Estimating the Cost of Institutional Controls

Written by John Pendergrass of the Environmental Law Institute and Katherine N. Probst of RFF, Estimating the Cost of Institutional Controls  introduces a framework that can be used to think about and account for costs required to implement institutional controls (ICs).

Institutional controls are used at contaminated sites that are cleaned up to standards that require restrictions on the future use of the site. Specifically, ICs are used to ensure that assumptions about the restricted use of the site on which the cleanup is predicated are upheld and that the appropriate uses are maintained in order to prevent future human exposure to remaining contaminants.

Institutional controls can be used to limit what kind of structure is built on a piece of property, to limit the type of facility that can be built or how it may be used, to limit the use of groundwater, and to restrict excavation or other specific activities that might cause human exposure or harm part of the engineered remedy. By way of example, ICs may include state and local government land use controls (such as zoning restrictions), property-law based controls (such as restrictive covenants), government controls (such as certificates of completion), and informational devices (such as advisories).

Although institutional controls have been in use for decades, even those entities responsible for their implementation and maintenance appear in many cases to assume that ICs work automatically with little need for direct action. Prior reports by the Environmental Law Institute (ELI), Resources for the Future (RFF), the International City/County Management Association, and others demonstrate, however, that ICs must be actively monitored and maintained in order to be most effective. The costs of undertaking the activities needed to ensure successful implementation of ICs, however, only rarely have been included in cleanup budgets or cost analyses of cleanup alternatives, despite the fact that planning for and ensuring adequate funding is essential to the success of ICs. And, absent successfully implemented ICs, remedies may not provide the level of protection expected, or promised.

The goal of this report is to provide a framework for considering and estimating the costs of implementing ICs. The framework does not attempt to actually quantify the costs of institutional controls--which differ vastly from situation to situation and typically are insufficiently documented, but rather it provides what we hope is a useful instrument for estimating and analyzing the costs of institutional controls.

Specifically, the report outlines questions to ask and issues to consider during the development of a remediation plan to assure that the costs of ICs are addressed as part of the remedy. This is critically important, as often these costs are overlooked in this important stage of the decision-making process. State and local governments and other groups interested in the remediation of contaminated sites may use the framework as a checklist of the tasks and activities that are important to successfully implement ICs. The analysis prompted by the framework should help to avoid unanticipated costs and complications for all parties involved in a site remediation process.