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Key Issues and Recommendations Raised by Participants

Issue 1, Issue 2, Issue 3, Issue 4, Issue 5,
Issue 6, Issue 7, Issue 8, Issue 9, Issue 10

There were many detailed recommendations provided at the workshop. What follows are highlights of some of the issues that were discussed in greater depth, and a sample of some of the recommendations that were provided.

Issue 1:  There is a need for guidance on estimating the life cycle costs of Institutional Controls (ICs).

Sample recommendations for addressing this issue include:

  • Establish a national multi-agency working group to create a guidance document for estimating IC costs and balancing the costs of ICs with engineered remedial actions.
  • The contents of cost estimating guidance should cover the types of costs that should be included (e.g., property devaluation, other hidden costs), the stakeholders that incur such costs, the discount rate used in the analysis, and the period for which costs should be estimated.

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Issue 2:  There is a need to ensure that local governments and other agencies have the necessary funding and institutional capacity to implement, monitor, and enforce ICs.

Sample recommendations for addressing this issue include:

  • Consider conducting a survey of states to determine what the current funding mechanisms are and where gaps may be present.
  • Consider establishing trust funds such as the current Pennsylvania pilot;
  • Utilize private insurance to cover the costs of IC breaches.
  • Consider training for local organizations tailored to their specific role with regard to ICs.
  • Consider allocating environmental grant money for stakeholder participation in training.
  • Consider involving Potentially Responsible Parties (PRPs) in training on the entire process of implementation, monitoring and enforcement.
  • Consider annual billing to the PRP, or placing liens on property to cover monitoring costs.

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Issue 3:  There is a need for guidance on IC language in Records of Decisions (RODs) and other documents, as well as when existing IC language in RODs or other documents should be changed.

Sample recommendations for addressing this issue include:

  • Meet with local stakeholders and utilize their expertise prior to the development of IC language to ensure that the language is practicable.
  • Legal analysis and language drafting should be done by a team that includes the state attorney general, site managers with technical knowledge, local planners or attorneys, EPA regional counsel, the site owner, community stakeholders, and environmental and real estate attorneys.
  • Designate key IC experts within EPA as a resource that may be tapped for technical questions.
  • IC mechanisms (e.g., proprietary controls, zoning) should be specified in the ROD.
  • The ROD should contain language on what actions should be taken if the IC fails.
  • Duration and conditions for modification and termination should be included.
  • A description of what settling parties will do to obtain restrictions for ICs or from non-signatories should be included.

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Issue 4:  The limitations on EPA property acquisition under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 104(j) pose a challenge for implementing ICs.

Sample recommendations for addressing this issue include:

  • EPA may consider developing model state legislation on ICs to facilitate the transfer of proprietary interests.
  • EPA may explore the possibility of designating another federal agency to receive proprietary interests under certain circumstances.
  • Many participants suggested that amendments to CERCLA and RCRA allowing EPA to hold proprietary interests would ultimately facilitate the implementation, monitoring and enforcement of ICs greatly.

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Issue 5:  Implementing ICs on properties owned by non-signatory, non-liable parties poses special challenges.

Sample recommendations for addressing this issue include:

  • Emphasize making an effort to select remedies with broad public acceptance as a way of avoiding difficulties with National Oil and Hazardous Substances Contingency Plan (NLP) implementation.
  • Utilize overlay zoning, state well restrictions, or other regulatory controls instead of proprietary controls.
  • Consider developing guidance to identify NLP implementation issues through a pre-ROD implementation plan (i.e., an IC Plan).

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Issue 6:  Information infrastructure, management and dissemination for ICs.

Sample recommendations for addressing this issue include:

  • Making IC information available to the public via an Internet database would enhance IC effectiveness by increasing public awareness of the role of ICs in their community.
  • Developing a "one call" or "Miss Utility" type system where individuals can place a phone call to determine whether there is an institutional control in place at a particular site.
  • There is a need for standards to follow when tracking ICs.
  • EPA and the states should utilize local agencies such as health departments and planning departments to notify individuals of ICs.

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Issue 7:  The lack of uniformity in applicable state laws impedes the development of national guidance.

A sample recommendation for addressing this issue is:

  • Consider conducting an analysis of state laws that are applicable and relevant to ICs. This would be analogous to the Applicable and Relevant or Appropriate Requirement (ARAR) analysis that is currently done under CERCLA.

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Issue 8:  There is a need for a better understanding of when and how much layering is appropriate.

Sample recommendations for addressing this issue include:

  • In additions to developing general guidance, some participants suggested using a "layering worksheet" similar to the DOD/EPA workgroup product. The worksheet is used to examine overlapping ICs and shows how the Regional Particulate Model (RPM) works with local government and other parties to get information.

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Issue 9:  There is a need for guidance on monitoring to detect IC breaches, and response actions to such breaches.

Sample recommendations for addressing this issue include:

  • Improving public awareness of ICs through an Internet database, notification to nearby property owners, or other public outreach methods.
  • Consider using warning letters for minor violations, and stipulating penalties for major violations.
  • Consider developing guidance to help states develop consistent monitoring processes, including standards for local governments or other local agents.
  • Consider developing a sliding scale at the regional level for the degree of monitoring based on health risk or the risk of failure.

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Issue 10:  There is a need for detailed guidance and training on the process of implementing ICs.

Sample recommendations for addressing this issue include:

  • Guidance should call for the early identification of, and coordination with, all stakeholders.
  • Consider requiring that the IC negotiation process take place concurrently with remedy selection.
  • Consider developing model Land Use Control Implementation Plans (LUCIPs) and for use at all National Priorities List (NPL) sites and RCRA facilities.

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