United States Environmental
Protection Agency
Office of Solid Waste and
Emergency Response
OSWER 9355.0-74FS-P
EPA 540-F-00-005
September, 2000
SERA
Institutional Controls:
A Site Manager's17 Guide to Identifying, Evaluating and
Selecting Institutional Controls at Superfund and RCRA
Corrective Action Cleanups
Office of Solid Waste and Emergency Response
Purpose
This fact sheet provides Superfund and RCRA Corrective Action
site managers and decision-makers with an overview of the types
of Institutional Controls (ICs) that are commonly used or
implemented, and outlines the factors that should generally be
considered when evaluating and selecting ICs as part of the
remedy. For more detailed information on the different types of
instruments available, site managers and attorneys should consult
the document, "Institutional Controls: A Reference Manual
(Workgroup Draft - March 1998)." EPA site managers should also
work closely with Regional attorneys and Headquarters staff in the
Office of Emergency and Remedial Response (OERR), the Office of
Site Remediation Enforcement (OSRE), the Federal Facilities
Restoration and Reuse Office (FFRRO), the Federal Facilities
Enforcement Office (FFEO) and/or the Office of Solid Waste (OSW)
on any site-specific issues that may arise while evaluating,
implementing, enforcing, or monitoring ICs.2'
Definition and Importance of ICs
Generally, EPA begins the remedy evaluation process with the
expectation that treatment or engineering controls will be used to
address principal threat wastes and that groundwater will be
returned to its beneficial use. The National Oil and Hazardous
Substances Pollution Contingency Plan (NCP) emphasizes that ICs,
such as water use restrictfons, are meant to supplement engineering
controls during all phases of cleanup and may be a necessary component of the completed remedy. The NCP also cautions against
the use of ICs as the sole remedy unless active response measures are determined to be impracticable. At the same time, ICs play an
Table of Contents
• Purpose 1
• Definition and Importance of ICs 1
• Common Misnomers 2
• Layering and Implementing ICs in Series 2
• A Look at ICs in CERCLA, the NCP and RCRA ... 3
• Types of ICs 3
• Legal Mechanisms for Imposing ICs Under CERCLA
and RCRA 5
• ICs and Future Land Use .5
• Screening ICs 5
• Determining the State Role 6
• Determining the Role of Local Governments 7
• Evaluating ICs 7
• ICs in CERCLA Removal Actions 8
• Site Manager Responsibilities After ICs are Selected
• Conclusion 10
• Key Concepts 10
• Checklist for Implementing ICs 11
• 1C Matrix 12-25
• Glossary of Terms 26-28
Site
-------
important role in site remedies. Often, ICs are a critical component of the cleanup process and are used by the site manager to ensure
both the short- and long-term protection of human health and the environment. For this reason it is important to understand what
constitutes an 1C. Specifically for EPA, ICs:
• are non-engineered instruments such as administrative and/or legal controls that minimize the potential for human exposure to
contamination by limiting land or resource use;
• are generally to be used in conjunction with, rather than in lieu of, engineering measures such as waste treatment or containment;
• can be used during all stages of the cleanup process to accomplish various cleanup-related objectives; and,
• should be "layered" (i.e., use multiple ICs) or implemented in a series to provide overlapping assurances of protection from
contamination. These concepts are discussed in the text box below.
Some examples of ICs include easements, covenants, well drilling prohibitions,
zoning restrictions, and special building permit requirements. Deed restriction is a
phrase often used in remedy decision documents to describe easements or other
forms of ICs; however, this is not a traditional property law term and should be
avoided. Fences that restrict access to sites are often termed ICs; however, because
fences are physical barriers instead of administrative or legal measures, EPA does
not consider them to be ICs. ICs are among the tools allowable under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) [as amended by the Superfund Amendments and Reauthorization Act
(SARA)], the NCP, and the Resource Conservation and Recovery Act (RCRA). To
read more about the regulatory framework for ICs, refer to the box on page 3 entitled,
"A Look at ICs in CERCLA, the NCP and RCRA." Finally, where protectiveness
depends on reducing exposure, ICs are a response action under CERCLA or a
corrective action under RCRA. Accordingly, even in the unusual case where a
CERCLA Record of Decision (ROD) only requires the implementation of ICs, it is
considered to be a "limited action," not a "no action" ROD. Likewise, when a
corrective action under RCRA includes an 1C, whether it is part of an interim measure
or occurs at the end of the cleanup as part of the final corrective measure, the 1C is
considered a part of the remedy.
ICs are vital elements of response alternatives because they simultaneously influence and supplement the physical component of the
remedy to be implemented. On the one hand, the right mix of ICs can help ensure the protectiveness of the remedy; on the other,
limitations in ICs may lead to reevaluation and adjustment of the remedy components, including the proposed ICs. At some sites,
remedy contingencies may protect against uncertainties in the ability of the ICs to provide the required long-term protectiveness.
These points illustrate how important it is for site managers to evaluate ICs as thoroughly as the other remedy components in the
Feasibility Study (FS) or Corrective Measures Study (CMS), when looking for the best ICs for addressing site-specific circumstances.
Adding ICs on as an afterthought without carefully thinking about their objectives,
how the ICs fit into the overall remedy, and whether the ICs can be realistically
implemented in a reliable and enforceable manner, could jeopardize the effectiveness
of the entire remedy.
Common Misnomers
"Deed restriction" is not a traditional
property law term, but rather is a generic
term used in the NCP and elsewhere as a
shorthand way to refer to types of ICs.
To avoid confusion, site managers
should avoid the term and instead be
specific about the types of ICs under
consideration and their objectives. In
addition, EPA does not consider
physical barriers as ICs. Fences that
restrict access to sites are often termed
as ICs. However, fences are not
considered by EPA to be ICs .
Often ICs are more effective if they are layered or implemented in series. Layering
means using different types of ICs at the same time to enhance the protectiveness of
the remedy. For example, to restrict land use, the site manager may issue an
enforcement tool [e.g., Unilateral Administrative Order (UAO)]; obtain an easement;
initiate discussions with local governments about a potential zoning change; and
enhance future awareness of the restrictions by recording them in a deed notice and
in a state registry of contaminated sites. Also, the effectiveness of a remedy may be
enhanced when ICs are used in conjunction with physical barriers, such as fences, to
limit access to contaminated areas.
ICs may also be applied in series to ensure both the short- and long-term
effectiveness of the remedy. For example, the site manager may use an enforcement
tool to require the land owner to obtain an easement from an adjacent property owner
in order to conduct ground water sampling or implement a portion of the active
remedy. This easement may not be needed for the long-term effectiveness of the
Layering and Implementing ICs in
Series
ICs are more effective-if they are
layered or implemented in series.
Layering ICs means using different
types of ICs at the same time to
enhance the protectiveness of the
remedy.
Using ICs in series is the use of ICs at
different points in the investigation
and remediation process to ensure the
short- and long-term protection of
human health and the environment.
-------
remedy and is terminated when the construction is complete. At another site, the site manager may use an Administrative Order on
Consent (AOC) or permit condition to prohibit the land owner from developing the site during the investigation. Later, the site
manager may add a provision to the Consent Decree (CD) or the permit requiring the land owner to notify EPA if the property is to be
A Look at ICs in CERCLA, the NCP, and RCRA
CERCLA as amended by SARA, the NCP and RCRA support the use of ICs in remediation of a site:
CERCLA—Section 121(d)(2)(B)(ii)(III) refers to the use of enforceable measures (e.g., ICs) as part of the remedial alternative at
sites. EPA can enforce the implementation of ICs, but not necessarily their long term maintenance. For example, the local
government with zoning jurisdiction may agree to change the zoning of the site to prohibit residential land uses as part of the
remedy, but the local government retains the authority to change the zoning designation in the future. EPA is authorized, under
CERCLA section 104(j), to acquire (by purchase, lease or otherwise) real property interests, such as easements, needed to
conduct a remedial action provided that the state in which the interest is to be acquired is willing to accept transfer of the
interest following the remedial action. Transfers of contaminated Federal property are subject to special deed requirements
under CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(C)(ii)(I) and (II).
NCP—the NCP provides EPA's expectations for developing appropriate remedial alternatives, including ICs under CERCLA. In
particular, it states that EPA expects to use treatment to address the principal threats posed by sites; engineering controls for
wastes that pose relatively low risk or where treatment is impracticable; and a combination of the two to protect human health
and the environment [40 CFR 300.430(a)(l)(iii)(A), (B), and (C)]. In appropriate situations, a combination of treatment,
containment, and ICs may be necessary. The NCP also emphasizes the use of ICs to supplement engineering controls during all
phases of cleanup and as a component of the completed remedy, but cautions against their use as the sole remedy unless active
response measures are determined to be impracticable [40 CFR 300.430(a)(l)(iii)(D)]. In the case where ICs are the entire remedy,
the response to comments section of the preamble to the NCP states that special precautions must be made to ensure the
controls are reliable (55 Federal Register, March 8, 1990, page 8706). Recognizing that EPA may not have the authority to
implement such controls, the NCP requires that (for fund financed sites) the state assure that the ICs implemented as part of the
remedial action are in place, reliable, and will remain in place after the initiation of operation and maintenance [40 CFR
300.510(c)(l)]. Lastly, for Superfund financed and private sites, the NCP also requires the state to hold any interest in property
that is acquired (once the site goes into O&M) to ensure the reliability of ICs [40 CFR 300.510(f)].
RCRA—RCRA requirements are imposed through legal mechanisms different from those used under CERCLA. In RCRA,
authorized states are the primary decision makers, this results in a wide variety of state-specific mechanisms being available.
This fact sheet does not attempt to list all of the state and local 1C mechanisms, but to identify key principles for the use of ICs.
If the 1C is being imposed through a RCRA permit, steps should be taken to ensure that long-term enforcement is not lost
through property transfer or permit expiration. Cleanups under RCRA are conducted in connection with the closure of regulated
units and facility-wide corrective action either under a permit [RCRA sections 3004(u) and (v)], interim status order [RCRA
section 3008(h)] or imminent hazard order [RCRA section 7003] or other authorities. It should also be noted that landfill closure
requirements under 40 CFR 264.119 require deed notices that the land has been used to manage hazardous waste, although the
notice itself does not restrict future use. EPA expects to use a combination of methods (e.g., treatment, engineering, and
institutional controls) under RCRA, as appropriate, to achieve protection of human health and the environment. EPA also
expects to use ICs, such as water and land use restrictions, primarily to supplement engineering controls, as appropriate, for
short- and long-term management to prevent or limit exposure to hazardous wastes and constituents. ICs are not generally
expected to be the sole remedial action.
sold and to work with the local government to implement zoning restrictions on the property.
TVDCS Of ICs There are four categories of institutional controls: governmental
controls; proprietary controls; enforcement and permit tools
General Categories w't'1 ^ components; and informational devices. Each of these
-------
categories is described below. In addition, a checklist that
highlights steps in implementing ICs during the cleanup process
and a matrix summarizing examples of ICs are included at the end
of the fact sheet.
Governmental Controls—Governmental controls are usually
implemented and enforced by a state or local government and
can include zoning restrictions, ordinances, statutes, building
permits, or other provisions that restrict land or resource use at a
site. Local governments have a variety of land use control
measures available from simple use restrictions to more
sophisticated measures such as planned unit development
zoning districts and overlay zones. Development zoning districts
allow for more flexible site planning and overlay zones impose
additional requirements to those of the underlying zoning
district. Regardless of which measures are relied on, the land use
control should be carefully evaluated to make certain that there
are no exceptions which could allow for improper use of the site
(e.g., allowing a day care center use within an industrial district).
Once implemented, local and state entities often use traditional
police powers to regulate and enforce the controls. Since this
category of ICs is put in place under local jurisdiction, they may
be changed or terminated with little notice to EPA, and EPA
generally has no authority to enforce such controls.
For active military bases, the local authority for regulating and
enforcing ICs is the Commanding Officer. Therefore, EPA and
the state should work with the installation personnel to
incorporate restrictions into the base master plans, instructions,
and orders used by the Commanding Officer to govern conduct,
actions and activities on the base (in some cases these
restrictions may be imposed as permit conditions if the base is
subject to RCRA permit requirements).
Proprietary Controls—These controls, such as easements and
covenants, have their basis in real property law and are unique in
that they generally create legal property interests. In other
words, proprietary controls involve legal instruments placed in
the chain of title of the site or property. The instrument may
include the conveyance of a property interest from the owner
(grantor) to a second party (grantee) for the purpose of
restricting land or resource use. An example of this type of
control is an easement that provides access rights to a property
so the Potentially Responsible Party (PRP), facility
owner/operator, or regulatory agency may inspect and monitor a
groundwater pump-and-treat system or cover system. The
benefit of these types of controls is that they can be binding on
subsequent purchasers of the property (successors in title) and
transferable, which may make them more reliable in the long-term
than other types of ICs.
However, proprietary controls also have their drawbacks.
Property law can be complicated because a property owner has
many individual rights with respect to his or her property. To
illustrate this point, property rights can be thought of as a
bundle of sticks, with each stick representing a single right (e.g.,
the right to collect rents). The terminology, enforceability, and
effect of each of these rights is largely dependent upon real
property common law and the state where the site is located. A
property owner can convey certain rights to other entities
(either voluntarily or involuntarily through condemnation) and
keep other rights. For example, if it is determined that a long-
term easement is required to ensure remedy protectiveness, this
"right" would need to be transferred by the property owner to
another entity. For the easement to bind subsequent
purchasers, some states require that the entity be an adjacent
property owner. This may complicate long-term monitoring and
enforcement since the party receiving the right (the grantee) is
often not an adjacent property owner. To eliminate this
problem, a proprietary control may be established "in gross."
This means that the holder of the control (the grantee) does not
need to be the owner of the adjacent property. However, it
should be noted that easements in gross may not be
enforceable under the laws of some states. State property laws
governing easements should therefore be researched before
this type of 1C is selected in order to determine its enforceability
in that jurisdiction.
A distinction at Federal sites being transferred to the private
sector is that CERCLA sections 120(h)(3)(A)(iii) and
120(h)(3)(c)(ii) and (iii) require that property interests be
retained by the Federal government. At active Federal sites,
proprietary controls may not be an option because a deed does
not exist or the landholding Federal agency lacks the authority
to encumber the property. However, the landholding Agency
may be willing to enter a Memorandum of Understanding
(MOU) with EPA and/or state regulators providing for specific
1C implementation plans, periodic inspections and other
activities which it will undertake (in lieu of deed restrictions) to
assure that ICs for the active site will remain effective.
Enforcement and Permit Tools with 1C Components—Under
sections 104 and 106(a) of CERCLA, UAOs and AOCs can be
issued or negotiated to compel the land owner (usually a PRP)
to limit certain site activities at both Federal and private sites;
CDS can also be negotiated at private sites under 122(d).
Similarly, EPA can enforce permits, conditions and/or issue
orders under RCRA sections 3004(a), 3004(u) and (v), 3008(h),
or 7003. These tools are frequently used by site managers, but
may also have significant shortcomings that should be
thoroughly evaluated. For example, most enforcement
agreements are only binding on the signatories, and the
property restrictions are not transferred through a property
transaction. For example, if a PRP under CERCLA signs a CD or
receives a UAO and then sells his or her property, many types
of ICs would not be enforceable against the next owner. This
could jeopardize the protectiveness of the remedy. One
possible solution to this problem is to ensure that the
enforcement tool contains provisions requiring EPA or state
notification and/or approval prior to a property transfer. In this
instance, EPA could negotiate an agreement with the new
owner. Another solution is to require signatories of an
enforcement document to implement additional long-term
institutional controls such as information devices or proprietary
controls (i.e., layering).
-------
Informational Devices—Informational tools provide information
or notification that residual or capped contamination may remain
on site. Common examples include state registries of
contaminated properties, deed notices, and advisories. Due to
the nature of some informational devices (e.g., deed or hazard
notices) and their potential non-enforceability, it is important to
carefully consider the objective of this category of ICs.
Informational devices are most likely to be used as a secondary
"layer" to help ensure the.overall reliability of other ICs.
ICs at Federal Facilities
Because of Federal ownership, there are significant differences in
the way ICs are applied at Federal facilities. Some proprietary or
governmental controls cannot be applied on active Federal
facilities. However, for properties being transferred as part of a
base closure, the Department of Defense does have the authority
to restrict property by retaining a property interest (i.e., an
easement intended to assure the protectiveness of the remedy).
For active bases, ICs are commonly addressed through remedy
selection documents, base master plans, and separate MOUs.
More detailed information on ICs and Federal facilities is
' contained in "Institutional Controls: A Reference Manual
(Workgroup Draft - March 1998)" and in the FFRRO 1C guidance
("Institutional Controls and Transfer of Real Property under
CERCLA Section 120(h)(3)(A), (B), or (C)," January, 2000).
Legal Mechanisms for Imposing ICs Under
CERCLA and RCRA
CERCLA and RCRA employ the same types of ICs to reduce
exposure to residual contamination. However, as explained
below, EPA's legal authority to establish, monitor and enforce
ICs varies significantly between the two programs. As a result,
officials involved in cleanups need to appreciate the range of
options available under each program before determining
whether, and to what extent, ICs should be incorporated into a
remedial decision.
At CERCLA sites, EPA often imposes ICs via enforcement tools
(e.g., UAOs, AOCs, and CDs). Since these enforcement tools
only bind the parties named in the enforcement document, it may
be necessary to require the parties to implement ICs that "run
with the land" (i.e., applied to the property itself) in order to bind
subsequent land owners. For Fund-lead CERCLA sites, the lead
agency has the responsibility for ensuring ICs are implemented.
Legal mechanisms such as UAOs, AOCs and CDS should also
require reporting to EPA and/or the state of any sale of the
property.
Under RCRA, ICs are typically imposed through permit
conditions or by orders issued under section 3008(h). In certain
circumstances cleanup may also be required under the imminent
hazard order authority of section 7003. In the case where an 1C is
meant to continue beyond the expiration of a permit, an order
may be required to ensure the 1C remains in effect for the long
term RCRA permit writers should incorporate ICs as specific
permit conditions, where appropriate. By doing so, such
conditions would be enforceable through the permit. At the
same time, permit writers should consider whether additional
ICs are available (e.g., governmental and/or proprietary
controls) to ensure that subsequent property owners will be
aware of, and bound by, the same types of restrictions. Similar
factors should be considered when preparing RCRA corrective
action orders to ensure that both the current facility
owner/operator and any subsequent property owners are
subject to effective and enforceable ICs that will minimize
exposure to any residual contamination.
One significant difference between RCRA and CERCLA is that
RCRA generally does not authorize EPA to acquire any
interests in property. Therefore, many proprietary controls
(such as easements) will require the involvement of third parties
(e.g., states or local governments) under RCRA.
ICs and Future Land Use
Land use and ICs are usually linked. As a site moves through
the Superfund Remedial Investigation/Feasibility Study (RI/FS)
or RCRA Facility Investigation/Corrective Measures Study
(RFI/CMS), site managers should develop assumptions about
reasonably anticipated future land uses and consider whether
ICs will be needed to maintain these uses over time. EPA's land
use guidance (Land Use in CERCLA Remedy Selection Process,
OSWER Directive No. 9355.7-04, May 25, 1995) states that the
site manager should discuss reasonably anticipated future uses
of the site with local land use planning authorities, local
officials, and the public, as appropriate, as early as possible
during the scoping phase of the RI/FS or RFI/CMS. Where
there is a possibility that the land will not be cleaned up to a
level that supports unlimited use and unrestricted exposure, the
site manager should also discuss potential ICs that may be
appropriate, including legal implementation issues,
jurisdictional questions, the impact of layering ICs and
reliability and enforceability concerns. It is also important for
the site manager to recognize that, in addition to land uses, ICs
can be used to affect specific activities at sites (e.g., fishing
prohibitions).
Screening ICs
The need for ICs can be driven by both the need to guard
against potential exposure and to protect a remedy. If any
remedial options being evaluated in the FS or CMS leave waste
in place that would not result in unrestricted use and unlimited
exposure, ICs should be considered to ensure that
unacceptable exposure from residual contamination does not
occur. However, ICs may not be necessary if the waste that is
left at the site allows for unrestricted use and unlimited
exposure. Remedy options that typically leave residual wastes
on site and necessitate ICs include capping waste in place,
construction of containment facilities, natural attenuation and
long-term pumping-and-treatment of groundwater.
-------
ICs should be evaluated in the same level of detail as other
remedy components. ICs are considered response actions under
CERCLA and RCRA. ICs must meet all statutory requirements,
and are subject to the nine evaluation criteria outlined in the NCP
(40 CFR 300.430 (e)(9)(i)) for CERCLA cleanups. The balancing
criteria recommended for corrective actions should generally be
used in evaluating ICs under RCRA. However, before applying
these criteria, the site manager should first make several
determinations:
• Objective—Clearly state what will be accomplished through
the use of ICs.
Example: Restrict the use of groundwater as a drinking
water source until the Maximum Contaminant Levels are
met.
• Mechanism—Determine the specific types of ICs that can be
used to meet the various remedial objectives.
Example: Work with the local jurisdiction to develop
ordinances to restrict well drilling or prohibit
groundwater access until cleanup goals are met; record
the groundwater contamination in the land record to
provide notice of the issue to the public; and record
contaminated aquifers on state registry to maintain
institutional tracking.
• Timing—Investigate when the 1C needs to be implemented
and/or secured and how long it must be in place. Since ICs
are often implemented by parties other than EPA, the time
required to secure an 1C should be taken into consideration.
Example: A deed notice may be required in the short-
term, and a formal petition for a zoning change may be
necessary in the long-term, both of which need to be in
place prior to site deletion from the NPL.
• Responsibility—Research, discuss, and document any
agreement with the proper entities on exactly who will be
responsible for securing, maintaining and enforcing the
control. It might be useful to secure a written statement of
the appropriate entities' willingness to implement, monitor,
and enforce the 1C prior to the signature of the remedy
decision document.
Example: Work with the State to determine whether it is
willing and able to hold an enforceable easement to
ensure appropriate land use; in addition, determine
whether the local government is willing and able to
change and enforce the applicable zoning requirements.
If assurances cannot be obtained, then ICs may not be a
viable component of the remedy.
Typically, the site manager is faced with balancing the relative
strengths of ICs in terms of enforceability, permanence, etc., with
achieving remedial objectives. As discussed previously, one
option is to "layer" different controls to ensure long-term
reliability. For example, layered ICs may involve concurrent use
of enforceable agreements, deed notices, and adoption of land
use controls by a local government. ICs may also be used in
series. For example, an enforcement order may prohibit the land
owner from disturbing the cap on his/her property (i.e., a short-
term control), until the local government goes through the
process of restricting the future use of the land (i.e., the long-
term control).
Determining the State Role
Where EPA is implementing a remedy, states often play a major
role in implementing and enforcing ICs. As stated previously,
some governmental controls may be established under state
jurisdiction: the state may use its enforcement tools to compel
the PRP or facility land owner to limit site activities; the state
may provide the notification or information on the
contamination that remains on-site; or the state may assume
ownership of a property in order to implement, maintain, and
enforce proprietary controls. Under RCRA, the state will
typically be imposing and overseeing the remedial action.
When to Begin Coordinating with the State
No matter what role the state assumes with ICs, the EPA site
manager should begin coordinating with the state early in the
RI/FS (for CERCLA) or RFI/CMS (for RCRA) process or after
sampling has been completed and the extent of the risk is
known. Even if ICs are not required for the long-term
maintenance of the selected remedy, they may be necessary
during the response activities.
Factors to Consider in State Coordination
In evaluating the need for and the type of ICs that may be
implemented at a site, the site manager should consult with their
Regional attorney to determine who has the proper legal
authority to implement and enforce the proposed controls.
Certain states have enacted statutes that provide the state with
the legal authority to restrict land use at contaminated
properties. In addition, several states have adopted statutes
providing for conservation easements. These easements
override common law barriers to the enforcement of easements
by parties who do not own adjacent property. For example, at
many sites, the state, in cooperation with the PRPs or facility
owner/operator, may use its own enforcement tools to restrict
the use of the land and ensure that the selected remedy,
including ICs, is implemented and maintained. At other sites, a
property interest may be conveyed (either directly or, if
necessary, through EPA at Superfund sites) from the owner of
the land to the state which becomes the holder and enforcer of
a proprietary control. Finally, the state is often responsible for
issuing advisories or warnings of potential risks (e.g., fishing
or swimming prohibitions), and providing registries of
hazardous waste sites (i.e., informational controls).
-------
If it appears that the state will be relied upon to establish the ICs,
the site manager should immediately talk to state agency
personnel to gauge their willingness to establish, maintain and
enforce the control, if necessary. This discussion is encouraged
regardless of the type of lC(s) that will be implemented. The site
manager should work with his or her state counterpart to identify
and contact the appropriate state agency and personnel for each
proposed 1C. In addition, if a property interest is conveyed by
the land owner to EPA to perform a remedial action (e.g., to
ensure the reliability of the ICs restricting the use of the land),
CERCLA requires the state to accept transfer of the title from
EPA following completion of the CERCLA remedial action. If the
state does not agree to accept title to the property, the site
manager must find another party to assume ownership (e.g., a
local government, community group or trust) or another type of
1C (e.g., local government control)1' must be selected. State
assurances for O&M or for transfer of property interest are
formalized in a Superfund State Contract (SSC), cooperative
agreement, or MOU that is negotiated between the state and
EPA.
State Role at Fund-Financed CERCLA Cleanups
The state assumes other responsibilities for ICs if the remedial
action, including the ICs, will be Fund-financed under CERCLA.
CERCLA specifically requires that the state provide assurance
that it will assume responsibility for operation and maintenance
(O&M) of the selected remedy before a Fund-financed remedial
action is implemented. The NCP requires the state to ensure that
any ICs implemented as part of the remedial action at the site are
in place, reliable, and will remain in place after the initiation of
O&M. These assurances are also documented in a cooperative
agreement, SSC or MOU.
State Role at RCRA Sites
Under RCRA, states will typically be the implementing and
overseeing agency. Therefore the state, when authorized and
overseeing corrective action, will be responsible for identifying
appropriate institutional controls. Where EPA is overseeing the
remedy there are no state assurance requirements in RCRA
Corrective Action. However, because there is no Federal
mechanism in RCRA allowing EPA to acquire interest in
property, EPA may be forced to rely on third parties (typically
state or local government) to establish, maintain and enforce
most types of ICs.
State Role at Federal Facilities
At Federal facilities, the landholding agency is ultimately
responsible for all response activities. The state is not required
to provide assurance that it will assume responsibility for O&M.
However, states may enter into an agreement with the
landholding Federal agency to monitor and enforce ICs at
Federal sites.
Determining the Role of Local Governments
CERCLA, RCRA, and the NCP do not specify a role for local
governments in implementing the selected remedy. However, a
local government is often the only entity that has the legal
authority to implement, monitor and enforce certain types of ICs
(e.g., zoning changes). While EPA and the states take the lead
on CERCLA and RCRA response activities, local governments
have an important role to play in at least three areas: (1)
determining future land use; (2) helping engage the public and
assisting in public involvement activities; and (3)
implementation and long-term monitoring and enforcement of
ICs. Therefore, it is critical that the site manager and his or her
state counterpart involve the appropriate local government
agency in discussions on the types of controls that are being
considered. The capability and willingness of the local
government to implement and ensure the short- or long-term
effectiveness of the proposed ICs should be considered during
the RI/FS or RFI/CMS. In certain cases, cooperative
agreements may be considered to assist local governments in
the implementation, monitoring and enforcement of required
ICs.
Evaluating ICs
Once the site manager has considered the objectives,
mechanism, timing, and entity responsible for implementing,
monitoring and enforcing the ICs, the next phase is selecting
the ICs. The following sections contain a discussion of the
CERCLA and RCRA factors that site managers should generally
consider when evaluating ICs during the FS or CMS. If the site
manager proposes to layer or use the ICs in series, he or she
should also characterize the likelihood that this approach can
actually be achieved. It is important to note that at CERCLA
sites, the statute requires the site manager to evaluate ICs, just
like other remedy components, against the nine NCP criteria.
The site manager must ensure that remedies are protective of
human health and the environment. ICs may be an important
element in this determination. RCRA sites managers have the
latitude to use balancing criteria, but unlike CERCLA, RCRA
regulations do not require this balancing step. The CERCLA
and RCRA criteria are categorized below in three groups:
threshold, balancing, and modifying.
Likewise, either the state or a third party must be
willing to accept property interests at PRP-led sites.
-------
ICs in CERCLA Removal Actions
ICs will rarely be a component of true emergencies where a
time critical action serves as the only response at a site. It is
more likely that a site manager will choose ICs as a
component of a non-time critical removal action or during a
follow-up remedial action. A post-removal site control
agreement must be completed before commencing a fund-
financed removal action where ICs are included in post-
removal site control (OSWER Directive No. 9360.22-02). As
in the remedial process, begin considering ICs when
conducting an analysis of land use assumptions during the
removal decision-making process. Where a final, site-wide,
non-time critical removal remedy decision will be made, ICs
should be thoroughly and rigorously evaluated with all other
response actions in the Engineering Evaluation/Cost
Analysis (EE/CA). In short, because ICs are considered to be
actions, apply the full criteria required by the NCP for EE/CA
evaluations. It is anticipated that ICs would not be chosen
as the sole action for a removal.
Threshold Criteria
It is fundamental that a remedy under RCRA or CERCLA that
includes ICs meet the following threshold criteria:
• protect human health and the environment; and
• for CERCLA sites, comply with Applicable or Relevant and
Appropriate Requirements (ARARs).
The site manager for RCRA facilities should also consider
whether remedies that include ICs:
• attain media cleanup standards or comply with applicable
standards for waste management; and
• control the source(s) of releases so as to reduce or eliminate,
to the extent practicable, further releases of hazardous waste that
might cause threats to human health and the environment.
Balancing Criteria
The site manager evaluates the individual, layered or series of
ICs to determine their respective strengths and weaknesses. ICs
are also evaluated in combination with engineered controls to
identify the key tradeoffs that should be balanced for the site.
Following are balancing criteria required by CERCLA and the
NCP and recommended by the RCRA program in guidance.
Long-term effectiveness and permanence (CERCLA) or
reliability (RCRA)—Under both CERCLA and RCRA, this factor
assesses the permanence/reliability and effectiveness of ICs that
may be used to manage treatment residuals or untreated wastes
that remain at the site over time. When evaluating whether an 1C
will be effective over the long-term, the site manager should
consider factors such as: whether the property is a government-
owned site or a privately-owned site that is likely to change
hands; the applicability of ICs to multiple property owners; the
size of the area to be managed; the number of parcels; the
contaminated media to be addressed; the persistence of the
contamination; whether site contamination is well-defined; and
whether local governments or other governing bodies are
willing and able to monitor and enforce long-term ICs. The site
manager should also consider the contaminated media to be
addressed by the ICs. Different ICs may be required for
different media.
Where ICs must be effective for a long period, either proprietary
or governmental controls should be considered because they
generally run with the land and are enforceable. However, both
proprietary and governmental controls have weaknesses in
terms of long-term reliability. For example, with proprietary
controls, common law doctrines may restrict enforcement by
parties who do not own adjoining land. This can render
proprietary controls ineffective if EPA or another party capable
of enforcing the control is not the owner of the adjacent
property. To eliminate this problem, proprietary controls may
be established "in gross," signifying that the holder of the
control does not need to be the owner of the adjacent property.
However, some courts do not recognize in gross proprietary
controls.
At some sites, governmental controls may be preferable to
proprietary controls. For example, the site manager might work
with a local government to pass an ordinance to restrict
construction or invasive digging that might disturb or cause
exposure to covered residual lead contamination in a large
residential area. The implementation of government controls
might be considered a beneficial addition to information tools
that may be forgotten over the long term or an enforcement .
action that would be binding only on certain parties.
Proprietary controls would likely be deemed impractical at such
a site due to the complex and uncertain task of obtaining
easements from multiple property owners.
Like proprietary controls, the use of governmental controls may
not be effective over the long term. Of primary concern are the
political and fiscal constraints that may affect the ability of a
state or local government to enforce the controls. Similarly,
governmental controls may be problematic when the local or
state government is or may become the site owner or operator
because of the appearance of a conflict of interest. Regardless
of the control selected, its viability over the long term needs to
be closely evaluated.
Reduction oftoxicity, mobility, or volume through treatment—
This CERCLA and RCRA criterion does not apply since ICs are
not treatment measures.
Short-term Effectiveness—Short-term effectiveness of ICs at
CERCLA and RCRA sites should be evaluated with respect to
-------
potential effects on human health and the environment during
construction and implementation of the remedy. In order to
satisfy this criterion, the remedy might entail the use of an 1C
through an enforcement order to compel the PRP to restrict
certain uses of the groundwater at or down gradient from the site
during remediation. After remediation is complete, other ICs
might be implemented if residual contamination remains on site
(i.e., implementing ICs in series).
Implementability—This CERCLA and RCRA criterion evaluates
the administrative feasibility of an action and/or the activities
that need to be coordinated with other offices and agencies.
Implementation factors that generally should be considered for
ICs include whether the entity responsible for implementation
possesses the jurisdiction, authority, willingness and capability
to establish, monitor and enforce ICs. A proper analysis of
implementability can be complex, considering such diverse
factors as the extent to which land being restricted is owned by
liable parties and the willingness and capability of the local
government or other authority responsible for establishing
controls for land or resource use.
Cost—This CERCLA and RCRA criterion includes estimated
capital and O&M costs. In CERCLA, estimated costs for
implementing, monitoring, and enforcing ICs should be
developed. For example, cost estimates for ICs might include
legal fees associated with obtaining easements restricting land
use, the costs of purchasing property rights (e.g.., groundwater
rights, easements), or the wages of the state or local government
personnel that will regularly monitor the 1C to ensure that it has
not been violated. It is interesting to note that once the total life-
cycle costs of implementing, monitoring and enforcing an 1C -
which may exceed 30 years - are fully calculated, it may actually
be less costly in the long term to implement a remedy that
requires treatment of the waste. For more information on
estimating response costs, see "A Guide to Developing and
Documenting Cost Estimates During the Feasibility Study," EPA
540-R-00-002, OSWER 9355.0-075. In RCRA, costs historically
have played a less prominent role in remediation selection.
Typically cost estimates are expected to be developed at the
discretion of the owner/operator, although implementors should
take into account sites where ICs are inappropriately costly.
Modifying Criteria
Typically the site manager presents the proposed remedy,
including ICs to the state, local government, and community for
comment prior to implementation. The issues and concerns of
these stakeholders may result in modifications to the remedy and
are addressed by the site manager in the remedy decision
document. Following is a discussion of these modifying criteria
(note: these criteria are only recommended in RCRA guidance).
State Acceptance—The site manager should make the
appropriate state authorities aware of the basis and scope of the
ICs to be implemented under CERCLA or RCRA, and what role, if
any, the state is expected to play to make ICs an effective part of
the remedy. The state can formally express its concerns about
the use of ICs, in general, and its role, in particular, or indicate
its willingness to take on the responsibility for implementing
and enforcing the proposed ICs.
If the state's position is uncertain at the time the remedy is
selected (e.g., for CERCLA sites, when the ROD is signed or, for
RCRA facilities, when the permit/order is issued or modified), it
may be necessary to outline contingent remedial approaches in
the decision documents. Specifically, remedies that require
long-term ICs to remain protective may require alternative
actions (e.g., additional soil removal) if the ICs are later
determined to be unenforceable or cannot meet the remedial
objectives. Alternatively, at a RCRA site, it may be necessary to
leave a facility under a permit or other mechanism enforceable
by the regulating agency. If the state's willingness or ability to
implement or enforce an 1C changes after remedy selection, the
protectiveness of the remedy should generally be re-evaluated
and, when necessary, remedial decisions revised. Under
CERCLA, this may require an Explanation of Significant
Differences (ESD), or even a ROD amendment. Under RCRA, a
permit modification or change to a corrective action order may
be necessary. It is important to note that under no
circumstances can a Fund-financed CERCLA remedial action be
initiated without receiving state assurances on ICs and
property transfer.
Local Government and Community Acceptance—Involving the
community and local government early during the remedy
decision process will enable the site manager to more fully
evaluate 1C options. Discussions with the local government
and community give the site manager the opportunity to:
• gather local government and community input on the
proposed ICs;
• identify whether a particular stakeholder group may be
harmed as a result of a proposed 1C (for example, will a ban on
fishing cause an economic hardship in the community);
receive comment on the impacts of the potential ICs on
religious or cultural customs and beliefs (e.g., preventing
access to property which grows the plants that are used in a
tribal ceremony); and
• determine if the community has special needs in
regards to the 1C (for example, will it be necessary to publish
informational devices in multiple languages).
In addition, the local government and community's response to
certain types of ICs and the willingness and capability of the
local government to monitor ICs will help the site manager
determine whether the ICs will be effective overall. This is
especially important if nearby property owners will need to
agree to implement proprietary controls or if other governmental
ICs (e.g., zoning changes) will have an impact on the
community. Early involvement will also enable the community
to work with the local government to develop innovative
approaches to using ICs, especially in light of any future land
use plans.
-------
As with other aspects of the proposed remedy, the community
should have the opportunity to comment on the proposed 1C
component of the remedy during the public comment period. It
may be necessary to educate the community about ICs so that
its members understand how the different ICs may impact their
property and activities. Under CERCLA, it may also be possible,
as long as all appropriate requirements are met, to provide a
Technical Assistance Grant to the community so they can hire a
technical expert to assist them in evaluating ICs and the overall
remedy.
In some cases, it may be appropriate not to identify the exact 1C
required at the time of the remedy decision. In these instances
the critical evaluation of the available ICs should still be
conducted and the specific objective(s) of the ICs should be
clearly stated in the ROD or other decision document. Examples
of when this flexibility may be appropriate are contingent
remedies based on pilot studies or if a remedy would not be
implemented for several years and the state is developing
enabling language for Conservation Easements authority.
Site Manager Responsibilities After ICs are
Selected
The site manager's responsibilities for ICs does not end once the
ICs are selected. Site managers also should ensure that the ICs
are actually implemented, are reliable, are enforced, and remain
effective. It should be noted that NPL sites cannot be deleted
until the entire remedy, including ICs, have been implemented.
This may involve the following:
working with state and local governmental entities to obtain
commitments and resources for implementing and enforcing ICs,
including negotiating a CERCLA SSC with the state to obtain
assurances that the ICs will be put in place, are reliable and will
remain in place after initiation of O&M activities;
• ensuring that the PRP or facility owner complies with the
provisions in the enforcement tools to implement the ICs and
provides notice of the ICs to potential future users/owners of the
property;
working with other Federal agencies to implement and
enforce ICs;
acquiring property for implementation of the CERCLA
remedy; and
checking the status of ICs during the CERCLA five-year
review.
Conclusion
The ICs outlined in this fact sheet can be important elements of
environmental cleanups. ICs play an important role in limiting
risk and are often needed to ensure that engineered remedies are
not affected by future site activities. When selecting ICs, the site
manager needs to evaluate the situation at the site, define the
needs that ICs are intended to address, identify the kinds of legal
and other tools available to meet these needs, and ensure the ICs
are implemented effectively. All of this requires up-front
planning and working closely with the Regional office
attorneys, the state, community, and PRPs or facility
owner/operators. Key concepts to keep in mind when
implementing ICs are provided in the text box below.
If you have questions regarding the material covered in this fact
sheet, consult the draft document, "Institutional Controls: A
Reference Manual" or contact your Regional Coordinator in the
OERR Technical Regional Response Center. For information on
model language for enforcement or legal documents used to
implement ICs, consult your Regional Counsel, OSRE or the
Office of General Counsel.
Key Concepts
Under the NCP, the use of ICs should not substitute for
active response measures (unless active measures are
not practicable).
If the site cannot accommodate unrestricted use and
unlimited exposure, an 1C will generally be required.
Make sure the objective(s) of the 1C are clear in the
decision document.
Coordinate early with state and local governments.
Layer ICs and/or place them in series depending upon
site circumstances.
Evaluate ICs as rigorously as other remedial
alternatives.
Understand the life-cycle strengths, weaknesses and
costs for the implementation, monitoring and
enforcement of ICs.
Get assurances, in writing, from entities that will
implement, monitor, and enforce ICs.
Remember that since all ICs have weaknesses, the role
of the RCRA/CERCLA decision makers is to select the
best ICs to protect human health and the environment.
10
-------
GLOSSARY OF TERMS
Administrative Orders on Consent (AOC) - A legal agreement signed by EPA and the potentially responsible
parties (PRPs) through which the PRP agrees to pay for or take the required corrective or cleanup actions, or refrain
from an activity. It describes the actions to be taken, may be subject to a comment period, applies to civil actions,
and can be enforced in court.
Advisories - Warnings, usually issued by public health agencies, either at the federal, state or local level, that
provide notice to potential users of land, surface water, or ground water of some existing or impending risk
associated with their use.
Appurtenant - A traditional property law term used to describe an easement that is created to benefit an adjacent
parcel of land (and it is held by the owner of that land). For example, an easement allowing the owner of one parcel
the right to cross an adjoining parcel would be appurtenant. (See also "In Gross")
Chain of Title - A history of conveyances and encumbrances affecting a title from the time that the original patent
was granted, or as far back as records are available.
Common Law - The body of law developed primarily from judicial decisions based on custom and precedent,
unwritten in statute or code, and constituting the basis of the legal system in all of the U.S. except Louisiana.
Condemnation of Property - When a local government, exercising eminent domain, condemns a property in order to
take over title.
Consent Decree (CD) - A legal document, approved by a judge, that formalizes an agreement reached between EPA
and PRPs through which PRPs will conduct all or part of a cleanup action at a Superfund site, cease or correct
actions or processes that are polluting the environment, or otherwise comply with EPA initiated regulatory
enforcement action. The consent decree describes the actions PRPs will take and is subject to a public comment
period.
Conservation Easements - Statutes adopted by some states that establish easements to conserve and protect
property and natural resources.
Conveyance - The transfer of title to property or a right of that property (i.e. easement) from one person to another.
Cooperative Agreement - An assistance agreement whereby EPA transfers money, property, services or anything
else of value to a state, university, or non-profit or not-for-profit organization for the accomplishment of authorized
activities or tasks.
Covenants - A promise by one landowner to another made in connection with a conveyance of property. Generally,
a covenant is a promise by the holder of a possessory interest in property to use or refrain from using the property in
a certain manner. Covenants are similar to easements but have been traditionally subject to somewhat different
formal requirements.
Deed - A signed and usually sealed instrument containing some legal transfer, bargain, or contract.
Deed Notice - Commonly refers to a non-enforceable, purely informational document filed in public land records that
alerts anyone searching the records to important information about the property.
Deed Restriction - Not a traditional property law term, but rather is used in the NCP as a shorthand way to refer to
types of institutional controls.
28
-------
Easements - A property right conveyed by a landowner to another party which gives the second party rights with
regard to the first party's land. An "affirmative" easement allows the holder to enter upon or use another's property
for a particular purpose. A "negative" easement imposes limits on how the landowner can use his or her own
property.
Enforcement Tools - Tools, such as administrative orders or consent decrees, available to EPA under CERCLA and
RCRA that can be used to restrict the use of land. Enforcement authority can be used to either (1) prohibit a party
from using land in certain ways or from carrying out certain activities at a specified property, or (2) require a settling
party to put in place some other form of control, such as a proprietary control.
Equitable Servitude - A real estate interest, similar to a covenant, that arose when courts of equity enforced
agreements that did not meet all of the formal requirements for a covenant.
Government Controls - Controls using the regulatory authority of a governmenta|entity:'to impose restrictions on
citizens or sites under its jurisdiction. Generally, iEPA must turn to state or local governments to establish controls
of this type.
In Gross - A traditional property law term used to describe easements that provide a benefit not related to any
property owned by the holder of the easement. Easements used under CERCLA and RCRA will generally be "in
gross" because the restrictions are generally not for the benefit of any particular neighboring parcel owned by the
holder of the easement.
Informational Devices - Informational tools that provide information or notification that residual or capped
contamination may remain on site. Common examples include state registries of contaminated properties, deed
notices, and advisories.
Institutional Controls - Non-engineering measures intended to affect human activities in such a way as to prevent or
reduce exposure to hazardous substances. They are almost always used in conjunction with, or as a supplement to,
other measures such as waste treatment or containment. There are four categories of institutional controls:
governmental controls; proprietary controls; enforcement tools; and informational devices.
Local Permits - Special permits outlining specific requirements before an activity can be authorized.
Memorandum of Understanding - A document which outlines an agreement in principle between its signatories,
Proprietary Controls - Tools based on private property law used to restrict or affect the use of property.
Reversionary Interest - A real estate interest created when a landowner deeds property to another, but the deed
specifies that the property will revert to the original owner under specified conditions.
"run with the land" - An expression indicating a right or restriction that affects all current and future owners of a
property.
State Use Restrictions - Statutes enacted by some states providing authority to establish use restrictions
specifically for contaminated property.
State Registries of Hazardous Waste Sites - Registries established by state legislatures that contain information
about properties. Types of registries include a list of hazardous waste sites in the state; annual reports submitted to
the legislature summarizing the status of each site on the registry; and notice with the deed for sites on the registry
that the site is contaminated.
29
-------
Superfund State Contract (SSC) - An agreement between EPA and the state before remedial action begins (at
Superfund sites where EPA is leading the response activities) that documents the state's assurances under the law
and outlines the roles and responsibilities of both parties.
Tailored Ordinances - Ordinances put in place by local governments with broad land use authority to control access
to or the use of certain areas. For example, ordinances that require fences or buffers around or that ban fishing or
swimming in contaminated areas.
Technical Assistance Grant - A EPA grant awarded to eligible community groups for the purpose of hiring an
independent technical advisor, enabling community members to participate more effectively in the decision-making
process at Superfund sites.
Unilateral Administrative Order (UAO) - A legal document signed by EPA directing the PRPs to take corrective
action or refrain from an activity. It describes the violations and actions to be taken, and can be enforced in court.
Zoning Restriction - Zoning authority exercised by local governments to specify land use for certain areas. For
example, a local government could prohibit residential development in an area of contamination or limit gardening in
certain areas.
30
-------
Checklist for Implementing ICs
During the initial phase of cleanup (i.e., RI/FS or RFI/CMS), the site manager should:
• establish clear objectives (what are you trying to accomplish through the use of ICs?)
• discuss future land use plans with the community and local government to help in analyzing the
appropriate ICs and other remedial alternatives
• evaluate ICs using the appropriate threshold, balancing, and modifying criteria
• coordinate with regional attorneys on legal matters and the State as appropriate
• be innovative/creative but realistic
During remedy selection, the site manager should:
• present information that helps the public understand the impacts of the specific ICs and their
relationship with the overall remedy
• clearly describe the objectives to be attained by ICs
• specify performance standards (e.g., prevent exposure to contaminated ground water by prohibiting
well drilling)
• consider layering ICs to enhance their overall effectiveness
• discussions with entities (e.g., local/state governments) involved in implementing ICs
• discuss the kinds of controls envisioned and include enough information to show that effective
implementation of the ICs can reasonably be expected
• discuss plans for monitoring land use and other aspects of the remedy that depend on ICs
• discuss the enforcement mechanisms that are anticipated to ensure the long-term reliability of the
ICs
• continue coordination with attorneys
During remedy implementation (i.e., RD/RA and CMI), the site manager should:
• ensure that appropriate measures are taken to implement the ICs (e.g., arrange discussions
between PRPs, other property owners, and local government or state officials)
• be aware that ICs need to be fully implemented to obtain a RCRA permit termination, or for
CERCLA sites, fully implemented to obtain RA completion, a site completion, and partial or full deletion
• prepare an ESD or ROD amendment for CERCLA sites or a permit modification or order revision for
RCRA sites if the ICs will not result in the remedy being protective of human health and the environment;
if this becomes necessary, also ensure that the public is provided an opportunity to comment on the
proposed replacement ICs
During Post-Remediation activities (e.g., a CERCLA five-year review), the site manager should:
Evaluate both the administrative/legal components as well as the physical evidence to ensure that
ICs are both implemented and fully effective
• Document these results in the Five-Year Review Report (for CERCLA sites)
-------
Institutional Controls Matrix
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
GOVERNMENTAL
CONTROLS
Controls using the
regulatory authority of a
governmental entity to
impose restrictions on
citizens or property under its
jurisdiction. Generally, EPA
must turn to state or local
governments to establish
controls of this type.
For example, a local
jurisdiction may zone the site
to disallow uses that are
incompatible with the
remedy.
Do not require the
negotiation, drafting, or
recording of parcel-by-parcel
proprietary controls. This is
important with large numbers
of distinct parcels,
particularly where some of
the landowners are not liable
parties.
The legal impediments (e.g.,
whether the control "runs
with the land"; whether the
right to enforce the control
can be transferred to other
parties) to long-term
enforcement of proprietary
controls can be avoided;
governmental controls
remain effective so long as
they are not repealed and are
enforced.
Will almost always have to
be adopted and enforced by
a governmental entity other
than EPA (e.g., state or local
governments). Thus, their
effectiveness depends in
most cases upon the
willingness of state or local
governments to adopt them,
keep them in force, and
enforce them over the long
term. There may also be
enforcement costs for the
state or local jurisdiction.
Usually enforced by the
state or local government.
The willingness and
capability of the state or
local government to enforce
the 1C should be 12given due
consideration.
12
-------
.Goritrbl
Definition & Example
Benefits
Limitations
Enforcement
1. Zoning
A common land use
restriction specifying
allowed land uses for certain
areas
Example: A local government
could prohibit residential
development in an area of
contamination or limit
gardening in certain areas
Zoning can be used to
prohibit activities that could
disturb certain aspects of a
remedy or to control certain
exposures not otherwise
protected under a remedy.
Zoning ordinances are not
necessarily permanent; they
can be repealed or local
governments can grant
exceptions after public
hearings.
Typical zoning
classifications such as
"industrial" and
"commercial" may not be
stringent enough for a
remedial context. For
example, many zoning
ordinances allow land uses
below a certain level of
intensity (e.g., allowing
residential uses in industrial
districts.) In addition,
existing "blanket" zoning
districts may not provide
appropriate restrictions for
specific remedy
considerations, and local
authorities may be
concerned about potential
legal challenges for "spot
zoning" when rezoning a
single parcel or small group
of parcels. Therefore, an
amendment to, or creative
application of the zoning
ordinance may be necessary
Zoning laws may not be fully
effective unless they are
monitored and enforced over
the long term and local
governments may not have
or be able to commit the
resources necessary to such
oversight.
13
-------
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
2. Local permits
Special permits outlining
specific requirements before
an activity can be authorized
Example: An ordinance
requiring that anyone
seeking a building permit in a
particular area be notified of
contamination
Can take advantage of
existing restrictions and
apply them to site-specific
situations
Often permits are narrowly
focused and the
requirements can be modified
over time.
Effectiveness of enforcement
depends on the willingness
and capability of the local
governmental entity to
monitor compliance and take
enforcement action.
3. Other police power
ordinances
Controls placed on access or
use of certain areas
Example: Placing bans on
fishing and swimming in
specified areas
Can take advantage of
existing restrictions and
apply them to site-specific
situations
Bans on fishing or swimming
may be communicated
through posting of the
ordinance. However,
postings, by themselves,
may not be effective in
preventing incidental contact
or consumption.
Effectiveness of enforcement
depends on the willingness
and ability of the local
governmental entity to
monitor compliance and take
enforcement action
4. Ground water use
restrictions
Restrictions directed at
limiting or prohibiting certain
uses of ground water which
may include limitations or
prohibitions on well drilling.
Example: Establishment of
ground water management
zones or protection areas;
capping or closing of wells
Can take advantage of
existing restrictions and
apply them to site-specific
situations
Implementation of such
restrictions are dependent on
a state's ground water
ownership and use laws.
Local or state expenditures
may be necessary to
compensate owners of
condemned property.
Effectiveness of enforcement
depends on the willingness
and ability of the local
governmental entity to
monitor compliance and take
enforcement action
14
-------
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
5. Condemnation of property
Taking over title of a
property by condemning it
under a government entity's
eminent domain authority.
Example: Taking over title
through condemnation to
prevent the site from being
used.
Used as a way to take title of
a property to control land
use or impose a desired land
use for a public purpose.
Property may be condemned
under Federal, state, or local
authority.
The owner of the property is
entitled to compensation,
may be recoverable under
section 107 of CERCLA.
Not applicable.
15
-------
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
PROPRIETARY
CONTROLS
Tools based on private
property law used to restrict
or affect the use of property
Can be implemented without
the intervention of any
federal, state, or local
regulatory authority
Advisable when restrictions
on activities are intended to
be long-term or permanent
(contaminants will be left in
place that prevent
unrestricted use)
Since property laws vary by
state, always check whether
or not there are court-
recognized doctrines that
would limit the extent to
which the controls run with
the land or are transferable to
other parties
Property law requires a
conveyance of a property
interest from a landowner to
another party for a restriction
to be enforceable
To be enforceable in most
courts, the instrument used
for the conveyance of any
property right should clearly
state:
• the nature and extent of
the control to be imposed;
• whether the control will
"run with the land" (i.e.,
be binding on subsequent
purchasers);
• whether the right to
enforce the control can be
transferred to other
parties
16
-------
institutional Control
sty'frs?/'^-'^?. *,'/$•%$$&'"'^'X' '"'•%,'. fy%''4'",'?/"'f"#'',.
Definition & Example
Benefits
Limitations
Enforcement
1. Easements
A property right conveyed
by a landowner to another
party which gives the
second party rights with
regard to the first party's
land. An "affirmative"
easement allows the holder
to enter upon or use
another's property for a
particular purpose. A
"negative" easement
imposes limits on how the
landowner can use his or her
own property.
Examples:
Affirmative easement -
access by a non-landowner
to a property to conduct
monitoring
Negative easement - prohibit
well-drilling on the property
by the landowner
Most flexible and commonly
used proprietary control
EPA can hold an "in gross"
easement since it generally
will not own an adjacent
parcel of land. An
"appurtenant" easement can
only be given to adjacent
landowners. (Note: the site
manager or Regional Counsel
should check all applicable
state property laws and
should not consider "in
gross" easements to be
transferable).
Most useful in situations
where a single parcel of land
is involved and the current
owner of the land is subject
to regulation under CERCLA
orRCRA
For an easement to be
created there must be a
conveyance from one party
to another. An easement
cannot be established unless
there is a party willing to
hold the easement. This can
present difficulties since
EPA cannot hold an
easement under the NCP
without compliance with all
procedures required by
section 104(j) of CERCLA.
Furthermore, some state
governments cannot hold
easements, and other parties
may be unwilling to do so.
Since the owner may not be
the only party with whom it
is necessary to negotiate, a
title search should be
conducted to ensure that
agreements have been
obtained from all necessary
parties (e.g., holders of prior
easements with right of
access)
Less useful where a large
number of parcels are
involved and the owners are
not PRPs because
In general, an easement is
fully enforceable as long as
its nature and scope are clear
and notice is properly given
to the parties against whom
the agreements are binding
(e.g. by recording the
easement in land records)
Use caution when
determining who will hold
the easement. Sometimes
PRPs acquire easements from
other landowners thus taking
on the burden of negotiating
and paying for them.
However, as a third party,
EPA may not have the right
to enforce or transfer the
easement unless that right is
specified in the agreement
between the PRP and other
landowners.
The terms of easements are
enforceable by the holder in
the state court with
jurisdiction over the
property's location.
17
-------
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
2. Covenants
A covenant is an agreement
between one landowner to
another made in connection
with a conveyance of
property to use or refrain
from using the property in a
certain manner.
Similar to easements but are
subject to a somewhat
different set of formal
requirements
Example: A covenant not to
dig on a certain portion of
the property.
Can be used to establish an
institutional control where
the remediated property is
being transferred from the
current owner to another
party
This agreement is binding on
subsequent owners of the
land if: (1) notice is given to
the subsequent land owner,
(2) there is a clear statement
of intent to bind future
owners, (3) the agreement
"touches and concerns" the
land, and (4) there is vertical
and horizontal privity
between the parties.1'
Enforcement of covenants is
subject to state law and
enforceable by the holder in
the state court with
jurisdiction over the
property's location.
\J Horizontal privity means that only a contract party may claim relief for a breach of a contract warranty or a condition. In other words, no person other than the
buyer can sue for damages that arise out of the breach of a contract warranty or condition. Vertical privity means that each party in a distribution chain only has
a contract with the person ahead of him or her in the chain. For example, vertical privity would mean a consumer only has a remedy against the person from whom
he or she purchased a particular item and could not sue the manufacturer.
18
-------
Institutional Control
DefinitJon & Example
Benefits
Limitations
Enforcement
3. Equitable Servitude
Closely related to covenants,
equitable servitudes arose
when courts of equity
enforced agreements that did
not meet all of the formal
requirements of covenants.
Most likely to have value as
an institutional control where
a party responsible for
cleanup expects to own
neighboring property for a
long period (as might be the
case in partial military base
closures)
The agreement is binding on
subsequent owners of the
land if: (1) notice is given to
the subsequent land owner,
(2) there is a clear statement
of intent to bind future
owners, (3) the agreement
"touches and concerns" the
land. The third requirement
should be met by any
agreement that restricts what
the owner can do with the
land.
The ability to enforce an
equitable servitude "in
gross" against subsequent
landowners is less likely to
be recognized compared to
easements and covenants,
but this depends greatly on
jurisdiction.
The terms of equitable
servitudes are enforceable
by the holder in the state
court with jurisdiction over
the property's location.
4. Reversionary Interest
A reversionary interest is
created when a landowner
deeds property to another,
but the deed specifies that
the property will revert to the
original owner under
specified conditions. It
places a condition on the
transferee's right to own and
occupy the land. If the
condition is violated, the
property is returned to the
original owner or the owner's
successors.
Example: Failure to maintain
the integrity of a cap
Binding upon any
subsequent purchasers
Most useful where it can be
assumed that the original
owner will be available over a
long period to conduct
further response determined
to be necessary (e.g., where
a Federal agency is selling
the property)
Not useful if there is a
chance that the original
owner will not remain in
existence for a long time
Each owner in the chain of
title must comply with
conditions placed on the
property. If a condition is
violated, the property can
revert to the original owner,
even if there have been
several transfers in the chain
of title.
The terms of reversionary
interests are enforceable by
the holder in the state court
with jurisdiction over the
property's location.
19
-------
Type of
institutional Control
Definition & Example
Benefits
Limitations-
Enforcement
5. State Use Restrictions
State statutes providing
owners of contaminated
property with the authority
to establish use restrictions
specifically for contaminated
property
For example, Connecticut
property owners who wish to
file an environmental use
restriction must demonstrate
that each person holding an
interest in the land
irrevocably subordinates
their interest in the land to
the environmental use
restriction, and that the use
restriction shall run with the
land.2'
Overrides common law
impediments to allow for
long term enforceability of
real property interests
In some cases, the authority
to acquire or enforce the
restrictions is conferred only
on the state. Therefore, the
state's assistance is
necessary to implement and
enforce.
Determine whether the
restriction can be federally
enforced; if not, investigate
whether the state is willing to
take on the role of
enforcement
2/CT General Statutes, 1997, Vol. 8, Title 22a, Section 22a-133n through 22a-133s, contains the following provision: "No owner of land may record an
environmental use restriction on the land records of the municipality in which such land is located unless he simultaneously records documents which
demonstrate that each person holding an interest... irrevocably subordinates such interest to the environmental use restriction. An environmental use restriction
shall run with
land, shall bind the owner of the land and his successors and assigns, and shall be enforceable "
20
-------
ontrQl
Definition & Example
Benefits
Limitations
Enforcement
6. Conservation Easements
Statutes adopted by some
states that establish
easements to conserve and
protect property and natural
resources
Example: Open space or
recreational space is
maintained to prevent
exposure or prevent uses
that might degrade a landfill
cap
These statutes override
common law technicalities
and barriers that may pertain
to traditional easements and
covenants (e.g., "in gross"
easements are not upheld in
some jurisdictions).
May only be used for a
narrow range of possible
purposes which could limit
their usefulness as
institutional controls
In general, the holder must
be a governmental body, a
charitable corporation,
association, or trust
ENFORCEMENT TOOLS
(With 1C Components)
Enforcement authority is
used to either (1) prohibit a
party from using land in
certain ways or from carrying
out certain activities at a
specified property or (2)
require a settling party to put
in place some other form of
control. This section
addresses Federal
enforcement tools as
opposed to those that may
be available to state or local
governments.
May be easier to establish
than proprietary controls
because EPA is not
dependent on 3rd parties to
establish and enforce them.
Typically only binding on
the original signatories of the
agreement; or binding only
the party(ies) to whom it is
issued in the case of a
Unilateral Administrative
Order.
Negotiations and finalization
of AOCs and CDs can be
lengthy.
Enforceable by EPA under
CERCLA and RCRA or by a
state if state enforcement
tools are used.
21
-------
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
1. Administrative Orders
An order directly restricting
the use of property by a
named party
An order also can used to
restrict the use of land
owned by a non-liable
party. This approach would
be used if no other method
(e.g., proprietary control,
governmental control) is
successful (see limitations).
Example: An order
prohibiting the transfer of
drams off site or dredging in
a containment area.
EPA has broad scope of
authority to issue orders to
protect public health and the
environment (section 106 of
CERCLA)
Can be implemented without
the execution of any further
property instruments
Can include provisions
requiring the property owner
to disclose the order's
existence to any potential
purchaser or lessee, and
notify EPA of any
anticipated change in
ownership, the identities of
any potential purchasers or
lessees.
Does not require an
agreement with the
landowner (though consent
orders are generally
considered more desirable).
Unilateral orders can be
easily modified in the event
that the control needs to be
modified or withdrawn
Does not bind subsequent
owners or parties not named
in the order (e.g., lessees).
However, depending upon
the facts of the case, an
environmental regulator may
have the authority to issue a
new order to the new owner.
An order to restrict a non-
liable party, may result in a
claim for compensation
under section 106(b).
Enforcement is by EPA (or
state if issued under state
authority).
Creates the threat of
potential penalties for
violations as an incentive to
properly maintain the control
22
-------
* '.•< • Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
2. Consent Decrees
A CD is signed by a judge
and documents the
settlement of an enforcement
case. Similar to an
Administrative Order, it is
used to specify restrictions
on use of land by the settling
party.
Example: No well drilling on
the property.
Can be used to require a
settling party to:
1. file a separate
instrument conveying a
proprietary control, such as
an easement or covenant to
EPA or a third party;
2. notify successors-in-
title of the CD, site, and any
easements;
3. notify EPA of any
anticipated change in
ownership and the name and
address of the potential
purchaser or lease; and
4. can be used to require
settling non-property owners
(PRPs) to attempt to obtain
easements from parties that
own land contaminated by
the PRP in order to restrict
land or resource use.
CDs alone are not binding
on subsequent owners and
occupants.
Enforced by EPA (or state if
issued under state
authority); failure to comply
can result in penalties.-'
3/While EPA may not be able to enter into CDs with federal agencies, states can.
23
-------
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
INFORMATIONAL
DEVICES
Tools, which often rely on
property record systems,
used to provide public
information about risks from
contamination
May effectively discourage
inappropriate land users from
acquiring the property
Easier to implement than
other controls because they
do not require a conveyance
to be negotiated
Has little or no effect on a
property owner's legal rights
regarding the future use of
the property
If not drafted well,
informational devices may
discourage appropriate
development and uses of
land
Not legally enforceable
24
-------
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
1. Deed notices
Commonly refers to a non-
enforceable, purely
informational document filed
in public land records that
alerts anyone searching the
records to important
information about the
property
Example: Notice may state
that the properly is located
within a Superfund site,
identify the kinds of
contaminants present and
the risks they create, or
describe activities that could
result in undesirable
exposures to the
contaminants left on site.
May discourage
inappropriate land use
Easier to implement than
easements because they do
not require a conveyance to
be negotiated
Use only as a means of
alerting and informing the
public about information
related to a particular piece
of property
Because deed notices are not
a traditional real estate
interest, proper practice in
using them is not well
established. Investigate
state law and local practice in
advance to determine
whether such a notice will be
recorded, how it should be
drafted, and who would be
entitled to revoke it.
Before filing a notice, obtain
the property owner's
consent to avoid the risk of
claims for slander of title.
If not written properly, the
notice may discourage all
development, including uses
that would be appropriate for
the site, by creating a
perceived liability risk.
A deed notice is not an
interest in real property, so
recording a notice has little
or no effect on a property
owner's legal rights
regarding the future use of
the property (i.e., they are
non-enforceable).
25
-------
Type of
Institutional Control
Definition & Example
Benefits
Limitations
Enforcement
2. State registries of
hazardous waste sites
Registries containing
elements that can be used as
institutional controls
Examples: Compilation of
hazardous waste sites in the
state; annual reports
summarizing the status of
each site on the registry;
notice with the deed for sites
on the registry that the site is
contaminated; and the
requirement that any person
conveyihg title to property
on the registry to disclose to
all potential purchasers the
fact that the property is on
the registry
With the cooperation of the
state, registries can be useful
with other measures as part
of an overall remedy,
especially in providing
information to the public.
Some laws provide that the
use of a property on the
registry cannot be
substantially changed
without state approval.
The procedure for listing and
removing sites from
registries is solely at the
state's discretion
Any requirements are only
enforceable by the state
26
-------
_
Institutional Control
[Definition & Example
Benefits
Limitations
Enforcement
3. Advisories
Warnings that provide
notice to potential users of
land, surface water or ground
water of some existing or
impending risk associated
with their use. Advisories are
usually issued by public
health agencies, either at the
Federal, state or local level.
Example: An advisory issued
to owners of private wells in
a particular area that
contamination has been
detected in the ground water
Can be useful with other
measures as part of an
overall remedy, especially in
providing information to the
public
These types of warnings, by
themselves, are not likely to
prevent incidental contact or
consumption. Use
advisories also have a very
short useful life and must
continually be enforced.
Advisories do not have any
legal effect nor do they
create any enforceable
restrictions.
27
------- |