231-D-89-001
IMPLEMENTATION OF INSTITUTIONAL CONTROLS
AT SUPERFUND SITES
Final Draft. October 15, 1989
Prepared for;
Office of Policy Analysis
U.S. Environmental Protection Agency
Washington, D.C
By;
Sobotka & Company, Inc.
Washington, D.C
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EXECUTIVE SUMMARY
Institutional controls (ICs) are legal, non-engineering measures to prevent human
exposure to contaminants at hazardous waste sites. They can include various measures
such as a local ordinance to prevent use of contaminated ground water, or a deed
restriction to prevent future inappropriate use of a property where contamination remains
on-site.
This paper discusses implementation questions associated with the use of
institutional controls in the Superfund program. Specifically, the paper focuses on the
following questions:
1) How effective have ICs been at sites where they have been used?
2) What factors determine their effectiveness?
3) How can EPA improve the effectiveness with which ICs are used?
Our answers to these questions derive from: 1) Detailed case studies pf 10 National
Priority List (NPL} sites at which ICs have been in use for some length of time. and^T
m \ t mm III I l._l ' L_ -JS " Jil'IT ¦ f . 'i' i. ""L£i " .¦!! , m t /
Phone conversations wTtB over 40 EPA Remedial Project Managers (RPMs) tor sites
where ICs were selected in the Record of Decision (ROD). We began by identifying 51
sites with pre-1988 Records of Decision (RODs) for which ICs had been selected as part
of the remedy. We removed 9 of the 51 sites from consideration as case studies because
they had been studied previously (See footnote 1 in text of report). We then interviewed
the RPMs at the remaining 42 sites by phone. Based on our impressions from the phone
interviews the set of 42 sites was first narrowed to 16 and then eventually to our 10 case
studies.
Selection of the ten case studies was based on a desire to study sites where a
range of ICs were being implemented, where the remedy had proceeded far enough to
determine whether ICs were working, and where we believed there existed "key issues"
which affect the success of ICs generally.
We draw the following observations from our phone calls and case studies:
o There are virtually no sites at which an IC is being used as a substitute for a
feasible engineering remedy. ICs are nearly always used to^suppjemgnt engineering
measures.
o ICs are hq»h fr*tqii/»ntfyLjo restrict use of contaminated ground water, or
to prevent_inappFQpriate.-activitieSv.at a site where waste is to remain on-site. ICs
are rarely used for other purposes.
o State or local laws typicall^rpyktejhe jauguwity for ICs,
i
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an IC is rare. This means that th^fisponsibiliiv^or establishing and implementing
an IC typically lies with state or local government.
o ICs are relatively less important than other elements of the remedy at most
sites. At most sites RPMs devote their efforts to implementing engineering
measures before ICs. ICs are rarely used as interim protective measures while the
engineering portion of a remedy is planned and implemented.
o There is little basis yet for judging the long-term effectiveness of ICs at
Superfund sites. Most ICs, were they have been established, are only several years
old.
o There are substantial differences in the frequency with which the 10 EPA
Regions use ICs in their Superfund site remedies.
o There is wide variation in the expertise of RPMs about ICs. RPMs requested
several sorts of assistance from EPA Headquarters regarding ICs: a better
understanding of the range of controls available and enforceable under state and
local laws, and a more careful process for evaluating and developing ICs before
they are included in a ROD.
o ICs are rarely used in the Removal Program. On-Scene Coordinators (OSCs)
focus on removing immediate threats, while ICs typically serve to prevent problems
from developing over the longer term. Nevertheless, there are several examples
of removal action sites where subsequent problems occurred that could have been
prevented had the removal action been supplemented with ICs.
We also identified several policy issues relating to ICs that EPA should attempt to
resolve. They are:
1. Protecting unwilling homeowners from ground-water contamination. At most
sites where ICs are intended to prevent homeowners from using private wells in
contaminated aquifers, some homeowners have refused to abandon their wells. In some
cases they want to keep their wells to supplement a clean alternate water supply; in
others they reject the alternate supply altogether and prefer continuing to use their own
contaminated water. The general question is whether EPA should comogJ homeowners,
to switch to alternate water sources. Among the sites we investigated, EPA, state and
local governments have rarely compelled abandonment of contaminated supplies. RPMs
believe that the r^SppnciK;itn>< *nd with offering homeowners the option of
switching to a clean water supply.
However, the fraction of homeowners accepting an offer to switch to an alternate
water supply depends heavily on how much 9/ the costs of the alternate water must be
paid by the homeowners. At the eight sites we studied where alternate water supplies
are envisioned, homeowners have been asked to pay widely differing amounts depending
ii
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on various factors at the site (i.e. PRP contributions, whetitdr Federal primary MCLs are
exceeded, etc.). Different results ensued.
We believe EPA should adopr-Tl^si^fl"^ issues. Absent a
consistent policy, inequitable levels of protection may be provTcleH"across sites. It would
also be helpful for EPA to determine action levels at which risk from contaminated
ground-water is considered great enough to offer or compel a switch to public water.
(£^\t many sites. ICs arc^fjjffcing implemented"al^ecified in the ROD In
jT some cases different ICs are developed man were envisioned in the ROD; in others no
ICs are implemented at all. The most common explanation for the divergence between
what is called for in the ROD and what actually is implemented is too little investigation
of ICs before they were written into the ROD. Many times, RPMs have subsequently
found it difficult or impossible to establish an IC as written in the JIQD, The specific
legal authority for tne It^s, wnois responsible fbrestablishing and enforcing them, and
how exactly they will operate are rarely worked out in advance of the ROD.
v We recommend that at any site where ICs have the potential to increase the
^ 1 protectiveness of a remedy, candidate ICs should be thoroughly invcstjgatcd_and decided
upon simultaneously with the engineering remedy. The ROD shoaiaTpecifv what a
f particular IC will require, who is responsible tor implementation and enforcement, and
how long it should last""
3. Institutional controls on ground-water use should be decided upon simultaneously
a_. with alternate water supplies. ICs on ground-water use and provision of alternate water
i\ supplies are closely linked. The details of both should be worked out simultaneously.
Absent an alternate water supply. ICs are extremely unlikely to be adopted,
enforced ana complied with. The financial implications to the community and
homeowners of the alternate water supply will""determine' how willing they are to
implement and support ICs. Given that ground-water restriction lC!s inevitably rely on
local government or state authority and implementation, local enthusiasm for them is
critical to their success. As the compensation of homeowners and the community for the
costs of alternate water becomes more generous, homeowners have greater incentive to
switch to the alternate water, and communities are more willing to adopt effective ICs.
If, however, ICs are left to be designed after an alternate water supply agreement has
been reached, EPA will have little leverage to persuade local governments to adopt
effective ICs.
4. Use of ICs at Fund-lead vs. Enforcement-lead sites. Some individuals have
argued that the use of ICs should be encouraged at Fund-lead sites to reduce Federal
remediation costs and stretch Superfund monies to cover more sites. Others have argued
that use of ICs at Enforcement-lead sites should be monitored very closely, to prevent
PRPs from substituting ICs for more expensive — but less protective -- engineering
remedies.
iii
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In practice, the use of ICs appears to be more frequent at Enforcement-lead sites.
We cannot judge whether this is good or bad Across the case study sites, PRPs seem
clearly to have been more successful in prompting effective ICs than has EPA. PRPs
typically obtain better ground-water ICs than does EPA because PRPs are more willing
to conclude innovative agreements with communities and homeowners to heavily subsidize
the costs of alternate water supplies. Similarly, it is often easier for PRPs to impose
deed restrictions on properties they own than it is for EPA to persuade local governments
to use their authority and restrict land use in ways that typically reduce the local tax base.
iv
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CONTENTS
EXECUTIVE SUMMARY i
CONTENTS v
UST OF TABLES vii
I. INTRODUCTION 1
II. THE SITE SCREENING AND SELECTION PROCESS 2
Identification of NPL Sites Where ICs Were Selected as Part of the
Remedy 2
Selection of Preliminaiy List of Sites as Candidates for Detailed Case
Study 2
Selection of the Final List of Sites for Case Studies 6
III. OBSERVATIONS FROM A GENERAL REVIEW OF IC USE 24
Role of ICs 24
Purposes for ICs 25
Authorities for ICs. . . 25
'" importance of ICs 7 . . 26
Experience with ICs. - 26
Regional differences in use of ICs. . , 26
Requests for assistance in implementing ICs 27
Use of ICs in the removal program 28
IV. OBSERVATIONS FROM THE 10 CASE STUDIES OF ICs 31
Protecting unwilling homeowners from ground-water contamination 31
At many sites, the provisions regarding ICs are not being implemented as
specified in the ROD 37
Institutional controls on ground-water use should be decided upon
simultaneously with alternate water supplies 40
Use of ICs at Fund-lead vs. Enforcement-lead sites 41
V. CASE STUDY SITES 43
Arsenic Trioxide, North Dakota 44
Beacon Heights, Connecticut 52
Denver Radium Site Streets, Colorado 58
Friedman Property, New Jersey 63
Lake Sandy Jo, Indiana - 68
Libby Ground Water Site, Montana 76
Olean Well Field, New York 83
Seymour Recycling Corporation, Indiana 92
Waldick Aerospace Devices, New Jersey . , 101
v
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CONTENTS
Winthrop Landfill, Maine 108
Attachment 1—Unlikely Sites to be Good Candidates A-l
Attachment 2~Authorities for Institutional Controls B-l
^ | . . ¦¦ -I, n , — ¦ r n nn, ¦ MiitMi. ¦ ¦ ¦ fnn
Attachment 3—RPM Comments for IC Implementation Assistance C-l
vi
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List of Tables
Table 1 — Preliminary Site Candidate List 3
Table 2 -- Preliminary Site Candidates 8
Table 3 - Case Study Sites 23
Table 4 — Description of ICs on Ground-Water Use 33
vii
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I. INTRODUCTION
Institutional controls arc legal, non-engineering measures to prevent human
exposure to contaminants at hazardous waste sites. They can include measures such as
a local ordinance that prevents new drinking water wells from being drilled into a
contaminated aquifer, or a deed restriction that prevents a future use of a property that
would disturb a cap over hazardous waste left at a site. They have been used frequently
at sites under Superfund, RCRA and other waste programs.
Despite the frequent use of ICs, however, opinions are quite mixed about their
effectiveness and appropriate role. Some individuals strongly support them as providing
particularly cost-effective enhancement to the protectivencss of a remedy or corrective
action. At some sites, ICs in combination with natural processes that dissipate or
eliminate contamination over time could even substitute for engineered measures. Other
individuals believe that ICs are often ineffective and that they distract attention from the
need for permanent engineered solutions to contamination problems.
The appropriate role for ICs has been debated extensively at EPA and elsewhere;
it is not our intention in this paper to discuss this issue further. This paper focuses
instead on a somewhat narrower set of implementation questions involving ICs:
o How effective have they been at sites where they have been used?
o What factors determine their effectiveness?
o How can EPA improve the effectiveness with which they are used?
These questions are important whatever the policy is on the role for ICs — whether they
can be used as the sole element of a remedy at a site with no engineering action being
taken, or whether they can be used only as a supplement to engineering measures.
We have investigated these IC implementation questions by studying the use of ICs
at Superfund sites. We discussed ICs with over 40 EPA remedial project managers
(RPMs) for NPL sites where ICs had been selected in the Records of Decision (RODs).
We selected 10 of these sites and performed detailed case studies of IC implementation
at them. In addition, we discussed the use of ICs in the Superfund removal program
with most of EPA's Regional removal program coordinators. We have not investigated
IC use at Federal facility sites to any appreciable degree. The individuals associated with
the Federal facility program that we contacted (at EPA, DOD, DOE) all advised us that
there is very little experience yet with use of ICs at Federal facility sites. Policies
regarding use of ICs at Federal facilities are unsettled and site managers would not be
able to tell us what their plans are with regard to use of ICs.
1
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EL THE SITE SCREENING AND SELECTION PROCESS
This section discusses the process used to select the sites we investigated.
Identification of NPL Sites Where ICs Were Selected as Part of the Remedy
We conducted a search of the ROD Annual Reports for 1984 through 1986 and
of a special ROD database maintained by OSWER to identify sites with RODs in which
the words "institutional controls" appeared. We then reviewed the RODs for each of
these sites and all of the 1987 RODs to identify sites at which ICs were recommended
as part of the selected remedy. We thus reviewed all pre-1988 RODs in search of those
where ICs were explicitly chosen as part of the remedy. The 51 sites identified by this
procedure are listed in Table 1 on page 3, which characterizes the sites by the following
categories: 1) The intent of the recommended IC, 2) The IC's enforcement mechanism
or authority and 3) The role of the IC relative to the engineering remedy.
The 51 sites we identified where ICs were selected as part of the remedy represent
approximately 18% of sites with RODs signed before 1988. This does not necessarily
mean that ICs are being used at 18% of NPL sites. At many sites where ICs have -been
selected in RODs they have not been implemented. In all likelihood, there are also many
other sites where ICs were not mentioned in the ROD but have been established
nevertheless.
We did not review RODs from 1988 or later because we thought it unlikely that
ICs at such newer sites would provide much in the way of implementation experience.
Selection of Preliminary List of Sites as Candidates for Detailed Case Study.
We aimed to select 10 of the 51 IC sites. One of our initial selection criteria was
that the 10 sites show substantial variation in the characteristics displayed in Table 1:
o The type of restriction -- ground water, land use, or other,
o The enforcement mechanism - voluntary agreements; federal, state, or local
laws; easements or land purchases; deed restrictions; etc.; and
o The role of the ICs -- central or supplemental to the selected remedy.
2
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TABLE 1
ir-jui-tt
looiaoKi rot rmiNlnuf ic ca*oid«ti tut miiii
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tka I«fiar4 liriHM («k4 In II* anal rapart Mara Inadaqnata In aavaral raapacta and attan •lacataparltad IC tltaat
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taltvllla Uaata klapaaal Panda, ana lalaa-aawllla. Tkaaa altaa altkar aid nat «apl*y iCa aa datlnad In aur analyal* ar Partalna la anr raatrlctian an tramd aatar uaa autllnad In ika K>, far aaaapla, thla alfht taka I ha I or* af Mk I raatrlctlana abava cantaalnatad ac^jlfara ar fliaai.
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("•I Panama ta any IC raatrlctian uaad tar athar purpoaaa than aita land ar trudaattr prohibitions. tuck ICa could ba laplanantad tar aff-alta raaady facilitation taaaaaaanta) ar pravantlon
•f accata ta cantaalnatad all-all* aurfaca aatar.
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(M) Ikaa* allaa aar a Includad In larafc alchalaa* lludy. Ian al tka altaa ICDa da not aantlan ICa, tut ICa h*wa baan laplaaantad ar dlacuaaad (l.a, lacky HatMaln canaant dacraa). Tka follauln* alckotaa
altaa «ara nat Includad barauaa tkay did nat addraat Inatltutlanat caniralai CaldMall trucking, takl^i (lactrlc tlta
LA It) If all talla art blank, tka MD did nat apaclfy i*at tffa al Inatltutlanat (Antral ta ba laptaaantad.
<() MtMra all catta ara Mana, tka M» did nat apaclfy Ik* aackanlaa.
(II In ICata anty canatdarad ta ha cantral ta tka nanV II na anflnaarlna talutlan uaa piamad aa part af tka randy, far aaaapU. II • cantaalnatad alta atth (¦> Mara ta ra(y anty an natural attamuailo
lar cantaalnatlan dltutlan and aulualvaly rallad an ICt t* alnlalia kaai aipaaura, tka IC uauld ba conaldarart cantral ta tka raaady.
Ia IC aaa •n^liaMlaC If tka IC aa* aaant ta accaapany uaa atkar typa df raaadlattan ar central at I ha alta. far aifila an l^artint M altkdraxal raatrlctian at a ilta altk altarnata «*iar
ta canaldarad "a^plaawital".
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Nine of the 51 identified sites were removed from consideration because they had been
previously studied.1 We then contacted the Remedial Program Managers for the
remaining 42 sites by phone to determine for each site: the current status of the ICs;
whether the ICs in effect were the same as those recommended in the ROD; whether
there were any unusual or innovative ICs used; and the method for implementing and
enforcing the ICs. We wanted to identify those sites where ICs were actually being
implemented, where the remedy had proceeded far enough to assess whether the ICs
were working, and where there might be "key issues" that affect the success of ICs
generally, such as enforcement problems or innovative responses at a site.
Based on this information, we identified 16 sites as good candidates for further
analysis. A summary of information collected for each of the 16 candidate sites is
provided in Table 2 on page 8, covering; a description of the IC recommended in the
ROD, its purpose, the implementation status of the IC at the site, and key issues
associated with each of the sites. A brief explanation of the reasons for rejecting the
other sites from further analysis is provided in Attachment 1 on page A-l.
Based on the information collected for all 51 pre-1988 IC sites, we developed some
general observations on the use of ICs in the Superfund program. These are discussed
in Section III.
Selection of the Final List of Sites for Case Studies
We provided the information collected on the 16 sites to EPA, and the Agency
made the final decision on which of them to select as case studies. EPA wanted the set
of case studies to present a variety of IC issues, to be geographically diverse, and to
include both fund-lead and enforcement-lead sites.
EPA was also interested in studying use of ICs at federal facility sites and removal
action sites, as well as at the more typical remedial action sites. However, because of the
difficulty in identifying a suitable federal facility site and because emergency removal
actions typically do not use formal ICs, federal facility and emergency removal action sites
were not included as case studies.2 The final list of 10 sites selected for case study is
shown in Table 3 on page 23. The list includes sites from Regions I, II, V, and VIII.
1 They were examined in a study prepared for EPA-Region II entitled, 'Institutional
Controls at Superfund Sites, A Study of Implementation and Enforcement Issues,"
September 22, 1988.
2 The Federal Facilities program is relatively new. Little design or remediation work
has yet occurred at federal facility sites and we were unable to find sites where ICs have
been used. The Rocky Mountain Arsenal site was not considered because it has been
previously studied (See footnote 1).
6
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Five of the sites are fund-lead sites and five are enforcement-lead sites.
Our specific observations regarding implementation, enforcement, and other IC
issues drawn from these case studies are provided in Section IV. A description of each
of the selected sites and a discussion of how ICs have been used at them are provided
in Section V.
7
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Table 2
Site 1C in ROD
]. Beacon Heights, State and local
CT ICs on GW use
will be enforced in
impacted area.
2. Friedman
Property, Ni
Deed Restrictions
for onsite
excavation and
agricultural or
residential use.
Preliminary Site Candidates
IC Purpose
Prevent
consumption of
contaminated gw
IC Implementation
Status
Consent Decree
says PRPs will
offer to hook up
58 houses down-
gradient of the
site. PRPs require
wells to be
plugged for people
who agree to
municipal hookup.
Kev Issues
1. Not all houses
may agree to
municipal hookup,
2. New wells not
covered in the
consent decree.
Prevent specified
uses of site
Under New Jersey
law, state must
approve
"disruption" of
solid waste (SW)
facility. State
prefers to be
implementing
agency, so is
therefore using
N.J. sw law to
accomplish
purpose of IC
rather than deed
restrictions.
Use of means
different than
that called for in
the ROD to
achieve the same
end. Worthwhile
to investigate pros
& cons of this
approach.
-------
Tabic 2-Prcliminary Site Candidates
3. Winthrop
Landfill, ME
vO
Deed restrictions
Prevent specified
Town of Winthrop
Good site to
prohibiting use of
uses of site;
has passed GW
investigate
landfill; prohibition
Prevent
Protection
implementation
of gw withdrawals;
consumption of
Ordinance which
issues since
prohibition of
contaminated gw;
does the following:
ordinance
excavation except
Prevent
1) delineates a
approach chosen
for residential
interference with
"water protection
over deed
construction or
remedy
area" (WPA); 2)
restrictions. Plume
remedial action.
prohibits removal
is moving beyond
of gw by any
formerly
means within the
established WPA.
WPA; and 3)
Remedial action
prohibits
awaiting definition
excavation within
of ACLs. Town
WPA. Town can
considering
amend boundaries
expanding WPA.
of WPA.
-------
Tabic 2-Preliminary Site Candidates
Site
4. Arsenic
Trioxide, ND
IC in ROD
ROD mandates
provision of water
via a rural
treatment plant
and distribution
system to nearby
farm areas. ICs to
be investigated
during design
phase but
restrictions on new
and existing wells
are mentioned in
the ROD.
IC Purpose
Prevent
consumption of
contaminated
GW.
IC Implementation
SlalMS
Emergency
removal action has
been completed to
ensure safe
drinking water to
the city of
Ledgerwood.
Design of full
remedy not
complete. Homes
near the site have
been provided
with aluminum
filtration units at
no cost to
homeowners.
Rural water
treatment plant
under construction.
Hook up of
residences to rural
water system has
not been initiated
yet
Key Issues
Project manager
foresees much
difficulty in getting
people to hook up
to water supply.
The potential cost
could be as high
as $1300 per
home. Residents
have expressed
strong inclination
to keep using
existing wells.
Issues concerning
whether costs for
various city water
treatment plants
should be paid by
the fund.
-------
Table 2--Prcliminary Site Candidates
Site
5. Olean Well
Field, NY
IC in ROD
ROD called for 93
homes in
contaminated area
to be hooked up
to public water
supply. ROD also
recommended
prohibition of gw
use where aquifer
exceeds 5 ppb of
TCE. ROD also
directed that any
municipal water
welts be equipped
with air stripping
towers.
IC Purpose
Prevention
consumption of
contaminated
GW.
IC Implementation
Statu?
Only some
residents have
been connected to
municipal water
supply. Local
Health
Department has
jurisdiction to
condemn wells,
but has limited its
role to "educating"
residents on GW
use danger. In
early 1981, carbon
adsorption units
offered to
residents, but most
refused them. A
more recent
administrative
order requires the
PRPs to pay hook
up costs for
homeowners who
switch to city
water and
reimburses them
for water usage.
Kev Issues
Two key issues:
1) Local Health
department did
not exercise its
authority to close
existing wells and
restrict use.
2) Although
administrative
order forces PRP
to pay for hook
up to city water,
residents are not
compelled to sign
contract and
switch to city
water. Issue of
how to force
residents to switch
water supply in
absence of local
ordinance is
interesting to
pursue.
-------
Table 2-Prcliminaiy Site Candidates
Sit£
1C in ROP
1C Purpose
IC Implementation
Status
Kev Issues
6. Libby
Groundwater,
MT
N>
Continuation and
expansion of PRP
created "Buy
Water Plan" and
the enactment of
a local ordinance
prohibiting
installation of new
wells for human
consumption and
irrigation.
Prevent
consumption of
contaminated gw.
Buy Water Plan
already in effect at
the site. PRP
compensates
residents who
hook up to city
water.
Compensation
based on hook up
costs and prior
water usage.
Restriction on
drilling new wells
also implemented,
although town
ordinance does
not cover existing
wells. New ICs
contained in
second operable
unit ROD.
Site has very
innovative PRP
compensation
plan. Might serve
as a good model
for similar sites
with gw
contamination.
Secondary issue
involves how to
handle residents
not hooked up to
city water supply.
-------
Table 2--Preliminaiy Site Candidates
Site
1C in ROP
1C Purpose
1C Implementation
SlMUS
Kev Issues
7. Waldick
Aerospace, NJ
ROD language
vague; well usage
and access
restrictions
Prevent access to
site; prevent
consumption of
contaminated gw
Already existing
NJ well permitting
program will
prohibit the
drilling of wells
above the
contaminated deep
aquifers. In
addition, town
water is available
for any new
building erected at
site. Access is
restricted to
building through
use of fence.
Owner-EPA
agreement also
mandates that
EPA be consulted
before the land is
sold or transferred
for any purpose.
Novel agreement
between EPA and
site owner not
mentioned in
ROD. Agreement
is interesting
mechanism to
control future
development of
the site involving
EPA in long-run
implementation.
-------
Tabic 2-Preliminary Site Candidates
Site
1C in ROD
IC Pyrpos?
IC Implementation
Kev Issues
Status
Denver Radium
A! Site Streets,
Assure that
Informal process
Provides
Site Steets,
radium fill
particular uses of
now in place
interesting contrast
CO.
underlies paved
the sites — those
where building
to deed
streets. The Site
involving
permit
restrictions as a
Denver Radium
Streets ROD
excavation below
personnel.City
means of notifying
Open Space,
recommended ICs
the streets -- are
Public Works
people of
CO.
to monitor all
conducted in
personnel and
contamination and
construction and
accordance with
utilities have been
restricting uses of
utility work for the
standards.
made aware of the
a contaminated
nine streets
problem. Region
site. Deed
involved. ROD
entered into
restriction
mandates that
cooperative
becomes known
state will be
agreement with
when property is
responsible for
State Health
transferred. Other
50% of all costs.
Department on
approaches
For Open Space,
March 31, 1987 to
associated with
ICs are to consist
work with local
building permits,
of monitoring
governments in
zoning changes,
routine
developing
utility work may
maintenance,
supplement to this
provide
repair,
informal process.
notification of
construction or
$15,000 has been
contamination
removal activities
provided.
under a much
in an alley.
Cooperative
broader set of
agreement
circumstances.
-------
Table 2--Prcliminary Site Candidates
Site IC in ROD tC Purpose IC Implementation Key Issues
Status
Denver Radium
envisions tapping
Site Steets,
into city-wide
CO.
computer based
building permit
Denver Radium
system. Anyone
Open Space,
seeking building
CO.
permit for
activities on
property adjoining
the streets will be
notified of
contamination and
apprised of
management
standards. State
slow in improving
the agreement
though.
-------
Tabic 2-Prcliminary Site Candidates
Sil£
10. Seymour, IN
1C in RQP
Deed restrictions
and access
restrictions to the
site. Unspecified
lCs to prevent
future
development of
the site and
adjacent property
and to assure the
integrity of the
remedial action.
1C Purpose
Prevent access to
the site;
Prevent specified
uses of the site;
Prevent
interference with
remedy.
IC Implementation
Status
ICs contained in
consent decree
which still must be
entered. Consent
decree requires
deed restrictions
which prohibit
certain uses of
land. Decree
prohibits
residential or
commercial
building on land;
mandates purchase
of some land
rights (easements
or direct land
acquisition) for the
remediation of
site.
Kev Issues
Consent decree
raises interesting
issues as to
whether PRPs are
obligated to
purchase adjacent
land to restrict
development.
-------
Table 2-Preliminary Site Candidates
Site
IC In ROD
IC Purpose
IC Implementation
Status
Key Issues
11. Resolve, MA
ICs for onsite gw
usage will be
implemented.
Prevent
consumption of
contaminated gw.
There exists a ban
on gw withdrawals
for drinking water
use within the
boundaries of the
site (in consent
decree?).
Although no
contamination
exists outside
boundary of site,
there is one
abutter who wants
to build house.
Policy unclear,
land acquisition
being explored.
-------
Tabic 2-Preliminaiy Site Candidates
Site IC in ROD 1C Purpose IC Implementation
Status
12. A & F
Materials,
IN
oo
ICs to assure that
drinking water
wells are not used
in contaminated
gw areas during
natural
attentuation
period. IC places
limitation "on the
use of GW for
potable purposes".
Prevent
consumption of
contaminated gw.
Majority of
engineering
cleanup has been
accomplished. No
IC on gw use has
been implemented
because IC
provisions are
contained in
consent decree.
Consent decree
still in lign-off
phase. Consent
decree changes
local ordinance
restricting gw
extraction at site
and places deed
restrictions on
land use above
aquifer.
Kev Issues
Issue of consent
decree timing.
Although gw
monitoring scheme
in place, no
enforcement
mechanism to
prevent extraction
of gw at site, since
consent decree not
in effect yet.
-------
Table 2--Preliminaiy Site Candidates
Site
13. Marion Bragg
Dump,lN
IC in fiQP
Site access and
deed restrictions
prohibiting gw use
or the installation
of onsite shallow
wells.
IC Purpose
Prevent access to
the site;
Prevent
consumption of
contaminated gw.
IC Implementation
SlaM
Pending consent
decree contains
groundwater
restrictions.
Mechanism is
deed restriction,
but owner PRP
(City and Utility
Service Board) has
yet to sign the
decree. No real
access restrictions
except one tenant
on property was
evicted.
Kev Issues
If owner refuses
to sign consent
decree, can the
local government
attach deed
restrictions to the
property?
-------
Table 2
Site
Lake Sandy
Jo, IN
IC in ROP
IC restricting
aquifer use in
affected areas
meaning
installation of
shallow wells
onsite and in the
area serviced by
municipal water
system. Also, deed
restrictions on
landfill property
preventing future
development of
landfill to
safeguard against
direct contact or
contact by
excavation of soil.
Preliminary Site Candidates
IC Purpose
Prevent
consumption of
contaminated gw
at site; prevent
specified uses of
site
IC Implementation
ICs are currently
not implemented
since stalled
extension of water
main has delayed
remedy. For gw
restrictions, site
manager proposes
changing local
zoning ordinance.
To prohibit future
development of
site, site manager
envisions attaching
a lien on the
property.
Kev Issues
Proposed use of
lien instead of
deed restriction
interesting.
-------
Table 2--Preliminaiy Site Candidates
Site
\Q in ROP
ic Purpose
FC Implementation
Status
Kev Issues
15. Hipps Road
Landfill, FL
ROD states that
Prevent
ICs to be fully
Good site to
ICs are to be
consumption of
identified during
monitor as ICs are
identified during
contaminated
design phase of
designed and
the design phase
GW; prevent
remedy scheduled
implemented to
but may include
specified uses of
for July, 1989.
deal with drinking
acquiring affected
the site --
However, one
water ban offsite.
properties by
relocating
properly has
Closing existing gw
FEMA or the
residents.
already been
wells beyond the
PRPs, a well
acquired by the
site boundary
drinking ban,
PRPs due to
poses interesting
sealing existing
contaminated soil.
challenge.
wells and land use
Residents on that
restrictions.
property were
compensated and
relocated by the
PRPs. In 1983,
residents within
the site area were
hooked up to city
water, but plume
is now migrating
to populated
areas. Project
manager hopes to
implement gw
drinking ban.
-------
Tabic 2-Preliminary Site Candidates
Site
Conservation
Chemical,
MO
IC in ROP
Unspecified site
access restrictions.
IC Purpose
Prevent access to
the site.
IC ImplementaiiQn
Stains
Site access
restrictions are
part of the
consent decree
which was only
recently signed.
Stopgap access
restrictions include
a fence around
the perimeter of
the site and the
natural geographic
location that
partially limits
access to the site.
A full time guard
will eventually be
stationed at the
site since part of
the remediation
requires the
operation of a
waste treatment
plant.
Kev Issues
Issue of timing of
IC implementation
Consent decree
has been in
negotiations for 7
years while no IC
or remediation
have occurred at
site. Until consent
decree institutes
site access
restrictions,
potential for
human exposure
exists at the site.
-------
TABLE 3
Case Study Sites
Site
Region
Type
1. Arsenic Trioxide, ND VIII Fund
2. Beacon Heights, CT I Fund
3. Denver Radium Site Streets, CO VIII Fund
4. Friedman Property, NJ II Fund
5. Lake Sandy Jo, IN V Fund
6. Libby Groundwater, MT VIII Enforcement
7. Olean Well Field, NY II Enforcement
8. Seymour, IN V Enforcement
9. Waldick Aerospace, NJ H Enforcement
10. Winthrop Landfill, ME I Enforcement
23
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III. OBSERVATIONS FROM A GENERAL REVIEW OF IC USE
We found 51 sites with pre-1988 RODs for which ICs had been selected as part
of the remedy. Nine of these sites have been studied previously. We interviewed the
RPMs about the current status and plans for the ICs at the remaining 42 sites. The
following are our conclusions from the ROD review and interviews.
1- Role of ICs. There are virtually no sites at which an IC is being used as a
substitute for a feasible engineering remedy. The worst fears of opponents of ICs - that
they will be selected as inexpensive alternatives to engineering controls, fail to work
effectively, and leave an even worse problem to be remedied - are not being borne out
At only one site (Charlevoix) among the 51 were ICs selected in preference to what
seemed to be a feasible engineering remedy. Use of ICs and natural attenuation at the
Charlevoix site was selected as a more cost-effective alternative than traditional
groundwater pump and treat remediation. At the three other sites (Friedman Property,
Denver Radium Site Streets, and Morris Arsenic) where we classified ICs as central to
the remedy, there is no significant exposure pathway to transmit risk under normal
circumstances at the site and hence no need has been felt for engineering Temedies. At
these sites the ICs are intended to prevent unexpected actions that, if they occurred,
could cause risks, such as excavation of the radioactive material under the Denver Streets
and use of it for fill for residential construction. At these three sites the ICs are not
substituting for practicable engineering remedies.
At the 47 remaining sites we investigated, ICs are clearly being used as
supplements to the engineering remedies. Two roles for ICs are most common:
o Restrictions on the use of contaminated ground water to supplement an alternate
water supply and/or a pump and treat program. Most frequently, the alternate
water supply is provided to replace contaminated existing wells for drinking water
supply, and ICs are adopted to prevent installation of future wells.
o Preventing inappropriate future uses of a site where an engineering remedy has
contained and stabilized a waste. The ICs may be aimed at preventing disruption
of the remedy (e.g., excavating into a cap) and/or preventing human exposure to
the waste (e.g., preventing agricultural use of soils with low levels of
contamination).
Although we have not investigated the use of ICs at sites with post-1987 RODs, we
expect because of SARA's prescription for permanent remedies that they would be even
more unlikely to exhibit ICs substituting for engineering remedies.
In sum, we believe that the issue concerning the appropriate role for ICs has been
largely settled in practice - ICs are being used to supplement engineering controls, not
to substitute for them. EPA's policy attention to ICs should move on from the question
24
-------
of their role to more practical questions about how to implement them more effectively
in conjunction with engineering remedies.
2. Purposes for ICs. ICs are used most frequently to restrict use of contaminated
ground water, or to prevent inappropriate activities at a site where waste is to remain on-
site. We found few uses of ICs for other possible purposes, including restricting use of
contaminated surface water, restricting use of nearby off-site land, and facilitating a
remedy. It was often difficult to ascertain precisely whether the primary purpose of a
ground-water restriction or an on-site land use restriction was to prevent human exposure
to contaminants, or to prevent interference with a remedy. The two purposes are clearly
related. Our sense is that more of the ground-water restrictions are intended to prevent
human exposure to contaminants than to prevent interference with a pump and treat
remedy. The land use restrictions seem to show an opposite pattern. More of them
seem intended to prevent excavation into a capped and stabilized waste area than are
intended to minimize exposure by keeping humans off the site.
3. Authorities for ICs. The authorities on which ICs are based are rarely Federal.
This has substantial implications for the Federal role in establishing, implementing and
enforcing ICs. The major responsibility for ICs will lie with state or local governments.
EPA can investigate ICs, can prompt state and local governments to establish them, and
can support their operation, but EPA will not have final authority on ICs. To be
effective, an IC must have the support of state and local government. Virtually all ICs
will be implemented and enforced by state or local governments.
At the sites we investigated, ICs restricting ground-water use were usually based
on local authorities to protect public health, to control land use, or to abate nuisances.
Less frequently, the ICs were based upon state laws for similar purposes. We
encountered no ground-water use restriction based upon Federal authority (though we did
not investigate Federal facility sites).
Deed restrictions have typically been agreed to by a PRP/property owner as an
element of a consent decree. "Hie property owner in effect imposes the deed restrictions
himself on his own property, and they then become binding on future owners.
Occasionally state or local governments have imposed deed restrictions on unwilling
property owners. Subsequent enforcement of deed restrictions is a complicated matter.
Parties to a consent decree can typically enforce the consent decree requirements
(including deed restrictions) against other parties to the decree, but may have difficulty
enforcing against future owners that are not party to the decree to whom the property
may be transferred. Enforcement of deed restrictions outside the context of a consent
decree is a complicated matter of state property law. In some states any aggrieved party
may sue to enforce a deed restriction (though showing standing to sue may be difficult).
In other states, only a party to the real estate transaction (e.g., the owner of the property
who initially imposed the restriction) or state or local government may seek to enforce
25
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the restriction.
In sum, though, the Federal role in ICs at Superfund sites will generally be limited,
because of the lack of Federal authority, to cajoling and assisting state and local
governments. Attachment 2 on page B-2 is a list drawn from a previous study for EPA
of the sources of authorities available for ICs.
4. Importance of ICs. ICs are relatively less important than other elements of the
remedy at most sites where they are called for in the RODs. Most of the RPM's
attention is focused on the engineering portions of the remedy. At many sites, now
nearly two years or more after the ROD signature, there has been no effort yet to design
or implement the ICs. Our research results indicate that ICs are rarely if ever used as
interim measures while the engineering portion of the response is planned and
implemented.
5. Experience with ICs. There is little long-term experience yet with
implementation and enforcement of ICs at Superfund sites. Most ICs, where they have
been established, are only several years old. The longest experiences with ICs at
Superfund sites are about five to seven years.
This may provide sufficient time to begin to judge the efficacy of ICs establishing
ground-water restrictions. Within several years after imposition of ground-water
restrictions on existing wells, both the number of homeowners unwilling to abandon their
private wells and the intentions of the local or state government regarding enforcement
against them will become apparent Several years may not provide enough time to assess
the interplay between restrictions on new wells and pressures for new residential
development in the restricted area.
This time period almost certainly does not provide sufficient evidence about the
likely long-run performance of deed restrictions. Deed restrictions are often intended to
prevent certain uses of a site for decades or indefinitely. The test of their efficacy will
come well in the future, as the site is sold to different owners who perhaps have different
intentions regarding use of the site, and perhaps have no knowledge of the history of
contamination at the site because of faulty title searches or other reasons. Changing land
use around the site, perhaps increasing the economic value of developing it, may also
provide a test for deed restrictions in the future.
As a result, much of our assessment of the performance of ICs will have to
depend on individuals' statements about their plans and suppositions about likely results,
rather than on actual experience at sites.
6. Regional differences fa use of ICs. There are substantial differences in the
26
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frequency with which the different EPA Regions use ICs in their Superfund site remedies.
The 51 sites with pre-1988 RODs where ICs are included as part of the remedy represent
the following percentages of all RODs signed before 1988:
Region
Total RODs
IC Sites
Percentage
Region I
23
4
17%
Region II
53
6
11%
Region III
38
5
13%
Region IV
30
9
30%
Region V
59
14
24%
Region VI
25
4
16%
Region VII
9
1
11%
Region VIII
17
5
29%
Region IX
16
0
0%
Region X
10
3
30%
Total
280
51
18%
The disparity in frequency of IC use does not appear fully explainable by the differing
numbers of NPL sites in each Region. It appears that some Regions may be more
inclined to use ICs than others. We have not discussed with the Regions the reasons why
this may be so.
7. Requests for assistance in implementing ICs. There was wide variation in the
expertise of the RPMs we spoke with about ICs. Many were not knowledgeable about
ICs at all, having recently assumed responsibility for a site where an IC was called for in
a ROD developed prior to their tenure. We asked each RPM whether they would like
assistance in implementing ICs from Headquarters, and if so, what the nature of the
assistance would be. The responses are summarized in Attachment 3 on page C-3. The
most common requests involved:
o A better understanding of the range of controls available and enforceable under
state and local laws. To some extent this information would be site-specific,
varying with the peculiarities of individual states and localities. But some
generalizations could also be made about the sorts of authorities that often exist
among states and localities.
o A more formalized process by which ICs are evaluated and included in a ROD.
These requests were mostly from RPMs at sites where the ROD was vague about
the nature of the ICs and who was to be responsible for implementation and
enforcement of them. These RPMs often suggested requiring a substantial level
of specificity about an IC (e.g., mechanism, responsible enforcement entity, timing)
before it could be included in an alternative recommended in a ROD.
27
-------
o Site-specific assistance. Nearly all RPMs wished to be able to call upon an IC
expert who could help them with questions specific to their site.
Use of ICs in the removal program
We discussed use of ICs in the removal program with the removal program
coordinators for five EPA Regions. Their responses were consistent about the role that
ICs play. The following are some observations from these conversations.
Institutional controls are used rarely in the removal program. This is because the
removal program is focused on reducing immediate threats to human health and the
environment over the short term. Institutional controls, by contrast, are typically used to
prevent problems from developing over the longer term.
o Removal actions are limited to those that can be accomplished within a year.
Institutional controls often take longer than a year to implement, particularly when
new legislation is necessary. Most ICs will require enforcement and oversight for
many additional years after they are put in place, a function that the removal
program cannot perform.
o Institutional controls are used most frequently to prevent future problems,
whereas the removal program aims to respond immediately to current problems.
- ICs that prevent inappropriate future uses of a site are typically added as
further protection in a situation where current risk from a site has been
minimized (e.g., by stabilizing a waste and capping it). Source controls --
eliminating releases of hazardous constituents to the environment,
excavation, stabilization, capping, etc. ~ are frequently included in removal
actions. ICs to prevent future activities from occurring at the site that could
undo the protection that has been obtained through source controls are not
often included in removal actions.
- ICs that restrict use of contaminated ground water usually aim to prevent
future wells from being drilled into contaminated aquifers. Engineering
measures (e.g., alternate water supplies, bottled water, carbon filters) address
the immediate health threats. They are included in removal actions; ICs to
forestall potential' future problems typically are not.
The removal program contacts we spoke with indicated that they virtually never
actively seek to investigate and implement ICs. They are willing to participate with state
and local agencies to establish ICs if the other governments have appropriate IC authority
and want to use it Often an immediate removal action at a site precedes a broader
remedial action under CERCLA or a state program, but it is rare that the OSC
28
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recommends institutional controls to the RPM who takes over the site.
Although OSCs do not often seek to establish ICs, there nevertheless are several
examples where they have been used at removal action sites.
At a removal site in Riverside, California, an old battery manufacturing facility had
left very high lead, levels in soil and dust in a church school playground area. One option
considered was to excavate some of the soil and dispose of it off-site, at a cost of about
$1 million. Instead, EPA decided to cap the area with asphalt at a cost of $100,000 and
file a deed notification with the county describing the contamination left below the cap
and suggesting caution in any future excavation in the area. The church owning the
property was willing to accept this solution and establish the deed notification because it
needed a new parking lot that could be provided by the asphalt cap.
Institutional controls have also been used following removal actions at dioxin sites
in Missouri. Apparently removal actions at such sites do not completely clean them up.
Deed restrictions are then attached to those sites under a state-run registry program.
There have also been some examples of removal action sites where the failure to
supplement a partial clean-up with ICs has led to subsequent problems:
o At the Potter's Pit site in Maco, NC, the Coast Guard drained recyclable oil
from several lagoons, which were then backfilled. A trailer park was later built
directly over the site and drinking water wells were drilled through the residual
lagoon sludges. Problems with leachate, organic vapors, and benzene
contamination at the tap resulted in a second EPA removal action.
o The Pesses Chemical site in Fort Worth, TX, was capped, fenced and posted
with warning signs in a removal action. The responsible party was allowed to
continue operations in a nearby building and was cautioned against disrupting the
cap. However, the RP leased the property, which was then subleased. Neither ot
the subsequent tenants knew about the restrictions, and the cap was damaged.
o At the Lowell Asbestos Site in Lowell, NH, waste asbestos deposits have been
graded and capped. No agency placed controls on land use subsequent to these
removals. In one area, the cap was breached in subsequent road grading
operations and had to be repaired.
Each of these problems might have been avoided had ICs -- deed restrictions to prevent
inappropriate future activities on the property, or deed notifications to provide some
warning about the waste left in place -- been developed to supplement the original
removal action.
We suggest an approach that might reduce the frequency with which such problems
occur. As a removal action is completed, the OSC typically prepares a document
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summarizing what occurred at the site and what contamination may be left on-site. The
state is notified and given the report We suggest that this report should also include
recommendations for institutional controls which the OSC believes might hold risks to the
levels achieved by the removal action. The report would be given to all governments
concerned with the site.
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IV. OBSERVATIONS FROM THE 10 CASE STUDIES OF ICs
The following observations derive from our more in-depth look at the ten sites.
We see no evidence from the other Superfund sites where ICs are being used to
contradict these observations, but we have not investigated the other sites in sufficient
detail to be certain that these conclusions are universally applicable.
1. Protecting unwilling homeowners from pound-water contamination. At all sites
where ground-water use restrictions are contemplated, an issue has arisen involving
homeowners who prefer not to abandon their contaminated or potentially contaminated
private wells and switch to a clean public water supply. The broad question is whether
EPA and the state or local government responsible for ICs restricting ground-water use
should require these homeowners to abandon their wells. There are numerous variations
on this question:
o Do EPA's responsibilities end with offering homeowners the option of switching to
a clean public drinking water supply? Does it matter what fraction of the
homeowners accept the offer? Is 90% acceptance (roughly the rate prevailing in
our case studies) sufficient? Does EPA have any obligation to improve the
financial terms of the offer (pay more of the homeowner's increased cost of
switching to public water) to induce some minimum fraction of homeowners to
accept the offer?
o Does it matter how contaminated the well water is? What if it violates ARARs,
and particularly Federal primary MCLs? Must homes with such water quality be
compelled to switch to public water?
o What happens to those homeowners who for some reason do not accept an offer
to switch to public water? Should they be compelled to switch? Does EPA have
a continuing obligation to monitor their water quality and inform them of changes?
What should be done for other people who might be affected but not consulted
(renters, future purchasers of the home) by a homeowner who decides not to
accept the offer?
o Should the offer be open to homeowners for as long as the contamination persists
and for as far as it spreads? Or can the offer be limited in time and scope?
When the offer is going to be made by PRPs under a consent decree, how much
should EPA allow the PRPs to limit the offer and their future potential costs?
o Should EPA compel homeowners to seal their wells and cease using them for
outdoor purposes (e.g., car washing, lawn watering, crop irrigation) as a condition
of being provided with public water for indoor purposes? How much risk is
entailed by using contaminated water for outdoor purposes, and should any
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distinction be made among the different outdoor uses?
o What should be done regarding the possibility of individuals drilling new wells in
the contaminated area? Should EPA try to get local government to prohibit them
explicitly? Should the offer of a subsidized switch to public water be made
available to new wells in the future?
Answers to these questions determine the nature of the ICs that will be sought at the
site, their likely effectiveness, and the likely risk reduction ultimately provided by the
remedy. We will not suggest how these questions should be resolved; they are for EPA
to debate. We will note, though, that there is little consistency in how these issues have
been treated across the eight NPL sites with ground-water restriction ICs that we
investigated
Table 4 on page 33 displays the nature of the ground-water restrictions at the eight
sites. In general, EPA appears to find it sufficient to offer an alternate water supply to
homeowners; EPA does not compel them to accept it At only one site (Winthrop) are
all existing wells compelled to close (by a local ordinance), but this requirement is not
enforced There appears to be little concern on EPA's part for increasing the proportion
of homeowners choosing to switch by increasing the level of subsidy. In fact, PRP offers
to homeowners are typically substantially more attractive than are EPA/fund-financed
offers. A particularly low rate of acceptance of EPA's offer might be expected in -a low
income area, such as that surrounding Lake Sandy Jo, unless EPA's likely offer is
"sweetened" substantially.
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Table 4 - Description of Institutional Controls on Ground-Water Use
Site
Provisions
Where ICs
Apply
What Superfund/PRPs Pav For
Olean
Wellfield
PRPs offer to hook up homes. All
but three owners have signed up
(but one has several rental
properties). No requirement to
ab.andon wells for outdoor use. No
restrictions on new wells.
Where TCE PRPs pay connection costs and
MCL is compensate for higher cost of water
exceeded. over a 20 to thirty year period via a
$625 lump sum payment. Unclear
whether this would cover 50%
surcharge from City. Unclear
whether PRPs will pay for additional
areas if contamination spreads.
Arsenic
Trioxide
Voluntary signup with RRWUA.
Most owners have done so. No
requirement to abandon wells for
outdoor use. No restrictions on new
wells.
Where arsenic
MCL of .05 mg/1
is exceeded.
Superfund pays 90% of capital cost
for municipal treatment plants and
RRWUA system expansion costs.
Other 10% of capital costs and
lifetime O&M costs borne by State.
Subscribers must still pay $500 in
hookup costs (reduced from $2250
by Superfund) and monthly cost of
public water. Unclear whether
Superfund will pay for additional
areas if contamination discovered
elsewhere.
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Tabic 4 - Description of Institutional Controls on Ground-Water Use
Site
Provisions
Where ICs
Apply
What Suncrfund/PRPs Pav For
Libby
Ground
Water
Homes were all previously connected
to public water for drinking use.
Voluntary signup with PRP to
receive payments in exchange for
haying wells locked to prevent
outdoor use also. Most owners have
done so. Local ordinance prohibits
new wells.
Where 10* risk
level is exceeded
for PAH.
PRP pays cost of well locking, a
$200 subsidy for the higher cost of
water and a $30,000 annual payment
to the City for the cost of irrigation
water. PRP will expand the area
covered if contamination spreads.
Seymour
Nearby homes were all previously
connected to public water for
drinking use. Voluntary
abandonment of wells for outdoor
use, with costs paid by PRPs. Only
20% have done so. No restrictions
on new wells.
Where there is
threatened or
actual
contamination.
PRPs pay cost of well sealing. No
further subsidy. No provision to
expand the area covered if
contamination spreads.
Waldick
Planned approach: State law
restricting new wells. Only voluntary
restrictions on existing wells, unless
local law developed.
Undetermined.
Undetermined.
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Tabic 4 -- Description of Institutional Controls on Ground-Water Use
Site
Beacon
Heights
Provisions
PRP$ offer to hook up homes, 31
of 35 have done so. These
accepting hookup must also have
wells sealed to prevent outdoor use.
Monitoring results to be reported to
those not signing up. New wells
prohibited by local Health
Department.
WtaJCs
Apply
Where there is
threatened
contamination.
What Supcrfi>nd/PRP? pay For
PRPs pay cost of hookup and well
sealing. No subsidy for operating
costs. No provision to expand
coverage if contamination spreads.
j\
Winthrop
Ground water withdrawal from new
and existing wells prohibited by local
statute, but not enforced. All
residences hooked up, but outdoor
use continues.
Where there is
threatened
contamination.
PftP pays for hookup. No subsidy
for operating costs. Will expand
coverage if contamination spreads.
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Table 4 -- Description of Institutional Controls on Ground-Water Use
Site
Provisions
Where ICs
Apply
What Superfund/PRPs Pav For
Lake Sandy
Jo
Possible approach; details not
settled. Voluntary offer to
homeowners to hook up. Probably
require that anyone hooking up seal
the existing well to preclude outdoor
use. No plans regarding future
wells.
Where
contamination
exceeds
secondary
MCLs. Note:
primary MCLs
are not
exceeded.
Superfund to pay for connection, but
no further subsidy for well sealing or
operating costs. Low income area.
0>
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Further differences in the nature of the ground-water restrictions across these sites
include:
o Sometimes it is thought appropriate to prevent outdoor as well as indoor use of
contaminated well water, sometimes not. Typically it is PRPs that are concerned
with this, being interested in avoiding liability for this potential additional source
of risk.
o There is a very mixed record in prohibiting additional new wells from being drilled
in areas where efforts are proceeding to encourage abandonment of existing wells.
o There is only spotty concern for renters and future property purchasers that could
be hurt by a homeowner's decision not to hook up.
o There is usually not an explicit commitment to provide future monitoring results
to homeowners who decide not to hook up.
EPA should adopt a consistent policy on these issues. Absent a consistent policy,
inequitable levels of protection may be provided across sites. At a site with low income
homeowners and an EPA offer to pay only some of the hook-up costs, many residents
will continue to rely on contaminated private wells. At another site the offer may be
sufficiently generous to result in a universal switch to public water. EPA should decide
what will be the minimum level of protection provided to those faced with ground-water
contamination from Superfund sites.
It would also be helpful for EPA to determine action levels at which risk from
contaminated ground water is considered to be great enough to: a) offer, and b) compel;
a switch to public water. In some cases Federal and state drinking water standards must
be violated for action to be taken, but at other sites alternate water is provided when
only a threat of contamination exists.
2. At many sites, the provisions regarding ICs are not being implemented as
specified in the ROD. The reasons for this vary;
o In many cases, there has been no action on ICs yet because the site manager has
decided explicitly to implement the ICs subsequent to some other action at the site,
and the other action las not yet been completed- This may be because there is
a good substantive reason for ICs to be implemented sequentially after some
engineering measures (e.g., a deed restriction will be implemented after the waste
is contained and capped; a well prohibition will be implemented after the ground-
water plume is defined). Or it may be because the ICs are less important than
other elements which are more protective at the site and the RPM is working on
the most important provisions in the ROD first.
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o In other cases there has been no action yet on the ICs because the RPM has not
really thought about them. There has not been an explicit decision to implement
them in a specific sequence relative to the remainder of the remedy. Some
responses we heard from RPMs in these situations included: "A previous RPM
wrote the IC language into the ROD. I don't know what he was referring to."
"I assume the IC will be developed by the state or local government as a portion
of their O&M responsibilities for the site."
o In some cases there has been an explicit decision not to develop the ICs specified
in the ROD at all. This may be because a different IC has been developed that
achieves the same goals (e.g., Friedman), because the PRPs have taken some
action that nearly achieves the IC goals (e.g., Beacon Heights), or because the
RPM has decided he does not want to pursue ICs (e.g., "EPA has no authority to
implement such an IC, and the state and local governments are not willing to).
These divergences between what the ROD calls for and what has happened to
date prompt criticism to differing degrees. Where the RPM has not yet thought about
implementing the ICs, he is likely to miss an opportunity to improve protection at the site
by obtaining better compliance with the ICs (where citizens tend to give up something)
by packaging them with the engineering measures (where citizens tend to gain something).
See our third observation for more on this subject Where the RPM has decided
explicitly to do something different than the ROD prescribes, a procedural question is
raised about the level of approval necessary for such an action. How different can the
action be from that prescribed in the original ROD before a supplemental ROD is
required?
One frequent explanation for the divergence between the ROD and subsequent
action or inaction on ICs is thiat little investigation went into the ICs before they were
written into the ROD. Most RODs are not specific about what particular ICs will be
developed. The language on ICs in a ROD is typically vague ~ "Restrictions to prevent
inappropriate future uses of the property will be developed", or "Use of ground water
from the contaminated plume will be prohibited." In most cases EPA had not
investigated the details of the projected ICs before the ROD was signed. The specific
legal authority for the ICs, who would implement and enforce them, and exactly how they
would work had not been agreed to in advance.
There are certainly sites that provide exceptions to this generalization. The ROD
for Beacon Heights cites the specific State statutes that would provide the basis for the
ICs. The RODs for Winthrop Landfill and Libby Ground Water both reflect consent
decrees and local ordinances that had been developed prior to the ROD. But most sites
would profit from more attention to ICs before the RODs are signed. There are three
important reasons for this:
1. So that RODs and the entire remedy selection process more accurately reflect
38
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for the public what will actually be (tone at the site. Public participation, State
concurrence, and Headquarters review are all focused on the remedy selection
and ROD process. It is incumbent on EPA to develop and analyze fully the
alternatives the Agency lays out for review in this process. After a decision is
made, it is not appropriate for EPA to change materially the alternative selected
in this process without again providing similar opportunity for review. To provide
a full description of the alternatives for consideration, and to minimize the need
for future change to the selected alternative, EPA should fully research the IC
portions of potential alternatives prior to making remedy decisions at a site.
1 Not to research ICs prior to the remedy decision misses an opportunity to
achieve a more protective remedy at many sites. Our attention in this study has
been directed at sites where ICs have been selected in RODs, However, one
should also be concerned with sites where ICs were not selected in RODs. We
noted many sites where ICs were not planned but where wastes were to be left
on-site and capped, or where people used contaminated ground water and
remediation was expected to take many years. At such sites, ICs would help
supplement the protection from engineering measures. It would be worthwhile to
require investigation and consideration of supplemental ICs prior to remedy
selection at ail sites having such characteristics.
3. It is easiest to obtain agreement on designing and implementing effective ICs
before the remedy selection decision is made. After remedy selection, EPA loses
most of its leverage to obtain ICs.
ICs are generally not popular with those subject to them. They involve giving up
some right to use ones property or a resource. A deed restriction precludes a
property owner from using his land for certain purposes. Often the prohibited
uses are highly valued ones, such as residential or commercial development. A
prohibition on ground-water use precludes a property owner from using ground
water beneath his land, forcing him instead to use typically higher cost public
water. Absent other inducements, property owners will not consent voluntarily to
ICs and will contest or violate them if they are imposed. State and local
governments may have difficulty getting public consent for imposing them, and they
will undoubtedly have difficulty enforcing them.
The engineering measures at a site typically provide the other inducements that
make ICs palatable to individuals upon whom they are imposed. A PRP
landowner will accept a deed restriction on his property if the remainder of the
remedy leaves him with acceptable remediation responsibilities. Private well
owners will accept closure of their contaminated or threatened wells if they receive
an alternate clean water supply at reasonable cost.
In such situations, the PRP or well-owner accepts the costs or restrictions of ICs
only because they are packaged with other measures that provide equivalent or
39
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greater benefits. If, however, EPA uncouples the benefits from the costs by
resolving the details of the engineering remedy before the ICs are structured and
agreed to, the PRP, well owner and community will have no incentive to support
the ICs. EPA is best able to negotiate and obtain effective ICs when the details
of both the engineering remedy and the ICs are worked out simultaneously.
In sum, we recommend that at any site where ICs have the potential to enhance
the protectiveness of a remedy (e.g., where ground-water remediation will take some time
and exposure should be avoided in the interim, or where long-term post-remediation
restrictions on use of the site are appropriate) candidate ICs should be thoroughly
investigated and decided upon simultaneously with the engineering remedy. Just as the
ROD specifies the details of the engineering remedy, it should also specify the details of
any selected ICs: what they will require, who is responsible for implementing and
enforcing them, what authority they will rely on, and how long they should last
3. Institutional controls on ground-water use should be decided upon simultaneously
with alternate water supplies. In any contaminated area where there are existing wells
serving homes, ICs to restrict ground-water use and provision of an alternate water supply
are inextricably linked. Absent an alternate water supply, ICs are extremely unlikely to
be adopted, enforced and complied with. The financial implications to the community
and homeowners of the alternate water supply will determine how willing they are to
implement and support ICs. Given that ground-water restriction ICs inevitably rely on
local government or state authority and implementation, local enthusiasm for them is
critical to their success.
When private wells become contaminated and are to be hooked up to a clean
public water supply, costs may be incurred for the following purposes:
1. Develop the new public supply.
2. Extend a water main to the affected area.
3. Hook up individual residences.
4. Seal existing wells.
5. Increased operating costs of using public water for indoor purposes.
6. Increased operating costs of using public water for outdoor purposes.
In return for these costs, the homeowners receive reliable, clean water. Homeowners and
the community will accept or reject an alternate water supply offer based upon the
benefits and costs to them. The benefits (clean water) will be weighed against whatever
fraction of the costs are to be paid by the homeowners and the community.
40
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Typically, EPA in fund-financed alternate water supplies offers to pay only 90%
of the capital cost and one year's O&M cost for purposes 1-3, above. At several other
sites, PRPs have offered to pay virtually all of the costs in all six categories. As might
be expected, the results are much better where the community and homeowners are
asked to pay a lower share of the costs. At two Fund-lead sites where EPA has offered
to pay a smaller fraction of the total alternate water costs (Arsenic Trioxide and probably
Lake Sandy Jo), there have been disputes over who pays for what, delays in implementing
the alternate water supply, no action by local governments on institutional controls, and
likely lower rates of acceptance of the alternate water by homeowners. At two sites
where proactive PRPs developed vexy generous compensation packages (Wii\throp and
Libby Ground Water), there has been rapid implementation of the alternate water supply,
adoption of effective ICs by local governments, and nearly complete acceptance of the
alternate water by homeowners.
This comparison is not meant to criticize EPA. It may be the case that statutory
constraints on what the Superfund can pay for inevitably give EPA less flexibility than is
available to PRPs, who can offer to pay for nearly anything. Two lessons are clear:
o Institutional controls on ground-water use and provision of alternate water
supplies are closely linked. The details of both should be worked out
simultaneously. If institutional controls are left to be designed after an alternate
water supply agreement has been reached, EPA will have little ability to persuade
local governments to adopt effective ICs. EPA should negotiate with state and
local governments, homeowners and PRPs to develop a complete package covering
alternate water and ICs.
o As the compensation of homeowners and the community for the costs of
alternate water becomes more generous, homeowners have greater incentive to
switch to the alternate water, and communities are more willing to adopt effective
ICs.
4. Use of ICs at Fund-lead vs. Enforcement-lead sites. Several times during EPA
discussions of the appropriate role for ICs at Superfund sites, we have heard the
argument that EPA should authorize their use more frequently at Fund-lead sites than
at Enforcement-lead sites in order to reduce Federal remediation costs and stretch
Superfund monies to cover more sites. Others have argued that use of ICs at
Enforcement-lead sites should be monitored very closely, to prevent PRPs from
substituting ICs for more expensive - but less protective ~ engineering remedies.
In practice, the use of ICs appears to be more frequent at Enforcement-lead sites.
We cannot judge whether this is good or bad. Across the case study sites, PRPs seem
have clearly been more successful in prompting effective ICs than has EPA.
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PRPs have had far more success in working with local governments to adopt
ground-water ICs than has EPA, because of the PRPs' greater willingness to subsidize
heavily the costs of alternate water supplies and well abandonment associated with the
ICs. PRPs find ground-water ICs to be in their interest because they reduce future use
of contaminated ground water that could perhaps result in more liability for PRPs.
In terras of ICs restricting land use, PRPs have often been willing, in effect, to
impose deed restrictions on themselves in the course of consent decree negotiations. At
Fund-lead sites without PRPs, EPA has much less frequently had deed restrictions
imposed on properties, primarily because of the difficulty in getting local governments to
use their authority to do something that will reduce the local tax base.
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V. CASE STUDY SITES
This section discusses the case study sites. We provide general information for
each of the sites, including a site history and a description of the nature of the
contamination and risk at the site. Next we discuss the role of ICs at the site. This
includes a description of the recommendations in the ROD, a history of the use of ICs,
a discussion of the reaction of the affected community to the ICs, enforcement and
implementation issues, and a discussion of the effectiveness of the ICs. Lastly, we
indicate the conclusions that could be drawn regarding the use, enforcement, and
effectiveness of ICs.
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Arsenic Trioxide, ND
Arsenic Trioxidc. North Dakota
Abstract The Arsenic Trioxide site is located in a rural portion of southeastern North
Dakota and consists of about 20 townships in a 568 square mile area.
Arsenic-laced grasshopper bait used by state agencies many years ago caused
ground water contamination. The ROD called for an expansion of the rural
water treatment and distribution system to serve homes with contaminated
wells, plus institutional controls to prevent private well use. Filters have
been installed on the wells as a temporary measure. To date, no formal
institutional controls have been implemented, but the design of the new
rural water system has been completed and construction is about to begin.
The site illustrates that thorough education of homeowners with regard to
the risks posed by contaminated water, in combination with partial
subsidization of an alternative water supply, can be successful in limiting
exposure to contaminated water, even at a site with jurisdictional
complexities.
I. Site Background
General Site Description
The Arsenic Trioxide site is a 568 square mile area located in the southeastern
part of North Dakota. The area contains about three counties (Richland, Ransom, and
Sargent), about 20 townships, and a population of about 4,500. It is primarily farmland.
Arsenic contaminated ground water has been detected in four areas within the site.
Originally, the public wells in the town of Udgerwood (population of 971) was found to
be contaminated. Later in the 1970's, the Town of Wyndmere(population 550), on its
own initiative, discovered its well were contaminated. More recently, about 278 private
wells located in rural areas and supplying water to about 74S people have been found to
be contaminated with arsenic. These areas are not served by public water supply systems,
Site History
In 1979, the Water Supply and Pollution Control Division of the North Dakota
State Department of Health (NDSDH) detected elevated levels of arsenic in groundwater
in the towns of Lidgerwood and Wyndmere. The ground water contamination resulted
both from naturally occurring arsenic in shales in the area and from the application of
about 165 tons of arsenic-laced bait in the 1930s and 1940s to control grasshopper
infestations. The NDSDH considered the level of arsenic contamination present in
44
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Arsenic Trioxide, ND
Lidgerwood to be a public health risk and ordered Lidgerwood to take appropriate
measures to reduce the level of arsenic in drinking water below the MCL (0.05 mg/1) set
under the Safe Drinking Water Act In response, Lidgerwood built a new water
treatment plant, overseen by the State under the SDWA. The plant was completed in
1986 and was entirely funded through a tax levied on Lidgerwood residents. At the time,
the existing treatment plant in Wyndmere was thought to reduce arsenic to acceptable
levels.
The state began the RI and FS for the site in 1982. Additional monitoring found
that arsenic contamination was highly variable and more widespread than thought earlier.
About 278 private wells supplying water to about 748 people were found to be
contaminated with arsenic. In an Emergency Response Action in 1986, EPA offered to
install point of use treatment units (filters) in the homes served by these wells as an
interim measure to protect public health. A large number of people took advantage of
the offer. Currently, about a third of the affected homes have point of use treatment
units and the number is increasing over time.
The final RI report was issued in December, 1985; the FS report in July, 1986.
The Record of Decision (ROD) was issued on September 26, 1986. It primarily
addressed arsenic contamination in rural areas that were not served by public water
systems. Water is provided to some residences in these ruraJ areas by the Richland
Rural Water Users Association (RRWUA). (The RRWUA was created by the Farmer's
Home Administration.) The ROD called for the RRWUA's water distribution system to
be modified and expanded. The new rural water system will receive funding from
Superfund. Additionally, the ROD called for an "investigation" of institutional controls
to restrict the use of existing wells, to restrict well drilling, and to provide economic
incentives to encourage participation in the new water distribution system and to
discourage the use of contaminated well water.
There has been strong disagreement between the residents of Lidgerwood and
EPA over whether the cost of the water treatment plant should be funded by CERCLA.
When the NDSDH ordered the town of Lidgerwood to build the plant, Superfund did not
exist Lidgerwood's subsequent application for funding the plant's construction costs
under CERCLA was initially denied by EPA. More recently, a supplemental ROD has
been issued that allows for partial reimbursement ($187,000 of a requested 5200,000) from
Superfund to the Town of Lidgerwood for the water treatment plant
The supplemental ROD also addressed whether the water treatment plant in the
town of Wyndmere could treat drinking water to MCLs. (The RI and FS indicated that
the plant could reduce arsenic levels below the MCL) It concluded, that because of
capacity constraints, the Wyndmere plant sometimes passes through raw water during the
peak operating period of the summer months. The supplemental ROD mandated
installation of new filter media and construction of a new storage reservoir for use during
45
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Arsenic Trioxide, ND
high peak demand periods. These modifications to the plant were funded by CERCLA.
Nature of Contamination and Risk
The use of arsenic-laced bait to control grasshoppers in the 1930s and 1940s
apparently has resulted in elevated levels of arsenic in a large (568 square mile) rural
area in southeastern North Dakota inhabited by about 4500 people. The natural
background level of arsenic in the area already is high — about 0.025 mg/1. But at four
areas within the boundaries of the site (totalling about 171 square miles) arsenic levels
are above the MCL of 0.05 mg/L The presence of arsenic in ground water is widespread
and the concentrations of arsenic are quite variable. The areas of greatest concern
generally have arsenic concentrations in the range of from 0.05mg/l to 0.10 mg/L
Chronic exposure to arsenic causes toxic effects to the peripheral nervous system
in adults and to the central nervous system in children. Arsenic has been shown to be
teratogenic and fetotoxic in several animal species (its effects on humans are less well
substantiated) and has been classified as a human carcinogen.3 Projection of the health
effects of arsenic at low doses is highly controversial.
The rural town of Milnor was never included in the original study area. As a
result, arsenic contamination was not detected until later studies were conducted.
According to a spokesman for the NDSDH, arsenic contamination levels in Milnor now
currently exceed MCLs. The contamination occurs in a shallow aquifer (depths up to 50
feet). Some homeowners with private wells draw their water from this aquifer. Seven
private water supply companies in Milnor draw their supply from a deeper aquifer (up
to 200 feet) that is not contaminated with arsenic. The deeper aquifer has large
concentrations of fluoride and other minerals that make it less palatable than private well
water which has a pleasant sweet taste due to the arsenic.
H Institutional Controls
Provisions in ROD
The ROD mandated that several steps be taken at the Arsenic Trioxide site.
First, it mandated that the RRWUA system be extended to provide drinking water to the
1 See, Superfund Record of Decision: North Dakota Arsenic Trioxide, ND, September
1986, p. 4.
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Arsenic Trioxide, ND
278 homes identified as having arsenic contaminated well water.4 Second, it mentions a
prohibition on drilling new wells, a well permitting system, and economic incentives to
enhance participation in the rural water system as possible ICs, but it does not mandate
specific ICs. TTie supplemental ROD dealt with modifications to the Wyndmere water
treatment plant and the reimbursement of the Lidgerwood plant; it does not alter the
basic remedy specified in the ROD.
History of ICs at the Site
The RRWUA presently is attempting to expand their water distribution system to
the 568 square mile area identified as having well water contaminated with high levels of
arsenic. Property owners in those areas have been contacted and informed thoroughly
of the dangers of relying on arsenic contaminated drinking water. The State, through the
RRWUA, has instituted a membership drive to reduce the public's exposure to arsenic
and to spread the cost of extending the water system over a larger customer base. The
membership drive has consisted of community meetings where the risks associated with
arsenic contaminated water and the cost, availability, and proposed timeframes for public
water supply have been discussed. The membership drive has been going on for about
a year and is strictly voluntary in nature.
The RRWUA has over 300 homes ready to receive water from the expansion
plan. (Some additional wells have been found to be contaminated since the ROD was
issued.) This has involved negotiating bilateral agreements between the RRWUA_and
many Townships and unincorporated areas. Uncertainty over whether residents in Milnor
will connect to the system has caused difficulty in projecting costs for the system. EPA
has recently determined that since no arsenic contamination exists in the deep aquifer
where seven independent public water supply authorities operate, it has no authority to
fund connections to homes in Milnor. (However, the expanded RRWUA has enough
capacity to supply the homes in Milnor, but the connection would be at their own
expense.)
The RRWUA expansion is mostly paid for by Superfund. Under a cooperative
agreement with the State, funding for 90% of the cost of construction and for the first
* Extension of the RRWUA system is mandated for any home which is at risk or
potentially at risk from contaminated private wells. Such homes had to be identified
before March 4, 1988 to be eligible for the subsidized plan. June 30,1989 is the deadline
for homeowners to agree to connection with the modified RRWUA To date, about 313
homes have subscribed to the plan.
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Arsenic Trioxide, ND
year of O&M will come from CERCLA.5 The remaining 10% of construction costs plus
O&M costs for the life of the project will be paid for by the RRWUA but are
guaranteed by the State. (EPA cannot enter into a direct agreement with the RRWUA
because they are not considered to be a "political subdivision.") In a recent decision,
EPA has also agreed to bear the cost of plumbing and connection work within the home.
An official of the RRWUA explained that prospective subscribers must pay a fee
of $500. This fee consists of: a $50 signup fee;4 a $250 payment for interior plumbing
and connection work7; and a $200 charge to cover the RRWUA's share of the
construction costs. In addition, the RRWUA has proposed charging subscribers a
minimum monthly base payment of $20 plus a water usage fee of S2 per 1,000 gallons.
This cost might increase depending on the ultimate size of the subscriber base.1
Other than the expansion of the RRWUA system, no ICs restricting the use of
ground water or restricting well-drilling have been implemented at the Arsenic Trioxide
site. (In any event, such restrictions would be unenforceable in the absence of an
alternative water supply.) Even when homes are voluntarily connected to the RRWUA
system, private wells arc not required to be sealed and abandoned.* It is likely that they
s According to the RPM, it costs about $2,000 per home to connect the public water
system. The $2,000 figure has been used as a proxy by EPA to arrive at the overall cost
for construction. However, this is probably an averaged cost, because 90 homes are
presently within the boundaries-of the existing RRWUA system and would cost less to
connect and service.
4 The $50 fee is refundable after construction begins to expand the system. The
purpose of the fee is to weed out subscribers who might express an interest but then
decline to be connected. One of the RRWUA's main concerns during the past year has
been to develop a realistic assessment of the subscriber base to enable an accurate
projection of monthly payments. Homeowners who initially responded positively and then
declined service have made such planning difficult for the RRWUA
7 In light of EPA's recent decision to bear connection costs, this part of the fee might
be reduced or eliminated by the RRWUA
' Two homes south of Lidgerwood, but not currently served by the Lidgerwood
water treatment plant, have high levels of arsenic contamination. Connection of these
homes could cost as much as $80,000. The RRWUA has proposed a point of use
filtration system for these homes to avoid incurring exorbitant connection costs.
* The public system is protected from contamination by private wells, however.
According to the RRWUA every connection has an isolation gate valve which prevents
backflow of well water into the public system.
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Arsenic Trioxide, ND
will continue to be used for irrigation and other outdoor uses.
The ROD's mandate to examine economic incentives for public water connections
has been somewhat satisfied, according to the RPM for the site. Payments by Superfund
have reduced the costs from about $2,250 per home to about $500 per home. However,
homeowners must pay the full cost of water service indefinitely thereafter.
EPAs Cooperative Agreement with the NDSDH also requires that the State
prepare a report on the feasibility of ICs for the site, such as restrictions on well drilling,
a well permitting system, and economic incentives to encourage connection to the public
water system and to discontinue the use of private wells. The report is due to be issued
sometime during the RRWUA's expansion and construction period
Community Acceptance
Community acceptance for the alternative water supply system has been generally
positive. However, the remedy's acceptance has been closely tied to EPA funding the
majority of the costs of expanding the RRWUA system.10
An issue of contention between EPA and the RRWUA is EPA's recent decision
not to fund expansion of the system to Mil nor. This could raise subscriber rates to other
residents who want treated water. The disqualification of Milnor has been controversial
According to many sources, the previous RPM had made a verbal commitment that EPA
would fund the expansion of the RRWUA system to the Town. However, when EPA
learned that the private water systems that service most residents in Milnor do not have
arsenic contamination, EPA realized it lacked the authority to pay for any expansion of
the RRWUA system to Milnor. It is now being suggested by EPA that funding be made
available for Milnor through the use of an Emergency Response Action. However,
people have pointed out that the problem of "musical RPMs" is confusing and often
causes delay in the design of a remedy, especially in the case of Milnor.
Of more general concern is the feeling that EPA is not acquainted with the
intricacies of providing water service in a rural area. Sources at RRWUA have
complained that they wanted to use the Farmers Home Administration to guide the
10 Cost has been a major factor for other pans of the remedy for this site as well.
According to the Mayor of Wyndmere, acceptance of the required upgrades to the
Wyndmere water treatment plant has been generally positive only because they have been
subsidized by Superfund. The critical nature of the funding issue also is illustrated by
protest voiced by residents of Lidgerwood when it appeared that their new water
treatment plant did not qualify for CERCLA reimbursement
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Arsenic Trioxide, ND
expansion of the system since they were originally responsible for its design. They feel
EPA does not have sufficient experience with rural water systems to oversee the RRV/UA
expansion.
Enforcement of Institutional Controls
No formal ICs have yet been implemented at the Arsenic Trioxide site.
Connection of residences to the RRWUA system is a voluntary decision on the part of
the homeowner. Presently their are no mechanisms in place to force the sealing or
abandonment of contaminated wells, nor does it appear likely that there will be. It is
possible that there may be some attempt to limit the drilling of new wells in
contaminated areas, but that must await completion of the State's report on ICs for the
site.
Effectiveness of Institutional Controls
The effectiveness of ICs at the Arsenic Trioxide site depends wholly on voluntary
decisions by residents to accept public water from the expanded RRWUA system after
being informed of the risks of using arsenic contaminated water." A substantial portion
of the cost of expanding the water supply system will be subsidized by Superfund.
Nonetheless, residents still must pay about a $500 fee to connect to the public water
system and will have to pay monthly water bills, whereas before their well water was
virtually free. Notwithstanding these costs, the information campaign undertaken by the
RRWUA and the NDSDH has resulted in virtually all the residences in the contaminated
areas signing up with the public water supply system.
Private wells will not be capped or locked when the connection to the RRWUA
system is made. But it seems unlikely that after paying a substantial fee to connect to
the public water system that residents would go back to using contaminated well water
for drinking and other household purposes. Such wells, if used at all, probably would be
used for irrigation and other outdoor purposes. This would reduce the cost of water
usage to the homeowner while presenting only a small exposure risk, if any, to the
11 The decision not to fund expansion of the RRWUA system to those homes in
Milnor that rely on private wells drawing from the shallow aquifer contaminated with
arsenic (or to pay for hookups to the private suppliers in Milnor that draw their water
from the deeper uncontaminated aquifer) is another example of EPA's apparent position
that, if residents have been sufficiently informed of the health risks and have reasonable
water supply alternatives available, the decision to cease using contaminated well water
is a private one.
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Arsenic Trioxidc, ND
homeowner. (Arsenic can be taken up by plants from irrigation water and soil.)
Residences that fall outside the study area or homeowners who do not now choose
to connect to public water (or new homeowners) will incur significant costs to connect to
the RRWUA system at a later date because of larger engineering costs to provide
homeowner connections. Members of the RRWUA believe that such costs could be
prohibitive for lower income families. This could become a critical issue at the site,
particularly if other areas of arsenic contaminated groundwater are found.
EL General Conclusions
There are several key conclusions in this case:
o The results at the Arsenic Trioxide site indicate that an extensive effort to educate
the public of the dangers of consuming contaminated water, in combination with
partial subsidization of alternative water supplies, can induce a large portion of the
public to voluntarily stop using contaminated well water (at least for household
purposes). This was accomplished even though different townships and
unincorporated areas were involved and cooperative agreements had to be
negotiated between all the parties before the public system could be expanded.
It may be that for such large jurisdictional projects a lead role for the State is
crucial.
o Until there are alternative sources of water made available to the affected
homeowners, ICs restricting well use are highly unlikely to be imposed by the
relevant political jurisdiction. After alternative sources are made available, few
parties seem to be interested in insuring that private wells are not used. What
seems to be most important is that the affected homeowners be clearly informed
of their risks and offered a reasonably affordable alternative. If under those
circumstances a few homeowners decide to continue using their contaminated wells
for household purposes it is not viewed as a significant public health concern.
o EPA and the State appear to have less flexibility in structuring incentives to
connect to public water systems than has been shown by PRPs at other sites. In
this case EPA covered 90 percent of the construction costs, will now cover interior
plumbing costs, and none of the additional water usage costs. Further, no explicit
provisions have been made for funding additional connections to the water system
should contamination be found in new areas or for new residences.
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Beacon Heights, CT
Beacon Heights. Connecticut
Abstract At Beacon Heights, landfill leachate has contaminated several and threatens
to contaminate more private wells. The ROD called for strict ICs over
extraction and use of ground water in the area. Instead, most potentially
affected residences have discontinued ground-water use because PRPs
offered to hook them up to a public water supply. No formal legal control
now exists over ground-water use from existing wells. New wells are
controlled by the requirement for a permit from the local health
department Four homeowners have refused the hook-up offer and continue
to use their wells, which are not yet contaminated. EPA and the State have
informed these homeowners of the threat of contamination and intend to
continue to keep them apprised of monitoring results. EPA and State
officials do not believe they have any further obligation to protect
uncooperative individuals beyond these measures and on-site remediation.
There are no plans to force these individuals to discontinue well use.
L Site Background
General Site Description
The Beacon Heights Site is a former landfill for industrial waste and municipal
solid waste located in Beacon Falls, CT. The main landfill area occupies approximately
30 acres of an 83 acre property. It is estimated that 650,000 cubic yards of waste
comprise the body of the main landfill. Municipal refuse and industrial wastes have been
randomly codisposed, so it is not possible to identify specific locations of hazardous
materials. A second landfill area of approximately 6 acres has also accepted municipal
and industrial waste.
The site is in an area of low residential density, approximately 21 homes border
the site to the west along one road, and approximately 23 homes border the site to the
north along another road. There are also a few potentially developable lots. The closest
residence is 800 feet from the site. There is little development pressure near the site.
Site History
The smaller 6 acre landfill operated from the 1920's until 1970 and received
municipal refuse, rubber, plastics, and industrial chemicals and sludges. The larger landfill
apparently operated from 1970 to 1979 and received rubber, plastics, oils, hydrocarbons,
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Beacon Heights, CT
chemical liquids and sludges, and solvents. During the 1970's the Connecticut Department
of Environmental Protection (DEP) monitored and permitted site operations and observed
numerous problems including unauthorized acceptance of industrial wastes, disposal in
unauthorized areas, surface water contamination from leachate migration, and inadequate
cover. The owner entered into a consent agreement with CT DEP to close the facility
by July, 1979, though the closure requirements for final cover and ground-water
monitoring were never implemented.
Investigations by the State subsequent to cessation of operations found
contamination of ground and nearby surface water. The fractured bedrock prevailing in
the area raised concern for contamination of the private wells serving 35 of the 44 homes
in the vicinity of the site. (A municipal water line had been extended to 9 homes.)
Sampling of the private wells found two substantially contaminated with benzene, and
these residences were provided with bottled water by the State.
Remedial investigations were initiated with the site classified as Fund-lead. The
ROD signed in 1985 provided for the following remedy:
o Consolidate the smaller landfill and other contaminated soils in the larger landfill
area and cap the material;
o Install leachate collection system and provide for leachate treatment;
o Extend the public water supply to the homes using private wells within the area
potentially affected by the landfill;
o Increase ground-water monitoring; and
o Implement institutional controls over the extraction and use of ground water within
the area of influence of the landfill.
Ground-water extraction and treatment are not feasible at the site because of difficult
hydrogeological conditions.
A consent decree was signed in 1987 through which 32 PRPs agreed to implement
this remedy. As part of the consent decree the PRPs agreed to provide the hook-ups to
public water for those residences on private water, and most of the hook-ups have
occurred (see below). Little additional progress has been made on the remedy to date.
Most of it is still in the pre-design phase because the landfill owner refused access to the
PRPs to initiate the remedy, which required EPA to go to court to obtain access for the
PRPs.
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Nature of Contamination and Risk
Beacon Heights, CT
The remedial investigation indicated that leachate was contaminated with volatile
organics as well as some acid extractable compounds. The primary contaminants were
benzene, chlorobenzene, chloroethane, 2-butanone, and bis(2-chloroethyl)ether. Ground-
water monitoring revealed significant contamination in 4 of 15 monitoring wells - the
others contained trace levels. Water samples from 2 of 44 private residential wells were
contaminated with benzene at levels of 22 - 131 ppb, far above the recently established
MCL for benzene of 5 ppb. Hydrogeological investigations led to the conclusion that all
of the local residential wells were threatened by continued off-site migration of
contaminants. A tributary stream was also found to be contaminated with benzene,
chlorobenzene, bis(2-chloroethyl)ether and iron to levels violating State water quality
standards.
IL Institutional Controls
Provisions in ROD
At the Beacon Heights Site, the purpose of the TCs is to prevent withdrawal and
use of contaminated ground water. The ROD specifies that "strict institutional control
over the extraction and use of groundwater within the area of influence of the landfill
can be carried out under State institutional controls, which are authorized by Sections
2532 and 2533 of the Connecticut General Statutes."
Histoiy of ICs at the Site
These Connecticut laws were already in effect at the time the ROD was developed.
They provided that:
o No permit from the State is needed to drill a private well, but a permit for use
of a new private well is required from the local health department
o State building codes prohibit drilling a private well for a new home and require
connection to a public water supply if a public supply is available within 200 feet
from the residence.
The consent decree was designed to mesh with these two existing provisions. As part of
the consent decree, the PRPs offered to hook-up residences within the potentially affected
area on private wells to a public water supply, provided that those receiving hook-ups
agreed to have their existing wells capped. "Die PRPs did not want this offer to be open-
ended; it was good only until May, 1989 giving homeowners slightly less than 2 years to
sign up. There would be no subsidy for residents' water bills after hook-up. Also, the
consent decree required the PRPs to extend water lines within 200 feet of the two vacant
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Beacon Heights, CT
lots in the area that were deemed developable. These provisions combined to restrict use
of ground water in the potentially affected area as follows:
o The 35 residences still using private wells would be offered the hook-up to public
water and capping of their wells.
o If home building were to occur on the two vacant lots, drilling of private wells
there would be prohibited by the State building code in conjunction with the
extension of the water line.
o The local health department (Naugatuck Valley Health District) would preclude
any unexpected drilling of new wells by refusing to issue permits for their use as
long as contamination exceeds safe levels at the site.
These portions of the Connecticut law and the consent decree have been implemented.
The PRPs sent letters to the homes using private wells, and all but four (none of whom
had contaminated water) agreed to the offer and have been hooked up.
Monitoring will continue at the site and the four residents still using private wells
will be kept apprised of monitoring results. Should the monitoring results warrant it,
EPA will suggest they have their wells tested. However, they will still be free to choose
well water or public water. As stated above, the PRPs* offer to pay for hook up to
public water is good only through May 1989.
Community Acceptance of Institutional Controls
Most of the residents are quite pleased to be served by the public water supply
rather than rely on private welts. There was substantial fear in the community about the
spread of ground-water contamination around the landfill, and uncertainty about which
residential wells would be affected. Most nearby residents were far more concerned with
obtaining a safe water supply for themselves than they were with other aspects of the site
remedy.
The reasons four homeowners have refused the hook up offer are varied. Two of
the four would have taken public water, had they been able also to keep their private
wells (presumably as a supplemental source of low cost water for lawn watering, etc.).
A third preferred the taste of well water to public water. A fourth was a contrarian
whose behavior was governed by anti-EPA sentiments.
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Beacon Heights, CT
Enforcement of Institutional Controls
To the extent people accept the PRPs' offer, the approach needs no enforcement,
other than to ensure no new wells are drilled. As stated above, the local health
department acts as a permitting agency in this regard. To the extent that homeowners
reject the PRPs offer, there are no plans other than to keep these homeowners informed
of ongoing monitoring results. EPA and the State seem to take the view that their
obligation ends with informing homeowners of the potential hazards, providing for hook-
ups to public water, and continuing to keep them apprised of monitoring results. There
are no plans for enforcement against unwilling homeowners; the restrictions on use of
ground water from existing wells are essentially voluntary. State and local officials did
not speculate about what would happen if any of the four remaining private wells did
become contaminated and the owners continued to refuse public water.
Effectiveness of Institutional Controls
The objectives of the ICs have generally been met, except for four homes where
wells have not yet been contaminated and the residents have been fully informed of
potential risks. These homeowners are free to choose private or public water, though the
PRPs' offer to pay for hook-ups to public water extends only to May, 1989.
There is some question about what might happen to future residents at the four
homes still relying on private wells. It is not clear to what extent there would have to
be disclosure of the potential ground-water contamination in the event any of the four
current property owners decide to sell (or rent) their property. No federal, State, or
local government representatives were aware of any applicable disclosure requirements for
real estate transactions. However, mortgage lenders typically require that well water be
tested before making a loan to purchase a property served by a private well; this would
presumably bring to light any actual contamination of well water at the time of the
transaction.
HL General Conclusions
There are two key conclusions in this case:
o Though the ROD called for "strict institutional control over the extraction and use
of ground water within the area of influence of the landfill", the goals of the
were actually accomplished by PRPs agreeing to offer public water hook-ups tQ
those residences on private water. No legal restrictions now exist over extraction
and use of ground water through existing wells in the area. A strict reading of
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Beacon Heights, CT
ROD and what has actually happened are at variance.
o Region I and the State of Connecticut consider it sufficient to inform homeowners
of potential hazards, offer public water hook ups, and keep those who do not
choose public water apprised of monitoring results. Homeowners are free to make
their own choices. This poses a major philosophical question about whether a
Superfund remedy must be sufficiently robust to protect even uncooperative
individuals, or whether simply offering protection to individuals and letting them
make their own choices is enough.
The only additional issue of some concern pertains to disclosure requirements for those
homeowners who did not choose public water. There do not appear to be any formal
mechanisms to ensure disclosure to future purchasers or renters of these properties that
their well water might become contaminated. Although it may be sensible to let
homeowners make informed choices for public or private water, it seems only fair to
ensure that future owners and renters are able to make the same informed choices.
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Denver Radium, CO
Denver Radium Site Streets. Colorado
Abstract Denver Radium Site Streets (operable unit VII of the Denver Radium Site)
are located in Denver, Colorado and are composed of nine segments of
streets that are contaminated with radium. The contamination resulted from
the use of discarded radium wastes as a base below asphalt used for paving
streets. Presently, no significant health threat is posed by the radiation
because there is little public exposure to contaminated soil buried under the
streets. Informal institutional controls (notification of the health department
by contractors and a neighborhood watch program) are in place to control
the excavation of contaminated areas of the streets. The City is considering
developing a formal permitting system to control excavation of contaminated
areas.
L Site Background
General Site Description
Denver Radium Site Streets are located in Denver, Colorado and are composed
of nine segments of streets owned by the City and County of Denver that are
contaminated with radium. Eight of the street segments are in the Cheesman Park area
and one segment is in the upper downtown area. About 800 household and some parks
and pubic-use areas border the contaminated streets.
The contamination generally is present in a 4 to 6 inch layer of road base that is
overlain by a 4 to 12 inch layer of uncontaminated asphalt The contamination appears
not to have spread to underlying fill material, nor does it extend beyond the curbs to any
of the homes and building surrounding the streets.
Site History
In 1979, EPA discovered a reference to Denver's National Radium Institute in a
1916 U.S. Bureau of Mines report Subsequent research identified the presence of
several long-forgotten radium processing facilities that were operated in the Denver area
from about 1914 to the mid-1920s. Production of radium for cancer therapy generated
large quantities of radioactive residues. Radium contaminated tailings and other wastes
were discarded or left on site when facilities closed. Since then, the properties changed
ownership and were developed. The radioactive residues have been used as cover, fill
and foundation material and have also been mixed in concrete and asphalt As a result,
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Denver Radium, CO
road building materials contaminated with radium were used to pave streets either when
they were originally built or when old streetcar lines were removed-
After the discovery of the radiation problem at the site, the Colorado Department
of Health (CDH) conducted an engineering assessment of the site funded under RCRA.
The Denver Public Health Engineering Department (DPHED) also began monitoring
gamma radiation levels whenever the contaminated streets were excavated. The CDH
provided information on the nature of the contamination problem to nearby residences.
The CDH also sent notification letters to a variety of companies describing the dangers
of excavating contaminated material from these street segments and informing them that
the CDH must be notified of planned excavations. The State engineering assessments
were discontinued when RCRA grant funds expired in 1983.
EPA took the lead on the RI/FS in 1983 because the Colorado State Legislature
failed to approve the cost share then required by EPA for RI/FS funding. EPA issued a
draft FS in July of 1985. The ROD for the site was issued in March of 1986. It
recommended that:
o all contaminated soil is to be left in place;
o all "routine maintenance, repair, or construction activities in the affected streets by
government agencies, utility companies, contracting companies, and private
individuals" be monitored; and
« excavated material removed during routine maintenance or repair activities must
be transported to a facility approved for storage or disposal of radium
contaminated material.
A Cooperative Agreement between EPA and the CDH was signed in March of
1987 that provides $30,000 to fund development of a permitting and notification system
that would identify any work affecting the contaminated segments of streets.12 The
agreement does not describe the system and, to date, no funds have been used for
developing such a system.
Nature of Contamination and Risk
The ROD concludes that the radium contamination poses only a minimal threat
to public health. Risks from the radium could arise from: ingestion or inhalation of
12 A 50% cost share for the State is mandated in the ROD because the streets were
owned by a subdivision of the State at the time of radium disposal.
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Denver Radium, CO
contaminated material; inhalation of radon gas;'3 and exposure to gamma radiation caused
bv the decay of the radium. However, none of these potential pathways are likely to
result in significant exposure of people to radiation from the radium as long as it remains
in place.
Radium concentrations in the road base range from about 4 to 80 picocuries per
gram. However, the radium is immobilized in a 4 to 6 inch layer overlain by a 4 to 12
inch layer of uncontaminated asphalt The radium contamination does not extend beyond
the paved streets and generally has not migrated to soils underlaying the asphalt Thus,
the potential for ingestion or inhalation of radium appears to be limited to times when
the roads are excavated.
EPA concluded that radon gas will not migrate into the basements of homes
bordering the contaminated streets. These homes usually are 20 to 30 feet from the
street. The soil between the homes and the streets would prevent lateral migration of
the gas. Exposure to radon gas outdoors near the streets would not present a health
problem because much of the gas would remain trapped in the asphalt and any that
escaped would be highly diluted.
Surface gamma radiation readings generally fall below 20 microrems per -hour
above background levels, which is well below guidelines used by federal agencies, and
exposure to gamma radiation would occur only immediately above the contaminated
roadway.
IL Institutional Controls
Provisions in ROD
The ROD mandates that the City monitor any repair or construction work
involving the affected streets and that any contaminated materials removed from those
meets tL disposed in an approved facility. The ROD also mandates that institutional
controls be established to insure that appropriate monitoring and disposal practices are
implemented.
History of Institutional Controls at the Site
13 Radon is a colorless, odorless gas that is a decay product of radium. Decay
products of radon gas, radon daughters, attach to particulates and, when inhaled, can
lodge in the lungs. The subsequent decay of the radon daughters exposes the lungs to
radiation with possible carcinogenic effects.
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Denver Radium, CO
Beginning in 1983, the CDH provided nearby residents literature that discussed the
nature of the contamination problem and the City's approach for dealing with it The
EPA set up a neighborhood watch program in which residents are urged to contact the
City or CDH if they observe excavation in contaminated areas.
The CDH sent formal notification letters to utilities, the phone company, the
Denver Department of Public Works, cable TV companies, and general contractors
describing the dangers of excavating soil in the contaminated areas and informing them
that the CDH must be notified before any excavation takes place. Hie CDH will send
a representative (typically an engineer) to the work site to take readings of radioactivity
and to determine if radioactive material has been disturbed. The policy of the City is to
leave contaminated material in place where possible. However, if contaminated material
is removed, it must be disposed in a licensed facility. Until recently, the City had not
identified a facility at which to dispose radium contaminated material The material will
now be sent to the Clive facility in Utah.
The Cooperative Agreement signed in 1987 provides $30,000 to develop a formal
permitting and notification system to identify any activities that might affect the
contaminated segments of streets. Although some people in the CDH have
conceptualized the system, no work has been done and no money has been spent to
design and implement such a system. It is difficult to ascertain why the system has not
been further developed.
Community Acceptance
Some residents felt that the use of informal methods to control the excavation of
contaminated material was misguided. They preferred the streets to be excavated and
the radium contaminated material to be disposed at a licensed facility. Some residents
feel that a more formal method of identifying when excavation activities occur should be
developed. In fact, this is a concern of the CDH and is addressed in the Cooperative
Agreement. Generally, however, the community has accepted the City's approach and
the current arrangements to identify activities that may disturb contaminated materials.
The community has a central role in the notification system through the neighborhood
watch program.
Enforcement of Institutional Controls
The City has clear authority to control the excavation of city streets and to impose
requirements on the disposal of contaminated materials. The City sends out inspectors
when notified of excavation activities, but has not committed itself to monitoring directly
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Denver Radium, CO
activities that could affect the contaminated segments of streets. It relies on voluntary
notification by companies or governmental entities or on notification by interested citizens
to iearn that construction or excavation activities are planned or are being undertaken.
Effectiveness of Institutional Controls
There have been a number of cases where the CDH was not notified of planned
excavation activities and teamed about them after the fact through the neighborhood
watch system.14 In one instance, the CDH discovered that a contractor unknowingly
removed material contaminated by radium. (The material was then sent to an approved
disposal facility.) It is not known how many cases there may be where excavation
occurred and contaminated material was removed but the CDH was not notified nor
informed through the neighborhood watch. But given the awareness of the affected
residents, the informal system probably largely has prevented removals of contaminated
materials. The informal system depends on a continuing awareness of the radiation
problem by both private firms and residents. The extent to which a formal computerized
permitting and notification system, in practice, would improve CDH's knowledge of
excavation activities is not clear, since such a system has not yet been developed.
1IL General Conclusions
This site illustrates that informal institutional controls can be used to address low
risk public health problems. Informal systems probably can be reasonably effective when
residents in the area are aware of the environmental problem and can easily detect
prohibited activities.
14 One of these cases involved excavation work by the City's Department of Public
Works.
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Friedman Property, NJ
Friedman Property. New Jersey
Abstract: The Friedman Property site was found to present minimal risk to human
health and the environment, and has been delisted from the NPL The
ROD prescribed deed restrictions to be implemented by local governments
that would prevent future excavation and agricultural or residential use of
the site. The State of New Jersey has instead implemented a different sort
of IC at the site, invoking a State law that prohibits disruption of a solid
waste management site without State approval This alternate IC seems
generally as effective as deed restrictions would have been, but it is
nevertheless different from what was prescribed in the ROD.
I. Site Background
General Site Description
The Friedman Property is a former landfill for municipal solid waste, demolition
debris, and bulk liquids. The site lies at the intersection of two main roads (NJ Routes
537 and 539). Development around the site consists of commercial, residential, and
agricultural properties.
Site History
The site accepted municipal solid waste, construction debris and bulk liquids
between the late 1950's and early 1970's. There is no reliable evidence to indicate that
hazardous waste, as such, was ever disposed at the site. The Friedman Property was one
of fourteen original Superfund sites, it is one of the "Plumstead Sites" (Goose Farm,
Spence Farm, Pijak Farm), designated in New Jersey in 1980.
The subsequent Remedial Investigation found that there was no substantial existing
source of contamination, and no migration of any contamination. The ROD signed in
1985 recommended a no-action alternative, coupled with ground water monitoring for five
years to address the possibility of unexpected off-site migration of hazardous substances.
In addition, the ROD called for deed restrictions on the property to prevent
inappropriate future uses.
The Federal Superfund paid for the first year of monitoring (1988) which showed
only trace contaminants. The site has been deleted from the NPL, and NJ will conduct
the remaining monitoring in 1989-1992. No deed restriction has been implemented,
though roughly equivalent protection has been obtained through an alternate approach
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Friedman Property, NJ
(see below).
Nature of Contamination and Risk
Although a 1981 Field Investigation Team study indicated high concentrations of
metals and the presence of certain organics in groundwater, subsequent sampling done
as part of the RI/FS found no significant contamination. Ground-water contamination
levels were found to be at background; sediments were contaminated but appeared to
result from roadway runoff; and the air pathway did not seem significant It is unclear
whether the earlier sampling was in error, or the contamination had dissipated by the
time of the RI/FS. There appears to be no significant off-site or on-site risk from the
site, though prudence suggests that activities leading to excavation at the site should be
prohibited.
II. Institutional Controls
Provisions in ROD
The ROD recommends that the State request the appropriate local authorities to
implement deed restrictions on the property restricting on-site excavations, agricultural
use, and residential use. Notice of the previous use of the site would also be entered in
county land records.
History of Institutional Controls at the Site
At the time the ROD was being developed, New Jersey's policy was that locally
implemented deed restrictions be established for all Superfund sites where wastes were
left in place. The ROD was written accordingly. Subsequently the State developed a
preference that it be the implementing agency for ICs, not local governments. However,
it was not completely clear that the State (rather than local governments) had the
appropriate legal authority to establish and enforce deed restrictions. Given New Jerseys
preference for state control of ICs and the untested legal climate for deed restrictions at
the state level, New Jersey realized that the objectives of the ICs for the Friedman
Property Site could be accomplished through alternate means. A provision in the New
Jersey Solid Waste Management Act requires state approval for any excavation or
disruption of a solid waste management facility (NJAC 7:26-2.7). This provision
effectively requires State approval for any substantial activity at the Friedman site. Thus,
no attempt was made to implement deed restrictions.
The State has not received any applications to disrupt the landfill. If an
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Friedman Property, NJ
application were received, the state would likely require that any excavation be performed
under proper health and safety procedures. Because of the location of the landfill at the
intersection, of two highways, it has been postulated that a convenience store would
probably be the best use of the land, were its development economic. There is no
apparent limit on the length of time over which the state has the authority to approve
disruptions at the landfill Hie burden is on the owner (or subsequent owners) to request
permission for disruption. The current property owner is aware of the state requirement
One potential buyer explored whether there would be any restrictions on development
and no sale took place.
Community Acceptance
The community is aware of the site's status. Their awareness contributes to the
self-enforcing aspects of the remedy. The NJ DEP Community Relations Office reports
no current community concerns with the site.
Enforcement of Institutional Controls
Enforcement of New Jersey's solid waste management requirements is by the State,
with criminal and civil penalties authorized. An important question, though, is how future
property owners will know of the site's history and of their responsibilities under New
Jersey law. A deed restriction would come to light during a title search accompanying
any property transfer. Is there any parallel mechanism that will make the solid waste
management requirements known to future potential landowners?
Subsequent owners might learn of site's status as a former NPL site because NJ
real estate agents are potentially liable for nori-disclosure of relevant information (both
good and bad) about a property. At present, it is the recommended practice of the NJ
Board of Realtors to disclose a list of NPL and NJ sites in the vicinity of all properties
they list for sale. However, it is not clear that this recommended practice is followed by
all real estate agents, nor is it clear that there are any sanctions for violating this
recommended practice (other than possible increased exposure to liability for negligence).
Furthermore, because the Friedman Property site has been delisted from the NPL, it is
not even clear whether failure to disclose its status as a former NPL site would violate
recommended practices or increase liability exposure.
Another disclosure mechanism might be through the Land Information Service run
by the NJ Department of Environmental Protection (DEP). NJ DEP maintains a list of
approximately 1200 known or suspected hazardous waste sites. NJ citizens are entitled
to learn of the proximity of any of these sites to any property they are considering buying
and to speak with Community Relators Specialists about specific aspects of these sites.
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Friedman Property, NJ
However, the burden would be on the buyer to make this request. The potential buyer
of the Friedman Property learned about the restrictions on excavation through this
mechanism.
There are other factors potentially providing safeguards against uninformed buyers
obtaining the property. Certainly, the mortgage lender would insist on some sort of
certification that the site did not pose risks, or on some sort of official determination that
ECRA did not apply (In fact, ECRA does not apply to this site). Mortgage lenders in
New Jersey have become quite sensitive to lending for purchase of potentially
contaminated properties. If the borrower declares bankruptcy and defaults, the lender
has two equally undesirable courses of action available:
1. Repossess the property and be liable for the contamination, or
2. Seek to recover the loan amount from the bankrupt borrower. The lender's
claim on the borrower's assets would be a junior one. There has been a court
case in NJ (the Midalantic decision) which makes it clear that in the event of
bankruptcy, environmental cleanup has a first claim on assets.
Thus, mortgage lenders normaJiy make substantial efforts to avoid contaminated property
being transferred unknowingly.
Finally, the site itself has characteristics encouraging compliance with New Jersey's
requirements. The site is at the intersection of two highways and is clearly visible. Local
residents are aware of the site history and NJ DEP employees regularly pass the site.
Any disruption would be quickly discovered.
Effectiveness of Institutional Controls
The objective of the ICs - to prevent disruption of the site -- is clearly being
achieved. The State has a preference for being the implementing agency, statutory
authority is clear, and there are legal enforcement mechanisms. Because the current
owner is aware of the restrictions and is apparently willing to abide by them, there would
seem to be little risk of disruption without permission from the State while the property
is in his hands. Furthermore, the site's location allows any activity at the site to be
observed by EPA officials since it is located close to Regional headquarters.
It is also likely that potential purchasers would learn of the restrictions on the site.
There are many disclosure mechanisms (NJ Board of Realtors' recommended disclosure
practices, mortgage lenders' concerns with contamination and the availability of NJ DEP's
Land Information Service) which guard against an uninformed buyer taking title to the
property. While there is no foolproof guarantee that these mechanisms would work if,
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Friedman Property, NJ
the current owner has historical knowledge of the site and his liability would be great if
he were not to inform potential buyers.
III. General Conclusions
In this case, the State chose to accomplish the goals of the ICs through means
other than those specified in the ROD. Specifically, the State chose to use its authority
under State law to approve disruption of a solid waste management facility, rather than
seek deed restrictions (for which either a local government would have to be the
implementing agency or the State would be using untested legal authority). The approach
used by the State seems to have accomplished the objectives of the ICs. However, there
is a small possibility that the approach used, relative to deed restrictions, will result in less
than full disclosure about restrictions on the use of the site.
With regard to ICs, the key issue is probably whether the ROD should merely
specify IC goals, or should also specify the means for accomplishing them. At this site
an IC has been implemented that, although generally effective, is technically different
than was called for in the ROD. In developing the IC portion of the ROD for this site,
EPA accepted the State's recommendation. But the State had not fully thought through
the policy on which its recommendation was based, and the State's policy generally to
seek local deed restrictions was subsequently changed. At the time the ROD was signed
the State may or may not have been able to foresee the need to change its policy. It is
unclear whether giving further attention, before the ROD was developed, to which ICs
would work best would have avoided the subsequent need to implement an alternative
IC approach.
A second issue posed by this site is whether ICs should be imposed at all for a
site where there is apparently no significant residual contamination. No compelling case
is made that excavation or disruption of the site would lead to significant exposure to
contaminants. The ICs are recommended in the ROD "although the degree of risk form
the site is limited ... as a further precaution11. The ICs do have some value as a
precautionary measure, but they also substantially limit the economic value of the site.
If a site owner eventually files with the State to develop the property and the State
denies the request, some interesting litigation could ensue.
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Lake Sandy Jo, IN
Lake Sandy Jo. Indiana
Abstract The Lake Sandy Jo site involves both on-site soil contamination and off-
site ground-water contamination. Institutional controls are called for in the
ROD to assure appropriate future use of the site and to prohibit ground-
water use in the affected area off-site. None of the ICs have yet been
implemented or even thoroughly investigated. The delay has occurred
because of a decision to consider the ICs only after a public water supply
has been extended to the area; the water main extension has been held up
by several legal and financial difficulties. The delay has left area residents
at some risk and with substantial inconvenience for several years. In
retrospect, a more prompt resolution of the problems at Lake Sandy Jo
might have occurred had all elements of the remedy, including the ICs, been
fully investigated before the ROD was signed, and had implementation of
all elements then proceeded simultaneously.
L Site Background
General Site Description
The Lake Sandy Jo Landfill site is located near Gary, Indiana. The site consists of
an approximately 50-acre tract of land surrounding a water-filled borrow pit that was
gradually displaced by landfill operations between 1971 and 1980.
The Lake Sandy Jo site adjoins residential areas to the North, West and East
There are residences to the north of the landfill which have wells drawing their water
from a shallow aquifer contaminated by the site.
Site History
The borrow pit that eventually became the Lake Sandy Jo Landfill was dug in
order to support the construction of nearby Interstate 90/84 in the early 1960's. The pit
filled with ground water and was briefly used for recreational purposes by the surrounding
community.
In 1971, the property was bought by Robert Breski and Robert Nelson of Gemin
Corporation. Between 1971 and 1975 unknown materials were dumped into the lake,
eventually half-filling it During this period numerous complaints arose pertaining to
odors at the site. The State of Indiana, in 197S, initiated legal proceedings against the
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Lake Sandy Jo, IN
owners for operation of a landfill without a permit, mismanagement and pollutions In
1976 the charges were sustained, and the owners were fined $20,000 and ordered to
pump the lake and restrict the types of debris disposed of at the site. Gemin
Corporation then sold the property to Glen and Gordon Martin.
From 1976 to 1980, the "M & M Landfill" operated under a variance which
restricted fill materials to wood, stone, concrete, brick and other similar types of wastes.
During the operating period the variance was revoked and reinstated several times for
various violations.
The site has been inactive since 1981 and was placed on the National Priorities
List in 1982. An Emergency Removal Action to limit direct contact with soils at the site
resulted in the erection of a fence in April, 1986. On September 26, 1986 a Record of
Decision (ROD) was issued for Lake Sandy Jo which recommended the following: on-
site soil consolidation, on-site consolidation of contaminated sediments, installation of a
soil cover, groundwater monitoring and deed restrictions on the landfill property, extension
of water mains from the nearby Gary-Hobart water system to surrounding residences, and
other controls on aquifer use in affected areas.
Although the on-site engineered response has now been almost completed, the
alternate water system has not yet been provided.
Nature of Contamination and Risk
There is areawide soil contamination of the landfill surface with PAHs, phthalate
acid esters, and metals such as cadmium, copper, nickel and chromium.
Groundwater which runs through a shallow aquifer is the primary source of
concern for off-site exposure. However, the shallow aquifer has poor drinking water
quality independent of the Lake Sandy Jo Landfill, and many residents formerly relying
on the aquifer for their water supply have found partial or complete substitutes for it
At the time of the ROD, ground-water contamination levels did not exceed any existing
primary MCLs. Benzene was detected at low levels in monitoring wells at the facility
boundary. More recently EPA has found benzene in monitoring wells at about 50 parts
per billion (equivalent to a lifetime cancer risk of about 8 x lO-5', which exceeds the
recently established MCL of 5 ppb. No benzene has yet been detected in residential
wells. Non-enforceable secondary standards established for aesthetic or welfare purposes
are exceeded for some water contaminants - iron, manganese and sulfide, [n wells along
the southeast border of the site and along a southern drainage ditch high levels of
sodium, magnesium and potassium have also been found. None of these contaminants
are covered by either primary or secondary drinking water standards.
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Lake Sandy Jo, IN
II. Institutional Controls
Provisions in ROD
The ROD for Lake Sandy Jo directs that deed restrictions be placed on the landfill
property itself. These deed restrictions would prevent future development of the land to
protect against direct contact with contaminants, and would prevent further migration of
contaminants resulting from soil excavation. According to the ROD, unspecified
institutional controls should also prohibit the use of groundwater on-site, installation of
shallow wells on-site and the use of wells in the area north of the landfill. The
recommended alternative envisions groundwater restrictions for homes off-site in
combination with an alternate water supply from the Gaiy-Hobart water system. There
is no mention of timing or enforcement mechanisms for the recommended institutional
controls.
History of Institutional Controls at the Site
Alternate water supply
Although the engineered portion of the remedy is well under way, none of the
institutional controls mentioned in the ROD have been implemented at the s.te. The
primary obstacle was difficulty in financing unfotseen costs associated with extern,on of
ihe alternate water supplv system to 75 homes relying on ground water that may
ootentiallv be affected by the site. Since no PRPs have been identified at the Lake
Sandy Jo site, the burdenof funding the extension of the public water supply system falls
entirely to Superfundis.
Unforseen costs for extending the water system arise from the fact that the Gary-
Hobart water system is privately owned. Under the 1986 Tax Reform Act, any
contribution of ^"pTyS'.Xm thc'IuS fotThe
1986 Reform Ac.
a utility could exclude contributions by potential customers to its capital, such as
15 The costs for a home to hook-up to the water system have been estimated at
approximately $1,300 to $2,200 in the Record of Decision. The former RPM for the site,
disagrees with this figure and believes the cost to be substantially less.
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Lake Sandy Jo, IN
customer-financed extension of its distribution lines, from gross taxable income.14
(However, such contributions to capital were also typically excluded from the utility's rate
base on which a return could be earned.)
Thus, it appeared that EPA would have to make available funding not only for the
water main extension but also for the tax the Gary-Hobar? system will have to pay on the
construction costs. Procedures exist under the Tax Code for obtaining case-by-case rulings
from the Internal Revenue Service on the tax treatment of specific items. A ruling was
sought that would treat the Lake Sandy Jo water supply extension as non-taxable on the
basis that it was being done for the public good, but the request was denied by the IRS.
As a result, the EPA Regional Office had to apply for additional funding from
Superfund. Currently, funding for both the construction and tax costs of the alternate
water system have been set aside in the site's budget However, expenditure of funds for
the additional tax is now prohibited under the Federal Acquisition Rules that govern
federal procurement They do not allow payment of government funds for a private
party's tax liability. Because the Army Corps of Engineers is the responsible entity
overseeing remediation at the Lake Sandy Jo site, authorization to deviate from the FAR
rules must be sought through Department of Defense channels - up the chain of
command in the Army to the FAR Council. The current RPM for the site, foresees such
a process taking up to six months to complete.
When these problems can be resolved, connection to the new water supply is
expected to be offered to potentially affected residents at no charge. Their decision to
connect will be voluntary, since groundwater contamination levels do not-currently exceed
MCLs. It is not expected that those who choose to connect to the new water supply will
be compensated either for their future water bills as customers of the system, or for their
cost if they choose to seal their existing ground-water wells. These costs may have a
significant impact, as the affected residents generally have low incomes.
Peed restrictions and groundwater prohibitions
For the most part, little attention has been given by site personnel to
implementation of the deed restrictions and off-site ground water prohibitions called for
by the ROD. Construction of the alternate water system has been of primary concern,
and the institutional controls will be developed subsequently- For example, while the
Regional Counsel's office indicated that it might be very difficult to impose deed
restrictions on the landfill property (because of burdensome legal obstacles), few resources
" The loss of this exemption for utilities is contained in Section 824(a) of the 1986
Tax Reform Act
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Lake Sandy Jo, IN
have been focused on exactly what legal authority exists to impose deed restrictions under
Indiana Stale or local law, or on what type of legal support might be needed to draft
them.
One source associated with the site mentioned the potential use of a lien on the
property to help prevent future inappropriate uses of it The Regional Counsel s office
eroSSd that a lien on the property would act much the same way a deed notice
Sons If a lien is attached to the site, any transfer of the property would entail
unencumbering the title to the property, in the process of doing so the new owner would
te apprised of the site history and could judge which uses of the property would be
pe appnscu u . Sandy jQ SIte would not enforceably restrict
lXe°tfthe property, only a deed restriction or a local ordinance could actually restrict
afcwedJL of the property. But a lien might provrie a more effeenve warmng
atwut inappropriate site ac.Mties than would a deed notice because the hen requires an
explicit response (i.e., removing it) by a new owner.
No mechanism has been proposed for off-site groundwater fraction controls.
The Regional Counsel's office foresees establishing groundwater restrictions off-site as "a
bS iob ' One Of the major obstacles to groundwater use restrictions may be mandate^
S «aling^equi«meni The Regional Counsel's office expects that residents, who
rtooiTto hook up to the new water supply may be required to seal their existmg wells
inoider toassure that they do not use the contaminated ground water; but the cost of
dialing may be sufficiently high to deter many low-income res,tfcnts from agreeing
well scaling i y second likely issue involves the authonty under which
controlowr groundwater extraction can be achieved. While the local Health Department
Spears to have "some authority" to mandate groundwater restrictions, the possibles
have not yet been investigated to any significant degree.
One spokesperson for the site indicated that the only time frame governing
implementation of Institutional controls is that such controls be in effect when the site is
eventually de-listed.
Community acceptance
Community acceptance and satisfaction with EPA;* actions to date are quite low
J ZJlr the cite There is dissatisfaction with the quality of dnnking water
f„Th?a"a .hou; t s nol de™ .ha, the quality problems are due to the landfill) and
progress in improlg it or providing alternate water has been slow.
According to
poun^Knking purposes since 1981 and travel to an anesian we,,
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Lake Sandy Jo, IN
to bottle potable water.
Since the emergency removal action in 1986, EPA's response at the Lake Sandy
Jo site has been neither "expeditious" in providing alternate water supplies nor responsive
to the community's concerns, according to FARM PAC Although fact sheets pertaining
to the proposed remediation have been provided to the community upon request, Miss
McBride indicated this response came after residents voiced complaints with EPA
Enforcement of Institutional Controls
Because none of the contemplated ICs have yet been established, there is no
experience yet regarding their enforcement The statutory authorities to be used and
organizations that will implement the ICs have not yet been determined. Until there arc
decisions on these matters, it is premature to speculate about how they will be enforced
Effectiveness of Institutional Controls
There is a strong possibility that exposure to contaminated groundwater from the
Lake Sandy Jo site is now occurring or might occur in the future. Remediation efforts
to date at the site have been more complex and slower than anticipated in the ROD.
Extension of the Gary-Hobart water system has not yet occurred. Nearby residents have
thus continued to be faced with unsatisfactory water quality from their wells for over five
years. Although toxic contaminants attributable to the landfill have net yet been found
in residential wells, the concentration of benzene is substantially above its MCL in a
monitoring well at the facility boundary. Other contaminants exceed secondary MCLs.
Most residents appear to be avoiding the contaminated ground water at substantial
inconvenience to themselves by traveling to obtain and bottle well water from elsewhere.
Some residents may still be using the water from their domestic wells. Institutional
controls recommended in the ROD, if implemented, would clearly lower the chances that
residents will consume contaminated groundwater.
However, if the institutional controls are implemented as planned, exposure to
contaminated ground water still will not be completely prevented. Hook up to the
alternate water supply will be voluntary. Some residents may choose to continue using
their contaminated wells because of their difficulty in affording the costs of water bills
and well sealing that will accompany the hook up. The possibility of their substantial
interest in maintaining the existing wells in the contaminated aquifer raises doubts about
the effectiveness of proposed ground water prohibitions. Without active participation and
acceptance by the public of ground water restrictions, enactment and/or credible
enforcement of off-site well restrictions are in question.
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Lake Sandy Jo, IN
m. General Conclusions
Lake Sandy Jo shows how lack of progress in one part of a proposed remedy can
adversely affect the implementation of institutional controls. In this case, tax liability
problems associated with extension of the Gary-Hobart water system extension have taken
precedence with site personnel. As a result, the issue of restricting groundwater use off-
site or on-site has not been thoroughly addressed. Although most circumstances would
call for providing an alternate source of water before implementing other groundwater
controls, this sequential approach has resulted at Lake Sandy in nearby residents
continuing to be potentially exposed to contaminated ground water for several years.
Quite possibly, a simultaneous approach to all facets of the recommended alternative
might result in the implementation of groundwater controls before the water system
extension issue is resolved. In the interim, EPA could perhaps provide bottled water as
an alternative to using shallow aquifer wells for drinking water.
Lake Sandy Jo also raises questions about the feasibility of restricting groundwater
use in a low income area where residents may have difficulty affording metered water
and the costs associated with sealing old wells. Some residents may choose not to hook
up to the alternate water supply, and/or an eventual groundwater restriction ordinance
may be difficult to enact and enforce. The result may not be fully protective of human
health. A better result might be obtained if both aspects of the drinking water protection
(the alternate water supply and the groundwater restriction ordinance) were developed
simultaneously. The details of the drinking water protection strategy (e.g., Who pays for
hookup? Who pays for well sealing and future water bills? Is hook up mandatory? Is
well sealing mandatory? What does the ordinance require? How will it be enforced?)
could be worked out in an entire package designed to be fully protective of human
health.
Lake Sandy Jo also exemplifies some of the problems associated with institutional
controls being selected in the ROD with little consideration having been given to their
substance - the authority for them, who will implement them, or how they will be
enforced. Even though deed restrictions and groundwater prohibitions were selected in
the Lake Sandy Jo ROD, they may prove ultimately not to be feasible for the site. If
they are implemented, it will only be after a substantial delay. Such situations argue for
a revised procedure, where the mechanisms, responsibilities, authorities and timing critical
to successful implementation of institutional controls are specifically considered during the
remedy selection process. ICs should be included in the selected remedy only after some
minimum amount of investigation to assure that they can be put in place and will work.
Perhaps the most unique aspect of Lake Sandy Jo is the tax liability issue. If other
sites which rely on private water systems to provide alternate water supplies have similar
tax problems, implementation of the associated institutional controls may be similarly
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Lake Sandy Jo, IN
delayed. If the LR.S. continues to rule that water main extensions financed by entities
other than the utility should be treated as taxable income to the utility, a substantial
barrier to alternate water remedies is likely.
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Libby Ground Water, MT
Libbv Ground Water Site. Montana
Abstract Groundwater at the Libby Groundwater Site is contaminated with a variety
of organics from an old wood treating operation. A number of private wells
already are contaminated and more are threatened with contamination.
The PRP instituted a program under which it pays the costs of connecting
private well owners to the public water supply system and the costs of
capping existing wells and partly compensates private well owners for the
cost of using the public water supply. These measures were adopted in the
ROD along with a local ordinance that prevents the drilling of new wells.
The program has been highly successful in preventing the use of
contaminated ground water. This is a good example of how a proactive
PRP with local cooperation can formulate effective institutional controls.
L Site Background
General Site Description
The Libby Ground Water site is located in the city of Libby, Montana.
Contamination at the site was caused by a variety of organic chemicals used in a wood
treating mill now owned by the Champion International Corporation. The contamination
has affected about 40 wells in the City of Libby and may spread to developed but
unincorporated areas surrounding the city. Most of these wells were used for irrigation
only, although some were used for both irrigation and drinking water.
The City of Libby obtains its public water supply from a reservoir on Flower
Creek, about 3 miles upstream from the site. This water supply is not threatened by
contamination from the site.
Site History
The wood treating mill that was the source of contamination was owned and
operated by the J. Neils Lumber Company from 1946 to 1957. The St. Regis Company
purchased the property in 1957 and shut down the wood treating mill in 1969. Champion
International Corporation purchased the property in 1985.
Until 1979, most residents in the City of Libby relied on the public water supply
for drinking water and irrigation. Dramatic increases in water rates in 1979 led to a
significant increase in the use of private wells(tapping the shallow aquifer) for irrigation.
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libby Ground Water, MT
Beginning in 1980, many residents detected a strong creosote odor from their private well
water. Subsequent field monitoring confirmed that groundwater contamination had
occurred.
The Libby Ground Water site was added to the National Priorities List in
September 1983. An Administrative Order on Consent by St Regis Corporation (the
PRP at that time) and EPA was signed in October 1983 and a RI/FS was initiated.
While the PRP was conducting studies of the site under the oversight of EPA,
Champion bought out St Regis. Champion, at its own initiative, took several steps to
reduce exposure to contaminated groundwater at the Libby site. Champion initially
offered "Buy Water" agreements to fifteen homeowners under which they would use water
from the public supply system rather than from their own wells (these agreements are
described below in more detail). Subsequently, Champion extended the offer to
additional homeowners identified as being within the area of contamination and now
about 26 home owners have signed the agreement Thirteen of the homes identified as
being within the boundary of the plume have not signed agreements with Champion. The
occupants of one home still obtain their drinking water from a private well
The RI found that contamination was present at a greater depth and with a
greater areal extent than had previously been believed by EPA. It became apparent that
final remediation of the site required further RI studies. EPA decided to break the site
up into operable units, the first of which dealt with public exposure to contaminated
ground water and the second of which is to deal with remediation of the site. The ROD
for the first operable unit was issued September 1986. It formalized the program
developed by Champion, along with restrictions on well drilling in contaminated areas.
The studies for the second operable unit consisting of the soils/source areas and
upper aquifer, were completed in November, 1988. A ROD was signed by EPA in
December, 1988 which selected the remedies that will be used to reduce contaminant
concentrations in the unsaturated zone and the upper, drinking water aquifer A Consent
Decree between the United States and Champion has been entered in Federal court and
cleanup of the site began in October, 1989.
Nature of Contamination and Risk
Groundwater contamination at the site resulted from wood treating operations
carried out over the period 1946 to 1969. Four basic types of treating fluid were used at
the Libby site: creosote, pentachlorophenol(PCP), salt treatment, and fire retardant The
following contaminants have been detected in drinking water samples: metals (such as
zinc, copper,chromium, lead and nickel); PAHs (the major constituent of creosote); PCP;
and benzene.
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Libby Ground Water, MT
Based on 1984 and 1985 samples, a total of 32 wells were known or suspected to
be contaminated and since that time additional wells have been found to be
contaminated However, only wells within the city limits have been found to be
contaminated. Elevated levels of PHAs and PCP were detected in many wells measured.
Other compounds, including elevated metals, benzene and VOCs, were detected in some
wells. MCLs established by the Montana Water Quality Act were exceeded in many of
the wells and MCLs established by the Safe Drinking Water Act were exceeded in a few
wells. Some of these contaminants are known carcinogens and others have toxic effects
on humans.
The rate and direction of the plume migration is complicated by the local
hydrology. Wells outside the city limits may be affected in the future if the plume of
contamination spreads in both the shallow aquifer.
EL Institutional Controls
Provisions in ROD
The purpose of the ICs at the Libby Groundwater site is to prevent the withdrawal
and use of contaminated ground water. The ROD specifies that the Buy Water
agreement developed by Champion must be extended to existing and new homeowners
located above contaminated ground water (defined as having a PAH level greater than
2.8 parts per trillion which corresponds to a 10* risk) for as long as groundwater
contamination exceeds acceptable limits and that the City of Libby must pass a local
ground water ordinance that prohibits the drilling of new wells within the city limits.
History of ICs at the Site
ICs at the Libby Ground Water site were voluntarily implemented by Champion
and the City of Libby before the ROD was issued. The ROD formalized the plan that
already was largely in place. The ICs at Libby have two components: the Buy Water
plan (which includes the irrigation water agreement) and the city-wide ordinance
restricting the drilling of new wells.
The Buv Water Plan
The Buy Water plan was developed and offered to residents by Champion during
the summer of 1985. It is an agreement between the homeowner and Champion under
which homeowners agree not to use water from their wells and Champion agrees to pay
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the homeowners the increased cost of using metered water during April through
September of each year or $200, whichever is greater.17 All of the wells are locked and
some are left in operable condition to be used as monitoring wells by Champion. The
increased cost of water usage during April through September, on average, is less than
$20, so Champion generally pays $200 per home. The Buy Water agreements may be
rescinded if EPA determines that the threat of contamination no longer exists.
As part of the Buy Water plan, Champion agreed to pay the City of libby $30,000
per year to finance the additional cost of providing water for irrigation purposes. The
City provides to each homeowner within the city limits an allotted irrigation quota." The
homeowners are charged for annual water usage above their quota. Champion
compensates the City directly for those homeowners participating in the Buy Water plan
who have exceeded their water quota. The free irrigation agreement extends only to
homeowners inside the city limits.
The result of the Buy water plan is that the cost to homeowners of switching to
public water is greatly reduced. This is especially true for water used for irrigation. If
a subsidy for irrigation were not included as part of the agreement, homeowners would
have a strong incentive to continue using their private wells for irrigation.
The Groundwater Ordinance
The final ground water ordinance passed by the Libby City Council requires that
any person desiring to drill a-well within the city limits must apply for permission and
that no authorization will be given if the well is to be used for drinking water or
irrigation. Any person who violates the ordinance can be fined $500 and imprisoned for
six months. The final ordinance is identical to the emergency ninety day ordinance which
was passed in July 1986,
According to all sources interviewed, if the Buy Water plan had"not been made
available, the City probably would not have voluntarily passed the ground water
ordinance. Moreover, passage of the ordinance depended heavily on the free irrigation
17 This is calculated as the cost of water usage in excess of the minimum monthly
water usage during the year.
tt The quota is now about 12,000 gallons per year per home. This may change
depending on the number of homeowners entering into Buy Water agreements with
Champion.
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Libby Ground Water, MT
water agreement funded by Champion's $30,000 payment to the City."
Community Acceptance:
Community acceptance of the Buy Water plan and the local ordinance has been
strong. A key factor in the broad acceptance of the plan was Champion's voluntary
payments covering homeowners* higher water bills during the spring and summer months,
including the free irrigation agreement
Some concern had been expressed by residents about how the plan would be
extended should the contamination spread beyond city limits. In response, Champion has
made it clear that the Buy Water plan will be extended to homes outside the city limits
should their wells become contaminated. The extent to which water for irrigation would
be subsidized for homeowners outside the city limits will have to be resolved by further
negotiations among the interested parties.
Enforcement of Institutional Controls
Enforcement of the provisions in the Buy Water agreement is the responsibility of
Champion. The locking device installed on private wells provides a safeguard against the
use of contaminated groundwater. Enforcement of the local ordinance prohibiting well
drilling is the responsibility of the City of Libby. The City has not specified how it will
monitor compliance with the new law, but the ordinance imposes penalties on violators
and should deter the unauthorized drilling of new wells.
Effectiveness of Institutional Controls
The objective of the ICs, elimination of exposure to contaminated ground water,
generally has been met The Buy Water plan has limited the use of contaminated wells
(with the exception of three homeowners that have not yet signed the agreement), the
extension of the Buy Water plan outside the city limits should limit potential exposure
caused by movement of the contaminated plume, and the local ordinance restricting well
drilling should prevent new wells from being located in contaminated areas.
The ICs are enforceable by both the City of Libby and Champion. Signature by
the homeowner of the Buy Water agreement constitutes a contractual obligation and
" In the agreement with the City, Champion conditioned its pledge to make the
$30,000 payment on the City "using its best efforts" to pass the final ordinance.
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Libby Ground Water, MT
existing wells are locked. If the well owner does not abide by the agreement, Champion
may take legal action against the homeowner (though it is not clear that Champion would
devote any resources to monitoring compliance with the agreements). Similarly, if a well
is drilled for drinking water or irrigation purposes, the City of Libby has authority to
close the well and impose fines and a prison sentence.
However, the major reason the ICs have been and are likely to remain successful
at this site is that Champion developed and implemented a system that provides adequate
financial incentives for private well-owners to use the public water system.
HL General Conclusions
There are several key conclusions in this case:
o ICs are successful at this site because the PRP took the initiative in developing a
package of ICs and was willing to provide financial incentives sufficient to
compensate homeowners for switching to the public water system. In addition,
since the Buy Water plan is a voluntary arrangement, residents have never felt that
they were being forced to abandon their private wells. This facilitated passage of
the City ordinance prohibiting well drilling in contaminated areas. It also made
EPA's task of developing the ROD less difficult, as the ICs were known and, to
a large degree, were already in place at the site.
o The outcome was beneficial to the PRP. Champion believes that the elimination
of the exposure of residents to contamination through the implementation of the
Buy Water Plan allowed a more exhaustive review of clean-up options because the
immediate threat to residents was quickly mitigated. Champion also believes the
Buy Water Plan may have provided a greater degree of flexibility in addressing
remediation of the site. Clearly, Champion's voluntarily actions have dramatically
reduced resentment by residents near the site and have engendered public support
that was previously absent
o The ICs do not legally force homeowners to discontinue the use of their private
wells, nor are there resources explicitly set aside for the enforcement of the ICs.
Rather, the ICs are successful, in large measure, because they are comprehensive
and they provide substantial financial incentives to use the public water supply
system. It may be that PRPs, acting voluntarily, have greater flexibility in tailoring
ICs to local conditions than would EPA, particularly in terms of subsidizing part
of the annual cost of using public water.
o The ICs induced most homeowners to voluntarily switch to the public water supply.
There seems to be little concern among those interviewed regarding the potential
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health effects to those few homeowners that freely choose to continue to use
contaminated ground water (only one homeowner is using it for both drinking
water and irrigation purposes). This issue may be of more concern if ICs
developed by a PRP did not induce most homeowners to stop using contaminated
water.
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Olean Well Field, NY
Olean Well Field. New York
Abstract Groundwater at the Olean Well Field site is contaminated with high levels
of TCE. Carbon adsorption filters have been installed on about 30 wells
in a series of emergency removal actions by local and state authorities. The
ROD called for extension of the public water supply system to residences
with contaminated wells in the Town of Olean and for institutional controls
on ground water use. Most residences have been connected to public water
lines under an agreement with the PRPs in which property owners also have
been compensated for the expected future cost of using public water.
However, opposition by the Town of Olean to prices charged for City
supplied water, along with procedural roadblocks, is now preventing the
extension of the water system from becoming operational Homeowners
with private wells in the Town remain at risk approximately eight years after
contamination in ground water was first detected.
I. Site Background
General Site Description
The Olean "Well Field site consists of three municipal and a number of private
wells that are highly contaminated with VOCs, primarily TCE. The site includes both the
eastern portion of the City of Olean and part of the Town of Olean. The City and
Town are separate political jurisdictions, with the Town being substantially more rural and
less developed than the City. The area consists of residences, as well as industrial and
commercial establishments. Olean is approximately 65 miles, southeast of Buffalo.
Site History
In 1981, three municipal wells that served as the primary source of drinking water
for the 20,000 residents in the City of Olean were found to have levels of TCE far above
drinking water guidelines established by the New York State Department of Health.
The three wells were closed and an old surface water filtration plant was reactivated as
a temporary method of providing water to city residents. Private wells in the vicinity
subsequently were tested and were found to have elevated levels of contaminants. Most
of the contaminated private wells are located in the Town of Olean.
Responsibility for the site has been partially delegated by EPA to the New York
State Department of Environmental Conservation (NYSDEC). In 1982, a monitoring
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Olean Well Field, NY
program was instituted for private wells and carbon filters were installed on 16 private
wells under an Emergency Response Action. In 1984, under a second Emergency
Response Action, 11 additional carbon adsorption units were installed and a full scale
monitoring program of filtered and unfiltered wells was initiated.® Two more carbon
filter systems were installed on private wells in 1985 under a third emergency action, for
a total of 29 filter systems. The source of the contamination at the site has not been
fully identified, but EPA targeted some commercial sites to investigate, such as the Seneca
Avenue Landfill and the Butler/Andrew Dump. Recently, EPA decided to delete the
Seneca Avenue Landfill from further investigation.
Six companies were identified as PRPs. This number has declined to four because
of buy out actions. The remaining PRPs are Cooper Industries Inc., Aluminum Company
of America, AJcas Cutlery Corporation, and AVX Corporation. The PRPs have entered
into a joint agreement specifying the apportionment of cleanup costs associated with the
site.
The ROD for the Olean Well Field site was signed in September-1985. The ROD
specified that the following measures be undertaken:
o Reactivate the municipal wells and construct a packed tower air stripping system
to treat ground water to the MCL of 5ppb for TCE.
o Extend the City of Olean water lines into the Town of Olean and connect 93
homes with private wells to the public water supply system.
o Inspect the McGraw-Edison industrial sewer and analyze repair and replacement
options. (This sewer line is not a source of the TCE contamination, but is
suspected of leaking.)
o Recommend institutional controls restricting withdrawal of ground water for
drinking purposes where MCLs are exceeded.
o Initiate a supplemental RI/FS to evaluate source control measures.
As discussed in more detail below, the provision of public water supplies to the
Town of Olean (and the hookup of residences in the Town to a public water system) has
been hampered by the political concern of insuring the Town's independence from the
City, opposition by a previous Town supervisor (who owns numerous rental properties)
to the imposition of a public water supply, and the cost of public water. Although the
30 One cubic foot carbon filter systems were also upgraded to three cubic foot
carbon filter systems.
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Town has now agreed to be connected to the City's public water system (and as a
prerequisite has designated itself as a water district), the Town and City are still
negotiating over the cost at which the public water will be supplied - the City plans to
impose a 50 percent surcharge on water supplied to the Town." Until this cost issue
is satisfactorily resolved, Town residents must still rely on their private wells and the
carbon filter systems must remain in place.
In the meantime, the PRPs have entered into agreements with about 93 owners
whose homes are located in the area of contamination. Under these agreements the
PRPs have agreed to connect the residences to the public water supply system and to pay
a lump sum of $625 to compensate each homeowner for the expected increased future
cost of public water. These connections have been completed and the system will quickly
become fully operational once the City and Town reach agreement over water rates. In
addition, private wells in the Town are being disconnected at this time and homes are
beginning to be supplied with public water.
Air stripping towers are now under construction on each of the three municipal
wells that are contaminated with VOCs. The PRPs entered into agreements with the City
to pay for a portion of the costs of operating the air stripping towers. The City continues
to rely on water treated at the reopened surface water filtration plant.
Nature of Contamination and Risk
Three municipal wells and over thirty private wells show heavy levels of
contamination. The principal contaminant of concern is TCE, although other volatile
organics are present, such as 1,1,1-trichIoroe thane and trans- 1,2-dichloroethylene. Levels
of contamination have fluctuated substantially since monitoring began in 1982. Over half
of the sampled wells show TCE levels at over 1,000 ppb, a level far in excess of the
MCL set under the Safe Drinking Water Act of 5 ppb and corresponding to a lifetime
risk of about 2 x 10"\ The highest level of TCE detected in a private well has been
3,100 ppb. TCE levels of this magnitude constitute a serious cancer risk and could cause
kidney damage and central nervous damage to humans if consumed.
There are two aquifers at the Olean Well Field site, both of which are
contaminated. The highest concentrations of TCE appear to be located in the upper
portion of the lower aquifer and in selected areas of the upper aquifer. The ground
water flow and movement of the plume in the lower aquifer is to the west and southwest,
towards the municipal wells. Movement of the plume can be fairly rapid when the City's
11 The surcharge is added to the rate paid for water by City residences.
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Olean Well Field, NY
municipal wells are in operation. Based on flow patterns in the area, it appears that the
plume is unlikely to spread beyond areas in the Town of Olean already identified as
being contaminated.
H. Institutional Controls
Provisions in ROD
The ROD required that the three municipal wells owned by the City be reactivated
and that packed tower air stripping be used to remove VOCs from the water. In
addition, it required the Olean City's water lines to be extended into the Town of Olean
and residences in the town to be connected to the public water supply system. The ROD
recommended institutional controls be imposed to restrict withdrawal of ground water for
drinking purposes where MCL levels are exceeded, but it specified neither the mechanism
through which ground water controls were to be implemented nor the implementing
authority.
History of Institutional Controls at the Site
Implementing the institutional controls recommended in the ROD has been a
difficult and time consuming task. Until recently, interconnection of residences in the
Town with the City's water system was opposed by the Town of Olean. This was caused
by a number of factors, including: concerns about maintaining political independence from
the City, opposition by the Town's previous Supervisor, the high cost involved in
becoming connected to a public water supply system; and the high cost of water that
would be supplied by the City. Although at this time all the residences in contaminated
areas have been connected to a public water supply system, the Town and the City are
still negotiating the price at which water will be supplied. Until this issue is resolved, the
public system in the Town remains inoperative and people must rely on their private wells
for water.
One of the most important factors that delayed the interconnection of the Town
with the City's water system is that the town, as a rural community, wants to maintain its
independence from the city. The enforcement project manager at EPA, said that some
individuals feared that acceptance of city services, such as water supply, might end in the
eventual annexation of the Town into the City. Other sources knowledgeable about the
site described the Town's attitude as "a certain stubbornness." For example, some
residents refused the filter units offered to them in the early 1980s. Later on, when the
Town of Olean was confronted with the issue of connecting to the City's water system,
many members of the Citizen's Advisory Committee (CAC) voted against accepting city
water. And, importantly, the then Town Supervisor, who owned a number of rental
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Olean Well Field, NY
properties, was ideologically opposed to connecting with the City water system and was
influential with the CAC
Another important factor in generating opposition to connecting with the City's
water supply system was the high cost of connection and the. high water rates that will be
charged by the City. The cost of connecting a home to the public water supply system
was projected in the ROD to be about $500. Although the NYSDEC had paid for the
costs of installing carbon filters in the emergency actions, they were not prepared to pay
for the cost of connecting residences to a public water supply system. It took some time
before the PRPs were able to negotiate a cost sharing agreement among themselves and
to develop an offer to homeowners under which they agreed to connect them to a public
water supply system at no cost In addition, the PRPs have agreed to pay homeowners
a lump sum of $625. According to the PRPs, this represents the present value of the
increased cost of using public water over a 20 to 30 year period.2
The PRPs offered this agreement to homeowners in the Town and have completed
the connections, notwithstanding the fact that the Town has not yet agreed to
interconnect with the City's system. The PRPs have entered into agreements with 93
homeowners. Under the terms of the agreement, homeowners are prohibited from
interconnecting their private wells with the public water system. (Presumably they would
disconnect their private well from the household plumbing system.) But, the private wells
are not required to be sealed and can still be used for outdoor purposes. Apparently
there are three owners with properties having contaminated wells that still have refused
to sign the agreement
The final sticking point, and the one that still is delaying extension of City water
to the Town, is the cost of City water.23 For an area outside the boundaries of the City
32 The assumptions underlying this calculation are not known. Some Town residents
feel that the PRPs were let off too easily and should have been made to pay a greater
amount From the PRPs' perspective, this type of one-time payment allows them to fulfill
their obligation to compensate homeowners for higher water costs in the future without
having to remain involved at the site over an extended period of time.
a Another factor that might delay action at the site is the McGraw-Gdison industrial
sewer line which runs through the area. The Department of Health is concerned that the
sewer line contributes to contamination problems. The ROD mandated that the industrial
sewer be inspected and that, if needed, repairs and replacement options be considered.
The inspection detected several obstructions in the line and the repair of those
obstructions is now part of the larger alternative water supply negotiations. Controversy
over funding for sewer repairs could extend the length of time needed to resolve the
alternative water supply issue.
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Olcan WcD Field, NY
of Olean to be serviced by the public water supply system it must first be designated as
a "water district". The City then imposes a 50% surcharge on water supplied to "water
districts." According to the Olean Department of Public Works, the 50% surcharge is
uniformly applied to all water districts irrespective of their location. Although the Town,
since the election of a new Supervisor, has designated itself as a "water district" to
facilitate interconnection, it still is opposed to the 50% surcharge. One source believes
that the surcharge should be paid by the PRPs and that the payment negotiated by PRPs
and offered to homeowners is inadequate to cover the surcharge.24
Community Acceptance
As described above, efforts to develop an alternative water supply for the Town
have been plagued by community opposition. Much of this opposition dissipated after
the PRPs developed an offer to compensate homeowners and after the election of a new
Town Supervisor. Many people interviewed described the previous Supervisor's opposition
to the city water supply as singular and not representative of the community at large.
However, the Town still opposes the imposition of the 50% surcharge on water supplies
and some people feel that the payment of $625 offered by the PRPs is not sufficient to
cover the extra costs that will be incurred by Town residents for water.
Nonetheless, 93 homeowners have voluntarily signed the agreement with the PRPs.
This is the bulk of residences affected by the ground water contamination. Only three
Town well owners, one of them the previous Supervisor, have refused to sign the
agreement
Enforcement of Institutional Controls
There is no formal prohibition on the use of wells in contaminated ^res at the
Olean Well Field site. (Certainly this would have been unenforceable in the absence of
an alternative water supply.) Once the Town is connected to the City's water supply
system, the PRP-well owner agreement will be the only mechanism for insuring that
individuals not use private well water.
Three property owners in the Town of Olean, one of whom owns rental property
and has been traditionally opposed to city water, have refused to sign the PRP-well owner
* It is not known whether the $625 payment from the PRPs covers the 50 percent
surcharge the City intends to impose.
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Olean Well Field, NY
contract and will continue to use contaminated water. It is not clear whether action can
be taken against them. A local Health Department code possibly could be used to
address the problem with rental properties, since it prohibits the provision of
contaminated private well water to non-family members.23 While we can argue that
individuals ought not be coerced into using public water that they do not want, there is
some concern about equitable treatment for renters whose landlord will not accept public
water.
The PRP-well owner agreement does not require that private wells be capped or
locked. It does stipulate that the homeowner will not interconnect private water into the
municipal system. (This is intended to prevent back-siphonage of contaminated private
well water into the clean municipal system; it will not prevent private well owners from
using their own water.) It is unlikely that the PRPs or the NYSDEC will devote
resources to monitoring this requirement over time or to determining whether
contaminated wells are used for irrigation or other purposes and the PRP-well owner
agreement does not provide for periodic inspection of the properties to insure compliance.
There is no financial incentive for homeowners to use City water, other than the fact of
being connected to the system, since the City water is costly and water from the private
wells is nearly costless. The system depends primarily on people voluntarily using City
water because of the perception that using contaminated well water will lead to health
problems.
Effectiveness of Institutional Controls
Once the City and Town resolve the issue of the cost at which water will be
supplied to the Town, most property owners in the town will be connected to the public
water supply system and, presumably, will use public water for drinking rather than
contaminated water from private wells. Only three property owners have refused to
connect to the public water supply system. Although the ROD mandated formal ICs to
control the use of contaminated ground water, a voluntary PRP-well owner compensation
agreement was used instead.
One of the property owners that has refused to sign the PRP-well owner
agreement owns a number of rental units. Since no formal ICs have been developed in
response to the ROD, existing statutes are the only means for addressing this problem.
The Town may be able to close the wetls supplying the rental units using an existing
public health regulation.
The development of an alternative source of water has been long delayed and has
* Cited in a memorandum from Chester Halgas to Dr. Garvey, March 7, 1989.
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Olean Well Field, NY
forced residents to continue to rely for drinking water on contaminated private wells.
Although the carbon filtration units have lowered exposure levels at about 30 wells at
which they were installed under Emergency Removal Actions, residents have continued
to use the remaining 60, or so, wells contaminated with TCE at levels far beyond the
MCL.
Long term reliance on the carbon filtration units clearly was not the intent of the
Emergency Removal actions. But the time frame for remediation of the site gradually
expanded from one and a half years to over eight years. Many sources associated with
the site have complained that the cost to the NYSDEC has been exorbitant Installation
and sampling of one filter can cost up to several thousand dollars according to Richard
Dana of the NYSDEC Typically, carbon filters are bought or leased by the government
for use at a particular site. The lack of availability of filters for all contaminated wells
resulted in a situation where private well use was allowed, but contamination levels were
not uniformly controlled.
Many people interviewed felt that EPA has not been involved enough at the site
to recommend practical solutions. Several individuals pointed to the continued reliance
on expensive filtration units as evidence that EPA approach to the site has not been cost-
effective or pragmatic. Steve Scharf of the NYSDEC believes that EPA was not willing
to get involved on the local level, nor was it forceful enough in enforcing ground water
restrictions recommended in the ROD. Pam Tames, the EPA remedial RPM, thought
that if the ROD had been more closely coordinated on a state level a strict ban on
private well usage might have been possible.
HL General Conclusions
There are several key conclusions in this case:
o Although the ROD recommended ICs to restrict the withdrawal of ground water
for drinking purposes where MCL levels were exceeded, the goals of the ROD will
be (presumably) largely attained by a voluntary agreement between PRPs and well
owners. No legal restrictions were imposed on the continued use of contaminated
ground water or the drilling of new wells into contaminated areas. The
recommendations of the ROD are at variance with the method used to address the
problem of contaminated well water.
o Local political opposition to the development of alternative water supplies can
delay substantially the implementation of ICs recommended in RODs. The timing
of actions at this site suggests that private well owners will require a substantial
amount of compensation, either by the PRPs or by EPA, before becoming
amenable to shifting to a public water supply system. At enforcement lead sites,
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Okau Well Field, NY
such as this one, it may be possible to implement ICs only after the PRPs agree
to offer a compensation package to private well owners. This may raise the costs
of Emergency Response Actions designed to be temporary in nature.
o The PRPs probably have more flexibility in structuring the compensation package
to private well owners than would EPA, particularly in terms of subsidizing the
cost of future water use. However* the basis for the $625 lump sum payment by
the PRPs to well-owners should have been made more dear. This could have
helped in dealing with the feeling by Town residents that they will have to pay too
much for G'ty supplied water and may have shortened negotiations between the
City and Town over water rates.
o It is necessary for EPA to coordinate the development of ICs with local health
departments and State agencies, particularly when thete is local opposition to ICs.
It is possible, though far from clear, that had EPA become more involved at the
local level the ROD could have addressed problems posed by the City and Town
water negotiations and could have contained specific enforcement mechanisms.
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Seymour Recycling, Indiana
Sevmour Recycling Corporation. Indiana
Abstract: Soil and ground water at the Seymour site is contaminated with a variety
of VOCs. Deed restrictions on the commercial and residential development
of the site and surrounding property, resulting from negotiations among
PRPs, the City of Seymour and EPA, and formalized in a consent decree
are being used to limit human exposure to contaminants while the
engineering remedy is being undertaken. Nearby residents were connected
to a public water supply system. A voluntary program to induce
homeowners to seal private wells has been unsuccessful
I. Site Background
General Site Description
The Seymour site is located near Seymour, Indiana and covers about 14 acres.
Chemical wastes were managed at the site in the 1970s and early 1980s by the Seymour
Recycling Corporation.
The Snyde Acres subdivision, the area in which many private wells are threatened
with contamination with VOCs, is located about a half mile north of the site. To the
southeast lies the Freeman Field Municipal Airport Most of the area surrounding the
site is used for agricultural purposes.
Site History
The Seymour Recycling Corporation (and its predecessor, Seymour Manufacturing
Company) processed, stored, and incinerated chemical wastes at the site from 1970 to
early 1980, The facility was shut down when the company failed to comply with a 1978
agreement with the State of Indiana that prohibited receiving additional waste and that
mandated better waste management practices. In 1980 a state court placed the facility
under receivership.
During an Emergency Removal Action in 1980 EPA fenced the site to restrict
access and constructed dikes to control surface water runoff. Also in 1980, several
thousand drums were removed from the site by two potential PRPs. In 1981 EPA
unilaterally removed chemicals from tanks and disposed of the wastes at authorized
disposal sites.
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Seymour Recycling, Indiana
In 1982 the U.S. government entered into a consent decree in U.S. District Court
with several PRPs. Under the terms of the consent decree a surface cleanup was
conducted from December 1982 to January 1984. About 50,000 drums and 100 storage
tanks were removed and taken to authorized disposal sites. One foot of contaminated soil
was also removed and disposed of.
In 1982 and 1983 the U.S. government entered into additional agreements with
over 200 other "generators" and established a trust fund for future cleanup actions based
on de minimis settlements. The trust fund totals approximately 5.5 million dollars. An
additional complaint filed by the United States implicated an additional 49 defendants,
some of whom filed cross claims against the City of Seymour and the Seymour .* Other
defendants named in a second amended complaint filed third party actions for indemnity
from and contribution to damages being sought from other defendants.
Beginning in 1983 the residents of Snyde Acres requested that the city extend the
municipal water system to their neighborhood. The residents argued that the trust fund
set up for the site should be used to pay for the extension. EPA and the Department
of Justice initially rejected the request because private wells in the subdivision were not
contaminated with VOCs. The request was granted sometime after the residents
petitioned in the Federal Court In 1985 about 100 residences and businesses were
connected to the public system.
By August 1986 both the RI and FS had been completed and the ROD was signed
in September 1987. The recommended alternative included the following:
o Deed and access restrictions to prevent the future development of the site and the
adjacent property and to assure the integrity of the remedial actioa
o Implementation of a full scale vapor extraction system.
o Extraction and treatment of contaminated ground water at and beyond the site
boundaries.
o Installation of a multi-layer cap.
o Excavation of contaminated sediment from nearby streams and consolidation of the
24 The Seymour Board of Aviation Commissioners is a an agency of the City of
Seymour. The Board holds title to the property and is lessor of the land adjacent to the
to the site. The Seymour Board of Aviation Commissioners holds the property on behalf
of the City.
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Seymour Recycling, Indiana
sediment beneath the cap.
o A regular monitoring program to determine the effectiveness of the proposed
remedial action.
Most recently, a consent decree entered into force in December 1988. The decree
creates an additional trust fund to implement the remedial alternative recommended in
the ROD. More importantly, the consent decree assigns remediation responsibilities
contained in the ROD and specifies the terms and conditions specified under which the
remediation of the Seymour site will take place.
Nature of Contamination and Risk
Soils on-site are highly contaminated with organic chemicals. (Over 54 organic
chemicals were identified in soil samples taken in 1985.) Contaminants of concern are
1,1,2-trichloroethane, carbon tetrachloride, 1,1,2,2-tetrachloroethane and trichloroethane.
Contamination of near surface soils and sediments beyond the site boundary is more
limited. However, samples from the Northwest creek show a low level presence of
hazardous organic chemicals. An Endangerment Study performed in 1983 and 1984
shows that some contaminants from the site have migrated to surrounding land areas and
waterways and have contaminated the local aquatic wildlife.
The volatile organic compounds present at the site could create health risks
downwind of the site. Concentration levels of VOCs in the air at the nearest off-site
receptor (placed about one quarter mile northwest of the site) are associated with about
a 10"6 cancer risk. However, no residential or commercial buildings are located near the
site.
On-site ground water is heavily contaminated with VOCs. The lifetime excess
cancer risk of using the on-site shallow ground water is about 10l. Some ground water
contamination has been detected just beyond the site boundary, particularly in the shallow
upper aquifer. As of June 1985, the major portion of the contaminant plume extended
about 400 feet beyond the site boundary with lower concentrations of organic chemicals
extending as far as 1,100 feet downgradient of the site. The contaminated plume in the
upper aquifer is presently beyond the site boundaries. The upper shallow aquifer flows
in a northerly direction towards Snyde Acres. It is highly contaminated with over 35
organic chemicals, including benzene, vinyl chloride and 1,1,1-trichloroethane. Despite
some studies suggesting some sort of relationship between the operation of the Board's
five wells in the deep aquifer(near the Freeman Field Municipal Airport) and the rate
of contaminated plume migration in the upper aquifer, no definitive link has been
established.
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Contamination of the deep aquifer is of less immediate concern because it flows
in a southerly direction toward an area adjacent to the site that contains no private wells
or streams that could provide an exposure pathway. However, the Board's wells located
at Freeman Field Municipal Airport draw from this aquifer.
EL Institutional Controls
Provisions in ROD
The ICs recommended in the ROD include deed restrictions on the site and
surrounding property and the voluntary abandonment of wells in the Snyde Acres
subdivision. Although the ROD left the "precise location, magnitude, and timing of the
restrictions" to the design phase of the remedy, the ICs were to accomplish certain goals.
The on-site deed restrictions were to prohibit excavation of soil, building construction, and
ground water extraction. The off-site deed restrictions were to prohibit extraction of
ground water on adjacent land (so as to prevent interference with the extraction and
treatment system used as part of the engineering remedy) and to limit the use of adjacent
land "to prevent a public health threat during operation of the vapor extraction system".37
The recommendation that private wells be abandoned in Snyde Acres was to insure that
homeowners would not use contaminated well water.
History of ICs at the Site
A Consent Decree negotiated among many different parties to the litigation at the
Seymour site and signed in December 1988 sets forth the specific ICs to be used at the
site. The ICs include: (1) deed restrictions limiting the use of the site; (2) deed
restrictions limiting the use of adjacent property; and (3) a voluntary well-abandonment
agreement for private wells in Snyde Acres. The City of Seymour, through the Seymour
, is one of the PRPs to the site. It is currently unclear who will enforce the deed
restrictions. Ultimately, the City itself will not be responsible for enforcement of the deed
restrictions.24
27 See the Record of Decision, pg. 19.
a The deed restrictions resulted from negotiations among PRPs, the City, and EPA.
Apparently the City was able to use the deed restrictions to help in settling contribution
claims brought by PRPs against the City. Probably, the Trust fund itself will be
responsible for enforcement of the deed restrictions.
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On-site Deed Restrictions
Seymour Recycling, Indiana
The on-site deed restrictions are designed to protect against interference with the
remedy and to prevent exposure to contaminated ground water and soil. They prohibit
the consumption or other use of pound water underlying the site and they ban any
residential or commercial use of the site. This includes the construction, installation, or
use of any structures or buildings for commercial or residential purposes and the
construction of any roads, unless required for the remedial actions at the site. Finally,
people are not allowed on-site unless associated with cleanup activities.
The restrictions on the use of ground water at the Seymour site are filed with the
Jackson County Records Office and are to continue in perpetuity. The restrictions on
other uses of the site are to remain in effect until EPA determines that no further
maintenance of the cap or other remedial action is needed at the site. However, any
party to the consent decree has the right to object to planned uses of the site after
termination of the restrictions on the grounds that exposure to soil contaminants left on-
site might occur or that the planned activity might cause migration of contaminants off-
site.
Off-site Deed Restrictions
Deed restrictions on property adjacent to the site are also designed to protect
against interference with the remedy and to limit human exposure to contaminants. This
property is zoned for commercial development and is owned by the City through the
Seymour . The deed restrictions prohibit: (1) any activity that "could cause exposure of
humans or animals to contaminated ground water" in concentrations above cleanup
standards or could interfere with remedial actions at the site itself; and (2) residential or
commercial development that would allow the continued presence of people on the
property. However, the adjacent property may continue to be used for agriculture and
for the land application of sludges from the city's POTW.s
The restrictions on development activities on the adjacent property are also
recorded in the Jackson County Records Office and are to last until the site remedy is
completed (about 12 years). The restrictions on the use of ground water are to last until
* Although not contained in the deed restriction itself, the consent decree prohibits
any operation that might interfere with ground water flow directions. The hydrology at
the Seymour site is complicated, but it has now been established that one of the Board's
wells could cause migration of contaminated ground water into the deep aquifer if
operated at present rates. A source for the Board says that well has been shut down and
there is no legal restriction on operating the remaining wells at historical rates.
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Seymour Recycling, Indiana
the post-remedy monitoring period is over (about 40 years), but may be ended earlier if
the ground water meets the criteria established in the consent decree, subject to notice
and the opportunity to object by any party to decree.
In reality, the 12 year benchmark to finish the cleanup is probably unrealistic. The
consent decree cites the 12 year figure because that is the minimum amount of time
allowed before a Technical Impracticality Waiver under CERCLA can be granted More
probably, the cleanup would last well over 12 years and it is at the end of the cleanup
period that the 40 year post-remedy monitoring period is to take effect Thus,
groundwater restrictions on the adjacent property are close to permanent for all intents
and purposes.30
The prohibitions imposed on the use of ground water for the adjacent property
could devalue the property if future development occurs in the area. The ban on
commercial or residential development of the adjacent property was imposed to prevent
direct human contact with contaminated soils and to insure that the site remedy not be
interfered with. In addition, many PRPs wanted to establish a buffer zone for VOCs
emanating from the site which would have probably exceeded acceptable air emission
standards. The banning of the adjacent property to commercial development and the
presence of humans helps to establish some geographical distance between the site and
the nearest air emission receptor. As a result, off-site deed restrictions were offered by
the Seymour Board of Aviation Commissioners as a bargaining chip in the consent decree
negotiations. Finally, many people interviewed were skeptical of the proposed soil
vapor extraction system's reliability. The restriction of commercial and residential
development on adjacent property during the remedial action also removes this concern.
Private Well Abandonment
The consent decree established a voluntary program under which the PRPs offered
to pay homeowners in Snyde Acres the full cost of sealing their wells. At the time the
Snyde Acres subdivision was connected to the municipal water supply system in 1985, all
wells were capped but were not sealed. Many homeowners still use their well water for
gardening and irrigation. Only about 20 percent of the well-owners have agreed
voluntarily to seal their wells. Many attorneys associated with the site believe that the
voluntary well sealing arrangement is a reasonable response to ground water
contamination because well-owners use City water for drinking purposes and the risks
30 One source for the Seymour Board of Aviation Commissioners cites that a more
realistic remediation period is in the area of 50 to 100 years.
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Seymour Recycling, Indiana
from using well water for gardening or irrigation are low.11
Community Acceptance
The ICs imposed as part of the consent decree primarily affect the use of the
City's undeveloped property and are viewed by most people as a fair balancing of
interests and as an adequate response to the risks posed by contamination at the Seymour
site. The only significant apposition from the community to activities at the site occurred
in early 1983 when residents of Snyde Acres requested connection to the city water supply
and asked that the site trust fund cover the cost EPA initially did not feel that the
water supply connection was necessary because no contamination had actually been
detected in residential wells. EPA approved the funding after the residents of Snyde
Acres and the City petitioned the Federal District Court to have the generator trust fund
pay for the connection. Residents felt that EPA was slow to respond to their needs for
quality drinking water.
Enforcement of Institutional Controls
Enforcement of the deed restrictions on the site and on the surrounding property
required by the consent decree is presently unclear. Most probably, the Trust Fund will
ultimately be responsible for enforcement of the deed restrictions. In addition, each party
to the consent decree has the right to register objections to any intended development of
the site after the remedy has been completed that might result in exposure to
contaminants or in migration of contaminants off the site. Likewise, each party to the
consent decree has the right to object to the use of ground water on the adjacent
property within the post-remedy monitoring period.
The ban on commercial and residential development of the site and of the
property adjacent to the site, while the remediation of the site is being undertaken, would
31 Some of the PRPs involved in the consent decree negotiations wanted to force
the closure of existing wells in Snyde Acres to limit the potential for exposure to VOCS
and to limit their own future liability. According to the Regional Counsel's Office, this
would have required the use of condemnation proceedings, a costly process that could also
spawn further litigation. Part of the problem with pursuing that strategy was that
contamination above ATSDR standards, at the time, had not yet been detected in these
wells. Since the contaminated plume has now migrated beyond the Snyde Acres
subdivision, the use of condemnation proceedings now could probably be pursued.
(However, it is unclear as to whether such an effort would be successful from a cost
perspective).
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Seymour Recycling, Indiana
be enforced by some agency of the city or delegated entity, since it owns the land directly
or through the Seymour . Further, there seems to be little incentive for the City to
violate the requirements of the consent decree, as there appears to be little development
pressure in the area, and the land adjacent to the site is allowed to continue to be used
for agricultural purposes. In addition, the City potentially would face additional liability
as a PRP if it violated the deed restrictions on the basis of breach of contract The ban
in perpetuity on the use of ground water at the site and the long term ban on the use
of ground water on the adjacent property also clearly are enforceable by some agency of
the City.
No restrictions have been imposed on the use of wells in the Snyde Acres
subdivision. The program to encourage abandonment of wells in the subdivision is
voluntary and has no enforcement component to it.
Effectiveness of Institutional Controls
There has been no attempted commercial or residential development on the
property adjacent to the site (and certainly not on the site itself) and it is highly likely
that the deed restrictions imposed on adjacent property will prevent such development
during site remediation. The ability of the ICs in the long run to prevent development
on the site that could result in human exposure to contaminants or in migration of
contaminants off-site is less certain. It depends, to some extent, on the success of the
site remedy and on the incentives the PRPs and the City have in limiting their exposure
to future liability.
The voluntary well abandonment program initiated by the PRPs has only induced
about 20 percent of the residents of Snyde Acres to seal their private wells. Many of the
residents probably continue to use their wells for gardening and irrigation, but not for
household purposes. Although this program has failed in terms of inducing a high
percentage of wells to be sealed, the human health risks presented by the continued use
of these wells is minimal - the wells are not yet contaminated with VOCs and the use
of the water for outdoor purposes would result in little risk, even if the water were
contaminated with VOCs.
The consent decree also contains a provision prohibiting any operation that might
interfere with ground water flow in the area. As a result, one of the Board's wells, that
taps the deep aquifer and could cause migration of contaminants into the deep aquifer
if operated at previous rates of withdrawal, has been shut down. The Board has a direct
interest in insuring that the deep aquifer remains uncontaminated, as it draws its water
from this aquifer.
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Seymour Recycling, Indiana
III. General Conclusions
There are several key conclusions in this case:
o Deed restrictions limiting the development of property can be used as a means of
limiting human exposure to contaminants while engineering remedies are carried
out at the site. However, the ability to use deed restrictions for this purpose
depends on whether owners of the affected properties have an incentive to agree
to the restrictions or could be compensated appropriately.
o It appears difficult and somewhat counterproductive for EPA to resist funding
connections to public water systems when homeowner's private wells are
contaminated or are likely to become contaminated and there are no alternative
supplies of water available.
o If the risks of continued reliance on private wells arc significant, the wells should
be sealed or locked at the time homes are connected to the public water system.
Voluntary programs for sealing wells initiated after residents are connected to a
public water system are likely to be unsuccessful. It appears that homeowners
prefer to retain the option of using "free" well water for high volume outdoor
uses.
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Waldick Aerospace Devices, NJ
Waldick Aerospace Devices. New Jersey
Abstract The Waldick site involves contaminated buildings, soil and ground water on-
site, and apparently contaminated ground water off-site also. The ROD for
the first operative unit, soil and structure contamination, has been signed.
Unspecified well restrictions were required as part of this ROD, even though
groundwater evaluation and remediation is part of another operative unit
The well restrictions are not yet in place since the extent of off-site
groundwater contamination has not been determined. If such restrictions
prove to be necessary, the site managers intend to rely on an existing New
Jersey program that restricts new wells and the use of existing wells in
designated well restriction zones. A well restriction zone can be formally
established around a plume of contaminated ground water. In addition at
Waldick, an informal institutional control over use of the site is in effect
that relies on an existing municipal building occupancy permit system.
L Site Background
General Site Description
The Waldick Aerospace Devices site is located in the New Jersey coastal plain.
It is a 1.72 acre, inactive industrial facility situated on Route 35 in Wall Township,
Monmouth County. Several buildings and surrounding soils are contaminated with
industrial chemicals. Onsite ground water is contaminated and the contamination may
extend offsite. The site is in an area that is generally in commercial use, however,
residential areas are found to the north and east of the site. Wooded, undeveloped land
lies to the west of the site.
The site overlays two aquifers that can serve as drinking water sources. The
nearest drinking water well is located approximately three-eighths of a mile upgradient of
the site. Nearly all residences in the vicinity of the Waldick site, however, are served by
municipal water that is not threatened by the contamination.
Site History
Since the mid-1950s, this site has been leased by various industries. Between 1979
and 1965, two of the three buildings at the site were leased by Waldick Aerospace
Devices for the manufacture of electroplated quick-release pins for the aerospace industry.
Based upon complaints from a former Waldick Aerospace employee in 1982, the New
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Jersey Department of Environmental Protection (NJDEP), the Monmouth County Division
of Criminal Justice and the Monmouth County Board of Health investigated the site. The
inspectors found that wastes from a series of process tanks and a polishing machine were
being discharged onto the ground Evidence of runoff was found across the front lawn
and onto adjacent property.
In October 1982, NJDEP ordered Waldick Aerospace Devices to clean up the site.
A monitoring program detected soil contamination by heavy metals and organics. Partial
cleanup occurred before the site was vacated in January, 198S by Waldick Aerospace.
The site was proposed for the NPL in October 1984 and was given final approval
in June 1986. EPA conducted a site visit in Januaiy 1986 and found that an emergency
action was warranted to remove a wide range of chemicals improperly stored in the
vacant buildings. A remedial investigation identified two areas of soil contamination.
The interiors of two of the buildings presented additional sources of contamination.
The Record of Decision was signed on September 29, 1987. The recommended
alternative included the following actions:
o in-situ air stripping of soils contaminated by organic chemicals and petroleum;
o excavation and off-site disposal of soils with metal contamination;
o appropriate remediation of the site including decontamination or demolition of the
buildings.
o site fencing, well restrictions and a comprehensive environmental monitoring
program.
This alternative only addresses contaminated soils and buildings. Contaminated ground
water, surface water and sediments will be addressed in a future operative unit
By April, 1989, a pilot study was conducted on in-situ air stripping of the organic
contaminants in the soils. While the process was demonstrated to be effective, in-situ air
stripping was determined to be unnecessary since soil contamination from organics was
less than expected or occurred in soils already designated for off-site disposal. Current
plans for the site include treatment to remove organic contamination prior to stabilization
of metals and off-site disposal. The design phase of this process is 35% complete.
Decontamination of the buildings will consist of steam cleaning and acid rinsing.
This task will be conducted at the same time as the stabilization and off-site disposal of
contaminated soils. After decontamination of buildings and soil remediation, the site may
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be returned to other uses.
Waldick Aerospace Devices, NJ
Nature of Contamination and Risk
Soil contamination was identified in two major areas. Area t contained 1,1,1*
trichloroethane (10 ppm) and tetrachloroethene (4.6 ppm). Area 2 was contaminated
primarily by both organics - tetrachloroethene (>6,400 ppm), trichloroethene (47 ppm)
and bis (2-ethylhexyI) phthalate (400 ppm) - and inorganics: cadmium (16£00 ppm), total
chromium (3,160 ppm), aluminum 11,800 ppm) and zinc (3,840 ppm).
Groundwater contamination from cadmium was observed in all four onsite
monitoring wells. In 1984, cadmium levels in the monitoring wells ranged between 12.6
and 3.2 ppm. The MCL for cadmium is 0.01 ppm. After the RI/FS for the soils
operative unit was completed, the groundwater RI/FS began. Off-site migration of
groundwater contamination was observed in monitoring wells located in the residential
area east of the site. The monitoring wells in this area, however, were disturbed during
the development of commercial property which necessitated the redrilling and sampling
of new wells in order to define the size and contaminant concentrations of the plume.
As of April, 1989, the results from the new monitoring wells had not been received by
the principal hydrogeologist (NJDEP) for this site.
EL Institutional Controls
Provisions in ROD
A requirement for well restrictions was specified in the ROD. No further
information was given about the nature of these restrictions; their location, the authority
for them, or who would establish and enforce them.
History of Institutional Controls at the Site
At present, there are no well restrictions in place. Since the ground water
investigation is just beginning as part of a separate operative unit, the evaluation of the
offsite plume must be completed prior to establishing well restrictions. The provision for
well restrictions, however, can be implemented easily at this site. New Jersey has a state-
wide well permit program that can be used to restrict the installation of new wells in
areas with defined contaminant plumes that have been designated as well restriction
zones. New Jersey statutes require that no new well, even a monitoring or irrigation well
in addition to a drinking water well, may be drilled without receiving a state permit from
the Well Permits Program at DEP. The applicant for a well permit must supply the
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Waldick Aerospace Devices, NJ
coordinates of the location of the prospective well. The location of a prospective well is
reviewed to determine if it falls within a well restriction zone. Based upon the nature
of the contamination in the zone and the proposed use for the well, the prospective well
might be prohibited or have use restrictions placed on it as part of the permit In
response to public comments as the program developed, permits for new wells located in
a well restriction zone are not automatically denied. Such wells may be required to be
drilled deeper, or appropriate use restrictions may be attached (e.g., no indoor use of
water from such wells). Prospective residential wells can be permitted with appropriate
use restrictions.
The Ground Water Quality Management Element of the NJDEP is responsible for
identifying and delineating areas of contaminated ground water. Once a contaminant
plume has been identified, specific information concerning the type of contaminants,
concentrations, potential receptors, pathways for migration, and groundwater statistics such
as flow velocity and soil permeability are collected in a monitoring program. Based upon
site-specific information, hydrogeologists will predict the 5 and 10 year migration of the
leading edge of the contaminants. Using a buffer factor, a well restriction zone is
determined. The initial zone is usually conservative since it is easy to enlarge the zone
after it has been established. After establishing a well restriction zone, a memorandum
is sent to the Water Supply Element (DEP) requesting that a specific zone be included
in their well restriction program. At the same time, the Safe Drinking Water Element
notifies any people living in the zone about the groundwater contamination and specifies
appropriate groundwater use restrictions. The extent of the restrictions will vary
depending upon the nature of the contaminants and their concentration in the plume.
As of April, 1989, the groundwater contaminant plume from the Waldick site had
not been sufficiently studied for the hydrogeologist to request that a well restriction zone
be established around this site. The DEP hydrogeologist will be making a decision on
the plume emanating from the Waldick site once the groundwater RI/FS has been
completed.
A second, informal institutional control evolved at the Waldick site when county
inspectors visited the site and found that one of the two contaminated buildings, prior to
decontamination, had been leased to another firm which had already began to occupy
the site. After the new firm had been evicted, EPA's site manager and the Land Use
Office of the Township of Wall created an informal agreement aimed at precluding
inappropriate uses of the site. Wall Township requires all new commercial and industrial
owners or tenants to apply for a transfer permit whenever they plan to occupy a new or
vacant building. The permit applicant must submit a statement of intended use, and the
town code officer checks to see if the planned use is permitted at the intended location.
At that time, she informs the applicant of any use restrictions. If any firm were to apply
to occupy the Waldick site in the future, the code officer would pull the tax map file on
the site and would be informed that the site has use restrictions. At that time, the
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Waldick Aerospace Devices, NJ
applicant would be required to contact DEP in order to obtain instructions for use (e.g.,
to avoid interfering with the monitoring wells) and the code officer would contact
Waldick's site manager at EPA in Region II. If DEP or EPA believe that the proposed
use should be prohibited due to contamination or a cleanup in progress, they would
request that the municipality deny the permit
Community Acceptance of Institutional Controls
None of the government officials associated with the Waldick site are aware of any
concern by nearby residents about the site. This can be attributed to the small size of
the site and the fact that nearby residences and commercial establishments all have public
water-
Prior to the informal agreement between Wall Township and EPA regarding
restricting the use of the buildings at the Waldick site, there was a local 'turf battle over
which level of government would be responsible for restricting access to the site. When
the county official found that the site had been occupied prior to decontamination, the
Monmouth County Department of Health wanted NJDEP or the county to step in and
formally and legally restrict the use of the site. Wall Township maintained that only the
municipality had the authority to restrict land use. NJDEP supported the Township's
position. The County felt that the Township might submit to pressures from local
landowners and might not enforce any land-use restrictions. The disagreement between
the two local governments became heated County officials have observed that since the
first incident, the site has remained vacant However, the Monmouth County
Environmental Program Administrator was unaware of the informal agreement between
Wall Township, EPA and NJDEP restricting site use. Bad feelings remaining as a result
of the disagreement appear to be responsible for the omission of Monmouth County from
the informal agreement among Wall Township, the State and EPA
Enforcement of Institutional Controls
The institutional controls at the Waldick site have not been used yet The well
prohibition zone has not been established, and the buildings have not been occupied to
bring the informal agreement into play. Accordingly, there is no experience yet with
how the controls are enforced. The expectation is, though, that they will work welL
Since the institutional controls at the Waldick site rely on existing state and
municipal permit programs, the enforcement structure is already established by the parent
program. Enforcement personnel are already in place and including the requirements of
the Waldick site within these programs takes only a small effort to be effective. The
authority of these programs to implement their respective restrictions is unlikely to be
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Waldick Aerospace Devices, NJ
challenged at Waldick since the programs are not new and have survived legal challenges
elsewhere.
Effectiveness of Institutional Controls
Again, there is no record of performance for these controls specifically at the
Waldick site.
The New Jersey well restriction program is a very sophisticated and technically
sound program that can be tailored to meet the needs of individual sites throughout the
state. The program is already familiar to and accepted by residents, well drillers and
builders. As a result of being an already established program, the permit application
process and the permit requirements prior to drilling are not going to be challenged at
each site. Drillers, who may be fined or lose their state license for non-compliance, have
little incentive to drill wells for individuals who have not followed the permit application
process and do not have a valid permit
The New Jersey well restriction program appears to be very effective at preventing
future exposure to groundwater contaminants through new wells. The program, however,
appears to be only moderately successful at reducing current exposure from existing wells.
While the State of New Jersey can restrict the construction of new wells, they do not
have the authority to close existing wells or require residents to hook-up to public water.
Municipalities must enact local ordinances requiring either of these actions. The State's
experience is mixed in obtaining voluntary compliance by existing well owners with well
use restrictions suggested in contaminated zones. Also, since well restriction zones are
not delineated until comprehensive studies have been completed, the length of time that
it takes for a groundwater restriction zone to be delineated and placed into effect,
particularly around NPL sites such as Waldick, is usually several years.
As of April, 1989, the Waldick site does not have a well restriction zone since the
offsite contaminant plume has not been adequately studied. While the well restriction
program is not in effect almost 2 years after the ROD was signed, there appears to be
very little potential for exposure to contaminated groundwater via residential wells since
public water is supplied to the residences in the vicinity of the site.
The only institutional control in use at the Waldick site is the informal agreement
between EPA, NJDEP and Wall Township that makes use of an existing occupancy
transfer permit program. Due to the informal, undocumented nature of the agreement,
there is considerable potential for specific instructions to be lost or modified over time,
thereby Weakening this control However, the need for site use restrictions at Waldick
is most important for the short term until the buildings are decontaminated and reuse is
permitted. For the short term, the transfer permit program appears to be a successful
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Waldick Aerospace Devices, NJ
way to control site use. If restrictions are needed for the longer term, for example to
avoid interference with monitoring wells, an alternate approach may be necessary.
IEL General Conclusions
One primaiy conclusion can be drawn from this case. Adding restrictions
appropriate to an individual site to an existing program or authority has several
advantages over enacting or designing new institutional control measures specifically for
the site. The existing mechanisms (e.g.t the permit process) have already been accepted
by the community. In relying on an established program, the enforcement structure is
usually already defined, tested and in place. Existing programs that offer particularly
promising opportunities for implementing Superfund institutional controls are the zoning,
building permit, and use and occupancy permit programs operated by most municipalities,
including Wall Township.
A second conclusion is that it is important at each step in using institutional
controls to identify and utilize the level of government with appropriate authority to
impose and enforce the desired controls. Superseding the authority of one level of
government and requesting action from another level inappropriately can impair the
success of any institutional control.
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Winthrop Landfill, ME
Winthrop Landfill. Maine
Abstract- Contamination currently exists from Winthrop Landfill in the form of capped
waste on-site and contaminated ground water affecting private wells off-
site. The ROD called for deed restrictions preventing inappropriate uses
of the site and additional institutional controls prohibiting on- and off-site
ground-water withdrawals in the affected area. ICs have been implemented
generally, though not exactly, as called for. The town has enacted an
innovative ground-water protection ordinance that restricts several activities,
including ground-water withdrawals, in a designated area. Experience with
the ordinance over several years has been largely successful, though some
issues have arisen regarding enforcement and the need to modify the
ordinance over time.
L Site Background
General Site Description
The Winthrop Landfill is located along the western shore of Annabessacook Lake,
in Winthrop, Maine. The site consists of two adjacent parcels. The larger parcel, about
11 acres, is owned by the Town of Winthrop and the smaller belongs to a private owner.
Between the eastern edge of the landfill and the lake lies a strip of residential,
lake shore development and some undeveloped land, a portion of which contains a
sphagnum bog. Annabessacook Lake is part of the Cobbosee Watershed that supplies
water to the city of Augusta, Maine,
Site History
The sixty year old site was originally a sand and gravel pit In the 1930s, areas of
the site became the Winthrop Town Dump. The site accepted municipal, commercial
and industrial waste until 1981 From the 1950s to the mid-1970s hazardous waste
including resins, plasticizers, solvents and other process chemicals were disposed at the
site.
Contaminated groundwater was detected in some of the local residential wells
between 1980 and 1981. Subsequent investigation identified two distinct plumes of
contamination. One plume flowed south-eastward in a deep bedrock trough below the
bog and the strip of shore-side homes and ultimately reached the lake. The second
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Winthrop landfill, ME
plume headed in a north easterly direction potentially impacting a cattail marsh and
possibly discharging to Hoyt Brook or passing underneath.
Three potentially responsible parties were identified as: the Town of Winthrop,
Inmont Corporation (now part of BASF) and Edward Savage, the owner of the private
parcel All PRPs expressed a desire to cooperate with EPA and the Maine Department
of Environmental Protection (DEP). Based upon the results of the Rl/FS, the selected
alternative for remediation consisted of a phased action plan containing the following
steps:
1. Provision of an alternate water supply to the residences near the lake;
2. Cap the landfill and close the site
3. Fencing around the landfill, and control future use of the site;
4. Restrict use of groundwater within the plume area;
5. Restrict excavation within the landfill and plume areas;
6. Conduct a monitoring program;
7. Conduct engineering studies;
8. Establish an ACL governing the groundwater contamination; and if the ACL is
exceeded, 9). Develop a groundwater interceptor system; and 10). Develop a
groundwater treatment system.
The ROD was signed by the Administrator of EPA Region I on November 22, 1985.
During the early phase of remediation beginning in 1984, Inmont regraded and
capped the landfill and restricted access to the site by providing a fence. By the time the
PRPs signed a Consent Decree with EPA in March, 1986, public water from the Town
of Winthrop had been provided to the affected residents and a Groundwater Protection
Ordinance was in place. Monitoring and the engineering studies began shortly afterward.
Recently completed (March 1988) hydro-geological studies have identified the complete
extent of the plumes, particularly to the north east The final steps called for by the
consent decree ~ studies to assess the effect of contaminants on the lake, Hoyt Brook
and the adjacent wetlands, and establishment of ACLs to protect them - will commence
now that the hydrogeological study is complete. If contaminants were to exceed the
established ACLs, the groundwater extraction and treatment phase will begin.
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Winthrop Landfill, ME
Nature of Contamination and Risk
The initial indication that contamination had resulted from the landfill was the
detection of volatile organic compounds (VOCs) in one of the nearby residential wells.
Subsequent monitoring of residential and test wells in 1981 and 1982 identified
trichloroethylene (5, 7 ug/I), methylene chloride (57, 29 ug/1), 1-1 dichloroethylene (60,
110 ug/I) and tetrahydrofuran (720, 860 ug/1) in two wells. All the other wells tested did
not have any contamination above the method detection limit12 While this groundwater
contamination did not exceed any MCLs that were available at that time, these levels
would exceed the following current MCLs: trichloroethylene 5 ug/1 and 1-1
dichloroethylene 7 ug/L
The installation of the cap over the landfill and the fencing of the property
eliminated any immediate concern about direct exposure to contaminants remaining at the
site. Off-site migration of contaminants, with the exception of the groundwater
contamination, had not been identified at the time of the Consent Decree. There was
some concern raised about the potential for landfill gases (e.g. methane) to be emitted
from under the edges of the cap and monitoring was required.
EL Institutional Controls
Provisions in ROD
"Imposition of deed restrictions prohibiting use of landfill for activities other than
remedial action. Prohibition of ground water withdrawals (both on-and off-site) for
purposes other than remedial action. Prohibition of excavation (both on-site and above
the off-site plumes), except for residential construction or remedial action."33
History of Institutional Controls at the Site
The ROD recommended that a deed restriction be placed on the site prohibiting
the future |