UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OSWER No. 9355.0-106
                                                           OCT    7
MEMORANDUM
SUBJECT:   Re-Transmittal, "EPA Strategy to Evaluate the Implementation of Institutional
             Controls at Superfund Bites"

                                      In
FROM:
TO;
Michael B. Cook, Directc
                                                 ^.
             Office of Superfund Remediation Technology Innovation
Susan E. Bromm, Director/ ^  \
Office of Site Remediation Enforcement
                          Q-~
James E. Woolford, Director /
Federal Facilities Restoration and Reuse Office

Superfund National Policy Managers, Regions 1-10
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
       This memorandum re-transmits EPA's "Strategy to Evaluate Implementation of
Institutional Controls (ICs) at Superfund Sites." The document sets forth a five year plan to
ensure that effective ICs are in place and functioning properly at approximately 900 sites that
have achieved construction completion. This is being resent to emphasize the applicability of
this strategy to federal facility sites.

       This document has been developed with significant assistance from both regional
management and staff.  EPA also solicited state and tribal support and comments and the
attached document reflects their helpful input.  Thank you to everyone who has dedicated time
and effort to this initiative. Because of this hard work, we have already achieved step one of the
strategy by populating the 1C Tracking System with Tier 1 data. We look forward to maintaining
this momentum and accomplishing the important tasks set forth in the attached document.

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       If you have questions please contact us or have your staff contact K.C. Schefski (OSRE)
at (202)564-8213, schefski.kenneth@,epa.gov or Mike Bellot (OSRTI) at (703)603-8905,
bellot.michael(a),epa.gov.

cc:

OSRTI Managers
OSRE Managers
Debbie Dietrich, OEM
Matt Hale, OSW
Cliff Rothenstein, OUST
Linda Garczynski, OBCR
Robert  Springer, Land Revitalization Staff, OSWER
Dave Kling, FFEO
Scott Sherman, OGC
Eric Steinhaus, Superfund Lead Region Coordination, USEPA Region 8
NARPM Co-Chairs
Joanna  Gibson, OSRTI Documents Coordinator
Superfund Regional Counsel Branch Chiefs, Regions 1-10
Management Advisory Group for Institutional Controls
Regional 1C Legal and Program Coordinators

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 STRATEGY TO ENSURE INSTITUTIONAL CONTROL IMPLEMENTATION
                              AT SUPERFUND SITES


OSWER No. 9355.0-106                                                       September 2004



I.     INTRODUCTION

      This document sets forth EPA's strategy (Strategy) for ensuring that institutional controls
(ICs) are successfully implemented at Superfund sites, with an emphasis on evaluating ICs at
sites where all construction of all remedies is complete (construction complete sites).1  This
Strategy will serve as a roadmap for EPA regional and headquarters personnel in preparing
Region specific action plans and conducting the work necessary to ensure the proper
implementation of ICs at Superfund sites. This work includes gathering and entering
information in the Institutional Controls Tracking System (ICTS), evaluating the data generated
through ICTS, prioritizing and conducting site-specific followup activities, building the capacity
to better manage and review 1C information, and coordinating with other interested parties. EPA
expects that the Agency will undertake the projects outlined in this Strategy over approximately
the next five years.

      Through the development and implementation of this Strategy, EPA intends to achieve
the following goals:

            Define a nationally consistent approach for tracking and evaluating whether
             appropriate institutional controls have been implemented at Superfund sites.

            Identify 1C related problems at Superfund sites using the 1C Tracking System and
             independent evaluation.
       1 The focus of this Strategy is on sites where EPA serves as the "lead Agency" under the
NCP. However, for sites where other federal or state departments and agencies serve as the
"lead agency," EPA's role will be different for certain aspects of this Strategy.  EPA will work
with other federal and state departments and agencies to develop a collaborative effort to
implement the relevant parts of this Strategy at these sites.

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             Define a nationally consistent and resource appropriate approach to remedy 1C
             related issues identified at Superfund sites.

             Identify and implement pipeline business process improvements to minimize
             future problems (e.g., need to revisit model consent decrees, orders, remedy
             decision documents, statements of work, close-out procedures, Five-Year
             Reviews, etc).

             Establish a tiered approach and appropriate time line for population, continual
             updates, and maintenance of the 1C tracking system.

II.     BACKGROUND AND PURPOSE

       EPA defines ICs as "non-engineered instruments, such as administrative and legal
controls, that help to minimize the potential for human exposure to contamination and protect the
integrity of the remedy." ICs work by limiting land or resource use and by providing
information that helps modify or guide human behavior at properties where hazardous
substances prevent unlimited use and unrestricted exposure. For example, a remedy may use an
engineered cap to cover contaminated soils and an 1C (e.g., an excavation permit) may be used to
restrict people from  excavating through the cap.  Common examples of ICs include zoning,
building or excavation permits, well drilling prohibitions, and easements and restrictive real
covenants.2

       EPA and other government agencies have used ICs at Superfund sites for nearly two
decades.  Over the last ten years EPA has focused increased attention on understanding  and
overcoming the complexities and challenges associated with the use of ICs. In recent years, this
experience has led EPA to make significant improvements in our approach to ICs at Superfund
sites.3 These improvements have been targeted at the full-life cycle of ICs from identification,
evaluation, and  selection to implementation, monitoring and enforcement.  By making these
changes and more clearly defining EPA's policies and practices the reliability and durability of
       2 EPA generally consolidates the types of ICs available into the following four general
categories: 1) governmental controls (e.g., zoning, local ordinances); 2) proprietary controls
(e.g., easements, restrictive covenants); 3) enforcement and permit tools (e.g., consent decrees,
administrative orders); and, 4) informational tools (e.g., notices filed in the land records,
advisories).

       3 This document refers to "Superfund sites" for sake of simplicity but the reader should
understand that a Superfund site may be made up of many parcels of property owned by different
parties, which is a more relevant description related to ICs. There may be many ICs at a site for
many different parcels of property.  One of the greatest challenges that EPA faces with respect to
ICs is recognizing this intersection of environmental cleanup law and the traditional law of real
property.

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ICs at Superfund sites has greatly improved. EPA is continuing these efforts to improve the use
of ICs at Superfund sites as they enter and proceed through the cleanup process - some of the
specific activities are outlined in Section VI of this document.
       The recent improvements, however, have only focused on recent decisions, meaning that
many sites addressed earlier in the Superfund program have not benefitted from the increased
understanding of ICs.  One barrier EPA and others have faced in attempting to apply these
improvements at older Superfund sites is the lack of centralized and reliable information on the
site-specific status of ICs. Therefore, EPA will gather baseline information and populate the
new 1C Tracking System (ICTS) as the first step in this Strategy.

       ICTS is a tool which EPA will use to help ensure the long-term durability, reliability, and
effectiveness of ICs throughout their life-cycle. In the not too distant future, ICTS will include
publicly available 1C information. However, in the near term EPA will use initial data collected
(i.e., Tier 1) to help evaluate the current status of ICs at Superfund NPL sites. The data collected
in ICTS will help us define the scope and magnitude of the issues that EPA needs to address, so
that we can better characterize and prioritize the work to be done. EPA achieved its goal of June
30, 2004 for Tier  1 data entry  for approximately 900 construction complete sites.

       Upon completing ICTS Tier 1 data entry, EPA Headquarters and Regions will assess the
data to evaluate the current status of ICs at all construction complete sites for data gaps and
actual site-specific 1C issues.  Although EPA lacks solid information on the status of ICs at
Superfund sites in the aggregate, the Agency has conducted studies at select sites and can
anticipate some of the most relevant issues. Data from the first phase of ICTS data entry will
highlight two critical site-specific situations: 1) sites where contaminated media (e.g., soil,
groundwater) do not support unlimited use and unrestricted exposure, yet an 1C was not required
as part of the remedy decision; and, 2) sites where ICs were required as part of the remedy
decision, yet one or more of those ICs have not been implemented. In addition to these two
situations, certain proprietary  controls (i.e., easements and covenants) used as ICs early  in the
program may have implementation problems.  Tier 1 ICTS data entry will not directly identify
sites with this problem; however, data in ICTS will identify sites where this type  of control was
used and EPA expects to conduct further review.

       Once EPA has determined where data gaps and site-specific 1C problems  may exist, the
Agency will use this information to prioritize EPA's work to address these issues based on a
variety of factors, including resources and the number of sites with potential  1C issues. EPA's
goal is to identify and review 1C problems at all construction complete sites over approximately
the next five years, relying on a combination of independent evaluation and scheduled Five-Year
Reviews. The sites identified  as priorities will likely be addressed through an independent
evaluation unless a five-year review is scheduled within 12 months of problem identification; for
these sites the evaluation will  take place in conjunction with or as a component of the Five-Year
Review. Priority evaluations will focus on whether ICs were required and properly implemented
for all media not cleaned up to levels that allow for unlimited use and unrestricted exposure. As

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noted, EPA does not yet know the scope of these priority evaluations but expects that these
evaluations will be conducted over the next two years, resources permitting. After two years, the
remaining sites will be evaluated through the Five-Year Review process.

       EPA expects that upon further evaluation some data gaps will be the result of missing
information in the site file; however, at some sites there will be legitimate problems with 1C
implementation that need to be addressed. How to address these problems will depend on a
variety of site-specific factors.  This Strategy covers general considerations and EPA expects that
additional guidance may be developed as needed, throughout Strategy implementation.  EPA
will need to work closely with states, federal agencies, tribes, and potentially responsible parties
to resolve site-specific 1C issues.

       In addition to priority reviews, this Strategy also sets forth specific capacity building
steps EPA will take to improve our  ability to gather, manage, and evaluate 1C information for the
remaining construction complete sites as well as all future Superfund sites.  This will allow EPA
to identify and rectify site-specific 1C problems, and evaluate the overall effectiveness of ICs at a
given site, through EPA's existing cleanup and monitoring process (e.g., Five-Year Reviews,
monitoring submissions). First, EPA will explore expanding ICTS to include more information
and make the system more dynamic and functional (i.e., Tier 2 & 3). Second, EPA will produce
an 1C supplement to the Five-Year Review guidance, in order to improve the evaluation of
overall 1C effectiveness during the periodic review process. Third, EPA will provide training
and support to Regional and State staff on ICs, ICTS, and topics related to the use and
implementation of ICs such as real property law.

       In addition to capacity building to improve the use of ICs atNPL sites, EPA recognizes
that other categories of sites may also have 1C weaknesses  such as, removal only sites and
Formerly Used Defense Sites. EPA expects to continue to  assess the need for evaluation of 1C
implementation at these other categories of sites and learn from the 1C problems encountered at
these sites. The use of ICs at these  sites will also benefit from the lessons learned in EPA's
evaluation of NPL construction complete sites.

       To implement this ambitious Strategy will take significant coordination and
communication within EPA and with outside parties. To facilitate these interactions, EPA has
organized both staff and management, at Headquarters and the Regions, into a group dedicated
to implementing this Strategy.  This group consists of a Management Advisory Group for ICs, a
headquarters staff level team, and regional 1C legal and program coordinators.  In addition to
internal coordination, this group will coordinate with states, federal  agencies, and other parties at
both the national and regional level.

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III.    EVALUATION OF INSTITUTIONAL CONTROLS AT CONSTRUCTION
       COMPLETE SITES

       Through the collection of basic 1C information for Superfund NPL sites that have reached
construction completion, the information gathered through the Tier 1 data collection effort will
provide an indicator of the scope of 1C issues at NPL sites. Tier 1 data will not supply a final
determination of required/needed ICs; rather, the information will provide a site-specific
summary of what information the site-file contains regarding whether an 1C was required and
implemented, as well as a guide to aid in assessing where there is a need for potential  site-
specific follow-up.

1)     The Regions will begin by entering Tier 1 ICTS data for the following universe of sites:
Region
Region 1
Region 2
Region 3
Region 4
Region 5
Region 6
Region 7
Region 8
Region 9
Region 10
Totals
Construction Completions
53
125
120
128
221
66
43
26
56
61
899
2)     Using the ICTS data and other site information, EPA will prioritize sites with potential
       1C issues for further evaluation.

3)     EPA will conduct additional evaluation of ICs at priority sites to confirm the existence of
       specific 1C issues.
4)     Steps will be taken to rectify 1C problems that need further attention.

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A.     1C Tracking System - Tier 1 Data Entry

Goal:  To collect and enter baseline 1C information, for all construction complete sites, by
       June 30, 2004.

       The Regions will enter Tier 1 data for all construction complete sites in ICTS by June 30,
2004. Tier 1 data consists of six information categories:

             Site Name

             1C Basic Questions
             1) Is there residual contamination for the site above a level that prohibits
             unlimited use and unrestricted exposure (by media)?
             2) Are ICs required or called for in site decision documents (by media)?

             1C objectives - Information regarding the intended goal of the 1C in minimizing
             the potential for human exposure to remaining contamination and/or protecting
             the integrity of an engineered control/remedy by limiting land or resource use in a
             particular media.

             1C instruments - Information regarding the administrative or legal mechanism
             that establishes a specific set of use restrictions, including instrument name, use
             restrictions outlined within, issuing organization of the instrument, and planned or
             actual implementation dates of the instrument.

             Contacts - Information regarding any person and/or organization that may be
             directly or indirectly involved with ICs at the site, including an organization
             name, individual name, telephone number,  and email.

             Data sources - Information regarding the source of the information that is entered
             into the data entry form, including type, title, issuing organization, and the
             electronic copy of the document/application or the URL  to access it if it is
             available on-line.

B.     Evaluating ICTS Data

Goal:  Once EPA Regions have entered Tier 1 data for construction complete sites, the
       Agency  will review that data to prioritize further evaluation at  specific sites.

1)     Identify  Data Gaps -  Once the Regions have entered Tier 1 data for construction
       complete sites, and the data have been through the data approval process, EPA
       Headquarters will pull the following reports by Region:

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              Sites where the data indicate a media with residual contamination but no 1C
              instrument data correspond with that media.  These sites can be identified by
              answers to the Basic Questions in ICTS.
              Sites where the data indicate an 1C was required but there is no planned or actual
              implementation date for a corresponding 1C instrument that meets the 1C
              objective.  These sites can be identified by answers to the Basic Questions in
              ICTS.
              Sites at which there is at least one proprietary control.
              Sites at which the only 1C is an informational tool

2)     A copy of this report will go to the Management Advisory Group for ICs for review.

3)     Prioritization for Additional Review - the Management Advisory Group for ICs will
       conduct the initial data evaluation to prioritize follow-up activities and provide
       recommendations regarding further review to the Directors of OSRTI and OSRE and the
       Regional  Superfund Division Directors.
              To be completed by September 30, 2004

4)     Potential  considerations when assigning priorities for further evaluation may include:
              Factors that may be indicative of increased risk if an 1C is not properly
              implemented, such as 1C objective (threats to human health v. protection of the
              engineered remedy), 1C instrument (restriction v. informational), site
              demographics.
              Known failures of ICs
              Date of scheduled five-year review
              The length of time since the site reached construction completion
              Whether the site is still active or has been deleted from the  NPL
              Regional concerns

5)     The Regions will prepare region-specific action plans for conducting additional
       evaluation and remedying site-specific 1C problems consistent with national priorities
       and regional concerns.
              To be completed by October 31, 2004

C.     Conducting Additional Evaluation

Goal:  EPA will conduct additional analysis for priority sites either through an
       independent evaluation or a scheduled Five-Year Review to determine whether
       necessary ICs have been properly implemented.

       EPA will  initially focus on identifying sites where 1C implementation has not occurred or
implementation was not done correctly. A more in depth evaluation of the overall effectiveness
of ICs will be an  ongoing effort using improved existing processes, such as future Five-Year
Reviews and O&M plans (see Section IV. Capacity Building). However, in the course of

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reviewing sites for implementation issues, EPA will also identify any 1C failures - an obvious
sign that an 1C may not be effective - and take the necessary steps to ensure the protection of
human health and the environment.

1)     The Region should confirm that ICTS data gaps reflect actual lack of 1C implementation
       for media with residual contamination and for ICs required by the remedy decision
       document by going beyond the site file and coordinating with other interested parties
       (e.g. the state)(see #4 below).

2)     Once lack of 1C implementation is confirmed, the next step is to answer the following
       two questions:

             Question 1 - Where ICTS identifies a site with a contaminated media that does
              not support unlimited use and unrestricted exposure, for which there is no
              corresponding 1C instrument, is an 1C necessary, and if so what type?
              >       Generally, any contaminated media that cannot support unlimited use and
                     unrestricted exposure should have an 1C and Regions should proceed to
                     question #2 to identify what steps are needed to implement an appropriate
                     1C, unless recent sampling or monitoring data indicate that the media is
                     now safe for unlimited use and unrestricted exposure.

             Question 2 - What steps are  needed to implement ICs at sites where an 1C is
              necessary but there is no planned or actual implementation of a corresponding 1C
              instrument?
              >       This question applies,
                     -     where the answer to question #1 was yes; or
                     -     where ICTS identifies that an 1C was required by the remedy
                           decision but there is no planned or actual implementation of a
                           corresponding 1C instrument.
              >       Where an RPM has used best professional judgment to propose an 1C
                     objective and instrument to fill the gap, the Region should confirm that the
                     objective is appropriate and that the 1C is available and will meet the
                     objective.4 This will  involve communication with ORC attorneys, as well
                     as state and local governments.
              >       Where an 1C objective and instrument was identified in the site file but no
                     planned or actual implementation date was entered the Region should
                     coordinate with interested parties (e.g., state and local governments,
                     potentially responsible parties (PRPs)) to develop an implementation plan
                     and identify and enter a planned implementation date in ICTS.
       4 For additional guidance see Institutional Controls: A Site Manager's Guide to
Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective
Action Cleanups, EPA 540-F-00-005, OSWER 9355.0-74FS-P (2000).

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3)     For certain sites with proprietary controls, EPA will work to determine whether these
       controls were not properly implemented.

             The purpose of this review is not to conduct extensive state law research on the
              validity of the control so long as the control clearly expresses the intent of the
              parties to implement restrictions on use and clearly identifies the necessary
              parties.

             If a consent decree was recorded in the land records under the assumption that the
              restriction in the consent decree would bind future owners, this assumption should
              be revisited.5

             The site attorney should review the 1C instrument using the following general
              guidelines:
                     >      Is the document entitled an "easement" or "covenant" or did the
                           prior owner reserve a restriction in the deed, as opposed to, for
                           example, "declaration of restrictions"?
                     >      Does the document clearly identify a grantor/covenantor and
                           grantee/covenantee or otherwise clearly indicate who has the right
                           to enforce the terms of the document?
                     >      Is there a grantee other than EPA?
              -      If the answer to any of the above questions is no, the enforceability of the
                     control is questionable and the Region should followup with additional
                     research and/or determine whether another type of 1C can or should be
                     implemented.   For example, if EPA is designated as a grantee, the Region
                     should determine if EPA later transferred this interest to the state pursuant
                     to the Comprehensive Environmental Response, Compensation, and
                     Liability Act (CERCLA), as amended, 104(j).
              -      State attorneys general offices may be of particularly valuable assistance
                     in understanding the real property laws of the relevant state.

             The RPM and site attorney should also work together to determine whether the
              party responsible for monitoring and enforcing the control still exists and is
              capable of carrying out its responsibilities.
       5 See Institutional Controls: A Guide to Implementing, Monitoring, and Enforcing
Institutional Controls at Super/and, Brownfields, Federal Facility, UST, andRCRA Corrective
Action Cleanups (2004)(hereinafter Guide to Implementing, Monitoring, and Enforcing ICs).

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             A title report should be reviewed to ensure that the control has priority over all
              other encumbrances that could jeopardize the effectiveness of the 1C (e.g.,
              mortgages).6

4)     Information collection - to answer the above questions the Regions may need to take the
       following steps to gather additional information:

             Further review the site file and associated documents,

             Contact state and local officials to inquire about 1C status and/or obtain additional
              documents,

             Review enforcement documents (e.g., consent decrees, administrative orders on
              consent, unilateral administrative orders) for 1C related obligations and contact
              PR for more information,

             Travel to the relevant local jurisdiction to interview appropriate officials and
              collect documents,

             Obtain title reports for sites with proprietary controls, or

             Conduct a site visit.

D.     Planning and Undertaking Corrective Measures

Goal: For those sites where necessary ICs have not been properly implemented EPA will
plan and undertake the steps  to ensure the remedy is and will remain protective of human
health and the environment.

       How EPA responds to an 1C issue is largely dependent on site-specific circumstances.
The following represent general considerations for the Regions:

1)     Where a necessary 1C was not properly implemented and there are activities on the site
       that clearly indicate people may be at risk or that an engineered remedy may be damaged,
       the Region should initiate a response under CERCLA   104 or 106 or other appropriate
       authorities.

2)     Where the level of risk is uncertain, the Regions may consider scheduling a Five-Year
       Review earlier than required.
       6 For an explanation of priority and how to subordinate prior interests see Guide to
Implementing, Monitoring, and Enforcing ICs.

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3)     At sites where it's necessary to select and implement a new 1C, refer to EPA's existing
       guidance entitled, Institutional Controls: A Site Managers Guide to Identifying,
       Analyzing, and Selecting Institutional Controls at Superfund and RCRA Corrective
       Action Cleanups (2000) and Institutional Controls: A Guide to Implementation,
       Monitoring, and Enforcement of Institutional Controls at Superfund, Brownfields,
       Federal Facility, LIST, and RCRA Corrective Action Cleanups (2004), for assistance in
       selecting an appropriate 1C.

4)     For guidelines for describing and documenting institutional controls in Federal Facility
       Records of Decision (RODs), Remedial Designs, and Federal Facility
       Agreements/Interagency Agreements, see "Guidance on the Resolution of the Post-ROD
       Dispute" (issued by James E. Woolford, Director of the Federal Facilities Restoration and
       Reuse Office, and David J. Kling, Director of the Federal Facilities Enforcement Office,
       November 25, 2003).

5)     EPA Regions should work closely with the appropriate state regulatory agency and
       attorneys general office when evaluating, selecting, and implementing ICs where they  are
       needed but not in place, as well as any  other fixes to 1C issues identified by the Regions.

6)     If a PRP was obligated to implement an 1C and failed to do so, the Region should take the
       necessary steps under the appropriate enforcement document to ensure the PRP meets  its
       obligations in a timely manner.

7)     If specific  1C provisions were not agreed to by the PRPs in the RD/RA consent decree,
       the attorney and RPM should review the "Five-Year Provision" and the "Additional
       Work Provision" of the consent decree(s) to determine if they may be used to require the
       PRPs to implement the necessary 1C.

8)     Implementing new proprietary controls may be challenging if the property is owned by
       someone other than the person with whom a proprietary control was negotiated;
       therefore, the Region may need to look at other options, such  as working with the state
       and local government to develop a governmental control or performing additional
       cleanup.

9)     The National Contingency Plan (NCP) requires EPA to take certain administrative steps
       if a remedial action "differs significantly from  the remedy selected in the ROD with
       respect to scope, performance, or cost."7  The Guide to Preparing Superfund Proposed
       1 40 C.F.R.  300.435(c); see also, Guide to Preparing Superfund Proposed Plans,
Records of Decision, and Other Remedy Selection Decision Documents (OSWER 9200.1-23P,
1999) and Institutional Controls: A Guide to Implementing, Monitoring, and Enforcing
Institutional Controls at Superfund, Brownfield, Federal Facility, LIST, and RCRA Hazardous
Waste Cleanups (2004); CERCLA 42 U.S.C.  9617(c).

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       Plans, Records of Decision, and Other Remedy Selection Decision Documents provides
       general guidelines for taking appropriate administrative steps with respect to addressing
       remedy changes, but does not provide many examples on how to apply these general
       guidelines with respect to addressing 1C issues.

       A note to the file, Explanation of Significant Differences (BSD) or Record of Decision
(ROD) amendment are administrative steps that may be used to select and/or document changes
to the selected remedy. All three may be used for private Superfund facilities. However, an
BSD or ROD amendment is likely to be a necessary enforcement tool or element at a federal
facility site because there are no separate consent decrees and the Federal Facility Agreements
make RODs and ESDs the enforceable documents. The following represent a nonexclusive list
of potential situations that EPA may encounter and generally what administrative steps EPA will
need to take:

             Note to the File - The following actions are considered minor changes to the
             selected remedy or simply implementation of the designated remedy but should
             be documented  in the site file:
             i)     The Region determines that an 1C is  not necessary for a contaminated
                    media because an 1C contemplated in the remedy decision document and
                    implemented for another media accomplishes the objective.
             ii)     For a private Superfund site, the remedy decision  document required an 1C
                    but no objective or instrument was ever identified, however ICs with
                    appropriate objectives and using appropriate instruments have been
                    implemented.
             iii)    For a private Superfund site, the Region determines that a proprietary
                    control was not properly implemented and responds by requiring
                    implementation of a new proprietary control.
             iv)    For a site where the ROD included ICs, the Region determines that an 1C
                    is no longer necessary because media contaminant levels now support
                    unlimited use and unrestricted exposure.
             v)     For a Federal Facility site, the RODs contain appropriate 1C objectives for
                    all OUs  requiring ICs as well as the appropriate commitments to
                    implement, and monitor the ICs. During a review of the 1C
                    implementation, it is found that the base's administrative or permitting
                    requirements are not fully in line with the commitments in the ROD. The
                    Region would initiate discussions with the lead agency to implement the
                    ROD requirements and document this in a note to file.
             vi)    For an active Federal Facility site, the ROD, RD, or RAWP required a
                    base instruction and a permit system to implement the ICs.  A failure of
                    the permit system occurred, and as a result of the base's subsequent
                    review, the facility decides to implement a completely  different
                    administrative procedure(s).
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Explanation of Significant Differences - The following examples may
"significantly change but not fundamentally alter the remedy selected in the ROD
with respect to scope, performance, or cost" and therefore EPA should generally
issue or sign an BSD:

i)      There is contaminated media but an 1C was not required and the Region
       now determines an 1C is necessary.
ii)     The remedy decision document stated that ICs  were required, but did not
       include appropriate objectives or performance  standards.
iii)    The remedy decision required a specific 1C instrument which was never
       implemented and the Region or lead federal agency, as appropriate, must
       now use a completely different type of 1C.  For example, the ROD
       required educational brochures, and EPA now  determines that a
       proprietary 1C is also needed.  Or, for a federal facility site, the ROD
       required a proprietary control that the federal facility cannot implement,
       so the federal facility and EPA decide to implement governmental controls
       instead.
iv)    For a private Superfund site, a ROD required a "deed notice", under the
       assumption that it would restrict the use of the  property.  The Region now
       requires implementation of a restrictive covenant instead.

In some cases, it  may be appropriate for the Region to add a public comment
period for the ESD when the site is highly controversial or other factors warrant
public input.

ROD Amendment - The following examples will generally "fundamentally alter
the basic features of the selected remedy with respect to scope, performance, or
cost" and therefore the Region, or the Federal Facility and the Region, may need
to amend the ROD:
i)      The Region decides that the response to the lack of, or improper
       implementation of, an 1C is additional cleanup  rather than an 1C.
ii)     The remedy in the ROD assumed that no 1C would be necessary, but
       additional site knowledge during remedial design or remedial action
       requires a change in the remedy, including the  need for ICs.
iii)    In the event that contamination has migrated off-site, and the 1C was not
       identified in a previous remedy decision document, a ROD  amendment
       will generally be appropriate to notify the owners of potential restrictions
       on their property.

Other things to keep in mind:
i)      A Region can always decide to use a more rigorous tool, such as a ROD
       amendment instead of an ESD, or a ROD amendment or ESD instead of a
       note to the file.  Some situations where this may be appropriate is when a
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                    region may be preparing an BSD or ROD amendment for another reason;
                    or where community or PRP concerns would be better served.
             ii)     ESDs and ROD amendments can be done for sites that have been deleted
                    from the NPL.

IV.    CAPACITY BUILDING

       In addition to the interim goal of reviewing ICs at priority construction complete NPL
sites, EPA intends to improve our capacity to evaluate the overall effectiveness of ICs through
EPA's existing processes, so that all construction complete sites are reviewed over
approximately the next five years. The following represent the basis of EPA's capacity building
efforts:

1)     Improve the Five-Year Review and other EPA processes (e.g., Operation and
       Maintenance plans) to continue EPA's evaluation of construction complete sites and all
       sites in the future.
             Include expanding the five-year review to ask more  in depth questions regarding
             1C effectiveness.
             To be completed in fiscal year 2005

2)     Provide training in 2004 and beyond, so that EPA staff, and external partners better
       understand ICs, ICTS, and related topics, such as real property law and individual state
       1C requirements.

3)     Educate, inform, and involve additional parties to support efforts to identify  and resolve
       1C issues (e.g., local governments, communities).

V.     INTERNAL AND EXTERNAL COORDINATION  AND COMMUNICATION

A.     Internal

       EPA has established an internal structure to help facilitate the development and
implementation of this Strategy.  The following groups from EPA Headquarters and the Regions
will work closely on all  aspects of Strategy development and implementation:

1C Regional Program Coordinators

      Oversee ICTS Tier 1 data entry.
      Provide input on ICTS  development.
      Provide training on ICs and ICTS.
      Provide input on Strategy development and implementation.
      Coordinate the Region's efforts to review priority sites.
      Coordinate with the States and local governments on Strategy implementation.
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1C Regional Legal Coordinators

      Provide input on Strategy development and implementation.
      Provide legal advice on Strategy implementation as needed.
      Provide training on ICs.
      Oversee the collection of proprietary controls from local land records and title search
       activities.
      Coordinate the legal assessment of proprietary controls.
      Oversee the Region's efforts to contact and coordinate with potential responsible parties
       on information gathering and actions to remedy  1C issues.

Management Advisory Group on Institutional Controls  (MAGIC)

      Make recommendations  and help establish priorities for Strategy implementation.
      Assist in quickly resolving issues identified by the Coordinators as needing management
       input.
      Advise in the overall implementation of the Strategy.
      Assist the Regions in developing and implementing Regional Action Plans.

EPA Headquarters Team

      Coordinate national ICTS data entry and Strategy implementation.
      Provide assistance to the Regional Program and Legal Coordinators
      Elevate issues of national significance to the MAGIC
      Develop policy and guidance documents at the direction of the MAGIC
      Communicate with State and other interested stakeholders on a national level

B.     External

Other Federal Agencies

       Under the NCP, other Federal Departments and  Agencies serve as the "lead agency" at
federal facilities. Where these sites are on the NPL, EPA and the lead agency jointly select the
remedy.  The lead agency has the ultimate responsibility for remedy implementation and
maintenance, although some of these responsibilities can be delegated or contracted out to other
parties.  Therefore, developing and implementing activities described in this Strategy require
close cooperation from the federal lead agency. EPA will work with other Federal Departments
and Agencies to develop a collaborative effort to implement the relevant part of this Strategy at
federal facilities.
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States

       The states play a significant role in Superfund cleanups and are relied upon for operation
and maintenance of constructed remedies and providing assurances that ICs are implemented,
will remain in place, and enforced at sites cleaned up using the Superfund. Therefore,
developing and implementing activities described in this Strategy requires close coordination
with the states. The development of this Strategy benefitted from state involvement and EPA
will continue to work closely with the states through implementation on both the national and
state specific level. In particular, EPA Regions will work with the states to identify priority
sites, review site information for 1C problems, and develop and implement long-term fixes for
any 1C issues.

Native American Tribes

       For Superfund sites on tribal lands, EPA will work closely with the tribe to identify and
evaluate any 1C issues.

Potentially Responsible Parties

       PRPs often have responsibility for 1C implementation, monitoring, and enforcement, as
well as general operation and maintenance at sites they clean up under agreements with EPA.
Therefore, they have a vested interest in ensuring the long-term protectiveness of the remedy,
including the effective functioning of ICs.  EPA expects to work closely with PRPs in the
implementation of this Strategy on both a national and site-specific level.

VI.    OTHER 1C ACTIVITIES

       While EPA will focus much of its attention on the tasks outlined in this Strategy, the
Agency intends to simultaneously conduct many other activities that will continue to improve
the use of ICs. The following are a list of ongoing 1C projects outside the scope of this Strategy:

      Institutional Controls: A Guide to Implementing, Monitoring, and Enforcement of
       Institutional Controls at Superfund, Brownfields, Federal Facility, UST, and RCRA
       Corrective Action Cleanups
       >      anticipated release fall 2004
      Institutional Controls and Community Involvement
             external review planned for summer 2004
      Developing Institutional Controls Implementation and Assurance Plans
       >      first draft under development - tentative fall 2004
      Calculating the Full-Life Cycle Costs of Institutional Controls
       >      research activities ongoing; first draft in 2005
      Modify Model CERCLA and RCRA Enforcement Documents
       >      revisions currently being drafted
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One Call Demonstration Pilots
     Pilots underway in Wisconsin and Pennsylvania and in development for New
      York and the City of Portland
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