United States Environmental
Protection Agency
Office of Solid Waste and
Emergency Response
OSWER9355.0-74FS-P
EPA 540-F -00-005
September, 2000
Institutional Controls:
A Site Manager's1 Guide to Identifying, Evaluating and
Selecting Institutional Controls at Superfund and RCRA
Corrective Action Cleanups
Office of Solid Waste and Emergency Response
Table of Contents
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 Ihe factors that should generally be considered when evaluating
and selecting ICs as part of Ihe remedy. For more detailed information on
Ihe different types of instruments available, site managers and attorneys
should consult Ihe 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 restrictions, 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 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:
• Purpose
• Definition and Importance of ICs
• Common Misnomers
• Layering and Implementing ICs in Series
• A Look at ICs in CERCLA, the NCP and RCRA
• Types of ICs 3
• Legal Mechanisms for Imposing ICs Under
CERCLA and RCRA
• ICs and Future Land Use
• Screening ICs
• Determining the State Role
• Determining the Role of Local Governments . . .
• Evaluating ICs
• ICs in CERCLA Removal Actions
• Site Manager Responsibilities After ICs are
Selected 10
• Conclusion 10
• Key Concepts 10
• Checklist for Implementing ICs 11
• 1C Matrix 12-25
• Glossary of Terms 26-28
Site Manager, as used in this fact sheet, refers to both CERCLA sites and RCRA facilities. In RCRA, project managers are the equivalent to
site managers in CERCLA.
This document provides guidance to EPA Regions and states involved in Superfund and RCRA corrective action cleanups. It also provides
guidance to the public and the regulated community on how EPA intends to evaluate and implement institutional controls as part of a cleanup decision.
The guidance is designed to implement national policy on these issues. The document does not, however, substitute for CERCLA, RCRA or EPA's
regulations, nor is it a regulation itself. Thus, it does not impose legally-binding requirements on EPA, States, or the regulated community, and may not
apply to a particular situation based upon the circumstances. EPA and State decision makers retain the discretion to adopt approaches on a case-by-case
basis that differ from this guidance where appropriate. Any decisions regarding a particular facility will be made based on the applicable statutes and
regulations. Therefore, interested parties are free to raise questions and objections about the appropriateness of the application of this guidance to a
particular situation, and EPA will consider whether or not the recommendations or interpretations in the guidance are appropriate in that situation. EPA
may change this guidance in the future.
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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.
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.
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 revaluation 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.
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 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 sold and to work with the local
government to implement zoning restrictions on the property.
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
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Types Of ICs ^e cleanup process and a matrix summarizing examples of ICs are
included at the end of the fact sheet.
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)(Hi) 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 fiiture. 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 (H).
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 Q&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.
. Governmental Controls—Governmental controls are usually
^ „*......, , , , implemented and enforced by a state or local government and can
There are four categories of institutional controls: governmental controls; • i . • ^-<• .• ^^u -u- -^
, ., , . , ., T^ include zoning restrictions, ordinances, statutes, building permits, or
proprietary controls; enforcement and permit tools with 1C components; ., . . ° , . .. ., , . .. T ,
,. „ . ' . _ , .,, • • , •, V, , other provisions that restrict land or resource use at a site. Local
and informational devices. Each of these categories is described below. . , . . ,,, , . , ., ,, ,,
,,.. ,,,.,,.,,-, • • , • T^ i • governments have a vanetyoi land use control measures available from
In addition, a checklist that highlights steps in implementing ICs during ., ^-<• ^ i-^+j i ij
tf tf t- t- -o o simple use restrictions to more sophisticated measures such as planned
unit development zoning districts and overlay zones. Development
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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 (/. 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).
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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 (Rl/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 fiiture 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, ff 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.
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• 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 Rl/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
IQs) 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. hi 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)3 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
3Likewise, either the state or a third party must be willing to
accept property interests at PRP-led sites.
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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.
ICs in CERCLA Removal Actions
ICs will rarely be a component of true emergencies where atime
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
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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 Hilly 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
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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 (BSD), 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.
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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
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