sites on the
Superfund construction complete list, which includes all deleted sites.
Data collected during Tier 1 can be used by EPA management to generate
reports with basic status information about institutional controls at
sites. Tier 1 data consist of information on:
* the site name;
* whether site decision documents report the presence of residual
contamination at the site above a level that prohibits unlimited use
and unrestricted exposure, and if present, whether the documents call
for controls;
* the objectives of the institutional control;
* the specific control instruments, including the administrative or
legal mechanism that establishes a specific set of use restrictions;
* any person and/or organization that may be directly or indirectly
involved with institutional controls at the site; and:
* the source of the information that is entered into the data entry
form.
The initial version of ICTS was designed to provide some baseline
information on institutional controls and a step toward a more
comprehensive system. EPA envisions that Tier 2 would (1) identify
which institutional controls are in place to prevent use of which media
(e.g., soil or groundwater); (2) identify parties responsible for
implementing, monitoring, and enforcing the controls; and (3) provide
for attaching the latest inspection report. Tier 3 information would
include detailed site location information, such as the actual
boundaries of the institutional controls. According to the draft ICTS
quality assurance project plan, EPA plans to make information from ICTS
accessible to EPA and other federal agencies, state and local
governments, tribes, and industry groups. Some information may also be
made available to the public via the Internet about site-specific
institutional controls near and within local communities. Initially,
only data for those Superfund sites where construction of remedies has
been completed will be entered into ICTS. Although no decision has been
made to date, future data collection efforts may include additional
sites in EPA's other cleanup programs (RCRA and Underground Storage
Tanks). According to ICTS plans, the tracking system also has the
flexibility to include data for sites in other programs, such as
Brownfields and State Voluntary Cleanup Programs.
Between April and July 2004, EPA regions entered data into ICTS for
most of the 899 Superfund construction complete sites, including data
on about 280 sites that had been deleted from the NPL. Reports on these
data indicate that 154 of the deleted sites had residual contamination;
institutional controls were reported for 106 of these sites. Site
decision documents did not report institutional controls for the other
48 sites, or about one-third of the deleted sites with residual
contamination. EPA's institutional controls project manager cautioned,
however, that the data reported may be inaccurate and need to be
verified. The official was concerned, for example, that (1) the
standard for what constitutes residual contamination was not
consistently applied across all regions, (2) some data may have come
from interim decision documents rather than final documents, and (3)
some staff entering data into ICTS may have confused whether
institutional controls were implemented or only planned. In addition,
the EPA official stated that the EPA regions were asked to enter the
data into ICTS in 8 weeks, using the best available information and/or
their best professional judgment. Because of the expedited data entry,
additional research into the status of institutional controls at the
site-specific level and significant data quality assurance efforts are
necessary to ensure the accuracy of the data.
Upon completing the ICTS Tier 1 data entry, EPA plans to assess the
data to evaluate the current status of institutional controls at all
construction complete sites for data gaps and site-specific control
issues. According to the ICTS strategy, once the agency has determined
where data gaps and site-specific institutional control problems may
exist, the agency will prioritize the work to address these issues on
the basis of a variety of factors, including resources and the number
of sites with potential issues. EPA's goal is to identify and review
institutional control problems at all construction complete sites over
approximately the next 5 years, relying on a combination of special
evaluations and scheduled 5-year reviews, focusing on deleted sites as
the highest priority. The sites identified as priorities will likely be
addressed through a special evaluation, unless a routine 5-year review
is scheduled within 12 months of problem identification. Priority
evaluations will focus on whether institutional controls were required
and properly implemented for all media not cleaned up to levels that
allow for unlimited use and unrestricted exposure. EPA does not yet
know the scope of these priority evaluations, but expects that these
evaluations will be conducted over the next 2 years, resources
permitting. After 2 years, the remaining sites will be evaluated in
conjunction with or as a component of the normal 5-year review process.
To track institutional controls at RCRA corrective action sites, EPA
modified RCRAInfo--the agency's database of information on individual
RCRA sites--to identify sites where institutional controls have been
established as part of, or to augment, an interim or final corrective
action. Details to be entered into RCRAInfo for pertinent sites include
the type of institutional controls (governmental control, proprietary
control, enforcement or permit tool, or informational device); the
scheduled and actual dates that the controls were fully implemented and
effective; and the responsible agency (state or EPA). While EPA
currently has no plans to track more detailed information regarding
institutional controls at its facilities, the RCRA database requires
identifying a location where additional information concerning the
specific control can be accessed (e.g., responsible agency contact
information). In April 2004, EPA officials asked the regions and/or
states to enter the requested information into RCRAInfo by September
30, 2004, for the 1,714 GPRA baseline facilities, and by the end of
fiscal year 2005 for the remainder of the 3,800 RCRA facilities in the
corrective action workload universe.
Analysis of the RCRA institutional control tracking system information
showed that, by November 22, 2004, only 4 EPA regions, and 7 states in
those regions, had identified a total of 87 facilities where
institutional controls had been established. Moreover, according to the
head of EPA's RCRA corrective action program, because the agency asked
the regions and states to identify and report on only those facilities
with institutional controls, rather than asking for reports on all
sites indicating whether or not controls were established, the agency
does not know the extent to which the data reported by this minority of
regions and states are complete. Additionally, the official stated that
the agency does not know whether the institutional controls that were
reported were actually verified to be in place and operating as
intended. In December 2004, the RCRA corrective action program official
reminded officials in all 10 EPA regions of the importance of entering
these data. Unlike the Superfund ICTS, the agency has no plans to
verify that the institutional control information reported for RCRA
corrective action facilities accurately reflects actual conditions.
EPA Systems Used to Track Institutional Controls May Not Include
Important Information:
Information on institutional controls in the new Superfund and RCRA
tracking systems was primarily derived from reviews of decision
documents contained in the individual site files. As such, these data
reflect the planned use of institutional controls, which may or may not
reflect the controls as actually implemented. As previously noted, our
review of the use of institutional controls at Superfund sites
disclosed four cases where the planned controls had never been
implemented. These cases illustrate the need for EPA to determine not
only whether institutional controls were required at a site but also
whether they were implemented. While EPA currently plans to review the
actual use of controls at all Superfund sites with residual waste, such
reviews may take up to 5 years to complete. The RCRA program, on the
other hand, has no current plans to determine whether (1) institutional
controls have been required in all appropriate situations or (2) all
required controls were actually implemented.
Information necessary to determine whether institutional controls are
being monitored and enforced is not currently included in either the
Superfund or RCRA tracking systems. As previously noted, monitoring of
institutional controls at Superfund sites after they have been
implemented may be inadequate to ensure their continued protectiveness.
Failure to monitor or enforce institutional controls can lead to
compromising the protectiveness of remedies put into place and,
consequently, potential exposure of the public to residual hazardous
waste. While EPA plans to include information on monitoring and
enforcing institutional controls at Superfund sites in the Tier 2 data
for ICTS, EPA's institutional controls project manager stated that it
is uncertain whether ICTS will ever be expanded to include Tiers 2 or 3
data. Further, there is no plan to include such information in the RCRA
tracking system, since EPA regulations do not require any review of
terminated RCRA corrective action sites. Currently both tracking
systems only identify where an interested party may go to obtain more
information on a particular site.
As previously noted, the objectives of ICTS include improving
information exchange with individuals interested in the productive use
of a site after cleanup, and the existing processes allowing for
notification to excavators of areas that are restricted or need
protection prior to digging. EPA acknowledges that there is an
immediate need for disseminating readily available information about
institutional controls at contaminated sites. This need will only
increase in the future as sites' remediation advances and as more
contaminated land and water resources are identified for potential
reuse. Without knowledge of the controls at a site, excavators might
unknowingly contact or otherwise disturb residual contaminated media.
At this time, to obtain information about possible institutional
controls at the site of interest, excavators would need to search many
different databases and sources of information before operations could
begin. While information on institutional controls at RCRA corrective
action sites is planned to be available to the public by April 2005 and
this capability is planned for ICTS in the future, EPA has not yet
determined what information on institutional controls at Superfund
sites will be made available to the public. Additionally, EPA currently
has no assurance that the institutional control information on RCRA
sites that will be made available to the public accurately reflects
actual conditions.
The Superfund ICTS and RCRA tracking systems, together, currently cover
a universe of more than 2,600 hazardous waste sites. Expanding the
existing tracking system information to reflect the institutional
controls as actually implemented and to include long-term monitoring
and enforcement information will likely be a resource-intensive task.
Nevertheless, without such additional data, EPA has no assurance that
the institutional controls actually implemented are continuing to
provide the level of protectiveness intended. In this regard, EPA
currently has established a task force that will decide what will be
done with regard to any expansion of the institutional control tracking
systems.
Conclusions:
Many of the sites that have been cleaned up under EPA's Superfund and
RCRA corrective action programs rely on institutional controls to
ensure that the public is not exposed to sites' residual contamination,
and it is likely that a growing number of sites remediated in the
future will rely on such controls. However, the long-term effectiveness
of these institutional controls depends on EPA resolving several
issues. First, EPA's guidance does not specify under what circumstances
a site with residual contamination should have institutional controls.
Rather, the guidance states that an institutional control is "generally
required," or "likely appropriate," if the site cannot accommodate
unrestricted use and unlimited exposure. In addition, EPA has
identified four factors in its guidance that should be considered
during the remedy decision stage--the objective of the institutional
control; the mechanism, or type of control, used to achieve that
objective; the timing of the implementation of the control and its
duration; and the party who will bear the responsibility for
implementing, monitoring, and enforcing the institutional controls.
Adequately addressing these factors is intended to help ensure that the
control will effectively protect human health. But without
documentation that these four factors are considered at the remedy
decision stage, there is no assurance that sufficient thought has gone
into designing the institutional controls and ensuring that they can be
successfully implemented, monitored, and enforced. Once the controls
are implemented, monitoring is necessary to determine their continued
effectiveness and to check that they remain in place. Current efforts
to monitor institutional controls, however, may not occur with
sufficient frequency to identify problems in a timely manner and may
not always include checks on controls. Finally, EPA's current efforts
to begin tracking institutional controls could be a positive step
toward achieving successful implementation, monitoring, and enforcement
of institutional controls at Superfund and RCRA sites. As presently
configured, however, these tracking systems may not significantly
contribute to improving the long-term effectiveness of institutional
controls. Although EPA has recognized many of these problems and is
developing draft guidance documents that may address many of them,
until these documents are finalized, the extent to which they will
resolve the problems we have identified is unclear.
Recommendations for Executive Action:
In order to ensure the long-term effectiveness of institutional
controls, we recommend that the Administrator, EPA:
* clarify agency guidance on institutional controls to help EPA site
managers and other decision makers understand in what cases
institutional controls are or are not necessary at sites where
contamination remains in place after cleanup;
* ensure that, in selecting institutional controls, adequate
consideration is given to their objectives; the specific control
mechanisms to be used; the timing of implementation and duration; and
the parties responsible for implementing, monitoring, and enforcing
them;
* ensure that the frequency and scope of monitoring at deleted
Superfund sites and closed RCRA facilities where contamination has been
left in place are sufficient to maintain the protectiveness of any
institutional controls at these sites; and:
* ensure that the information on institutional controls reported in the
Superfund and RCRA corrective action tracking systems accurately
reflects actual conditions and not just what is called for in site
decision documents.
Agency Comments and Our Evaluation:
We provided EPA with a draft of this report for its review and comment.
EPA agreed with the findings and recommendations in the report and
provided information on the agency's plans and activities to address
them. Regarding our recommendation that EPA clarify in its guidance
when controls are needed, EPA stated that the agency will continue to
develop cross-program guidance to clarify the role of institutional
controls in cleanups and has a number of such guidance documents in
draft form, under development, or planned. Regarding our recommendation
that EPA demonstrate sufficient consideration of all key factors in
selecting controls, EPA stated that the agency agrees that sufficient
consideration of all key factors should be completed at remedy
selection, but does not agree that this information should be included
in the remedy decision document. However, our report does not suggest
that the information should be included in the remedy decision
document, but should be included in some cleanup-related documentation.
Regarding our recommendation that EPA ensure that the frequency and
scope of monitoring efforts are sufficient to maintain the
effectiveness of the controls, EPA noted that it is revising guidance
to address this issue. For example, according to EPA, the agency's
draft implementation, monitoring, and enforcement guidance will require
periodic evaluation and certification from a responsible entity at the
site stating that the controls both are in place and remain effective,
and the draft implementation and assurance plan guidance will include
specific roles and responsibilities for monitoring efforts. Finally,
regarding our recommendation that EPA ensure that the information on
controls reported in new tracking systems accurately reflects actual
conditions, EPA stated that, among other actions, regions are currently
undertaking a quality assurance effort to ensure that the information
in the system reflects actual conditions. EPA's completion of its
ongoing and planned activities should, if implemented successfully,
effectively address the concerns we raised in this report.
In addition to comments directly relating to our recommendations, EPA
also offered a number of general comments on the draft report. EPA
pointed out that a "missing institutional control" does not, by itself,
necessarily represent an unacceptable human exposure or environmental
risk or suggest a breach of remedy. We agree that the mere presence of
residual contamination at a site does not necessarily indicate the need
for institutional controls, and we acknowledge that EPA generally--
although not always--requires that institutional controls be put in
place at sites where total cleanup is not practical or feasible. We
believe, however, that in cases where EPA's selected remedy for a
particular site includes institutional controls as an integral
component of the remedy, the agency has determined that such controls
are necessary and, as such, the controls should be effectively
implemented, monitored, and enforced. In addition, EPA noted that an
evaluation of a small universe of sites may overestimate the number of
sites with potential institutional control problems. However, we are
not making any population estimates, but are describing only the
results for those specific cases we reviewed. This report specifically
acknowledges that the results from the nonprobability samples for our
analysis cannot be used to make inferences about a population because
some elements of the populations being studied have no chance or an
unknown chance of being selected as part of the sample(s). Finally, EPA
commented that an increased use of institutional controls does not mean
that the agency advocates less treatment; we do not believe that this
report implies that this is the case. The full text of EPA's comments
is included in appendix II.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the date of this letter. At that time, we will send copies of this
report to the appropriate congressional committees; the Administrator,
EPA; and other interested parties. We will also make copies available
to others upon request. In addition, the report will be available at no
charge on the GAO Web site at [Hyperlink, http://www.gao.gov].
If you or your staff have any questions, please call me at (202) 512-
3841. Key contributors to this report are listed in appendix III.
Signed by:
John B. Stephenson:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
The primary objective of this review was to examine the long-term
effectiveness of institutional controls at nonfederal sites in the
Environmental Protection Agency's (EPA) hazardous waste cleanup
programs. Specifically, we reviewed (1) the extent to which
institutional controls are used at sites addressed by EPA's Superfund
and Resource Conservation and Recovery Act (RCRA) corrective action
programs; (2) the extent to which EPA ensures that institutional
controls at these sites are implemented, monitored, and enforced; and
(3) EPA's challenges in implementing systems to track these controls.
Although both the Superfund and RCRA programs address federal and
nonfederal sites, our review did not address federal sites because
federal agencies are generally responsible for cleaning up their own
sites and EPA involvement is limited. Furthermore, our review focused
on institutional controls that remain in place after site deletion or
termination to determine whether these controls are effective in the
long run. We also focused our review of RCRA facilities on those whose
cleanup was led by EPA.
To examine the extent of the planned use of institutional controls, we
examined all 112 Superfund records of decision (ROD)--involving 101
Superfund sites--finalized during fiscal years 2001 through 2003, and
statements of basis or other final decision documents for all 23 RCRA
corrective action facilities that reached the remedy decision stage
during that period. In this regard, we examined only the principal
remedy decision documents for the sites in our universe, rather than
all remedy decision documents. Institutional controls may be called for
in a number of EPA documents. In the Superfund program, at least two
types of documents, in addition to RODs, may sometimes include
information about institutional controls at the site--ROD amendments
and explanations of significant differences. In the RCRA program, a
variety of documents may include information about institutional
controls, including permits, permit modifications, statements of basis,
and other documents. Because of the number of potential sources of
information regarding the planned use of institutional controls, we
asked regional officials responsible for the sites to provide us with
documentation relevant to the remedy decision at the site. In most
cases, regional officials provided us with either a statement of basis,
a final decision document, or both. Because we did not look at all
remedy decision documents for these sites, we may not have captured all
institutional controls at the sites we examined.
To address the extent of institutional control use at Superfund sites
and RCRA corrective action facilities, we examined EPA's use of
institutional controls at a nonprobability sample of nonfederal sites
and facilities where (1) the cleanup process was completed in earlier
periods, for historical perspective; (2) cleanup had recently ended;
and (3) the remedy had only recently been selected, for insight into
the future use of these controls.[Footnote 22] To gain a broader view
of past use of institutional controls, we reviewed files for all 20
Superfund sites deleted from the National Priorities List (NPL) during
fiscal years 1991 through 1993; in addition, in the two EPA regions
with the most such facilities--Region III in Philadelphia and Region V
in Chicago--we reviewed files for all 40 RCRA facilities at which,
according to EPA's database, a preliminary investigation was conducted
and corrective action was terminated before fiscal year 2001. Regarding
sites where the cleanup was recently completed, we examined site
documentation for all 53 Superfund sites deleted from the NPL during
fiscal years 2001 through 2003 and at all 31 RCRA facilities where
corrective action was terminated during the same period. With the
exception of the historical RCRA facilities we examined in two regions,
for those deleted sites or terminated facilities whose documentation
indicated the use, or potential use, of institutional controls, we
conducted follow-up interviews with EPA or state officials
knowledgeable about the site to obtain detailed information and
additional documentation and to determine what institutional controls
were actually in place.
To identify the universe of Superfund sites deleted from the NPL during
fiscal years 1991 through 1993 and 2001 through 2003, as well as those
sites where a remedy decision was reached during fiscal years 2001
through 2003, we obtained data from EPA's Comprehensive Environmental
Response, Compensation, and Liability Information System (CERCLIS)--a
computerized inventory of potential hazardous waste sites that contains
national site assessment, removal, remedial, enforcement, and financial
information for over 44,000 sites. CERCLIS is a relational database
system that uses client-server architecture (i.e., each computer or
process on the network is either a client or server), installed on
separate local area networks at EPA headquarters and all 10 regional
Superfund program offices, and is used by more than 1,900 EPA staff. A
September 30, 2002, report issued by EPA's Inspector General found that
over 40 percent of CERCLIS data they reviewed were inaccurate or not
adequately supported. The Inspector General's review focused on site
actions, which it defined as activities that have taken place at a
site--such as site inspections, removals, studies, potentially
responsible parties searches, RODs, and remedial actions. As a result
of its review, the Inspector General concluded that CERCLIS could not
be relied upon to provide error-free data to system users.
For our review, we verified CERCLIS data related to the NPL sites in
our universe, but we did not verify detailed site action data for all
sites in CERCLIS. To address the reliability of CERCLIS data, we met
with the Inspector General's staff to discuss the nature of the errors
disclosed in their report. According to the Inspector General's staff,
the reliability of CERCLIS data was more of a concern at the action
level rather than the site level. They indicated that confirming the
data with EPA regions would decrease concerns about data reliability.
As a result, we confirmed all relevant CERCLIS data fields for all 53
NPL sites deleted during fiscal years 2001 through 2003 and all 23 NPL
sites deleted during fiscal years 1991 through 1993; in addition, we
verified information regarding all 232 remedy decisions, including 117
RODs, finalized during fiscal years 2001 through 2003. We verified all
relevant CERCLIS data fields with staff in the relevant region, as
appropriate, including confirming that sites were nonfederal and had
been deleted or had a remedy decision during the time frames of
interest. Regional staff found no errors with any of the deleted NPL
sites in our universe. Regional staff identified errors regarding 2 of
the 232 remedy decisions in our universe, including a change to
information regarding 1 ROD, and added 1 remedy decision document to
our universe, resulting in a 1 percent error rate. We corrected the
CERCLIS site-level data that we used for our analysis to reflect
regions' changes. In addition, we obtained remedy documentation,
Federal Register notices of deletion, and other documents from regional
staff that corroborated the accuracy of our data. We also conducted
interviews with officials knowledgeable about deleted sites where it
appeared there were institutional controls or where it was unclear. As
a result of these interviews and further analysis, we amended the
number of records of decision finalized during fiscal years 2001
through 2003 to 112 and the relevant number of sites deleted during
fiscal years 1991 through 1993 to 20. After taking these additional
steps, we determined that the CERCLIS data we used were sufficiently
reliable for the purposes of this report.
In addition, we visited 5 Superfund sites that had been deleted from
the NPL. For the site visits, we went to EPA Region III, headquartered
in Philadelphia, which had (1) the most Superfund sites deleted during
fiscal years 1991 through 1993 and fiscal years 2001 through 2003 and
(2) the most RCRA facilities reaching corrective action termination
during the latter time period. Over the course of 5 days in July 2004,
we visited the 5 sites that had institutional controls in place in EPA
Region III. We conducted a physical inspection of each site to verify
compliance with the terms of the institutional controls in place,
accompanied by either the EPA site manager or a representative of the
responsible party, or both. We also visited the relevant county
recorder's office to verify that relevant institutional controls for
each site had been recorded and to assess the process for accessing
these documents. We also met with local officials responsible for
informal monitoring of 1 site. In addition, we met with state officials
to learn about a statewide system of groundwater management zones, an
institutional control in place at 2 of the sites we visited.
To identify the universe of RCRA facilities that reached the corrective
action termination or remedy decision stage throughout the life of the
program, and specifically during fiscal years 2001 through 2003, we
obtained data from the RCRAInfo system--the EPA Office of Solid Waste's
national, mission-critical, major application consisting of data entry,
data management, and data reporting functions used to support the
implementation and oversight of the RCRA Subtitle C Hazardous Waste
Program as administered by EPA and State/Tribal partners. RCRAInfo is a
relational database management system (Oracle) that is centralized and
Web-enabled, stored on a central Unix server at EPA's Research Triangle
Park, North Carolina, facility. Access to RCRAInfo is restricted to
authorized EPA Headquarters, EPA Regional, and State staff with RCRA
program oversight or implementation responsibilities. During our
review, we also spoke with officials in each of the 10 EPA regions
regarding their use of the code in the RCRAInfo system used to indicate
the termination of corrective action. Specifically, we asked them
whether a site coded in this way could include an institutional
control, as had been indicated by an official in EPA headquarters early
in our review. Officials in 6 EPA regions indicated that regional
policy dictated that a site coded in this manner should not include
institutional controls, while officials in the other 4 regions stated
that it could. In addition, officials in 5 of the regions expressed
doubts or uncertainty about whether use of the code had been consistent
over time, whether personnel within their region used the code
consistently, or whether states in the region interpreted the code in a
uniform manner. While EPA's Inspector General has not examined the
reliability of the RCRAInfo database, at least one previous report
about its predecessor system--the Resource Conservation and Recovery
Information System--raised additional significant questions about data
reliability.
For our review, we verified the data obtained from RCRAInfo with
knowledgeable staff in each EPA region. We asked regional officials to
verify that (1) the facilities in our universe belonged there and (2)
there were no facilities that should be present in our universe but
were not. Verifying the facilities in our universe entailed verifying
information about each facility, such as whether it was a federal or
nonfederal facility, whether corrective action activities at the
facility were led by the state or by EPA, and whether the site had
reached the relevant milestone within the prescribed time frame. As a
result, we checked all relevant RCRAInfo data fields for the 30 EPA-led
RCRA facilities where corrective action was terminated during fiscal
years 2001 through 2003 and 21 EPA-led RCRA facilities where a remedy
decision was finalized during that period, according to data provided
by RCRA officials in EPA headquarters. We verified all relevant
RCRAInfo data fields with staff in the relevant region, as appropriate,
including confirming that facilities were nonfederal and had had
corrective action terminated or had a remedy decision during the time
frames of interest. From our universe of RCRA facilities where
corrective action was terminated, regional officials deleted 1
facility, added 3 more, and edited the data for 1 additional facility,
for a total of 32 facilities. Subsequent follow-up work and interviews
with site managers brought the relevant universe of RCRA facilities to
31. Similarly, from our universe of RCRA facilities where a remedy
decision was finalized, regional officials deleted 1 facility, added 3
more, and edited the data for 1 additional facility, for a total of 23
facilities. We corrected the RCRAInfo data for facilities in our
universe to reflect regions' changes. In addition, we obtained
documentation of remedy selection and corrective action termination
from regional staff that corroborated the accuracy of our data. We also
conducted interviews with knowledgeable site officials at terminated
facilities where it appeared there were institutional controls or where
it was unclear. After taking these additional steps, we determined that
the RCRAInfo data we used were sufficiently reliable for the purposes
of this report.
To learn the extent to which EPA ensures that institutional controls at
Superfund sites and RCRA corrective action facilities are implemented,
monitored, and enforced, we interviewed EPA or state officials
knowledgeable about particular sites. To identify sites of interest, we
examined documentation related to all 20 Superfund sites deleted from
the NPL during fiscal years 1991 through 1993, as well as all 53
Superfund sites deleted from the NPL and all 31 RCRA facilities where
corrective action was terminated during fiscal years 2001 through 2003.
For those deleted sites or terminated facilities among these whose
documentation indicated the use, or potential use, of institutional
controls, we conducted follow-up interviews with EPA or state officials
knowledgeable about the site to obtain detailed information and
documentation regarding the implementation, monitoring, and enforcement
of any institutional controls in place.
To understand the extent to which states implement, monitor, and
enforce institutional controls in the RCRA corrective action program,
we interviewed RCRA program managers in the 2 states with the most
corrective action remedy decisions and terminations at state-led
facilities during fiscal years 2001 through 2003--Colorado and New
Jersey. We also interviewed officials in 4 additional states that were
selected at random from the 37 states that, in addition to Colorado,
were authorized by EPA to conduct RCRA corrective action activities as
of March 2002--California, Nevada, South Dakota, and Texas.[Footnote
23] In addition, we reviewed An Analysis of State Superfund Programs:
50-State Study, 2001 Update, a 2002 report by the Environmental Law
Institute, an independent environmental research organization, and
interviewed the report's main author. To inform their study, the
Environmental Law Institute collected documents from states, requested
program information from them, and conducted telephone interviews to
clarify responses and reconcile any discrepancies. While a few states
declined to participate, the study achieved a 92 percent response rate.
As a result of our review, we determined that this study was
sufficiently methodologically sound for the purposes of our review.
To identify the challenges of developing a system to track
institutional controls, we interviewed the EPA officials in charge of
developing tracking systems for the Superfund and RCRA corrective
action programs. We also analyzed documentation related to these
efforts and initial data drawn from these systems. In addition, we
discussed systems to track institutional controls with officials we
interviewed in 6 states, including how the states tracked institutional
controls, if at all, and whether the states had any concerns about such
national tracking systems.
In addition, we collected information about the Superfund program's
Institutional Controls Tracking System (ICTS) to inform a data
reliability review of this new database. ICTS is an Oracle database
accessed through a user interface consisting of HTML Web pages with
JavaScript. The current version of ICTS was designed to provide some
baseline information on institutional controls but was planned as a
step toward a more comprehensive system. The current ICTS has been used
to gather baseline information on institutional controls at
approximately 900 EPA Superfund construction completion sites.
Officials in all 10 EPA regions were asked to populate the system in 8
weeks using the best available information and/or their best
professional judgment. Because of the expedited data entry, EPA plans
additional research into the status of institutional controls at the
site-specific level and significant data quality assurance activities.
In light of the uncertain quality of the data, in this report we
present data from ICTS with appropriate caveats.
We conducted our work from October 2003 to January 2005 in accordance
with generally accepted government auditing standards, including an
assessment of the data reliability and internal controls.
[End of section]
Appendix II: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
WASHINGTON, D.C. 20460:
JAN 7 2005:
Mr. John B. Stephenson:
Director:
Natural Resources and Environment:
Government Accountability Office:
Washington, D.C. 20548:
Dear Mr. Stephenson:
Thank you for the opportunity to review and comment on the January 2005
Draft Report titled "Hazardous Waste Sites: Improved Effectiveness of
Controls at Sites Could Better Protect the Public." The U.S.
Environmental Protection Agency (EPA) appreciates GAO's efforts to
recognize the challenges that EPA faces when implementing institutional
controls (ICs). General comments and comments specific to the GAO
recommendations are enclosed. Generally, EPA agrees with the
recommendations and has undertaken a number, of activities over the
past four years to improve implementation and monitoring of appropriate
ICs. These activities are summarized below.
EPA and other government agencies have used ICs at cleanup sites for
nearly two decades. Over the last ten years, we have focused increased
attention on understanding and overcoming the complexities and
challenges associated with the use of ICs, many of which are
highlighted in the Draft Report. As a result, we have made significant
improvements in our approach to ICs in recent years, targeted at the
full life-cycle of ICs from identification, evaluation, and selection
to implementation, monitoring, and enforcement. By making these changes
and more clearly defining EPA's policies and practices, we are
confident that the reliability and durability of ICs at sites that have
been recently cleaned up has greatly improved. We acknowledge, however,
that there are sites addressed earlier in the Superfund and RCRA
programs that have not benefitted from our increased understanding of
ICs.
We recently undertook a comprehensive effort, beginning with the
Superfund program, to improve our practices and to apply them to both
old and new sites. In 2004, the Office of Superfund Remediation and
Technology Innovation, the Federal Facilities Restoration and Reuse
Office, and the Office of Site Remediation Enforcement, developed a
comprehensive IC strategy for the Superfund program. The "EPA Strategy
to Ensure Institutional Control Implementation at Superfund Sites,"
issued October 7, 2004 (National Superfund IC Strategy; OSWER document
9355.0-106) is focused on addressing potential IC problems at the
Superfund sites that have reached the "Construction Complete" stage of
the cleanup. The National Superfund IC Strategy calls for the Agency to
evaluate close to 900 Construction Complete sites and determine whether
the ICs are appropriate and effective and, if not, to take the
appropriate corrective measures. The baseline information on these
Superfund sites is maintained in the recently developed IC Tracking
System (ICTS). This state-of-the-art tracking system will serve as the
cornerstone for future programmatic and trend evaluations.
For the Superfund program, we also developed a network of Regional
experts on ICs to resolve emerging issues quickly and consistently
across the country. Each Region in EPA has designated both a Regional
IC Program Coordinator and Legal Coordinator (IC Coordinators), as well
as at least one person to represent the Region on the Superfund
Management Advisory Group for Institutional Controls. The IC
Coordinators resolve key implementation issues on a day-to-day basis,
and the Management Advisory Group provides direction on emerging
national policy issues and monitors Regional implementation of the
National Superfund IC Strategy.
The "Framework to Establish National Consistency for Prioritizing
Institutional Controls Workload" was developed to help with
implementation of the National Superfund IC Strategy. It establishes
criteria and requirements for expedited reviews, to be completed by
October 2005, and longer term evaluations, to be completed by October
2009. Most of the expedited reviews are of sites deleted from the
National Priorities List; consistent with the GAO findings, EPA
believes these sites may be the ones warranting more immediate
attention. Each Region conducted a critical analysis of its site
portfolio to develop Region-specific workplans for all construction
complete sites and is currently implementing them, consistent with the
National IC Strategy. To date, we have identified over 200 sites from
our working universe of Superfund sites, as needing no additional IC
evaluation or corrective measures.
EPA's comprehensive approach under its cleanup programs includes
development of numerous products to help accurately define and improve
the status of ICs. For example, we have developed the following IC
guidance documents to address key implementation issues: (1)
Identifying, Evaluating and Selecting ICs for Superfund, Federal
Facility and RCRA Cleanups (September 2000; OSWER 9355.0-74 FS-P)); (2)
Implementing, Monitoring and Enforcing ICs at Superfund, Federal
Facility, RCRA, Brownfields and UST Cleanups (draft final; February
2003); (3) ICs and Communities at Superfund, Federal Facility, RCRA,
Brownfields and UST Cleanups (draft); and (4) ICs and Five-Year Reviews
Guidance Supplement (draft). In addition, we have developed and
delivered several types of IC training courses nationally.
Currently, EPA is addressing some of the more challenging
implementation issues with respect to ICs, including: revising the
Superfund Five-Year Review process; improving our understanding and use
of title searches; developing guidance to assist with site-specific
issues that will arise when determining the appropriate corrective
measures; and creating model language and documents to improve
reliability and enforceability of ICs in the future. In addition, EPA
is piloting some innovative projects that we hope will have
transferrable "lessons learned" for ICs. Examples include:
collaborating with States and DOE on IC data exchange and tracking;
monitoring the successes and shortcomings of a "One-Call" approach for
identifying ICs, which links IC information to utility line information
when individuals call before digging on property; and relying on
private entities for long-term stewardship responsibilities.
EPA has recognized that there are areas for improvement in how it and
the states have selected, implemented, monitored, and enforced ICs at
contaminated properties. While the National IC Strategy is focused on
Superfund sites, our training efforts and guidance documents are
directed at multiple cleanup programs - designed to assist our RCRA and
Superfund practitioners. Under the RCRA program, we are working closely
with authorized states to ensure effective institutional controls are
imposed, where needed, and are applying the lessons learned in the
other cleanup programs. We have also recently revised the RCRA Info
data system so that it can track imposition and implementation of ICs
at RCRA facilities. EPA has also worked with the National Conference of
Commissioners on Uniform State Laws in developing the Uniform
Environmental Covenants Act. The Agency supports the goals of the
Uniform Environmental Covenants Act in seeking to promote greater
uniformity in the implementation of institutional controls.
EPA is confident that our efforts will result in vast improvements to
the implementation and reliability of ICs at cleanup sites. It is
essential to ensure that ICs selected for a particular purpose in fact
serve that purpose and remain a reliable and integral part of the
remedy. As in place management of hazardous wastes increases at sites
across the Nation, the need for reliable institutional controls and
vigilance in administering them increases as well. A "missing IC," as
defined in the Draft Report, does not by itself necessarily represent
an unacceptable human exposure or environmental risk or suggest a
breach of remedy. For example, a landfill cap will still protect humans
and the environment, even if no institutional controls exist to prevent
digging, as long as no digging occurs and it remains intact.
Conversely, a landfill cap with an institutional control preventing
digging will not protect human health and the environment if digging
has taken place contrary to the restriction.
EPA appreciates the efforts that GAO expended conducting this review.
Thank you for the opportunity to provide comments on the Draft Report,
and EPA looks forward to working collaboratively with GAO to continue
to protect the public.
Sincerely,
Signed by:
Thomas P. Dunne:
Acting Assistant Administrator:
Office of Solid Waste and Emergency Response:
Signed by:
Thomas V. Skinner:
Acting Assistant Administrator:
Office of Enforcement and Compliance Assurance:
Enclosure:
Enclosure:
EPA Comments on GAO Recommendations:
I. General Comments:
1. The absence of ICs should not be interpreted to necessarily mean
remedies are not protective.
One key aspect not considered in the Draft Report, but extremely
germane to the findings, is the effect of ICs on the overall
protectiveness of remedies. EPA agrees it is essential to ensure that
ICs selected for a particular purpose in fact serve that purpose and
remain a reliable and integral part of the remedy. As more sites mature
into the long-term operation and maintenance phase, the need for
reliable institutional controls and vigilance in administering them
increases as well. However, a "missing IC," as defined in the Draft
Report, does not by itself necessarily represent an unacceptable human
exposure or environmental risk, or suggest a breach of remedy. For
example, a landfill cap will still protect humans and the environment,
even if no institutional controls exist to prevent digging, as long as
no digging occurs and it remains intact. Conversely, a landfill cap
with an institutional control preventing digging will not protect human
health and the environment if digging has taken place contrary to the
restriction. Whether a remedy continues to protect human health and the
environment is not dependent on the mere presence or absence of an
institutional control.
The Superfund Program conducts detailed remedy evaluations no less
often than every five (5) years at sites that cannot support unlimited
use and unrestricted exposure. This statutory threshold for site remedy
reviews is also the policy threshold for determining whether a site
requires ICs. The effect of using the same threshold for remedy reviews
and ICs is that virtually all sites with ICs receive periodic reviews.
The explicit purpose of the "Five-Year Review" is to critically
evaluate the remedy to ensure it remains protective. During fiscal
years 2003 and 2004 alone, the Superfund Program conducted over 400
Five-Year Reviews at NPL sites. Another 250 NPL sites are scheduled for
evaluation in fiscal year 2005. The combined result is that almost the
entire Superfund portfolio of construction completion sites will have
relatively recent evaluations of whether the remedy remains protective.
An analysis of Five-Year Reviews to date indicates that very few
remedies have been deemed to not be protective. Further, of the very
few sites with issues regarding protectiveness, the vast majority were
related to an engineered remedy, rather than ICs. The important message
is that the absence of an IC should not be interpreted to mean that a
particular remedy results in unacceptable human exposure or
environmental risk.
2. Evaluation of a small universe of sites may overestimate the number
of sites with potential IC problems.
The second general comment involves the relatively small number of
Superfund sites evaluated during the period 1991-1993 and the impact of
this small universe on inferences drawn from the Draft Report.
Specifically, there were four deleted Superfund sites with residual
contamination evaluated for the period 1991-1993. The Draft Report
accurately states that two of the four, or 50%, of the deleted sites
evaluated lack ICs. However, use of this statistic to estimate the
number of older deleted sites would significantly overestimate the true
number of deleted sites with residual contamination and no ICs in place
for the Superfund Program. The Superfund Program conducted an
evaluation of 890 Construction Complete sites in 2004, 280 of which are
deleted. This research indicates that a significantly smaller
percentage of deleted sites lack ICs. The Draft Report states that
"results from nonprobability samples cannot be used to make inferences
about a population;" however, a more direct statement - that the use of
this statistic in any other context would be misleading - is likely
appropriate. The aggregated average of the universe of sites evaluated
in the Draft Report indicates that approximately 17% of the deleted
sites may have IC issues. This statistic is much closer to EPA's
internal analysis of the deleted sites with potential IC issues and is
likely a much better measure of deleted sites with potential IC issues.
3. An increased use of ICs does not mean EPA advocates less treatment.
The final general comment involves the potential for misinterpreting
the finding of an increased use of ICs. An increased use of ICs should
not be interpreted to mean that less treatment is occurring at
Superfund cleanups or under other cleanup programs. The Superfund
Program continues to clean up sites consistent with the statutory
preference for treatment and permanent remedies. The RCRA program takes
a similar approach. The data in this Draft Report were not evaluated
for, nor do they support, any inference that an increased use of ICs
results in a reduction in treatment.
11. Responses to Draft Report Recommendations:
1) Clarify Guidance on When Controls Should be Used:
EPA concurs with GAO's recommendation to continue to develop cross-
program guidance to clarify the role of ICs in EPA lead cleanups. The
specific guidance documents developed or under development include:
a) Identifying, Evaluating and Selecting ICs for Superfund, Federal
Facility and RCRA Cleanups:
b) Implementing, Monitoring and Enforcing ICs at Superfund, Federal
Facility, RCRA, Brownfields and UST Cleanups:
c) ICs and Communities at Superfund, Federal Facility, RCRA,
Brownfields and UST Cleanups:
d) ICs and Five-Year Reviews Guidance Supplement**
e) IC Implementation and Assurance Plans*:
f) Regional Best Practices for ICs***:
* currently draft final
** currently draft
*** planned draft 05:
The combination of these six guidance documents will add significant
detail and guidance on the use of ICs.
2) Demonstrate that, in Selecting Controls, Sufficient Consideration
Was Given to All Key Factors:
EPA concurs with GAO's recommendation that sufficient consideration of
all key factors should be completed at remedy selection, but we do not
necessarily agree that this information should be included in the
remedy decision document. The Checklist for Implementing ICs contained
in the September 2000 EPA guidance on identifying, evaluating, and
selecting ICs, states explicitly that key criteria should be considered
during the remedy selection phase, however, the guidance does not
recommend the analysis to be documented in the remedy decision. This
was a considered policy decision to allow EPA to present an
"enforcement neutral" remedy description.
For example, it is not always clear at the remedy decision stage
whether the remedy will be EPA lead versus private party lead, and
whether the remedy will be completed under a judicial Consent Decree or
Administrative Order. These different leads and enforcement approaches
have significantly different enforcement and monitoring
responsibilities. Also, flexibility at the remedy decision phase allows
for the emergence of new IC tools. For example, many States are
actively considering passing legislation like the Uniform Environmental
Covenants Act as a new IC tool, and remedy flexibility will allow for
these situations. EPA guidance encourages an appropriate evaluation at
the Remedial Investigation/Feasibility Study phase and new guidance
will recommend additional detail at the remedy design phase. The scope
of the GAO review included only principal decision documents rather
than all supporting documents. The evaluation of key factors may have
occurred in the RI/FS and/or other remedy decision documents. The list
of the sites evaluated in the GAO Draft Report was not provided, so EPA
was unable to determine whether sufficient consideration was given to
all key factors in other documents for the sites evaluated.
In the case of RCRA cleanups, EPA notes that in many cases facilities
at the remedy selection phase will be subject to ongoing regulation -
for example, under a RCRA permit or interim status standards - and
under the control of a viable operator. In such cases, the RCRA permit
or security requirements may well provide adequate institutional
controls, enforceable by EPA or the authorized states. On the other
hand, the situation may be very different if property transfer or
redevelopment is contemplated. Therefore, EPA is convinced that
flexible approaches are needed in assuring that RCRA facilities have
acceptable engineering and institutional controls during and after
remedy completion.
3) Ensure That the Frequency And Scope Of Monitoring Efforts Are
Sufficient to Maintain the Effectiveness Of Controls:
EPA concurs with GAO's recommendation. As noted in the Draft Report,
one of the key challenges is that monitoring is often completed by
parties other than EPA and often there is little leverage to compel
these other parties to action. In response to this concern, EPA's draft
Revised Operation and Maintenance (O&M) checklist identifies additional
IC specific O&M requirements; the draft Implementation, Monitoring and
Enforcement guidance will require periodic evaluation and certification
from a responsible entity at the site that the ICs are both in place
and that they remain effective; the draft guidance supplement on ICs
and Five-Year Reviews will include criteria on evaluating the
effectiveness of ICs; and the IC Implementation and Assurance Plan
guidance will include specific roles and responsibilities for
monitoring efforts.
4) Ensure That The Information On Controls Reported In New Tracking
Systems Accurately Reflects Actual Conditions:
EPA concurs with GAO's recommendation regarding IC tracking. EPA has
undertaken a concerted effort to gather accurate information on the
status and effectiveness of ICs throughout their life-cycle. The
Superfund program has added almost 900 sites to its tracking system and
regions are currently undertaking a significant quality assurance
effort to ensure that the information in the system reflects actual
conditions. Over the next year, expedited reviews will be conducted at
approximately 80 high priority Superfund sites and reviews will be
conducted at the remaining Superfund IC sites over the next five
years. Further, the Superfund Program is currently considering
enhancing ICTS to include tracking implementation, monitoring, and
enforcement responsibilities as well as other IC issues.
[End of section]
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
John B. Stephenson, (202) 512-3841 [Hyperlink, stephensonj@gao.gov];
Vincent P. Price, (202) 512-6529 [Hyperlink, pricev@gao.gov].
Staff Acknowledgments:
In addition to the individuals named above, Nancy Crothers, Shirley
Hwang, Justin Jaynes, Richard Johnson, Jerry Laudermilk, Judy Pagano,
Nico Sloss, and Amy Sweet made key contributions to this report.
(360400):
FOOTNOTES
[1] The Congress enacted RCRA in 1976 to establish a framework for
managing hazardous waste from its generation to final disposal.
[2] In this report, we use the term "Superfund program" to refer to
long-term remedial actions carried out at sites on the NPL. EPA also
carries out removal actions under Superfund, which are generally
shorter term cleanups designed to address more immediate threats to
health and the environment.
[3] The December 2002 guidance was issued in draft form for public
comment. It had not been finalized as of September 2004 because,
according to an EPA official, the agency received and must respond to a
large number of comments on the draft document.
[4] Region III in Philadelphia and Region V in Chicago.
[5] Sites we reviewed for historical perspective included Superfund
sites deleted from the NPL during fiscal years 1991 through 1993 and
RCRA facilities from two regions where corrective action was terminated
prior to fiscal year 2001. See appendix I for more information about
the specific facilities included in our review.
[6] These sites include Superfund sites that were deleted from the NPL
and RCRA facilities where corrective action was terminated within the
given time period.
[7] These sites include Superfund sites deleted from the NPL during
fiscal years 1991 through 1993 and RCRA facilities from two regions
where corrective action was terminated prior to fiscal year 2001. RCRA
facilities reviewed, those where corrective action was terminated both
prior to fiscal year 2001 and during fiscal years 2001 through 2003,
included those coded in the RCRAInfo database to indicate the
termination of corrective action. However, EPA regions differed in
their use of this code since it related to facilities with or without
institutional controls, and EPA staff raised concerns about whether the
code was used consistently over time within some regions. See appendix
I for more information about the specific facilities included in our
review.
[8] In some cases where the types of controls were not clear, we
categorized them on the basis of our evaluation of documents.
[9] Consent decrees have attributes both of contracts and judicial
decrees. While they are arrived at by negotiations between the parties,
they are motivated by threatened or pending litigation and must be
approved by the court.
[10] EPA, Institutional Controls: A Site Manager's Guide to
Identifying, Evaluating and Selecting Institutional Controls at
Superfund and RCRA Corrective Action Cleanups (EPA 540-F-00-005,
September 2000). This fact sheet is intended to provide an overview of
the types of institutional controls that are commonly available and
discusses key factors to consider when evaluating and selecting
institutional controls in Superfund and RCRA corrective action cleanups.
[11] In addition, there were a number of other types of institutional
controls on the sites we reviewed. Some of the sites had governmental
controls, including zoning restrictions (ordinances exercised by local
governments to specify land use for certain areas) and groundwater
management zones. Some were listed on state registries, which are
established by state legislatures and include information about
properties, such as a list of hazardous waste sites in the state. There
were also miscellaneous institutional controls on some sites, including
an intergovernmental/corporate cooperative agreement, a tribal
ordinance, and groundwater use restrictions.
[12] One additional site was cleaned up to levels that allowed for
unrestricted use and unlimited exposure at the time of remediation;
however, the levels of lead contamination that are considered
acceptable have decreased since completion of the remedy, so the levels
of contamination at the site may now exceed the new standards.
[13] To ensure, as much as possible, that those responsible for the
contamination at a site clean up or pay for the cleanup, EPA's
Superfund program identifies the companies or people responsible for
the contamination and enters into negotiations with them. EPA refers to
these companies or people as "potentially responsible parties."
[14] Because sites with recent remedy decisions are still undergoing
cleanup, we could not determine which sites had residual contamination,
or which sites would have institutional controls. Therefore, we do not
provide figures showing these groupings, as we do in the figures for
completed sites.
[15] For 3 of the facilities, the documentation provided indicated the
presence of or called for institutional controls, but did not indicate
whether these controls were required by remedy decision documents.
[16] EPA draft guidance, Institutional Controls: A Guide to
Implementing, Monitoring, and Enforcing Institutional Controls at
Superfund, Brownfields, Federal Facility, UST and RCRA Corrective
Action Cleanups (December 2002). This is the second in a series of
guidance documents on the use of institutional controls. According to
an EPA official, although the draft was issued in December 2002, it had
not yet been finalized as of December 2004 due to the large number of
comments that EPA received.
[17] In addition, 13 sets of Superfund documents referred to existing
institutional controls.
[18] Facility closure in the RCRA corrective action program occurs
after all RCRA-related activities at a site, including corrective
action, end and after the facility undergoes a closure process.
[19] Environmental Law Institute, An Analysis of State Superfund
Programs: 50-State Study, 2001 Update, (Washington, D.C.: 2002).
[20] The National Conference of Commissioners on Uniform State Laws
comprises more than 300 lawyers, judges, and law professors, appointed
by the states as well as the District of Columbia, Puerto Rico, and the
U.S. Virgin Islands to draft proposals for uniform and model laws on
subjects where uniformity is desirable and practicable, and to work
toward their enactment in legislatures.
[21] EPA defines a "construction complete" site as a site where
physical construction of all cleanup actions is complete, all immediate
threats have been addressed, and all long-term threats are under
control.
[22] Results from nonprobability samples cannot be used to make
inferences about a population because in a nonprobability sample, some
elements of the population being studied have no chance or an unknown
chance of being selected as part of the sample.
[23] Officials we contacted for the state of Idaho, originally selected
in our random sample, declined to be interviewed. Therefore, we
interviewed officials in South Dakota, the next state on our list of
randomly selected states, instead of Idaho.
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