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Challenges and Recommendations
Table of Contents
Challenge: Ensuring that Stakeholder Roles and Responsibilities Are Clearly Understood
The following presents a summary of the LTS challenges, and recommendations for addressing those challenges that the Task Force identified and EPA's cleanup programs should consider. Where appropriate, potential recommendations for LTS implementation and issues/concerns were identified and called out in the report by the Task Force. In addition, the Task Force recognizes that EPA's cleanup programs operate under different authorities, may approach the cleanup and stewardship of sites differently, or may already be addressing the identified challenge. For this reason, certain challenges or recommendations may not apply to every cleanup program.
Challenge: Ensuring that Stakeholder Roles and Responsibilities Are Clearly Understood
Although EPA cleanup programs frequently select remedies that rely on LTS activities, including ICs, the responsibility for implementation, monitoring, and enforcement is often under the jurisdiction of other levels of government and private parties. As such, there are a variety of public and private stakeholders that may be involved in selecting, implementing, monitoring, and enforcing LTS activities at a site. Each stakeholder has specific responsibilities for carrying out those activities. To be effective, each stakeholder needs to have a clear understanding of its current and future responsibilities, as well as those of any other stakeholder. The roles and responsibilities need to be clearly articulated and accepted by all parties and well documented through legal and other means. Also, involved parties need to be able to adapt to changing site and site management conditions. Appropriate mechanisms are necessary to ensure continued performance of these responsibilities, especially with the potential for change of stakeholders and site conditions over time.
ROLES AND RESPONSIBILITIES
Problem: Cleanup programs do not always clearly convey the appropriate LTS roles and responsibilities.
Goal: Ensure stakeholder LTS roles and responsibilities are clearly communicated and understood.
Recommendations:
- EPA should continue to review its decision documents, agreements, and other tools as appropriate, to ensure site-specific LTS roles and responsibilities are clearly delineated.
- EPA should continue to develop guidance addressing LTS implementation and assurance across its cleanup programs, as appropriate.
- EPA , State, and Tribal cleanup programs and other Federal agencies should invest more time working with and building stronger relationships with local governments, and conduct more training and outreach to help them better define and understand their potential specific LTS roles and responsibilities.
- EPA should partner with other Federal agencies and State, Tribal, and local government organizations to sponsor one or more "summits" in which representatives from Federal, State, Tribal and local agencies can share their perspectives and insights on LTS.
The Task Force considered the following as potential LTS challenges and opportunities for improvement:
- Federal, State, Tribal, and local governments are not always clear
on, or do not often specify, the appropriate roles and responsibilities
for implementing and overseeing LTS activities.
- States often claim that land use controls and other types of institutional
controls-a key element of LTS-are typically the responsibility of
local governments.
- Local government officials often maintain that either the State
or EPA has responsibility for assuring the protection at sites.
- The transfer of sites between Federal agencies can also create questions
of roles, responsibilities, resources, etc.
- Local governments are not clearly assigned a role or responsibility
under several statutes and regulations governing waste cleanup and
management.
- Local governments are typically not a party to the formal agreements
that govern cleanup at waste sites.
- Local government activities to support the LTS of sites (e.g., zoning
and permitting) are typically not designed with environmental protection
as an objective.
- State or local governments may not always agree with the cleanup
action selected for a site, yet may be responsible for either implementing
or monitoring and enforcing LTS activities.
- Sites located on Tribal lands present unique issues in determining
the roles and responsibilities of EPA, States, and Tribes.
- At some sites, it may not always be clear who has the responsibility
or the ability and resources to effectively implement, monitor, and
enforce LTS activities.
- Decision documents and agreements do not always delineate responsibilities
for specific LTS activities.
- The LTS activities, such as institutional controls, may only be
identified generally in a decision document and the responsibility
for their implementation and oversight left vague or based on assumptions.
- Mechanisms that ensure the transfer of information on roles and
responsibilities to other stakeholders over time need to be evaluated
and developed.
- There is a need to ensure that legal or other agreements specify
the responsibilities of parties beyond the expiration or performance
dates of key documents as reasonable.
- At many sites, the responsibility for LTS falls to PRPs; however,
there are circumstances in which the roles and responsibilities of PRPs
are ambiguous.
- PRPs are not always fulfilling their LTS responsibilities, particularly
when planning and designing the remedy and its LTS needs.
- It is not always clear what the responsibilities are for PRPs in
the long-term, especially if the PRP goes out of business.
- It is important to clarify the roles and responsibilities of PRPs
that are small companies with limited resources.
- It is unclear what the roles and responsibilities are of operators
of facilities when they are not the facility owner (e.g., gas station
operators). In RCRA corrective actions, owners and operators commonly
share responsibility for cleanups.
- PRPs need to ensure that other stakeholders involved in the implementation
of LTS (e.g., insurance companies or third party trusts established
by the PRP) understand and fulfill their responsibilities.
- Almost all States are authorized for RCRA closure and corrective
action cleanups, so States typically have a responsibility in the
selection, implementation, monitoring, and enforcement of institutional
and engineering controls.
- Future users can play an important role in the LTS of sites, but in
order to do so effectively, need to be involved early and often in discussions
with key players.
- Future users may take over certain O&M requirements, such as mowing
or fence repair.
- Future users should know any limitation associated with the property
to ensure there is no unintentional damage done to the remedy.
- Future users can discourage illegal activities that may damage remedies,
such as all terrain vehicle racing on a cap.
- Future users can help enforce institutional controls, or alert the
appropriate authorities if there has been a breach. This may be especially
useful if the regulatory agency is not expected to visit the facility
on a regular basis.
Recommendations
Challenge: Ensuring that LTS Information Is Managed and Shared Effectively
Challenge: Ensuring the Effective Implementation of Institutional Controls
Challenge: Ensuring the Effective Implementation and Evaluation of Engineering Controls
Challenge: Ensuring that Funding and Other Resource Needs Are Adequate and Sustainable
Recommendation #1: EPA should continue to review its decision documents, agreements, and other tools as appropriate, to ensure that site-specific LTS roles and responsibilities are clearly delineated.
Decision documents and legal agreements (e.g., consent orders, permits, grants, and contracts) are often the tools that are used to communicate LTS responsibilities at specific cleanup sites. In some cases, such as a RCRA permit, provisions specifying the LTS responsibilities may be clear and unambiguous. In other cases, a decision document may not provide specific LTS requirements or a clear delineation of who has responsibility for each LTS component.
To ensure that there is no ambiguity as to the site-specific roles and responsibilities of different stakeholders for implementing, monitoring, and enforcing LTS, the cleanup programs should consider reviewing existing decision documents, legal agreements, contract or grant provisions, or other tools used to specify LTS responsibilities. This review needs to identify specific documents used to establish LTS responsibilities and ensure that specific LTS responsibilities are clearly identified. At a minimum, such documents may require that information be included on who specifically or what private party or organization, or specific branch of government, is responsible for each LTS activity needed, where they are to carry out those responsibilities, and how often and for how long they must do so. Where third parties are expected to fulfill certain LTS responsibilities (e.g., a holder of an easement, a trust organization), or where implementation depends on the actions of those not a party to an agreement or settlement (e.g., a local government), provisions should be included that identify their responsibilities and those of the entity who will oversee and ensure that the LTS activities are being properly carried out. It is important to note that individual programs will need to develop strategies to address deficiencies in roles and responsibilities that are identified in the review of its documents.
Decision documents and legal agreements (e.g., consent orders, permits, grants, and contracts) are often the tools that are used to communicate LTS responsibilities at specific cleanup sites. In some cases, such as a RCRA permit, provisions specifying the LTS responsibilities may be clear and unambiguous. In other cases, a decision document may not provide specific LTS requirements or a clear delineation of who has responsibility for each LTS component.
To ensure that there is no ambiguity as to the site-specific roles and responsibilities of different stakeholders for implementing, monitoring, and enforcing LTS, the cleanup programs should consider reviewing existing decision documents, legal agreements, contract or grant provisions, or other tools used to specify LTS responsibilities. This review needs to identify specific documents used to establish LTS responsibilities and ensure that specific LTS responsibilities are clearly identified. At a minimum, such documents may require that information be included on who specifically or what private party or organization, or specific branch of government, is responsible for each LTS activity needed, where they are to carry out those responsibilities, and how often and for how long they must do so. Where third parties are expected to fulfill certain LTS responsibilities (e.g., a holder of an easement, a trust organization), or where implementation depends on the actions of those not a party to an agreement or settlement (e.g., a local government), provisions should be included that identify their responsibilities and those of the entity who will oversee and ensure that the LTS activities are being properly carried out. It is important to note that individual programs will need to develop strategies to address deficiencies in roles and responsibilities that are identified in the review of its documents.
To provide greater flexibility during the cleanup process by ensuring that up-to-date information is available on the operational aspects of a remedy, programs should consider providing greater detail on specific roles and responsibilities during the design phase of the cleanup. In an upcoming guidance on institutional controls, the Agency asks that an Institutional Controls Implementation Plan (ICIP) be developed prior to, or at the same time, as the design for the physical remedy. The use of an Implementation and Assurance (I&A) Plan for LTS initiatives, together with inclusion of an ICIP as part of the decision documents or agreements (see Recommendation #2) could be the tools used to document full site-specific LTS responsibilities, or establish a process for doing so during the design phase.
Recommendation #2: EPA should continue to develop guidance addressing LTS implementation and assurance across its cleanup programs, as appropriate.
To ensure that adequate guidance is available to EPA and State staff and other stakeholders with LTS responsibilities, the Agency should consider developing guidance on LTS implementation and assurance. Such guidance could establish the expectations and provide the guidelines for ensuring the specific responsibilities, mechanisms, and frequency for implementing, monitoring, and enforcing LTS activities are clearly identified and assigned at individual sites, across multiple sites, or program-wide. The guidance should be developed according to the programmatic context of each cleanup program and tailored to complement existing policies, processes, tools, and guidance. For example, cleanup programs may rely on a variety of documents and tools that serve the purpose of clarifying roles and responsibilities at sites, including cleanup decision documents, model agreements, O&M plans, and institutional control implementation plans. New guidance on implementation and assurance would recognize these existing tools and incorporate them into an overall strategy or approach for ensuring that responsibilities are clear and unambiguous, and that assurance and accountability mechanisms are integrated into their implementation.
As an initial effort, EPA could identify the core set of cross-program LTS-related information that needs to be included in LTS implementation and assurance guidance regardless of cleanup program. The guidance may also provide guidelines for developing LTS I&A plans or comparable tools, where appropriate. I&A Plans are tools that EPA's cleanup programs may wish to consider adopting either on a site-specific, multiple site, or program-wide basis.
For programs where EPA does not have direct responsibility for LTS implementation and assurance (e.g., a State VCP program, or a local government grant recipient), EPA guidance could encourage these other program implementers to consider adopting similar approaches and mechanisms for delineating specific roles and responsibilities at cleanup sites, ensuring their implementation, and holding accountable those responsible for LTS.
Recommendation #3: EPA, State, and Tribal cleanup programs and other Federal agencies should invest more time working with and building stronger relationships with local governments, and conduct more training and outreach to help them better define and understand their potential specific LTS roles/responsibilities.
Local governments can, and often do, play an important role in the implementation of LTS activities at a site. However, the legal, administrative, and other tools of local governments that EPA and others call upon to protect people and the environment often were not intended to serve this purpose. Moreover, local governments often do not have the necessary knowledge and expertise, nor resources to gain such expertise, to carry out LTS responsibilities. As a result, local government resources (whether people or processes) may not be adequate to fulfill the growing LTS needs across the cleanup programs. EPA, States and other Federal agencies should work with local governments-either individually at sites or on a broader basis through such organizations as The International City/County Management Association (ICMA)-to communicate LTS responsibilities and needs, provide guidance and training, and otherwise offer assistance to enhance local government capabilities. Generally, EPA and States may consider working together to provide training to local governments on LTS and on how local legal and other tools are used at waste sites to protect remedies and minimize possible exposure. At the site-specific level, EPA needs to identify, if present and available, specific opportunities for involving local governments in LTS decisions, gauging their capabilities, and taking steps to enhance those capabilities through training and other educational activities. EPA's cleanup programs may consider tailoring their outreach to local governments according to their programmatic context (e.g., existing program authorities, or current Federal-State-local relationship).
Recommendation #4 (Cross-Cutting): EPA should partner with other Federal agencies and State, Tribal, and local government organizations to sponsor one or more "summits" in which representatives from Federal, State, Tribal and local agencies can share their perspectives and insights on LTS.
The Task Force recognizes that various public and private sector organizations have undertaken a significant amount of work to research and address LTS challenges and opportunities. EPA sees a distinct opportunity for LTS stakeholders to convene one or a series of meetings to open a dialogue on the LTS challenges facing regulatory agencies. As LTS challenges affect all levels of government, a "summit" of officials representing Federal, State, Tribal, and local governments would allow stakeholders to share their insights and perspectives, resulting in a holistic view that is needed to better understand and address the issues involving LTS. Such a summit could address the challenges posed in this report -either individually or in a cross-cutting manner-as well as other challenges that may be considered a priority by other stakeholders. Participants in the summit could address whether and how best to involve non-governmental and private stakeholders to share their perspectives and approaches that may help government agencies improve their LTS responsibilities.
Potential partner organizations identified by the Task Force include ECOS, ASTSWMO, ICMA, and the Energy Communities Alliance (ECA).
Challenge: Ensuring that LTS Information Is Managed and Shared Effectively
Without effective information management, it is difficult for stakeholders to understand and implement their LTS responsibilities effectively. Information is best managed and coordinated across different levels of government, and should be widely distributed and accessible to all stakeholders, including the public, to communicate risks and safeguards, support accountability mechanisms, and augment institutional memory. The Task Force identified the following as potential areas for concern:
- There may be a need to improve data sharing among stakeholders
at sites requiring LTS.
- For many cleanup programs, LTS information may not be collected
and managed systematically and provided to stakeholders in a timely
or meaningful way.
- EPA and States have expressed difficulty in obtaining local information
about the implementation of LTS activities.
- Local governments and communities have difficulty obtaining information
from State and Federal regulators on the status and effectiveness
of LTS activities.
- The need to communicate information to potential developers is increasingly
critical to ensure the integrity of remedies and the protection of
workers and nearby residents. EPA's Superfund and RCRA programs are
in the process of making site information available to the public
through the Internet's "Cleanups In My Community" (CIMC) Web site.
- It is difficult for regulatory agencies to evaluate the effectiveness
of LTS programs.
INFORMATION MANAGEMENT
Problem: LTS information is not always easily and fully shared among relevant stakeholders.
Goal: Ensure that LTS information is managed and shared effectively.
Recommendations:
- EPA should continue to facilitate the maintenance and exchange of LTS information through existing grants and other resources, and by establishing and promoting data standards (e.g., data element registries and XML schema and tags).
- EPA should continue to support the development of mechanisms for sharing information to prevent breaches of institutional and engineering controls.
- Current data management systems to support the maintenance, monitoring, and enforcement of LTS responsibilities are limited.
- While information management systems to track and communicate information
on LTS activities have been established, data are not stored and communicated
in a common way.
- It is unclear if and how a central information management system
for LTS should be developed, and who should be responsible for maintaining
it.
- A central and coordinated information management system would require
extensive resources to develop and maintain.
- Electronically stored records will need to remain accessible over
time even as information management technologies change.
- Some Federal, State, Tribal, and local governments may not have
adequate resources to develop, maintain, or support a system, especially
now when their operating budgets are being reduced.
- Local government involvement is critical to ensure data is current
and accurate-yet their resources to exchange data may be limited.
- To be most effective, information management systems (and those
who develop and maintain them) need to use a universal set of terms
and definitions.
- Certain private sector organizations are developing systems that
support the tracking of information on institutional and other LTS activities.
- Market-based monitoring and information tracking services are being
developed independently by the private sector. For example, Terradex
Corporation's information tracking system allows it to offer proactive
notification services when a potentially inappropriate land use is
identified, because it may violate an IC or an EC.
- Other Federal agencies are developing innovative methods to preserve information. For example, DOE is building monuments and museums at some sites helping to maintain or create a "community memory" that will continue across generations.
Recommendation #5: EPA should continue to facilitate the maintenance and exchange of LTS information through existing grants and other resources, and by establishing and promoting data standards (e.g., data element registries and XML schema and tags).
Information management is central to properly communicating the responsibilities and environmental issues that exist when a site enters the world of LTS. EPA could consider continuing to fund the development of State and local information systems that track LTS data through such funding vehicles as the Brownfields program section 128(a) and OEI's grants. In addition, while there may be difficulties in creating a central database of LTS information, the sharing of LTS data must continue to grow beyond its current partners and scope. EPA plans to continue its work on the development of a common LTS "language." Using a common set of LTS terms and data names allows regulators, developers, prospective purchasers and the general public to exchange necessary site information. Data registries can be used to align and store this IC/EC/LTS terminology and thereby facilitate the exchange and communication of data.
It is worth noting that although it makes sense to have a common data standard, the States may already be comfortable with their own data standards, and may not want to change to an EPA-designed set of data standards, especially if it costs them to implement.
Recommendation #6: EPA should continue to support the development of mechanisms for sharing information to prevent breaches of institutional and engineering controls.
EPA for example is currently supporting one-call pilots in Pennsylvania, Wisconsin, California, and New York. These pilots are based on the "Miss Utility" model of a free "one call" information exchange center for excavators, contractors and property owners planning any kind of excavation or digging. Several questions concerning the pilots still need to be answered including scope of activities to be carried out by the one-call systems, required timing of calls (proactive site planning vs. day of the dig), and resource needs to modify the one-call system to include LTS data.
Challenge: Understanding and Considering the Full, Life-cycle Costs of Long-Term Stewardship When Making Cleanup Decisions
The cost of LTS activities should be a key factor when making cleanup decisions. Risk-based approaches relying on LTS activities may appear as less expensive alternatives. However, leaving waste onsite may require long-term management for years, decades, or possibly even longer. Costs associated with the LTS at these sites include implementing and maintaining institutional and engineering controls, oversight and enforcement by governmental or other entities, and other monitoring and administrative activities. These costs should be calculated and fully considered when making remedial decisions at a site. It is also important to note the LTS costs to non-governmental entities such as PRPs and future users.
The Task Force identified the following as potential areas for concern:
- A consistent and reliable method for defining and estimating full life-cycle costs for LTS is needed to inform remedial or corrective action decision making.
- There does not appear to be a systematic method for, or guidance
to support, calculating the costs of institutional controls and other
implementation, monitoring, and maintenance activities.
- Site managers across the cleanup programs may be using different
approaches to calculate estimated costs-some may employ standard engineering
cost analysis while others may factor in discounting, opportunity
costs, and costs of remedy failure.
LTS Costs
Problem: Accurate estimates of LTS costs may not always be developed or available.
Goal: To ensure that the full, life-cycle costs of LTS are understood and considered when making cleanup decisions and planning LTS implementation.
Recommendation:
- EPA should evaluate current LTS costing guidance and, if appropriate, either revise it or develop new guidance to improve the Agency's ability to produce more consistent and reliable cost estimates. As appropriate, EPA should draw on existing governmental and non-governmental studies and information for estimating LTS costs.
- Accurate estimates of LTS may not always be developed and considered
when evaluating the options for remedial or corrective actions.
- At some sites, estimates of LTS costs rely on standard assumptions
about ICs and other long-term management approaches.
- LTS cost estimates are not always developed consistently across
sites.
- Accurate cost estimates are important to LTS implementers as they
try to fully understand resource responsibilities.
Recommendation #7: EPA should evaluate current LTS costing guidance and, if appropriate, either revise it or develop new guidance to improve the Agency's ability to produce more consistent and reliable cost estimates. As appropriate, EPA should draw on existing governmental and non-governmental studies and information for estimating LTS costs.
While the Task Force is aware that costing guidance exists, this guidance is often not effective for developing accurate or reliable estimates of LTS. Because costing guidance has been developed across multiple program areas, EPA should undertake an evaluation of current costing guidance to better tie together the elements of costing and to identify possible gaps and inconsistencies. Specifically, EPA needs to gain a better understanding of such issues as the role of discounting in developing cost estimates, as well as the use of net present value-both areas have proved problematic in the past and make development of accurate long-term costs difficult to calculate. EPA may also explore working with other stakeholders to improve the guidance in these and other areas. Task Force members suggested several possible sources of information that may help in understanding LTS costs, including: the State RCRA programs' annual corrective-action LTS costs, if available; the work done by Resources for the Future regarding discounting; and ICMA's expertise on costing ICs at the local level.
Challenge: Ensuring the Effective Implementation of Institutional Controls
Effective implementation of LTS activities should:
- Ensure that the institutional controls at a site remain in effect
for as long as the contamination remaining poses a risk to human health
and the environment.
- Ensure that the restrictions on the land or resources are effectively
communicated to anyone who may come into contact with the site.
- Allow for re-evaluation of LTS needs to determine effectiveness and
need for changes.
- Enhance the overall protectiveness of institutional controls by using
them in layers and/or in series.
The Task Force considered the following as potential LTS challenges and opportunities for improvement:
- EPA's cleanup programs increasingly rely on State and local governments
to implement, monitor, and/or enforce ICs.
- Current property law is often inadequate to ensure the continuity
and enforcement of institutional controls.
- Institutional controls are effective tools for land use restrictions
and requirements only if their legal status under State property law
and their enforceability are assured.
- Archaic common law doctrine and other State property laws (such
as tax lien foreclosure, adverse termination, and marketable title
statutes) often work against long-term institutional controls, undermining
their effectiveness and compromising the ability of government agencies
to maintain and enforce them.
- Current common property law can limit the long-term effectiveness
of certain institutional controls because they attach those institutional
controls to property ownership rather than to the property itself.
Thus, while property is transferred from one party to another, the
control may fail to transfer with it.
- Current State property laws often result in inconsistent application
of institutional controls across sites and present regulatory agencies
with a significant burden for frequent and ongoing monitoring and
enforcement.
Institutional Controls
Problem: Cleanup programs increasingly rely on ICs and current property law is often inadequate to ensure continuity and enforcement.
Goal: To ensure that ICs are effectively implemented and evaluated to protect remedies and avoid inappropriate exposure.
Recommendations:
- EPA should develop mechanisms and criteria across its cleanup programs for evaluating the effectiveness of ICs at sites.
- EPA should support the development of an analysis of ICs to determine the reliance on (and burden to) State, Tribal, and local governments.
- To enhance the availability and reliability of ICs, EPA should encourage States to review the Uniform Environmental Covenants Act or similar legal provisions for potential State applicability.
- Cleanup programs generally do not have specific processes or performance standards in place to evaluate the effectiveness of institutional controls.
- There are existing processes for evaluating whether ICs have been
implemented (e.g., Superfund has five-year reviews, RCRA uses its
tracking system), however, they generally do not address whether they
are effective or implemented correctly.
- There may be opportunities to reduce the time and resources needed
to implement institutional controls through an effective institutional
controls evaluation process (i.e., institutional control optimization).
Recommendation #8: EPA should develop mechanisms and criteria across its cleanup programs for evaluating the effectiveness of ICs at sites.
EPA and State programs need to ensure that the effectiveness of LTS, and institutional controls in particular, are periodically evaluated. Such an evaluation needs to go beyond simply determining whether an institutional control has been implemented, but rather whether the institutional controls are being implemented effectively and accomplish what they were intended to do. In other words, the evaluation should focus on determining whether the right information is being communicated to the right people at the right time.
Each cleanup program is encouraged to explore mechanisms for integrating the evaluation of institutional control effectiveness into their existing program operations. Likewise, to evaluate the effectiveness of institutional controls, it is necessary to know what to evaluate and what questions to ask; for example, not just that an easement or covenant was recorded, but whether it was recorded properly given the local laws and processes. Thus, a set of criteria or similar device would assist programs in evaluating the effectiveness of institutional controls at both the site-specific level, as well as for an entire program. The Superfund program is developing a standard set of questions for evaluating the performance of institutional controls. The Superfund program is encouraged to continue its development of institutional control evaluation questions, and to share them with other EPA, State, and Tribal cleanup programs. The objective is to ensure that cleanup programs have the proper mechanisms and tools available to determine whether or not institutional control implementation is effective or whether additional steps are needed to ensure their effectiveness. Such evaluations should occur more frequently than every five years, as many things can change with respect to whether and how institutional controls are being implemented at a site.
Recommendation #9: EPA should support the development an analysis of ICs to determine the reliance on (and burden to) State, Tribal, and local governments.
Because many cleanups involve managing wastes on site, restrictions on the use of the site are necessary. Often, EPA must rely on State, Tribal and local government laws and processes to provide the necessary restrictions, and on those government agencies to monitor restrictions to ensure that they are being implemented properly. This reliance on State, Tribal and local governments appears to be resulting in a significant burden that is only increasing as more sites enter the post-cleanup stage. EPA should analyze the extent to which its cleanup programs rely on State and local governments to implement, monitor, and enforce institutional controls and the extent to which these stakeholders are incurring a burden that may affect their ability to ensure the effectiveness of institutional controls. Such an evaluation should be conducted in concert with, and inform decisions related to, the recommendations provided under the funding and resource challenge below.
Recommendation #10: To enhance the availability and reliability of ICs, EPA should encourage States to review and consider the Uniform Environmental Covenants Act or similar legal provisions for potential State applicability.
To address some of the shortcomings of State and local property laws with respect to institutional control implementation and enforcement, the National Conference of Commissioners on Uniform State Law (NCCUSL) promulgated in 2003 the Uniform Environmental Covenants Act (UECA). NCCUSL is made up of lawyers chosen by the States and oversees the preparation of proposed uniform laws, which the States are encouraged to adopt. UECA is intended to provide a uniform set of provisions that States could adopt to overcome the inadequate common law rules affecting land use controls. It provides clear rules for a perpetual real estate interest-an environmental covenant-to regulate the use of contaminated properties when real estate is transferred from one owner to another. By ensuring that institutional controls are maintained and enforced, UECA would help to fulfill the dual purposes of such restrictions-the protection of human health and the economically viable reuse of the property in question.
It is advisable that EPA should support the concepts or tenants of UECA or similar laws that address the problems associated with various archaic property law that govern in numerous States. In supporting such provisions that establish a legal basis for environmental covenants or their equivalent, EPA and States may be able to better select, implement, monitor, and enforce land use restrictions, resulting in more protective and cost effective remedies. Support of legal provisions comparable to UECA should come in the form of senior management statements of support (written or during presentations), dialogue with organizations representing States (e.g., ASTSWMO), Regional-State dialogue, and other general support through programmatic communications and documents.
Challenge: Ensuring the Effective Implementation and Evaluation of Engineering Controls
Engineering controls used to clean up a site may require LTS activities to ensure that the remedy functions properly and remains protective. To maintain the effectiveness and operational integrity of the engineering component of a remedy, LTS activities typically involve ongoing O&M, including performance monitoring, and periodic reviews and inspections. In addition, LTS activities may include periodic reviews of the engineering controls to improve their performance and/or reduce the annual operating cost of remedies without compromising protectiveness. Remedies involving engineering controls, and using monitoring networks, are designed and constructed based on the best knowledge of site conditions and technologies available at the time of construction.
The Task Force considered the following as potential LTS challenges and opportunities for improvement:
- There does not appear to be a specific process or mechanism for
evaluating the effectiveness of ECs and for determining whether changes
are necessary.
- Some remedies where contamination has been left in place are not reviewed periodically to ensure that the remedies are still protective
- Additionally, current Superfund EC evaluation guidance only covers
a small subset of sites- e.g., there is a universe of sites that do
not fit into the 5-year review cycle and that are not being reviewed.
- O&M plans do not always account for changes in science and technology,
and how such changes could be factored into a remedy evaluation process.
- Changes in site conditions or new science may alter the exposure
assumptions and cleanup standards. This could make existing ECs (and
ICs) overly protective or inadequate.
- Changes in cleanup or LTS technologies may result in the identification
of a more cost-effective remedy, or alternatives to the existing engineering
controls, particularly as the life expectancy of those controls approaches.
- Private sector firms may be developing new technologies (e.g.,
materials engineering, remote sensors, computing technology, and geochemistry)
and methodologies to support the monitoring of ECs and other oversight
responsibilities at sites.
Recommendation #11: EPA should adopt a flexible approach for re-evaluating the effectiveness of ECs and, if appropriate, modifying ECs to optimize remedial system performance and minimize LTS costs.
A significant element in reducing LTS costs may come from advancements in the fields of science and technology. In some cases, a new treatment technology may make retrieval and treatment more cost effective than ongoing long-term care and thus alleviate the need for a site to remain under long-term stewardship care. EPA, State, and Tribal cleanup programs may consider adopting a flexible approach and continually work to identify where new developments could be applied to LTS activities, or where advancements are desired. EPA and States may identify opportunities to enhance LTS operations by reducing risk, improving the reliability of monitoring methods used or employing new treatment technologies, or by reducing cost. This recommendation is not intended to create any new obligation for remedy review by EPA or the States. However, it is recommended that existing programmatic remedy reviews and optimization efforts consider new technologies and activities which would improve the effectiveness and or reduce the cost of LTS activities.
In order to provide new technologies for monitoring sites and optimizing remedies, the Federal Agencies and Departments should continue their investment in technology development.
Challenge: Ensuring that Funding and Other Resource Needs Are Adequate and Sustainable
A reliable funding source or mechanism is needed to ensure that the LTS responsibilities are fulfilled. For responsible parties, operating facilities, and new landowners, this may involve securing funding or other financial mechanisms. For government agencies with oversight and enforcement responsibilities, this may involve obtaining adequate funding through an annual appropriations process. With a true understanding of the life cycle LTS costs and a reliable source and mechanism for funding, sound decision-making will lead to cleanup actions that are both effective and fiscally responsible.
- Given the fiscal constraints that Federal agencies, States, Tribes,
and local governments are facing, funding to support LTS is uncertain
and may impact their ability to effectively monitor and enforce such
activities.
- As more sites reach the post-cleanup stage, State governments are
shouldering an increasingly large burden to carry out their LTS responsibilities.
- State, Tribal, and local governments currently face significant
funding constraints as they are subject to shrinking appropriations
from their respective legislatures.
- Local governments may also face similar funding constraints as States
turn to them for monitoring and enforcement needs.
- Other Federal agencies, such as DOI, do not have adequate funding
for LTS activities.
LTS Funding and Resources
Problem: It is not clear that reliable funding is available to ensure that LTS responsibilities are fulfilled over the long term
Goal: To ensure that LTS funding and other resource needs are adequate and sustained so that LTS activities are effectively carried out for as long as necessary
Recommendations:
- EPA should work with outside organizations to explore adequate and sustainable funding sources and mechanisms at the Federal, State, and local level to monitor, oversee, and enforce LTS activities.
- EPA should continue to explore the role of the private sector in supporting the LTS of sites and foster their involvement, as appropriate.
- State, Tribal, and local governments may have additional resource
needs to meet their LTS responsibilities.
- State, Tribal, and local governments need resources to develop and/or
enhance their institutional and personnel capabilities (e.g., to educate
and train their staff).
- States and Tribes need additional resources to develop information
systems to monitor sites, track activities, and share information
among the stakeholders.
- State and local government funds earmarked for LTS activities
may be re-programmed to other activities based on changing priorities.
- Funds intended for LTS activities do not sit in escrow or other
protected accounts and, therefore, may be directed for use by other
environmental, or non-environmental, programs if priorities change.
- New or alternative mechanisms for conducting and funding long-term
stewardship activities (e.g., insurance, trust funds) are increasingly
becoming available.
- States, such as Wisconsin and Massachusetts, have developed their
own programs where insurance companies take over the LTS management
for a portfolio of sites.
- Private sector firms have demonstrated (through pilot projects with
EPA and States) the viability of third-party trust mechanisms to assume
a direct property interest in remediated sites and take over all LTS
responsibilities for those sites, including inspections, operation
and maintenance, monitoring, and tracking implementation of institutional
controls.
Recommendation #12: EPA should work with outside organizations to explore adequate and sustainable funding sources and mechanisms at the Federal, State, and local levels to monitor, oversee, and enforce LTS activities.
Based on the current fiscal environment, funding to support LTS is uncertain and may be inadequate to implement necessary LTS activities. EPA may work with State and local organizations to conduct an analysis of funding issues, needs, and sources to determine whether adequate funding is available to fully implement LTS responsibilities across all sectors of govern-ment. In addition, as environmental budgets tighten at all levels of govern-ment, the governmental units responsible for LTS are going to have to be more creative in finding sources of funding for these activities. Insurance programs in States like Wisconsin, as well as activities such as New Jersey's annual LTS manage-ment fee program, and Federal tax incentives need to be evaluated to determine their potential for more wide-spread use in the LTS arena.
Recommendation #13: EPA should continue to explore the role of the private sector in supporting the LTS of sites and foster their involvement, as appropriate.
Where there is a viable owner/operator or other responsible party, such as at many RCRA, Brownfields, and UST sites, the success of LTS depends on their involvement and commitment.
It is the responsibility of the viable owner/operator to implement the selected remedy and also to conduct LTS activities at the cleaned-up site with engineering or institutional controls in place. Performance monitoring also belongs to the owner/operator or other responsible party, and is a critical aspect of remedial alternatives that leave waste in place and rely on engineering controls (e.g., caps and barrier walls).
Private entities developing innovative approaches are another potential source of LTS funding, and EPA should continue to examine these alternatives. For example, EPA should explore the viability of third party trust organizations like the Guardian Trust to determine the viability of its program and the potential benefits of its use to manage LTS sites. EPA might also want to explore the viability of alternative approaches that depend on the greater involvement of non-governmental entities, such as community or church groups to provide certain oversight or watchdog activities at LTS sites. These entities, while not in the traditional chain of government, might serve as a low-cost extra set of site monitors or historians.