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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
"UAR 17 2006
OSWER Directive No. 9208.2
MEMORANDUM
SUBJECT:
FROM:
"Enforcement First" to Ensure Effective Institutional Controls at Superfund Sites
Susan E. Bromm, Director
OflBce of She Remediation Enforcement
Office of Enforcement and Comliance Assurance (OECA)
TO:
Michael B. Cook,
Office of Superfund Remediation and Technology Innovation
Office of Solid Waste and Emergency Response (OSAVER)
Superfund National Policy Managers, Regions l-X
Director, Office of Environmental Stewardship, Region I
Director, Environmental Accountability Division, Region IV
Regional Counsel, Regions II, III, V, VI, VII, IX, and X
Assistant Regional Administrator, Office of Enforcement, Compliance, and
Environmental Justice, Region VIII
Purpose
On September 20, 2002, OSWER and OECA jointly issued a memorandum requesting
Regions to redouble their attention to EPA's "enforcement first" policy.1 While that
memorandum focused largely on Remedial Action construction activities, it also noted that the
"enforcement first" policy applies throughout the Superfund cleanup process. The purpose of
today's memorandum is to state explicitly that the "enforcement first" policy also applies to any
actions needed to ensure the implementation and effectiveness of institutional controls.
mem.pdf
Available on the EPA Web site at http://www.epa.gov/compliance/resources/policies/superfund/enfFirst-
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer)
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The Agency is committed to pursuing "enforcement first" for all phases of response
actions at Superfund sites. This policy promotes the "polluter pays" principle and helps
conserve the resources of the Hazardous Substance Response Trust Fund (Fund) for sites where
no viable responsible parties exist. By applying this policy to institutional controls, EPA can
further advance its program goals.2
Background
In September 2004, EPA launched the implementation of its national five-year Strategy
to Ensure Institutional Control Implementation at Superfund Sites (Strategy).3 Institutional
controls are administrative and legal instruments that help minimize the potential for human
exposure to contamination and protect the integrity of the remedy. Institutional controls work by
limiting land or resource use and by providing information that helps modify or guide behavior
at properties where hazardous substances at a site prevent unlimited use and unrestricted
exposure. Institutional controls are a critical component of the cleanup process, used to ensure
both short- and long-term protection of human health and the environment, and as such they
should be identified and analyzed early in the cleanup process as part of the Remedial
Investigation/Feasibility Study.
The Agency has made significant progress in its efforts to address the complexities and
challenges associated with institutional controls. For example, EPA is actively implementing the
Strategy to identify, review and resolve any problems with institutional controls at Superfund
sites, with an emphasis on evaluating institutional controls at sites where the construction of all
remedies is complete (construction complete sites). EPA recognizes that the implementation of
this Strategy will require significant coordination and communication with stakeholders, in
particular, potentially responsible parties (PRPs) and current owners of these sites. PRPs play a
significant role in supporting a robust analysis of the effectiveness of institutional controls and in
implementing necessary controls at Superfund sites. Institutional control activities at sites may
include, for example:
• conducting studies and evaluations to evaluate the design, monitoring, implementation
and enforcement of institutional controls at sites, including evaluations of current and
potential future land uses, and whether different, additional or layered institutional
controls are needed;
analyzing real property title information to ensure that proprietary controls are properly
implemented, and resolving any issues that may impact the effectiveness of the
institutional control, including acquisition of subordination agreements as necessary;
2 The enforcement principles and processes outlined in this memorandum may also apply to EPA's
implementation of the National Strategy to Manage Post Construction Completion Activities at Superfund Sites,
OSWER 9355.0-10, October 2005, http://www.epa.gov/superfund/action/postconstruction/pcc_strategy_final.pdf.
3 Available on the EPA Web site at
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/ic-strategy-04-mem.pdf.
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utilizing current state-of-the-art institutional control tools such as "One-Call" systems,
new monitoring and mapping technologies, or environmental covenants under state
adopted versions of the Uniform Environmental Covenants Act; and
• improving site-specific plans and procedures by addressing the long-term stewardship of
institutional controls. This may include updating site Operation and Maintenance Plans,
developing Institutional Control Implementation and Assurance Plans, and ensuring the
adequacy of periodic status reporting and financial assurance mechanisms.
EPA Headquarters continues to conduct outreach to the PRP community to talk about
their expected role as partners in implementing this Strategy and supports the efforts of EPA
Regions to encourage PRP cooperation at these sites. We believe we share a common goal with
the PRP community in maintaining the effective long-term stewardship of cleaned up sites to
ensure the continued protection of human health and the environment.
Implementation
EPA maximizes PRP participation in the design and implementation of Superfund site
cleanups by using a variety of negotiation and enforcement tools including, as appropriate,
issuing unilateral administrative orders. See Negotiation and Enforcement Strategies to Achieve
Timely Settlement and Implementation of Remedial Design and Remedial Action at Superfund
Sites, OSRE, June 17, 1999 (Negotiation and Enforcement Strategies Memorandum).4 For
remedies that rely in whole or in part on institutional controls, EPA strives to ensure that the
PRPs remain responsible for the implementation of the institutional controls, including the
identification and resolution of any issues impacting the continued effectiveness of the
institutional controls.
As noted earlier in this memorandum EPA recognizes that PRPs play a significant role in
supporting a robust analysis of the effectiveness of institutional controls and in implementing
necessary controls at Superfund sites. Ensuring that institutional controls are properly
implemented and remain protective is important to both EPA and the PRPs. Therefore case
teams should first pursue a cooperative approach when working with PRPs, and use the
agreements already entered into by the PRPs at the site. But as appropriate, case teams may use
the approach outlined in the Negotiation and Enforcement Strategies Memorandum. For
example, in the institutional controls context, a case team might first determine whether the
PRPs at a site have already entered into a consent decree for Remedial Design/Remedial Action
that requires them to conduct studies and investigations requested by EPA to assist in periodic
reviews. Based on this obligation, the PRPs could be required to investigate the status or
effectiveness of the institutional controls at a site. If the case team determines that additional
4 Available on the EPA Web site at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/
neg-enfst-mem.pdf.
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institutional control work is needed beyond further study or investigation, the case team should
consider whether the agreements already entered into by the PRPs require them to implement the
additional institutional control work or whether a modification to the Statement of Work (SOW)
or related work plans is needed. Modifications to the SOW and/or work plans may be
appropriate when the additional work is (1) necessary to achieve and maintain performance
standards or to carry out and maintain the effectiveness of the remedy set forth in the Record of
Decision (ROD) and (2) consistent with the scope of the remedy selected in the ROD.5
If the PRPs cannot be required to implement the additional institutional controls pursuant
to the consent decree provisions discussed above, the case team should consider whether the
decree has a reopener provision for new information or unknown conditions or a separate
reservation of rights that will allow EPA to bring an action seeking to require the implementation
of institutional controls. If the decree has a reopener provision and the need for the additional
institutional controls is based on new information or unknown conditions, the case team will
likely be able to require the PRPs to implement the additional institutional controls under the
decree itself if the PRPs have agreed, in the decree, to implement any additional work needed to
protect human health or the environment that falls within the scope of the reopener.6
Alternatively, if the PRPs have not so agreed, the decree usually will exclude any such matters
from the covenant not to sue7 thereby allowing EPA to bring an enforcement action against the
PRPs. The case team should also review the agreements entered into by PRPs at the site for any
separate reservation of rights8 that will allow EPA to seek institutional controls. If present, the
case team may be able to bring an enforcement action against the PRPs seeking the
implementation of the additional institutional control work without having to establish the
criteria necessary for the reopener for new information or unknown conditions.
Appropriate enforcement actions may include the issuance of a unilateral administrative
order (UAO) seeking to have the PRPs implement the additional institutional controls. In recent
years, EPA has issued a number of orders for Remedial Action that explicitly include
institutional controls as well as several orders for institutional controls alone. A UAO for
institutional controls must meet all statutory requirements of CERCLA §106(a) and other
applicable requirements.
5 See, Paragraph 14, "Modification of the SOW or Related Work Plans," of the Model RD/RA Consent
Decree.
6 See, Paragraph 20, "Settling Defendants' Obligation to Perform Further Response Actions," of the Model
RD/RA Consent Decree.
7 See, Paragraph 91, "United States' Pre-certification Reservations," and Paragraph 92, "United States'
Post-certification Reservations," of the Model RD/RA Consent Decree.
8 See, e.g., Subparagraphs 94(g) and (i), "General Reservations of Rights," and Paragraph 30 of the Model
RD/RA Consent Decree.
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Case teams should consider using Fund monies in those cases where the enforcement
approach outlined above is not feasible, such as where the PRPs are incapable of conducting or
paying for the work necessary to ensure that institutional controls are effectively implemented.
Regions will generally use monies from the allocation for ongoing projects. In limited
situations, however, the Agency's national risk-based priority panel may need to review the
funding for institutional controls (e.g., if the panel had not previously reviewed this project, or if
the panel's prior review of the remedial action was narrow in scope). In these situations, the
usual procedures for enforcement screening and consultation with the Office of Site Remediation
Enforcement's Regional Support Division would apply.
Conclusion
If you have any questions about this document, please contact Gregory Sullivan at (202)
564-1298, sullivan. greg@epa. gov. If you have any questions about EPA's "enforcement first"
policy or would like assistance in evaluating the appropriate enforcement strategy at a particular
site, please contact Mike Northridge at (202) 564-4263, northridge.michael@epa.gov. Questions
about institutional controls should be directed to the regional or Headquarters institutional
control coordinators.
This memorandum is intended solely for the guidance of employees of EPA and creates
no substantive rights for any persons. It is not a regulation and does not impose legal
obligations. EPA will apply this guidance only to the extent appropriate based on the facts.
cc: OSRE Managers, OECA
OSRTI Managers, OSWER
Ed Chu, Land Revitalization Staff, OSWER
Debbie Dietrich, OEM, OSWER
David Lloyd, OBCR, OSWER
Matt Hale, OSW, OSWER
Jim Woolford, FFRRO, OSWER
Dave Kling, FFEO, OECA
Scott Sherman, OGC
Steve Hess, OGC
Eric Steinhaus, Superfund Lead Region Coordinator, Region VIII
Co-Chairs, National Association of Remedial Project Managers (NARPM)
OSRTI Documents Coordinator, OSWER
Superfund Regional Counsel Branch Chiefs, Regions I-X
Management Advisory Group on Institutional Controls (MAGIC)
Regional Legal and Program Coordinators for Institutional Controls
Bruce Gelber, Department of Justice
Don Frankel, Department of Justice
Karen Dworkin, Department of Justice
Lew Baylor, Department of Justice
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