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Regulators Develop Framework to Address the “Hidden Costs” of Institutional Controls Associated with Remedial Site Cleanups

Companies undertaking remedial cleanups at Brownfield and CERCLA sites should anticipate increased cost estimates for long-term stewardship and oversight in response to a recently issued report by the Association of State and Territorial Solid Waste Management Officials describing fundamental flaws in the current cost estimation methodology associated with long-term stewardship.

The report, entitled “A Long-Term Stewardship State Conceptual Framework to Estimate Associated Cost,” explains that the cost estimates developed to operate long-term stewardship programs have failed to internalize the oversight costs incurred by the state regulatory agencies, focusing instead only on the institutional controls themselves. In particular, the report describes the following categories as areas that are often overlooked for cost accounting: tracking and reporting of data including database and website maintenance; working with stakeholders and meeting costs; and enforcement and compliance efforts. As a result, the report notes that state regulatory agencies may not necessarily be able to ensure protection of public health when the true costs are not recognized, particularly when state budgets are lean.

Institutional controls are administrative and legal controls, such as restrictions on soil excavation, prohibitions on groundwater wells and drilling activities, zoning restrictions and the like, designed to minimize exposure or protect the integrity of the remedy. Institutional controls are a key component of the long-term stewardship of remedial sites after cleanup goals have been met.

The report recommends that regulatory agencies develop long-term stewardship programs that incorporate the following six elements:

  • Institutional controls;
  • Monitoring and inspection procedures;
  • Enforcement mechanisms;
  • Information and data management systems;
  • Community engagement activities; and
  • Financial resources to ensure protection of human health and the environment.

Businesses involved in remedial site activities and Brownfield cleanups, whether voluntary or through enforcement, may benefit from learning how the recommendations in the report may impact site institutional controls and cleanup cost forecasting.