Hazardous Waste Sites: Improved Effectiveness of Controls at
Sites Could Better Protect the Public (28-JAN-05, GAO-05-163).
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.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-05-163
ACCNO: A16196
TITLE: Hazardous Waste Sites: Improved Effectiveness of Controls
at Sites Could Better Protect the Public
DATE: 01/28/2005
SUBJECT: Environmental monitoring
Environmental policies
Hazardous substances
Internal controls
Land management
Performance measures
Pollution monitoring
Program management
Waste management
Environmental cleanups
EPA National Priorities List
Superfund Program
EPA Resource Conservation and Recovery
Act Program
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GAO-05-163
United States Government Accountability Office
GAO Report to Congressional Requesters
January 2005
HAZARDOUS WASTE SITES
Improved Effectiveness of Controls at Sites Could Better Protect the Public
a
GAO-05-163
January 2005
HAZARDOUS WASTE SITES
Improved Effectiveness of Controls at Sites Could Better Protect the Public
[IMG]
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.
United States Government Accountability Office
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
1 5 8
10
27
35 42 43 43
Appendixes
Appendix I: Objectives, Scope, and Methodology 46
Appendix II: Comments from the Environmental Protection 53
Agency
Appendix III: GAO Contacts and Staff Acknowledgments 60
GAO Contacts 60
Staff Acknowledgments 60
Table 1: Frequency of Use of or Requirements
Tables for Institutional
Controls at Superfund Sites 11
Table 2: Frequency of Use of or Requirements
for Institutional
Controls at RCRA Facilities 11
Table 3: Provisions in EPA's Guidance Relating
to Determinations
on Institutional Controls 21
Figures Figure 1:
Figure 2:
Figure 3:
Presence of Residual Waste and Institutional Controls at
20 Superfund Sites Deleted during Fiscal Years
1991-1993 12
Presence of Residual Waste and Institutional Controls at
40 RCRA Facilities in Two Regions Where Corrective
Action Was Terminated before Fiscal Year 2001 13
Proportions of Types of Institutional Controls at 4
Superfund and RCRA Sites Cleaned Up before Fiscal Year
2001 14
Contents
Figure 4: Presence of Residual Waste and Institutional Controls at
53 Superfund Sites Deleted during Fiscal Years
2001-2003 15
Figure 5: Presence of Residual Waste and Institutional Controls at
31 RCRA Facilities Where Corrective Action Was
Terminated during Fiscal Years 2001-2003 16
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 17
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 20
Figure 8: Discussion of Key Elements Relating to Institutional
Controls in 93 Sets of Superfund Remedy Decision
Documents Issued during Fiscal Years 2001-2003 23
Figure 9: Discussion of Key Elements Relating to Institutional
Controls in 15 Sets of RCRA Remedy Decision
Documents Issued during Fiscal Years 2001-2003 24
Figure 10: Digging Under Way at a Deleted Superfund Site without
the EPA Site Manager's Knowledge 30
Contents
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
This is a work of the U.S. government and is not subject to copyright
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separately.
A
United States Government Accountability Office Washington, D.C. 20548
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.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.
1The Congress enacted RCRA in 1976 to establish a framework for managing
hazardous waste from its generation to final disposal.
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).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.
2In 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.
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.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
3The 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.
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 regions4 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
4Region III in Philadelphia and Region V in Chicago.
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 longterm
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:
o 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.
o Proprietary controls involve legal instruments placed in the chain of
title of the site or property, such as easements and covenants.
o 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.
o 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
lifecycle 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.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,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
5Sites 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.
6These sites include Superfund sites that were deleted from the NPL and
RCRA facilities where corrective action was terminated within the given
time period.
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 Percentage of sites with controls
Requirements for controls in 112 Superfund
remedy decision documents, fiscal years
2001-2003 83%
Controls in place at 53 Superfund deleted sites, fiscal years 2001-2003
Controls in place at 20 Superfund deleted sites, fiscal years 1991-1993
Source: GAO analysis of EPA data.
Table 2: Frequency of Use of or Requirements for Institutional Controls at
RCRA Facilities
Time periods or stages of cleanup Percentage of sites with controls
Requirements for controls in 23 RCRA remedy
decision documents, fiscal years 2001-2003 65%
Controls in place at 31 RCRA terminated facilities, fiscal years 2001-2003
Controls in place at 40 RCRA terminated facilities from 2 regions,
corrective action terminated prior to fiscal year 2001
Source: GAO analysis of EPA data.
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.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
No institutional controls (2)
Institutional controls (2)
7These 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.
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
Institutional controls (2)
No institutional controls (6)
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 3.8 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
8In some cases where the types of controls were not clear, we categorized
them on the basis of our evaluation of documents.
by the settling party, such as prohibiting well drilling).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.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
Consent order (1) Conservation easement (1)
Covenant (3)
Source: GAO analysis of EPA data.
Note: In some cases, our attorneys made determinations based on
evaluations of documents in order to categorize institutional controls.
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
9Consent 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.
10EPA, 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.
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
No institutional controls (4)
Institutional controls (28)
Source: GAO analysis of EPA data.
Note: Percentages presented in this figure do not add up due to rounding.
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
Institutional controls (4)
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).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.
11In 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.
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
Other types of institutional controlsa (21)
Easement (6)
Deed notice (8)
Consent decree (12)
Covenant (19)
Source: GAO analysis of EPA data.
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.
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.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.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
12One 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.
13To 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."
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.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.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
14Because 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.
15For 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.
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
Zoning (17)
Covenant (25)
Deed notice (29)
Groundwater use restriction (32)
Other types of institutional controls (55)
Source: GAO analysis of EPA data.
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.
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 Guidance provisions Sample language
Objective Managers should clearly state what will be General: Protect
human health and the environment. accomplished through the use of
institutional controls where contamination remains on the site. Specific:
Restrict the use of groundwater as a drinking water
source until the Maximum Contaminant Levels are met.
Mechanism Managers should determine the specific types of EPA will work
with the local jurisdiction to develop institutional controls that can be
used to meet the ordinances to restrict well drilling or prohibit
groundwater various remedial objectives. access until cleanup goals are
met.
Timing Managers should investigate when the institutional General: A deed
notice may be required in the short term, control needs to be implemented
and how long it and a formal petition for a zoning change may be necessary
needs to remain in place. in the long term.
Specific: The institutional control should be filed before the Remedial
Action is final.
Responsibility Managers should discuss and document any Work with the
state to determine whether it is willing and agreement with the proper
entities on exactly who able to hold an enforceable easement to ensure
appropriate will be responsible for implementing, monitoring, land use; in
addition, determine whether the local and enforcing the control or outline
potential government is willing to change and enforce the applicable
parties. zoning requirements.
Source: EPA guidance, September 2000.
As EPA's draft guidance on institutional controls16 points out, without
specific information on the institutional controls-such as their
objectives; the mechanisms (or kinds of controls) envisioned; the timing
of their
16EPA 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.
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
Percentage of documents
Percentage of documents
100806040200 020406080100
86 Objective of institutional controls
Mechanism of institutional
controls
Timing: Implementation
of institutional controls
Timing: Duration of
institutional controls
Responsibility:
Implementation of institutional controls
Responsibility: Monitoring 82of institutional controls
Responsibility: Enforcement of institutional controls
Information is contained in remedy decision documents
Information is not contained in remedy decision documents
Source: GAO analysis of EPA data.
Figure 9: Discussion of Key Elements Relating to Institutional Controls in
15 Sets of RCRA Remedy Decision Documents Issued during Fiscal Years
2001-2003
Percentage of documents
Percentage of documents
100806040200 020406080100
15 Objective of institutional controls
Mechanism of institutional controls
Timing: Implementation 14of institutional controls
Timing: Duration of institutional controls
Responsibility:
Implementation of institutional controls
Responsibility: Monitoring of institutional controls
Responsibility: Enforcement of institutional controls
Information is contained in remedy decision documents
Information is not contained in remedy decision documents
Source: GAO analysis of EPA data.
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.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
17In addition, 13 sets of Superfund documents referred to existing
institutional controls.
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 At the Superfund sites we reviewed, institutional
controls often were not
implemented before site deletion, as EPA requires. Moreover, efforts toin
Implementing, monitor institutional controls after they are implemented
may also be Monitoring, and insufficient. Finally, EPA may have
difficulties ensuring that the terms of Enforcing Institutional certain
types of institutional controls in place at some Superfund and
RCRA sites can be enforced, and state laws may limit EPA's ability
toControls 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
Source: GAO.
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.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.19
Ability to Enforce In addition to potentially inadequate monitoring, EPA
may have difficulties Institutional Controls enforcing the terms of
certain institutional controls currently in place, or Depends on the
Nature of planned, for some Superfund and RCRA sites. Some institutional
controls
selected for sites are purely informational and do not limit or restrict
use ofthe Control Selected and the property. Informational institutional
controls, according to EPA'sState Laws guidance, include deed notices,
state hazardous waste registries, and
18Facility 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.
19Environmental Law Institute, An Analysis of State Superfund Programs:
50-State Study, 2001 Update, (Washington, D.C.: 2002).
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.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 ofthe potentialdanger oflosing these barriers,EPA has
20The 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.
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.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,
21EPA 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.
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; explanationsofsignificant 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
o make institutional controls more effective by creating links across all
levels of government through a tracking network;
o improve EPA program management responsibilities;
o establish relationships with coregulators (other federal agencies,
along with state and local regulatory agencies);
o improve information exchange with individuals interested in the
productive use of a site after cleanup; and
o 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
o the site name;
o 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;
o the objectives of the institutional control;
o the specific control instruments, including the administrative or legal
mechanism that establishes a specific set of use restrictions;
o any person and/or organization that may be directly or indirectly
involved with institutional controls at the site; and
o 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:
o 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;
o 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;
o 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
o 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 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
Our Evaluation 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 toEPA, 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 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.
John B. Stephenson Director, Natural Resources
and Environment
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 ortermination todetermine 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
Appendix I
Objectives, Scope, and Methodology
(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.1 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,
1Resultsfrom 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.
Appendix I
Objectives, Scope, and Methodology
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
Appendix I
Objectives, Scope, and Methodology
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.
Appendix I
Objectives, Scope, and Methodology
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
Appendix I
Objectives, Scope, and Methodology
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.2 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
2Officials 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.
Appendix I
Objectives, Scope, and Methodology
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.
Appendix II
Comments from the Environmental Protection Agency
Appendix II
Comments from the Environmental
Protection Agency
Appendix II
Comments from the Environmental
Protection Agency
Appendix II
Comments from the Environmental
Protection Agency
Appendix II
Comments from the Environmental
Protection Agency
Appendix II
Comments from the Environmental
Protection Agency
Appendix II
Comments from the Environmental
Protection Agency
Appendix III
GAO Contacts and Staff Acknowledgments
GAO Contacts John B. Stephenson, (202) 512-3841 (stephensonj@gao.gov)
Vincent P. Price, (202) 512-6529 (pricev@gao.gov)
Staff In addition to the individuals named above, Nancy Crothers, Shirley
Hwang, Justin Jaynes, Richard Johnson, Jerry Laudermilk, Judy Pagano,
Acknowledgments Nico Sloss, and Amy Sweet made key contributions to this
report.
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