&EPA
Institutional Controls:
A Citizen's Guide to Understanding Institutional
Controls at Superfund, Brownfields, Federal Facilities,
Underground Storage Tank, and Resource Conservation
and Recovery Act Cleanups
Table of Contents
PURPOSE 1
WHAT ARE INSTITUTIONAL CONTROLS? 2
WHEN ARE ICs USED? 2
WHY CAN'T ALL THE CONTAMINATION BE
REMOVED? 3
ARE ICs RELIABLE? 3
HOW MANY ICs ARE REQUIRED? 3
WHO IS RESPONSIBLE FOR MAKING SURE ICs WORK
AS INTENDED? 4
WILL ICs HINDER THE USE OF THE SITE? 4
HOW AND WHEN CAN THE COMMUNITY GET
INVOLVED? 5
CONCLUSION 5
GLOSSARY 7
Terms that appear in bold can be found in a
glossary at the end of the document. Many of
these terms describe some types of ICs.
PURPOSE
The purpose of this guide is to provide
community members with general information
about the role of institutional controls (ICs) in
Superfund, Brownfields, Federal Facilities,
Underground Storage Tanks (UST) and
Resource Conservation and Recovery Act
(RCRA) cleanups occurring in their
neighborhoods. This guide will also discuss the
community's role in providing input for the
selection of ICs and helping to monitor them to
ensure that human health and the environment
remain protected in the future.
Key Points
ICs are legal and administrative tools used to
maintain protection of human health and the
environment at sites.
ICs are often an important part of the overall
cleanup at a site.
ICs can be used for many reasons and come
in different types. These include restricting site
use, modifying behavior, and providing
information to people.
There are 4 general types of ICs:
governmental, proprietary, enforcement,
and informational.
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ICs are designed to lower the potential for
people and the environment to be exposed to
contamination.
ICs are usually most effective when layered
and used in series to improve protectiveness.
ICs should fit the needs of the specific site
and community.
The community can play an important role in
identifying potential future uses of the site.
A cooperative relationship should be
established early between government, the entity
doing the cleanup and the community.
Seeking community input and involvement
can maximize the effectiveness of ICs.
Communities can play a vital role as "eyes
and ears" for monitoring ICs.
Federal, state, tribal, and local governments
and parties responsible for the cleanup should
keep the public informed of cleanup decisions
that may affect them.
What Are Institutional Controls?
ICs are generally administrative and legal tools that
do not involve construction or physically changing
the site. ICs are generally divided into four
categories:
1) Government Controls- include local laws or
permits (e.g., county zoning, building permits, and
Base Master Plans at military facilities);
2) Proprietary Controls- include property use
restrictions based on private property law (e.g.,
easements and covenants);
3) Enforcement Tools- include documents that
require individuals or companies to conduct or
prohibit specific actions (e.g., environmental
cleanup consent decrees, unilateral orders, or
permits); and,
4) Informational Devices- include deed
notices or public advisories that alert and educate
people about a site.
In many site cleanups, ICs help reduce the
possibility that people will come in contact with
contamination and may also protect expensive
cleanup equipment from damage. The use of ICs
is not a way "around" treatment, but rather part of
a balanced, practical approach to site cleanup that
relies on both engineered and non-engineered
remedies.
When Are ICs Used?
ICs are normally used when waste is left onsite
and when there is a limit to the activities that can
safely take place at the site (i.e,. the site cannot
support unlimited use and unrestricted exposure)
and/or when cleanup equipment remains onsite.
ICs are often used throughout a site cleanup,
including when:
contamination is first discovered (i.e., to
protect people from coming in contact with
potentially harmful materials while the
contamination is being investigated)
cleanup work is ongoing (in some cases it may
take many years to complete cleanup)
some amount of contamination remains on-site
as part of a cleanup remedy.
ICs can play an important role when a cleanup is
conducted and when it is too difficult or too costly
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to remove all contamination from a site. ICs are
rarely used alone to deal with contamination at a
site. Typically, ICs are part of a larger cleanup
solution and serve as a non-engineered layer of
protection. ICs are designed to keep people from
using the site in a way that is not safe and/or from
doing things that could damage the cleanup
equipment, thus, potentially jeopardizing
protection of people and the environment. For
example, an 1C may be necessary at a former
landfill to notify the community and guard against
excavators digging through a clay barrier that is
meant to stop rain water from entering the landfill.
It is also important to remember that ICs are
frequently used to protect cleanup equipment
while the cleanup is being conducted. For
example, sites may require complex technologies
that remove, treat, and discharge groundwater.
Operation of these systems may be needed for a
long time in order to reach the cleanup goals.
Most cleanups will need to use a combination of
engineered remedies and ICs. ICs provide an
additional level of safety and help to make sure the
remedy remains securely in place. Also, it is
important to understand that a cleanup is not
finished until all necessary action has been taken to
protect people and the environment from
contamination at the site.
Why Can't All The Contamination Be
Removed?
Removing all traces of contamination from a site is
often not possible or practicable because of the
types and location of contamination. However,
the presence of some residual contamination does
not mean that a site can't be used safely.
Use of a site with residual contamination is
considered safe if exposure to contamination is
prevented. ICs can help a site be reused. A
common example of a site reuse is when a surface
barrier layer is installed over contaminated soil and
the area is used for athletic fields, a golf course, or
a park because ICs are in place to prevent
disturbance of the barrier layer.
Are ICs Reliable?
All ICs have strengths and weaknesses. With this
understanding, it is important to choose the best
combination of ICs that will be protective of
human health and the environment. One key
challenge is that ICs are often implemented,
monitored, and enforced by various levels of
federal, state, tribal, or local governments.
Therefore, it is critical to make sure there are
enough 1C safeguards and overlaps so no
significant risk to human health or the environment
or damage to the remedy occur.
EPA guidance encourages the use of ICs in
"layers" and/or in "series" to enhance overall
protectiveness. Layering ICs means using more
than one 1C at the same time, all with the same
goal (e.g., a consent decree, deed notice, and
covenant stopping the use of drinking water wells).
Using ICs in series uses different ICs over time
when site circumstances or 1C processes change.
For example, restrictions can gradually be reduced
as progress is made toward cleanup goals. Used
in such overlapping ways ICs can be more
securely relied upon to provide an important
measure of safety. Thus, usually more than one
kind of 1C is put in place at a single site.
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How Many ICs Are Required?
The decisions about how many and what types of
ICs are needed are usually very site-specific.
There are many important factors to consider
when deciding how many ICs are required at a
site. A few common considerations include:
the level of experience and resource capacities
of the party doing the cleanup
who the intended ICs will affect and how
the type of enforcement mechanism used
(consent decree, order, permit, ordinance)
who will enforce the mechanism (i.e., EPA,
another federal agency at sites it owns, the State, a
local agency)
the likelihood of future redevelopment and/or
reuse of the site
the degree of cooperation exhibited by the
different levels of government and community
involved in the cleanup.
Who Is Responsible For Making Sure ICs
Work As Intended?
The responsibility for making sure that ICs work
depends largely on the type of 1C and who is
conducting the cleanup. Overlapping
responsibilities sometimes make it difficult to
identify the person or entity responsible for the 1C.
For example, zoning is often the responsibility of a
local zoning board, easements are based on state
law, and permits or orders can occur at the
federal, state, tribal and local level. It is also
common for several entities to have some
overlapping responsibility for an 1C. For example,
an agency that approves a cleanup frequently has
some responsibility for making sure that the ICs
work. However, the actual implementation steps
may be completed by the cleanup party and/or
another agency (i.e., local zoning board).
Exceptions are active military facilities; the
authority for regulating and enforcing ICs typically
lies with the commanding officer.
Regardless of who is responsible, ICs should be
regularly monitored to make sure all the
requirements are still in place and the ICs continue
to work effectively. Because federal, state, and
tribal government officials are not always located
in the neighborhood of the site, local governments
and community members can contribute to ensure
that ICs work properly. One way to improve the
use of ICs is to make sure that roles and
responsibilities are clearly stated early in the
process of choosing the ICs.
Will ICs Hinder The Reuse of the Site?
In many ways, ICs can help return a site to a safe
and productive reuse. ICs can identify possible
uses for a site and communicate use limitations to
present and future users. For example, a site may
be fit for industrial reuse, but not for residential
development. To determine the appropriate types
of ICs, it is important to make sure that the
preferred future use of the land is taken into
account. It is important to recognize that ICs can
affect future development at a site. For this
reason, the appropriate mix of ICs is key. The
objective is not to have as many ICs as possible,
but to strike a balance that gives reasonable
assurance that the site remedy will remain
protective over time while being consistent with
the site's future use. In most cases, the ICs can
help shape the reuse of the site to one that is
suitable, safe, and positive for the community.
Communities should be proactive in
communicating with appropriate decision-makers
about the types of land use they think will be best
for their community. Because each community has
a different history and different development
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needs, it is critical that these needs are effectively
communicated to elected officials and the cleanup
agency so they can be taken into consideration
during selection of the cleanup method and reuse
plan for the site. Opportunities for involvement
include attending public meetings, commenting on
documents which state potential cleanup methods,
and participating in local groups.
How And When Can The Community Get
Involved?
Community input can be essential to selecting,
using, and monitoring ICs that are the best fit for
the community and the protectiveness of the
remedy. The cleanup agency or private party and
other stakeholders should develop a working
relationship with the community early in the
cleanup process. Mutual respect, trust, and open
and timely communication can greatly enhance the
ability of all involved to ensure that the most
effective ICs are used at the site.
The first time the community can get involved is
during master planning meetings, zoning hearings,
land use planning meetings to name a few. The
community can also be involved in the site
investigation and remedy selection process.
Federal, state, tribal, and local authorities should
make information available to the public so
community members can provide informed input
into the remedy selection process. EPA, States,
Tribes, local governments and cleanup parties
should evaluate ICs as thoroughly and rigorously
as all remedy components. This analysis will help
to identify potential strengths and weaknesses and
to develop the appropriate balance of ICs and
ultimately increase the long-term viability of the
remedy. Because ICs are remedy components,
they should be presented to the community in
documents and at meetings. This is especially
important for ICs that may impose land use
restrictions on property(ies) next to the site. The
potential impacts of the ICs should be presented in
a manner that can be understood by the local
community.
The second way in which the community can be of
great benefit is in assisting with monitoring ICs.
Individual residents and business owners are the
eyes and ears of a community. They are often the
first to notice uses or excavation that appear
inconsistent with the site's future use or remedy
restrictions. By contacting the appropriate party,
an important series of checks and balances can be
developed. Cleanup parties should work with the
community to establish an effective and user-
friendly system for reporting and monitoring
information about the site and ICs.
CONCLUSION
The institutional controls discussed in this guide can be
essential components of environmental cleanups. It is
important for citizens to understand ICs and have the
opportunity to take an active role in their selection,
use, and monitoring. Because institutional controls are
often in place long after physical cleanup is finished,
community knowledge and input can be important in
assuring that the ICs remain protective of human health
and the environment. Working relationships between
governments, stakeholders and communities are vital
ingredients in the successful application of cleanups,
especially the 1C components.
For additional information about ICs, refer to the EPA
web page at:
http://www.epa.gov/superfund/action/ic/index.htm.
For site specific information contact the Office of
Superfund Remediation and Technology Innovation
(OSRTI), the Federal Facilities Restoration and
Reuse Office (FFRRO), the Office of Solid Waste
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(OSW or RCRA), the Office of Brownfields Cleanup
and Redevelopment (OBCR), or the Office of
Underground Storage Tanks (OUST) and/or the
respective state or local agency. Information about
EPA program offices can be found online at
http ://www. epa. gov/oswer/.
This document provides guidance to EPA Regions and States involved
in Superfund, Brownfields, Federal Facilities, Underground Storage
Tanks, and RCRA corrective action cleanups. It also provides
guidance to the public and the regulated community on how EPA
intends to evaluate and implement ICs 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.
Office of Solid Waste and Emergency Response (5202G)
OSWER 9355.0-98
EPA- 540-R-04-003
http://www.epa.gov/superfund/action/ic/guide/index.htm
February 2005
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GLOSSARY
Consent Decree: Legal document approved by a judge that formalizes an agreement reached between EPA
and companies, governments, or individuals associated with contamination at the sites (potentially responsible
parties (PRPs)) through which PRPs will take certain actions to resolve the contamination at a Superfund site.
Deed Notice: Non-enforceable, informational document filed in land records to alert the public to important
information pertaining to a land parcel.
Easement: Property right conveyed by the land owner to another party, giving the second party certain rights
to the land.
Enforcement Tools: Types of institutional controls that include orders compelling a party to limit certain site
activities as well as ensure the performance of affirmative obligations (e.g, consent decree, RCRA permit,
unilateral administrative order).
Governmental Controls: Types of institutional controls that impose land or resource restrictions using the
authority of an existing unit of government (e.g., state legislation, local ordinance, well drilling permit, etc.).
Informational Devices: Type of institutional controls that provide information or notification to the public of
contamination remaining in place.
Institutional Controls: Non-engineered instruments, such as administrative and/or legal controls, that help
minimize the potential for human exposure to contamination and/or protect the integrity of a remedy by limiting
land and/or resource use (e.g., easement, fish advisory, local permit).
Proprietary Control: Type of legal instrument that has its basis in real property law and is unique in that it
generally creates legal property interests placed in the chain of title of a site property (e.g., easement, restrictive
covenant).
Unilateral Administrative Order: Legal document signed by EPA directing a responsible party to take
corrective action or refrain from an activity; it may describe the violations and actions to be taken, and can be
enforced in court.
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