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Use of Institutional Controls as Part of a Superfund Remedy: Lessons from Other Programs

March 1996

Citation: ELR 10109

Author: John Pendergrass

Editors' Summary: Institutional controls are a mechanism for providing a certain degree of safety in the absence of technology that could clean contaminated sites thoroughly. Institutional controls come in a variety of forms, each of which can be designed to meet specific site needs. Flexible but long-lasting mechanisms such as institutional controls can be used to ensure that land uses continue to be compatible with the level of cleanup at a site. If Congress amends CERCLA to require EPA to take future land use into account in selecting the type and level of cleanup required at particular sites, institutional controls will become an important and integral element of many remedial actions. This Article describes how institutional controls have been used at contaminated sites and in analogous situations. The author concludes that understanding the lessons offered by past experience with institutional controls will provide valuable knowledge to CERCLA policymakers addressing how best to protect humans from long-term risks at contaminated sites. The use of institutional controls in the broad variety of situations examined in this Article confirms that they can be useful tools for managing risk, but also confirms that no institutional control can eliminate risk entirely.

This study was prepared with funding from the U.S. Environmental Protection Agency (EPA) under Cooperative Agreement # CR-820539-01. ELI Project #922042.

John Pendergrass is a Senior Attorney at the Environmental Law Institute (ELI). He graduated from Lyman Briggs College of Michigan State University (B.S. 1976) and from Case Western Reserve University Law School (J.D. 1979). The author thanks James McElfish and Heather Wicke, who contributed substantially to this Article, as well as Meghan Clancy-Hepburn, Jamie Dycus, David Spohr, David Vaughn, and Eric Wilkinson, and Ted Sears for his helpful comments.

EPA staff contributing to this project included Harriet Tregoning, Chris Montgomery, Tom Davis, and Jeff Anderson. The author also gratefully acknowledges the help of staff from the states of Connecticut, Florida, Oregon, and Vermont, and from the U.S. Department of Energy, U.S. Army Corps of Engineers, and the Federal Emergency Management Agency. Although the information in this document has been funded in part by EPA under Cooperative Agreement CR-820539-01 to ELI, it does not necessarily reflect the views of the Agency and no official endorsement should be inferred.