July 8, 1998

Environmental Protection Agency, Region 9
Environmental Protection Agency, Region 10

Ms. Sherri Wasserman-Goodman
Deputy Under Secretary of Defense (Environmental Security)
3400 Pentagon U.S. Department of Defense
Washington, D.C. 20301-3400

Dear Ms. Goodman:

We represent six western states and two EPA regions and are writing to share our concerns and request your action regarding the long-term implementation of institutional controls at active military bases. We are members of the Environmental Managers Executive Committee (EMEC), a committee that was formed in 1995 by the Navy's Southwest Division, Naval Facilities Engineering Command to enhance dialogue among the Navy, environmental regulators from six western states, and U.S. Environmental Protection Agency (EPA) Regions 9 and 10 on a range of issues related to the Navy's environmental restoration program and budget process. Our committee serves as a forum to discuss common issues and develop consistent approaches, thereby strengthening and accelerating environmental restoration at our military installations.

On April 2, 1998, we met in San Diego to specifically focus on developing options for implementing institutional controls at active military installations. A primary concern raised at that meeting was the need to ensure that base commanders fulfill their responsibility for long-term implementation of institutional controls at their installations. We are recommending that you ask the DoD services to issue a directive notifying installation commanders that they are expected to track, implement, and enforce institutional controls. Specific contents of the requested directive are discussed below. Additionally, because institutional control implementation is an issue facing installations across the country, we also identified several existing mechanisms and guidance that can be used to effectively maintain institutional controls. The mechanisms presented below reflect only a few available options.

This letter outlines the following:

• Our key concern related to institutional control implementation and enforcement at active military bases.
• Examples of existing options for institutional control implementation and enforcement at active military bases.
• Requested action.

Key Concern

Institutional controls, that is, administrative, non-engineering measures designed to limit activities at, or access to a site, are being used increasingly as either a remedy or to supplement a remedy. In some cases, institutional controls are used as a pre-remedy to establish restrictions at a site before c1cleanup is implemented.

Under appropriate circumstances, institutional controls can provide a cost-effective mechanism to address site cleanup and closure; however, means are currently limited to ensure their continued application. As the future use of a site may change, it is critical that a process be put in place at the installation level to ensure ongoing application, review, and evaluation of the institutional controls. Establishment of such a process has become increasingly important in light of the number of sites reaching the cleanup decision-point; we must ensure that we meet the legal obligations set forth in the records of decision. Ongoing assessment of the institutional controls should also consider whether any factors used to select the institutional controls have changed, and whether a revision to the remedy, including the institutional controls, is warranted.

Existing Options Identified for Institutional Control Implementation and Enforcement

The options suggested below are not intended to capture all options; rather, they present examples of existing mechanisms that have been used for implementing, reviewing, and ensuring compliance with institutional controls at active military bases within our six states. However, regardless of the options selected at an installation, the success of an institutional control hinges on the commitment of senior-level military personnel to ensuring the long-term integrity of the cleanup decision and associated institutional controls.

A few examples of existing mechanisms used in the western region to implement, monitor, and evaluate institutional controls are listed below. We emphasize the term existing;, installation teams should review mechanisms already in place and capitalize on them to track institutional controls. We also encourage base personnel to consider new, innovative approaches to tracking and evaluating institutional controls that are tailored to specific needs. The examples listed below reflect only those identified at the April 2 meeting; we expect that there are other existing processes at the installation level that could be built upon to effectively implement institutional controls. Examples of which we are aware inc1include the following:

• Base Master Plan (BMP) Reviews. Institutional controls are incorporated into BMPs. New projects must be screened against the BMPs to identify any restrictions that may affect the proposed project. However, the BMPs must be used and updated by base personnel to serve as a useful mechanism.

• Site Approval Process. Institutional controls are incorporated into an installation's site approval process for reviewing and approving excavation and construction projects as well as other land use changes. For example, some bases require dig permits for any excavations. Approval of the dig permit would include mechanisms for flagging any institutional controls tied to the project.

• Environmental Compliance Self Evaluations. Internal self audits include institutional controls as part of the audit's checklist.

• Five-Year Reviews. The five-year review process (which occurs more frequently at many bases) includes a review of institutional controls.

• Memorandum of Understanding. Prepare MOU between state and the military services to outline institutional control implementation, notification, and reporting requirements.

• Use of geographic information system (GIS) maps. We strongly support the use of GIS to track and implement institutional controls. GIS provides a valuable tool to identify locations where land use is restricted. GIS maps allow the user to find information about specific sites or subsites using a simple point-and-click query action.

Some states and EPA regions have already developed, or are in the process of developing, guidelines for establishing institutional controls at open bases. Here on the west coast, the California Military Environmental Coordination Committee (CMECC) recently finalized a document called "The Institutional Control Protocol at Open Bases" (a copy is attached). This effort included participation of all the services, the State of California, and EPA Region 9. Similarly, EPA Region 10 is drafting guidance for open bases, and several other western states are considering developing guidance too.

Selection of mechanisms to ensure long-term compliance with, and periodic evaluation of, institutional controls should be determined at the installation level; each installation will have unique needs and procedures that will dictate how institutional controls are implemented and tracked. As installations design a process for implementing, monitoring, and enforcing institutional controls, several factors should be addressed:

• DoD and the regulatory agencies should jointly develop the process.

• The process may build upon a combination of existing mechanisms, as well as new approaches.

• Training activities should be considered to educate appropriate base personnel about the importance of maintaining institutional controls.

• Both current and future land uses should be considered.

All of these efforts depend on the facility's ability to ensure that the integrity of the institutional controls are maintained. Because the implementation and maintenance of institutional controls may involve several different offices at a base (for example, the environmental, planning, and civil engineering offices), the commanding officer and senior base officials must be aware of, and take responsibility for, the ongoing coordination and execution of institutional controls within their base.

Finally, we want to emphasize that before selecting an institutional control as part of a cleanup remedy, it is important to consider the overall cost-effectiveness of the institutional control. Future costs of maintaining the institutional control over the long term should be weighed against costs of other cleanup options up front. Long-term effectiveness and performance is another important factor that should be considered in establishing procedures for monitoring and enforcing institutional controls.

Requested Action

In summary, we are requesting that you perform two actions; these actions are presented below.

• Emphasize that commanding officers must adhere to requirements or protocols regarding institutional controls established within their respective states.

• Notify the commanding officers that they are responsible for recording and maintaining the institutional controls in a manner consistent with agreements between DoD and the regulators.

• Encourage the commanding officers to identify all available mechanisms within the base that could be used to implement institutional controls.

• Reinforce the importance of internal coordination and communication between the planning, environmental, and civil engineering personnel in identifying, evaluating, and adhering to institutional controls.

• Reinforce the importance of coordination and communication between appropriate military and regulatory personnel in evaluating and adhering to institutional controls.

• Remind commanding officers that where the selected remedy restricts future use of a site, any proposed change to that remedy or the associated institutional control must be approved by the state regulatory agency.

• Remind commanding officers that failure to maintain and enforce institutional controls may result in a determination that the remedy is no longer protective, resulting in a re-opening of the record of decision.

2. Conduct a survey of the military services to identify effective mechanisms available at an installation that may be effective to track, implement, and enforce institutional controls, and disseminate the results to the base commanders. As noted, we only identified a few existing mechanisms available to implement institutional controls and we expect that there are many other existing processes that could be used to ensure long-term compliance with the controls.

Should you have any questions or comments, please contact Tom Huetteman with U.S. EPA Region 9 (415/744-2384), or Tim Nord with the Washington State Department of Ecology (360/407-7226). The Department of Defense point of contact representing the EMEC on this issue is Al Hurt; you may contact him at (619) 532-3964. We appreciate your attention to this important issue.