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. 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. Relying on institutional controls as a major  component of a selected remedy without carefully considering all of the  applicable factors—including whether they can be implemented in a  reliable and enforceable manner—could jeopardize the effectiveness of the  entire site remedy. EPA Faces Challenges in Implementing, Monitoring, and Enforcing Institutional Controls

At the Superfund sites we reviewed, institutional controls often were not  implemented before site deletion, as EPA requires. Ability to Enforce Institutional Controls Depends on the Nature of the Control Selected and State Laws

In addition to potentially inadequate monitoring, EPA may have difficulties  enforcing the terms of certain institutional controls currently in place, or  planned, for some Superfund and RCRA sites. Some institutional controls  selected for sites are purely informational and do not limit or restrict use of  the property. States have legislative options available to help ensure that institutional  controls can be 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. 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. As such, these data reflect  the planned use of institutional controls, which may or may not reflect the  controls as actually 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. Recommendations for Executive Action

In order to ensure the long-term effectiveness of institutional controls, we  recommend that the Administrator, EPA:  clarify agency guidance on institutional controls to help EPA site  managers and other decision makers understand in what cases  institutional controls are or are not necessary at sites where  contamination remains in place after cleanup;  ensure that, in selecting institutional controls, adequate consideration is  given to their objectives; the specific control mechanisms to be used;  the timing of implementation and duration; and the parties responsible  for implementing, monitoring, and enforcing them;  ensure that the frequency and scope of monitoring at deleted Superfund  sites and closed RCRA facilities where contamination has been left in  place are sufficient to maintain the protectiveness of any institutional  controls at these sites; and   ensure that the information on institutional controls reported in the  Superfund and RCRA corrective action tracking systems accurately  reflects actual conditions and not just what is called for in site decision  documents. 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. 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.
Why GAO Did This Study

The Environmental Protection Agency's (EPA) Superfund and Resource Conservation and Recovery Act (RCRA) programs were established to clean up hazardous waste sites. Because some sites cannot be cleaned up to allow unrestricted use, institutional controls--legal or administrative restrictions on land or resource use to protect against exposure to the residual contamination--are placed on them. GAO was asked to review the extent to which (1) institutional controls are used at Superfund and RCRA sites and (2) EPA ensures that these controls are implemented, monitored, and enforced. GAO also reviewed EPA's challenges in implementing control tracking systems. To address these issues, GAO examined the use, implementation, monitoring, and enforcement of controls at a sample of 268 sites.

What GAO Found

Institutional controls were applied at most of the Superfund and RCRA sites GAO examined where waste was left in place after cleanup, but documentation of remedy decisions often did not discuss key factors called for in EPA's guidance. For example, while documents usually discussed the controls' objectives, in many cases, they did not adequately address when the controls should be implemented, how long they would be needed, or who would be responsible for monitoring or enforcing them. According to EPA, the documents' incomplete discussion of the key factors suggests that site managers may not have given them adequate consideration. Relying on institutional controls as a major component of a site's remedy without carefully considering all of the key factors--particularly whether they can be implemented in a reliable and enforceable manner--could jeopardize the effectiveness of the remedy. EPA faces challenges in ensuring that institutional controls are adequately implemented, monitored, and enforced. Institutional controls at the Superfund sites GAO reviewed, for example, were often not implemented before the cleanup was completed, as EPA requires. EPA officials indicated that this may have occurred because, over time, site managers may have inadvertently overlooked the need to implement the controls. EPA's monitoring of Superfund sites where cleanup has been completed but residual contamination remains often does not include verification that institutional controls are in place. Moreover, the RCRA corrective action program does not include a requirement to monitor sites after cleanups have been completed. In addition, EPA may have difficulties ensuring that the terms of institutional controls can be enforced at some Superfund and RCRA sites: that is, some controls are informational in nature and do not legally limit or restrict use of the property, and, in some cases, state laws may limit the options available to enforce institutional controls. To improve its ability to ensure the long-term effectiveness of institutional controls, EPA has recently begun implementing institutional control tracking systems for its Superfund and RCRA corrective action programs. The agency, however, faces significant obstacles in implementing such systems. The institutional control tracking systems being implemented track only minimal information on the institutional controls. Moreover, as currently configured, the systems do not include information on long-term monitoring or enforcement of the controls. In addition, the tracking systems include data essentially derived from file reviews, which may or may not reflect institutional controls as actually implemented. While EPA has plans to improve the data quality for the Superfund tracking system--ensuring that the data accurately reflects institutional controls as implemented and adding information on monitoring and enforcement--the first step, data verification, could take 5 years to complete. Regarding the RCRA tracking system, the agency has no current plans to verify the accuracy of the data or expand on the data being tracked.