\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
| WASHINGTON, D.C. 20460
OFFICE OF
1 0 inn SOUDWASTEAND
1 0 2011 EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Transmittal of OSWER Directive "Recommended Evaluation of Institutional
Controls: Supplement to the 'Comprehensive Five-Year Review Guidance'"
FROM: James E. Woolford, Director JJ**-
Office of Superfund Remediation and Technology Innovation
Reggie Cheatham, Director
Federal Facilities Restoration and Reuse Office
TO: Superfund National Policy Managers. Regions 1-10
This memorandum transmits OSWER Directive 9355.7-18, entitled "Recommended Evaluation
of Institutional Controls: Supplement to the 'Comprehensive Five-Year Review Guidance'".
This guidance supplements OSWER's 2001 Comprehensive Five-Year Review Guidance and
provides recommendations for conducting five-year reviews for the 1C component of remedies in
a manner similar to the review of engineering or other remedy components. This document is
designed primarily for U.S. Environmental Protection Agency Remedial Project Managers.
If you have any questions, please contact me or have your staff contact Steve Ridenour at
ridenour.steve(aiepa.gov.
Attachments
cc: OSRTI Managers
Brigid Lowery, CPA
Lawrence Stanton, OEM
Elliott Gilberg, OSRE
Dave Kling, FFEO
John Michaud, OGC
Chloe Metz, Superfund Lead Region Coordinator, US EPA Region 2
NARPM Co-Chairs
OSRTI Documents Coordinator
Internet Address (UHL) http://www.epa.gov
Recycled/Recyclable Printed with Vegetable Oil Based Inks on 100%Postconsumer, Process Chlorine Free Recycled Pap-v,, Ooo
04- I OOO
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Recommended Evaluation of Institutional Controls:
Supplement to the "Comprehensive Five-Year Review Guidance"
OSWER Directive 9355.7-18
1.0 OVERVIEW
The purpose of this document is to provide guidance to support Five-Year Reviews
(FYRs) under the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (CERCLA), as amended, where institutional controls (ICs) are included as components of
site remedies.1 Consistent with CERCLA section 121(c) and the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), FYRs generally are conducted where the chosen
remedy leaves waste in place and does not allow for unlimited use and unrestricted exposure
(UU/UE) at a site (see 40 C.F.R. § 300.430(f)(4)(ii)). This guidance supplements OSWER's
2001 Comprehensive Five-Year Review Guidance (FYR Guidance)2 and provides
recommendations for conducting FYRs for the 1C component of remedies3 in a manner similar to
the review of engineering or other remedy components.
1.1 What are ICs?
EPA defines ICs as non-engineered instruments, such as administrative and/or legal
controls, that help to minimize the potential for human exposure to contamination and/or protect
the integrity of a remedy. 4 ICs typically work by limiting land or resource use and/or by
providing information that helps modify or guide human behavior at the site. For CERCLA
cleanups, the NCP states that ICs can be used to supplement engineering controls during all
phases of cleanup and may be a necessary component of the completed remedy.5
Generally, there are four categories of ICs for EPA cleanup programs:
1 This guidance supplement provides policy guidance to the staff of U.S. EPA on conducting five-year reviews for
remedies that include ICs. The guidance is designed to help promote consistent national policy but it does not
substitute for CERCLA 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, state, tribal, and local 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 site will be made
based on the applicable statutes and regulations.
2 Comprehensive Five-Year Review Guidance, OSWER 9355.7-03B-P, EPA 540-R-01-007, June 2001 ("FYR
guidance"). This document may be found at http://www.epa.gov/superfund/cleanup/postconstruction/5vr.htm
3 As discussed in Section 1.2.2 of the FYR guidance, EPA as a matter of policy typically conducts five-year reviews
at removal-only sites on the National Priorities List which leave hazardous substances, pollutants, or contaminants
on site above levels that allow for unlimited use and unrestricted exposure and where no remedial action has or will
take place. Therefore, Regions also should consider the recommendations in this guidance for these removal-only
sites.
4 The term land use control (LUC) is generally used at federal facilities to describe ICs and may include engineering
components.
5 The NCP sets out general expectations for EPA to consider in developing remedial alternatives, including
expectations regarding the use of ICs. For more information, see 40 CFR 300.430(a)(l)(iii)(A)). Also see Section
2.3 of Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls
at Contaminated Sites ("PIME guidance"), (OSWER 9355.0-89, EPA-540-R-09-001), November 2010 (Interim
Final). This document may be found at http://www.epa.gov/superfund/policv/ic/pdfs/PIME-IC-Guidance-
Interimpdf
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(1) Proprietary controls refer to controls on land use that are considered private in nature
because they tend to affect a single parcel of property and are established by private
agreement between the property owner and a second party who, in turn, can enforce the
controls. Common examples include easements that restrict use (also known as negative
easements) and restrictive covenants. These types of controls can prohibit activities that
may compromise the effectiveness of the response action or restrict activities or future
resource use that may result in unacceptable risk to human health or the environment.
State and tribal law authorize proprietary controls. In some states, the authority comes
solely from common law. Other states enacted statutes that directly authorize these types
of controls for the purpose of preventing use in conflict with environmental
contamination or remedies. These statutes divide into ones modeled after the Uniform
Environmental Covenants Act (UECA),6 and other non-UECA statutes. These UECA
and non-UECA state statutes tend to provide advantages over traditional common law
proprietary controls;
(2) Governmental controls impose restrictions on land or resource use, using the
authority of a government entity. Typical examples of governmental controls include
zoning; building codes; state, tribal, or local ground water use regulations; and
commercial fishing bans and sports/recreational fishing limits posed by federal, state
and/or local resources and/or public health agencies. In many cases, federal landholding
agencies, such as the Department of Defense, possess the authority to enforce ICs on their
property. At active federal facilities, land use restrictions may be addressed in Base
Master Plans, facility construction review processes, facility digging permit systems,
and/or the facility well permitting systems;
(3) Enforcement and permit tools with 1C components are legal tools, such as
administrative orders, permits, Federal Facility Agreements (FFAs) and consent decrees
(CDs), that limit certain site activities or require the performance of specific activities
(e.g., monitor and report on 1C effectiveness). These legal tools may be issued
unilaterally or negotiated; and
(4) Informational devices provide information or notification as recorded notice in
property records or as advisories to local communities, tourists, recreational users, or
other interested persons that residual contamination remains on site. As such,
informational devices do not provide enforceable restrictions. Typical informational
devices include state registries of contaminated sites, notices in deeds, tracking systems,
and fish/shellfish consumption advisories.
1.2 What is the purpose of a FYR for a remedy that includes ICs?
The purpose of a FYR is to evaluate the implementation and performance of a remedy in
order to determine if the remedy is or will be protective of human health and the environment.
When an 1C is a component of a remedial action, the current and long-term effectiveness of that
1C should be evaluated and relevant information about that 1C should be included as part of the
protectiveness determination. In addition to the protectiveness determination, FYRs may
identify 1C issues and recommend the need for additional evaluation and/or follow-up actions
included as highlighted issues and recommendations. The protectiveness determination and
UECA was developed by the National Conference of Commissioners on Uniform State Laws. See: http://www.environmentalcovenants.org/
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related findings of the FYR provide for a periodic analysis of the remedy within the overall
strategy for long-term site stewardship.
As part of the FYR protectiveness determination, the Region can analyze ICs during key
FYR activities, such as:
» Document reviews;
» Site interviews7;
» Site inspection; and
» Making a protectiveness determination
The remainder of this document elaborates on the above activities. When conducting
these activities, Regions should keep in mind that ICs are generally protective when they are
implemented and effective in the long-term. When reviewing remedy decision documents, the
1C instruments, and related 1C documents, Regions should consider the following key 1C
concepts:
Clarity of Use Restrictions and Exposure Pathways - decision documents and 1C
instruments should clearly articulate the substantive restrictions that are needed at a
property to achieve overall remedial action objectives (RAOs). The Region should
ensure land use assumptions that were made as part of the remedy decision continue to
remain accurate.
Accuracy of Property Information and Mapping - all physical areas that do not support
UU/UE should be identified and the administrative record should have information
showing that ICs cover those areas through comparison with, for example, legal
descriptions and scope of ordinances (e.g., ground water ordinance covers the entire
current plume area).
Adequacy of Long-term Stewardship of ICs - planning documents such as 1C
Implementation and Assurance Plans (ICIAPs) and Land Use Control Implementation
Plans (LUCIPs),8 enforcement documents such as CDs and FFAs, as well as remedy
selection-related documents such as the Record of Decision (ROD), Remedial Design
(RD) or Remedial Action Work Plan (RAWP), should be in place and detail the long-
term roles and responsibilities for implementing, maintaining9, and enforcing ICs. Other
available tools for evaluating long-term effectiveness of ICs may include State one-call
7 As per the FYR Guidance, individuals with information relevant to the status of 1C compliance and enforcement
may include the site manager; site personnel; Federal, State and Tribal regulatory authorities; local officials;
community action groups or associations; residents and businesses located near the site; and other pertinent
organizations or individuals. It would also be helpful to interview site owners/lessees/site users, as well as PRPs,
where appropriate.
8 A LUCIP is generally used at federal facilities to lay out the roles and responsibilities for implementing,
maintaining, and enforcing LUCs. For purposes of this guidance, where concepts are enumerated for ICIAPs, they
are also applicable to LUCIPs.
9 As detailed in the PIME guidance, the term "maintenance" refers to those activities, such as monitoring and
reporting, that ensures ICs are implemented properly and functioning as intended.
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systems10 which can protect the public and environment from uncontrolled excavation
and help identify breaches to the ICs.
1.3 What is the role of potentially responsible parties (PRPs) in 1C evaluations during
the FYR?
EPA, not PRPs, is legally responsible for making the protectiveness determination during
the FYR.11 However, as stated in the EPA's "Enforcement First" guidance for ICs12 and Section
2.3 of the FYR Guidance, PRPs may, and in appropriate circumstances should, be encouraged to
perform certain support activities during the FYR process, as discussed below.
EPA may request that PRPs conduct specific evaluations related to 1C effectiveness and
provide an 1C analysis that EPA may consider in making its protectiveness determination. EPA
may send letters to PRPs in advance of the scheduled FYR and these letters may contain specific
requests to carry out activities designed to help EPA evaluate 1C effectiveness at the site. The
role of PRPs may vary by site, depending on a number of factors, including cooperation by the
PRPs. In particular, the Region:
» Should examine settlement and enforcement documents regarding PRP obligations
with respect to ICs.
May request13 that PRPs gather and submit data, studies, or analyses about any ICs
pursuant to appropriate provisions of enforcement documents. This request can be
made in addition to, or in conjunction, with requests for sampling and monitoring
data and reports. Possible requests EPA may make of PRPs include: 1) to obtain
recorded copies of restrictive covenants or easements from the appropriate land
records office; 2) to obtain title commitments or current ownership/encumbrances
reports; and, 3) to obtain assurances/information sharing that ICs are implemented on
non-source properties as well as the source properties.
2.0 RECOMMENDED COMPONENTS OF THE FYR PROCESS
2.1 Document review
Section 3.5.1 and page B-6 of the FYR Guidance contain information about 1C-related
documents that may be appropriate to review for the FYR. These documents provide
information on the stages of the 1C life-cycle to help evaluate whether ICs are being
appropriately implemented, maintained, and enforced at the Site. The following sections provide
a recommended list of items to consider by the type of document being reviewed.
10 For more information about State one-call systems, see http://www.epa.gov/oswer/docs/iwg/onecall_systems.pdf
11 For federal facility sites, the federal agency may make the protectiveness determination for the site. EPA may then
concur or resolve through a dispute resolution process established in the FFA. For more information, see page 2-5
of the FYR guidance.
12 See Enforcement First to Ensure Effective Institutional Controls at Superfund Sites, OSWER 9208.2, March 2006.
13Authority for a request may be addressed in the following provisions of a CD or UAO: l)"periodic review"
provision which requires PRPs to conduct studies determined to be necessary by EPA to conduct a periodic review
(If 17 of the model RDRA CD or If 43 of the model RDRA UAO); 2) additional work/modification of work
provision flf 14 of the model RDRA CD or If 44 of the model RDRA UAO); or 3) CD and UAO provisions requiring
PRPs to maintain the effectiveness of the remedial action and other site-specific provisions of CD or UAO (e.g., If
26(c) of Model RDRA CD requires a Settling Defendant to obtain a title commitment and title policy).
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2.1.1 Remedy decision documents (e.g., RODs, ESDs, ROD Amendments)
Decision documents for remedies selected under CERCLA authority are intended to
explain the remedial action for the site. When reviewing the remedy during the FYR,
Regions should consider a number of factors such as whether:
* The remedy leaves waste on site which will limit site and/or resource use such that
UU/UE is not achieved;
The current remedy is meeting the RAOs in the decision document(s);
» The decision document(s) adequately specifies the RAOs to be achieved, the role of the
1C component of the remedial action, and what land and/or resource uses the 1C
component is intended to restrict;14
» If IC(s) were not selected as part of the original remedy, do current conditions on site
now indicate that ICs or other remedial action components are necessary as interim or
final measures to help ensure protectiveness; and
» Do the decision document(s) adequately specify the long term roles and responsibilities
for implementing, maintaining, and enforcing the ICs.
2.1.2 1C instruments (e.g., proprietary and governmental controls, enforcement tools, and
informational devices)
Depending on the specific type of 1C implemented at a site, there may be a variety of
issues to consider when reviewing the 1C instrument. Unlike decision documents, most 1C
instruments are implemented by other parties (e.g., through local governments) and initially
may not be part of the EPA site file. Once EPA obtains dated copies of filed documents,
these 1C instruments should be maintained in the site file and tracked in the 1C tracking
system.15 All 1C instruments should be reviewed to ensure that clear language is used to state
the required use restrictions and that legal descriptions reflect current conditions at the site
(e.g., ground water ordinance covers the entire current plume area). In addition, maps (e.g.,
geographic information systems (GIS)) that lay out the restricted area against the areas of
known contamination often are important tools for documenting the extent of 1C restrictions.
When reviewing the various types of 1C instruments, Regions should, at a minimum,
consider the following key issues and concepts:
Status of 1C Implementation - Have dated copies of ICs (e.g., a proprietary control with a
recorder's mark) been obtained to confirm that each has been implemented as envisioned
in the decision documents? For proprietary controls and other ICs within the chain of
14 If a FYR reveals that ICs are necessary to help ensure protectiveness at a site but were not selected as part of the
original remedy, modification of the ROD generally would be appropriate. Any 1C relied upon to help ensure
protectiveness (e.g., a preexisting control based state or local law) generally should be incorporated in a decision
document (i.e., Explanation of Significant Differences or ROD Amendment) if it is relied upon to help ensure
protectiveness. For more information, see Section 4.1 of the PIME guidance, subsection entitled Modifying Existing
Response Action Decision Documents.
151C information typically is available to authorized users via EPA's SEMS Portal at
https://sems.epa.gov/sems/welcome.do
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title such as deed notices, this is normally accomplished by conducting a title search. If a
title search was completed prior to the FYR (e.g., during the remedial action itself), it
may be appropriate to rely on the existing title reports and other information obtained
during the FYR to confirm effective implementation and operation of the 1C. If site
conditions have changed or new information calls into question the status and
effectiveness of the 1C (e.g., property ownership has changed hands, or new property
encumbrances come to light), a new title search may need to be completed during the
FYR. Regarding governmental controls, steps should be taken to verify that any controls
relied upon are still in place and effective. If PRPs were obligated to implement ICs
pursuant to a permit or enforcement tool, Regions should review those 1C requirements to
ensure they have been carried out properly.
Compliance with 1C Obligations - Review any monitoring, reporting (e.g., recent
inspection), enforcement, and certification requirements to ensure compliance with land
and/or resource use restrictions. These may be built into enforcement tools or into the 1C
instrument itself. For instance, some states through legislation have created statutory
environmental covenants that enable parties to build affirmative obligations into ICs, or
alternatively, the legislation may require certain activities in conjunction with the
environmental covenant.
Long-term Effectiveness and Enforceability of ICs - Ensure that the parties identified in
the remedy decision documents or other documents that discuss ICs (e.g., CDs, ICIAPs,
LUCIPs, RDs, FFAs, and RAWPs) have followed through with their obligations, which
include implementing, maintaining, and enforcing ICs. Depending on the type of IC(s)
used at a site, analyzing the long-term effectiveness of the control may be difficult, but a
judgment based upon current and reasonably anticipated circumstances generally is
appropriate. For example, a governmental control such as a zoning ordinance could be
amended or repealed in between five-year review reports, thereby undermining its use as
an effective 1C. But if evidence suggests this type of action is not likely, and the
governmental control does not contain a sunset provision, then it may be appropriate to
assume (subject to periodic verification) that the control should be effective in the long-
term. For proprietary controls, this evaluation may involve an analysis of several factors,
such as whether: 1) real property title information (e.g., through a title search) shows that
proprietary controls "run with the land;" 2) the controls are impacted by other interests
that affect title to the property; 3) they have a legal basis for enforcing the use restrictions
against current and future owners of the property; and 4) they otherwise comply with
state law.
2.1.3 Other documents with 1C information
Reviewing additional documents may be appropriate in evaluating any relevant
information regarding ICs. Below is a list of documents that may contain additional 1C
information and other types of information or follow-up actions that may be relevant to the FYR:
* Risk Assessments, Remedial Investigation/Feasibility Study, As-built drawings, etc.
o Ensure original land and resource use assumptions are still valid.
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o Review any new information that calls into question the risk assumptions upon which
the remedy decision and ICs are based.
o Review as-built drawings to see if they give information on the remedy components
and dimensions such as a landfill cap that needs to be protected by an 1C.
RDs, RAWPs, and FFAs16
o Determine whether other 1C provisions using state or local authorities cover areas
outside the boundaries of the site or federal facility if contamination extends beyond
those boundaries
o Determine if there are agreements between the current PRP and other parties not to
modify ICs or land and/or resource use without prior approval from EPA and the
State
o Determine if these documents provide notification to the EPA and the State about
breaches, changes in protectiveness status because of ICs, land/resource use changes,
and property transfers
o Determine if plans, designs, and reports (including periodic monitoring/inspection
reports) that are to be submitted to EPA have occurred as scheduled.
ICIAPs, LUCIPs, and Operations and Maintenance (O&M) plans17
o Ensure that the plan has identified a responsible person or agency to maintain and
enforce the ICs at the site
o Ensure that monitoring/reporting requirements in the ICIAP and/or O&M plan are
adequate to determine whether ICs remain in place, are effective, and are sufficient to
determine whether violations are occurring or are imminent
o Ensure that updated/correct maps (e.g., zoning, land use plans, etc.) relevant to site
contamination or remedy components exist
o Determine whether inspections to evaluate 1C compliance have occurred as scheduled
2.2 Site interviews
Section 3.5.2 and Appendix C of the FYR Guidance contain recommendations on how to
conduct interviews during the five-year review. Interviews can provide valuable information on
ICs related to their implementation, maintenance, and enforcement. At many sites, interviews
are likely the primary method for determining whether ICs are effective and/or if breaches are
occurring. Below is a list of recommended questions the Region should ask:
Authorities from State/local government agencies or federal facilities
o Have any breaches of the ICs occurred, complaints been filed, or unusual activities
been noted at the site (e.g., citizens are consuming fish at a contaminated sediment
site)? If so, how were they addressed?
o Has the federal agency (for a federal facility site) reported on the status of the ICs or
LUCs as required?
o What type of monitoring is currently being conducted or has been conducted to
determine 1C compliance (e.g., follow-up inspections)?
16 This is consistent with EPA's guidance entitled "Land Use Control Checklist for Federal Facilities" which can be
found at http://www.epa.gov/fedfac/documents/icchecklist.pdf
17 At federal facility sites, this information should also be captured in RDs and RODs.
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o Are ICs being enforced? What is the enforcement plan in the event of an 1C breach?
o Are there any new developments, either constructed or planned, in the area of which
the entity is aware?
o Has land use changed or is it anticipated to change (e.g., housing developments,
either constructed or planned, exist in the area)?
o What procedures are in place for EPA and PRPs to receive notice of any proposed
changes to the ICs?
o Does the entity have an 1C tracking system or other applicable database (e.g., GIS
maps) to keep information about ICs?
o Can the ICs or engineering controls be registered in the state's one-call system?
o How has the 1C process been working and are there any suggestions for
improvement?
« Property Owner/Lessee
o Are property owners and lessees aware of, and complying with, ICs?
o Does the property owner have any plans to lease, sell or transfer the property? If so,
what are their plans regarding the property's ICs?
o Are any covenants or easements relevant to the remedy held by the property owner in
addition to those selected in the remedy decision documents?
o Does the property owner/lessee have any plans to build new structures or drill wells
on the property?
2.3 Site inspection
Section 3.5.3 and Appendix D of the FYR Guidance contain recommendations on site
inspections. A site inspection usually provides the site manager the opportunity to evaluate the
site and visually confirm the effectiveness of ICs and the engineering components of the remedy.
Aerial photographs may be helpful as well in determining whether inappropriate land and/or
resource use is occurring.
3.0 ASSESSING THE PROTECTIVENESS OF THE REMEDY
The following section provides information on how to evaluate protectiveness for a site
based on the 1C component of the selected remedy. Often, some of these questions can be
answered during the site inspection process. Further guidance for answering Questions A, B,
and C and making a protectiveness determination for a site can be found in Section 4.0 of the
FYR Guidance. Specific examples of 1C situations in the technical assessment can be found in
Section 5.0 below.
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3.1 Recommended questions for the technical assessment
When you ask...
Question A:
Is the remedy functioning as
intended by the decision
documents?
Question B:
Are exposure assumptions, toxicity
data, cleanup levels, and remedial
action objectives used at the time
of the remedy selection still valid?
Question C:
Has any other information come to
light that could call into question
the protectiveness of the remedy?
For ICs, you should consider whether...
ICs are in place and effective for all areas of the site that
do not achieve UU/UE
Exposures are occurring, or likely to occur, because ICs
are not in place
ICs are tailored to the use restrictions specified in the
decision documents
ICs that are needed to help ensure protectiveness were
included in the Region's decision document
Additional ICs are needed to help ensure protectiveness
Actual or potential change in exposure pathways has
occurred due to changes in land use or zoning
* Actual or potential change in exposure pathways has
occurred due to changes in ground water or surface
water use
New information or changed conditions results in new
exposure pathways (e.g., vapor intrusion into homes and
other structures)
Indications that land or other resource uses may be
changing in the area have occurred (e.g. redevelopment)
State or local land use law changed in a way that could
significantly impact ICs at the site
Current conditions warrant a change to the ICs or
changes to the ICs themselves have occurred (e.g.,
breaches).
3.2 Identifying issues
Issues that prevent the remedy from being protective in the short- and/or long-term
should be identified in the FYR. Generally, sites that are protective of human health and the
environment in the long-term will not have any issues that affect the Agency's protectiveness
determination; however, the five-year review process may lead to the discovery of other issues
that give rise to recommendations that could require additional work or study at the site.18
Exhibit 4-3 located on page 4-11 of the FYR Guidance provides a recommended tabular format
that can be considered when listing potential issues in the FYR. It is generally important to
determine whether the issue(s) identified in the FYR affects current and/or future protectiveness
of the remedy. Some examples of IC-related issues that may affect protectiveness and are
typically identified in a FYR are:
This may include issues related to remedy optimization, changes to interval sampling, or changes to the
information contained in an ICIAP or O&M plan which do not affect protectiveness.
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ICs required by the decision documents are not implemented.
» ICs in place are not effective in achieving the use restrictions required by the decision
documents in order to provide a remedy that is protective of human health and the
environment.
1C breaches are occurring because use restrictions are not being communicated.
ICs are not identified in the site decision documents even though they are necessary to
help ensure protectiveness at the site.
The decision documents do not adequately specify the long term roles and responsibilities
for implementing, maintaining, and enforcing the ICs
3.3 Developing recommendations
All recommendations and follow-up actions identified as part of the FYR protectiveness
determination process, including those specifically related to ICs should be included in a table as
recommended on page 4-13 of the FYR Guidance. Generally, it is also important to ensure that
1C data is updated with any new 1C information at the site and any information previously
missed in the database. For the FYR, the following are examples of recommendations that may
be appropriate for IC-related issues that need to be addressed to ensure protectiveness:
Develop and implement a schedule for the selection and implementation of any
remaining appropriate ICs
Select additional ICs to "layer" with IC(s) already in place
Develop and implement communication strategies with appropriate state/local
governmental agencies and the community
Use the remedy selection process to select or document ICs to supplement components of
the current remedy (i.e., in a ROD Amendment, BSD or Action Memorandum1 )
3.4 Making a protectiveness determination20
Where ICs are a component of the overall remedy at the site, an IC-specific
protectiveness statement generally is not needed. The evaluation of 1C protectiveness should be
combined with the evaluation of the other remedy components to develop an overall
protectiveness statement, using the answers to recommended Questions A, B, and C and the
information developed during the FYR process. However, it is recommended that ICs be
mentioned specifically in the overall protectiveness statement when long-term protectiveness
hinges on compliance with the ICs. The table below describes generic sample 1C scenarios and
how they generally may affect the overall protectiveness of a remedy.
19 For additional guidance on modifying remedy decisions, see A Guide to Preparing Superfund Proposed Plans,
Records of Decision, and Other Remedy Selection Decision Documents, OSWER 9200.1-23P, EPA 540-R-98-031,
July 30, 1999.
20 See Section 4.5 of the 2001 FYR guidance for more information on making protectiveness determinations.
10
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If the 1C situation is such that. . .
ICs are implemented and effective and no exposures are
occurring
Construction of the remedy is underway, no exposures
are occurring, and implementation of ICs is not yet
complete
Implementation of ICs is not complete, but exposures are
not occurring
Implementation of ICs is not complete and exposures are
occurring
Not clear if ICs are functioning as intended and/or if
exposures exist
Then the overall protectiveness of
the remedial action may be...
Protective
Will be protective once the remedy is
completed21
Protective in the short-term*
Not protective
Protectiveness is deferred until further
information is obtained
*At some sites, particular circumstances (e.g., the nature of contaminants left on site) may
present unique challenges. For example, remedies addressing explosive contaminants (e.g.
unexploded ordnance) may present a potentially immediate and high-level risk if the
restrictions in the 1C component of the remedial action (e.g., prevent excavation) are not yet
implemented to prevent exposure. In such circumstances, it may be appropriate for the
Region to find the remedy not protective of human health and the environment until such
time that ICs are implemented to effectively prevent exposures from occurring.
3.5 Additional IC-related information in the FYR
Several additional items may be useful to include in the FYR. Maps that illustrate the
areas of remaining contamination (e.g., contaminated ground water plume), parcel boundaries,
and an overlay of any ICs that may be in place often are useful visual tools (see Appendix 2 for
an example 1C overlay map). The FYR can also include tables that describe any proposed or
existing use restrictions for particular media and parcels at a given site. An example table is
provided below:
The "will be protective" determination is available for sites that have not yet met the construction completion
milestone but should not be used for sites that have met construction completion. See Exhibit 4-6 of the FYR
guidance.
11
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Sample Areas of 1C Interest - xxx Superfund Site
Contaminated
Media
Ground
Water
Soil
ICs
Needed
Yes
Yes
ICs Called
for in the
Decision
Documents
No
Yes
Impacted
Parcel(s)
Parcel ID#
1234;
contained
plume within
factory
property
Parcel ID#
5678; on-site
soils
1C
Restriction/Objective
Restrict use of ground
water and well
installation.
Prohibit any activity
that may disturb the
integrity of the
engineering controls
and limit future land
use to industrial.
Instrument
in Place
2001
Declaration of
Covenants and
Restrictions
2001
Declaration of
Covenants and
Restrictions
Additional explanation of the ICs in the text of the FYR may be useful to provide information on
the IC's effectiveness, related enforcement efforts, breaches of ICs, or other relevant information
that may affect the protectiveness of the remedy. A separate section on ICs may be appropriate
within Section IV "Remedial Actions" of the FYR.
4.0 ADDITIONAL GUIDANCE
Existing 1C guidance may be helpful in implementing follow-up actions. This includes
the following:
Institutional Controls: A Site Manager's Guide to Identifying, Evaluating, and Selecting
Institutional Controls at Superfund andRCRA Corrective Action Cleanups, September 2000
(OSWER 9355.0-74FS-P, EPA 540-F-00-005); Institutional Controls: A Guide to Planning,
Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites,
(OSWER 9355.0-89, EPA-540-R-09-001), November 2010 (Interim Final); and 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, February 2005 (OSWER 9355.0-98, EPA-540-R-04-003). These and other IC-related
documents can be found on the Superfund 1C web site at
http://www.epa.gov/superfund/policy/ic/index.htm.
For federal facilities, see EPA's Sample Federal Facility Land Use Control ROD
Checklist with Suggested Language, October 2006. This guidance can be found at
http://www.epa.gov/fedfac/documents/icchecklist.pdf
Additional information about proprietary controls can be found in Transmittal of
Institutional Controls: Third-Party Beneficiary Rights in Proprietary Controls, April 2004. This
guidance can be found at
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/ic-thd-pty-rights.pdf
12
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5.0 EXAMPLE 1C SITUATIONS IN THE TECHNICAL ASSESSMENT
Exhibit 4-5 in the FYR Guidance presents sample protectiveness determinations and
recommendations for various remedies. Provided here are some IC-specific samples to clarify
the types of protectiveness determinations that may be appropriate for remedies with 1C
components based on the Technical Assessment Summary (see Section 3.1 above) and
observations in the FYR report. This is not meant to be an exhaustive list of samples. If site-
specific circumstances arise that don't appear to resemble these samples, please contact your
Regional coordinator in Headquarters for further assistance.
13
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Example 1: Soil cap with ICs in place
If the decision
document(s) call for
And during the FYR
process you observe
that
The IC-specific
determination
could be
evaluated as
Your IC-specific recommendations may
include
Landfill cap
*IC(s) that prevent the
disturbance of cap and
any residential use of
the property
IC(s) (e.g. restrictive
covenant) have been
implemented,
preventing any use
of the property that
interferes with the
cap on the property
and any residential
use of the property
No evidence of
cracking, sliding,
settling of cap, or
other indicators of
cap breaches
No evidence of
exposure
The remedy would
generally be
considered
protective. Long
term protectiveness
normally should be
ensured by
continued
compliance with
effective ICs.
none
14
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Example 2: Soil cap with no ICs in place and no exposures occurring
If the decision
document(s) call for
And during the FYR The IC-specific Your IC-specific recommendations may
process you observe determination include
that could be
evaluated as
Landfill cap
IC(s) that prevent the
disturbance of cap
and any residential
use of the property
IC(s) (e.g. restrictive
covenant) have not
been implemented
No evidence of
cracking, sliding,
settling of cap, or
other indicators of
cap breaches
No evidence of
exposure
The remedy would
generally be
considered
protective in the
short-term', follow-
up actions to
ensure compliance
with effective ICs
normally should
be taken to ensure
that the remedy is
protective in the
long-term
Develop and implement a plan for
implementation of a restrictive covenant or
other ICs, which normally should include
procedures for notification of EPA in the
event of a breach.
Work with the owner to ensure the
implementation of an effective restrictive
covenant or other 1C that may include features
like the 1C "runs with the land," is not
hindered by prior-in-time encumbrances,
provides adequate notice to future owners, and
can be maintained and enforced to ensure its
continued effectiveness.
15
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Example 3: Soil cap with no ICs in place and exposures occurring
If the decision
document(s) call for
And during the FYR The IC-specific Your IC-specific recommendations may
process you observe determination include
that could be
evaluated as
Landfill cap
IC(s) to prevent
disturbance of cap
and any residential
use of the property
« IC(s) (e.g. restrictive
covenant) have not
been implemented
« Cracking, sliding,
settling of cap, or
other indicators of
cap breaches
« Evidence of
exposure due to
trespassing and use
of the cap that
violates necessary 1C
restrictions.
The remedy would
generally be
considered not
protective,
implementing a
restrictive covenant
designed to prevent
exposure to
contaminants and
taking steps to
prevent trespassers
from entering the
area normally
should be taken to
ensure long-term
protectiveness
Develop and implement a plan for
implementation of a restrictive covenant or
other ICs, which normally should include
procedures for notification of EPA in the
event of a breach.
Work with the owner to ensure the
implementation of an effective restrictive
covenant or other 1C that may include features
like the 1C "runs with the land," is not
hindered by prior-in-time encumbrances,
provides adequate notice to future owners, and
can be maintained and enforced to ensure its
continued effectiveness.
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Example 4: Soil cap with ICs in place but proposed reuse that may be inconsistent with ICs
If the decision
document(s) call for
And during the FYR The IC-specific Your IC-specific recommendations may
process you observe determination include
that could be
evaluated as
Landfill cap
IC(s) to prevent
disturbance of cap
and any residential
use of the property
« The IC(s) (e.g.
restrictive covenant)
have been
implemented.
» No evidence of
cracking, sliding,
settling of cap, or
other indicators of
cap breaches
« City has proposed
redevelopment of the
site but the
redevelopment plan
hasn't been reviewed
by EPA yet to
determine if
additional ICs are
needed.
A protectiveness
determination
should be deferred
until enough
information is
obtained. In the
meantime, the
restrictive covenant
can be reviewed.
A protectiveness
determination
generally can be
made once it is
determined
whether conditions
at the site allow for
the current
redevelopment.
Review restrictive covenant and
redevelopment plan to determine whether use
restrictions are being violated by the current
redevelopment.
Evaluate the need for any additional ICs which
normally should include procedures for
notification of EPA in the event of a breach.
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Example 5: Ground water restoration with ICs in place
If the decision
document(s) call for
And during the FYR
process you observe
that
The IC-specific
determination
could be
evaluated as
Your IC-specific recommendations may
include
» Long-term operation
of a ground water
pump-and-treat
system
» Restoration of
ground water to
MCLs
» Reliance on existing
City Ordinance to
restrict drilling of
ground water wells
and prohibit
ingestion of, or other
contact with ground
water until MCLs are
reached
« Contaminant levels
above MCLs
» No known current
exposure
« Effective well
drilling permit
regulations are
implemented and
being enforced by
local authority
The remedy would
generally be
considered
protective as long
as the pump and
treat system
continues to
operate, no
exposures are
occurring, and
effective ICs are
maintained until
cleanup standards
have been
achieved.
none
18
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Example 6: Ground water restoration with no ICs in place but no exposures occurring
If the decision
document(s) call for
And during the FYR The IC-specific Your IC-specific recommendations may
process you observe determination include
that could be
evaluated as
Long-term operation
of ground water
pump-and-treat
system
Restoration of
ground water to
MCLs
Contaminant levels
above MCLs
No known current
exposures
Potential for future
exposures exists
since ICs are not in
place and not
included in the
remedy selected in
the ROD
The remedy would
generally be
considered
protective in the
short-term', follow-
up actions to
ensure compliance
with effective ICs
normally should be
taken to ensure that
the remedy is
protective in the
long-term
Use the remedial investigation/feasibility
study (RI/FS) and remedy selection processes
(i.e., ROD Amendment) to select ICs as
components of the current remedy.
Develop and implement a plan for evaluation
and implementation of the ICs designed to
restrict the use of ground water. Such ICs
normally should include procedures for
notification of EPA in the event of a breach.
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Example 7: Ground water restoration at operating federal facility with ICs in place and exposures occurring
If the decision
document(s) call for
And during the FYR The IC-specific Your IC-specific recommendations may
process you observe determination include
that could be
evaluated as
Air sparging of
ground water
Restoration of
ground water to
MCLs
LUCs placed in the
Base Master Plan
prohibiting use of the
water and binding all
personnel,
contractors, and
lessees
Contaminant levels
are above MCLs on
the base
The Base Master
Plan has been
modified to include
the restrictions on
ground water usage
and a permit process
has been put in place
to prevent
contractors or base
personnel from
accessing the water
but the local farmer
has not been notified
and his lease has not
been modified to
reflect the water
prohibition
Some portions of the
base are leased as
crop land to a local
farmer who is using
the water for
irrigation
The remedy would
generally be
considered not
protective. The
lease for the
agricultural land
should be modified
to include
restrictions on
water usage.
Compliance with
effective ICs will
normally ensure
the remedy is
protective in the
long-term
Work with the base project manager and
environment officer to ensure that restrictions
are placed on the leased portions of the base.
» Prepare a detailed LUC implementation plan as
part of an enforceable document such as a
Remedial Design or Remedial Action Plan.
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Example 8: Ground water containment at operating federal facility
If the decision
document(s) call for
And during the FYR
process you observe
that
The IC-specific
determination
could be
evaluated as
Your IC-specific recommendations may
include
Long-term operation
of a ground water
pump and treat
system
Containment of
DNAPL plume
LUCs to restrict
consumptive or other
use of the
contaminated ground
water and a
restriction on drilling
of ground water
wells.
The pump and treat
system continues to
contain the
contaminated ground
water plume
No known current
exposures
The federal facility
has incorporated the
ground water use
restriction into its
master land use plan
The ROD and
master land use plan
do not contain
procedures for LUC
maintenance and
reporting
The remedy would
generally be
considered
protective in the
short-term',
compliance with
effective LUCs, as
well as providing
for long-term LUC
maintenance and
reporting
commitments in a
decision document,
and discussing
these issues in the
RDorRAWP
normally should be
taken to ensure the
remedy is
protective in the
long-term
A schedule and deadline for the development
and signing of a revised decision document
that contains provisions for LUC maintenance
and enforcement.
« A schedule and deadline for the development
and signing of the RD or RA Work Plan.
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Example 9: Ground water containment with uncertainties regarding exposure
If the decision
document(s) call for
And during the FYR
process you observe
that
The IC-specific
determination
could be
evaluated as
Your IC-specific recommendations may
include
Containment of
contaminated ground
water plume
ICs to restrict
drilling of ground
water wells and
prohibit ingestion of,
or other contact with,
ground water
Data is needed to
determine if
contaminated ground
water plume is
expanding into
(newly-identified)
previously
uncontaminated
areas
Evidence exists of
land development in
the area where
newly-identified
contamination is
suspected
No known current
exposure associated
with the previously
defined plume area
Potential for
exposure since ICs
(e.g. drilling
permits) have not
been implemented in
newly contaminated
areas
A protectiveness
determination
cannot be made
until further
information is
obtained. A
protectiveness
determination
should be possible
once more
information
regarding land
development and
the extent of off-
site migration of
ground water is
obtained.
Compliance with
effective ICs
normally should be
taken to ensure the
remedy is
protective in the
long-term
Actions should be taken to characterize the
extent of the off-site migration (if any) and
options for capturing the plume if it is
expanding.
» More information should be gathered
regarding land development, in coordination
with landowners and local governments.
Develop and implement a plan for
implementation of the drilling permits that
restrict the use of ground water and evaluate
the need for any additional ICs, which
normally should include procedures for
notification of EPA in the event of a breach.
22
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Example 10: Ground water containment for a remedy still under construction
If the decision
document(s) call for
And during the FYR
process you observe
that
The IC-specific
determination
could be
evaluated as
Your IC-specific recommendations may
include
« Long-term operation
of a ground water
pump and treat
system
Containment of
DNAPL plume
« IC(s) to prevent the
consumptive or other
use of the
contaminated ground
water
IC(s) to prevent the
drilling of ground
water wells.
Construction of a
ground water pump
and treat system is
underway
» All exposure
pathways have been
interrupted in the
interim
IC(s) (e.g.
consumptive use and
well drilling
prohibitions) have
not yet been
implemented.
The remedy would
generally be
considered will be
protective because
it is still under
construction but is
anticipated to be
protective once it is
completed.
Compliance with
effective ICs
normally should be
taken to ensure
long term
protectiveness
Develop and implement a plan for
implementation of the drilling permits and
consumptive use restrictions that prohibit the
use of ground water and evaluate the need for
any additional ICs which normally should
include procedures for notification of EPA in
the event of a breach.
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APPENDIX 1: GLOSSARY OF TERMS
Administrative Order on Consent (AOC) - a legally
enforceable document signed by EPA and an
individual, business, or other entity through which the
party agrees to pay for the correction of violations, take
the necessary corrective or cleanup actions, or refrain
from an activity. An AOC, which may be subject to a
comment period, describes the actions to be taken, is
civil rather than criminal in nature, and can be enforced
in court.
Advisories - Warnings, usually issued by public health
agencies, either at the federal, state, or local level, that
provide notice to potential users of land, surface water,
or ground water that there is some existing or
impending risk associated with the use of these
resources.
Chain of Title - A history of conveyances, judgments,
and encumbrances affecting title to real estate from the
time that the original patent was granted, or as far back
as records are available.
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA, or
Superfund) - Legislation enacted in 1980 to identify,
investigate, and cleanup the nation's most
contaminated hazardous waste sites and respond to
emergency situations involving hazardous substances,
pollutants or contaminants.
Consent Decree (CD) - A legal document, approved
by a judge, that formalizes a settlement reached
between EPA and responsible parties through which
responsible parties will conduct all or part of a cleanup
action at a Superfund site, cease or correct actions or
processes that are polluting the environment, or
otherwise comply with an EPA-initiated enforcement
action. The consent decree describes the actions
responsible parties will take and is subject to a public
comment period.
Covenant - A promise by one landowner to another
generally made in connection with a conveyance of
property (e.g., warranty of title) that may or may not
run with the land. Covenants may also include a
promise by the grantee of a possessory interest in
property to use or refrain from using the property in a
certain manner. Covenants are similar to easements but
have been traditionally subject to somewhat different
formal requirements.
Deed - A written instrument that transfers legal title to
real property or an interest therein from one party to
another. Generally, it contains the names of the grantor
and grantee, a description of the property, and the
estate being conveyed. It is signed by the grantor,
usually acknowledged before a notary public, and
should be recorded.
Deed Notice - Commonly refers to a non-enforceable,
purely informational provision in a deed that alerts
anyone performing a title search to important
information about a particular property but may also be
used, somewhat confusingly, to refer to other purely
informational documents that are recorded in local land
records.
Deed Restriction - Not a traditional real property law
term, but rather is used in the NCP as a shorthand way
to refer to various types of proprietary controls.
Dense Non-Aqueous Phase Liquid (DNAPL) - A
liquid that is denser than water and does not dissolve or
mix easily in water. In the presence of water it forms a
separate phase. Many chlorinated solvents, such as
trichloroethylene, are DNAPLs.
Easement - A right that allows the grantee to use the
property of another or restrict its use according to the
terms of the easement. An "affirmative" easement
allows the grantee to enter upon or use another's
property for a particular purpose (e.g., ingress/egress).
A "negative" easement imposes limits on how the
owner of the servient estate can use the property.
Encumbrance - A claim against a property by another
party. Encumbrance usually impacts the transferability
of the property.
Enforcement and Permit Tools with 1C
Components - Tools, such as administrative orders or
consent decrees, available to EPA under CERCLA and
RCRA that can be used to restrict the use of land.
Enforcement authority can be used to either (1)
prohibit a party from using land in certain ways or
from carrying out certain activities at a specified
property, or (2) require a settling party to put in place
some other form of control, such as a proprietary
control.
Explanation of Significant Differences (ESD) - A
CERCLA decision document prepared when there has
been a significant change in cost, performance, or cost
of a remedy selected in a Record of Decision (ROD).
The significant change to the remedy may be as a result
of new information.
Federal Facility Agreement (FFA) - The FFA is an
agreement between a federal agency (e.g. Dept. of
Defense) and the U.S. Environmental Protection
Agency (EPA), guiding the Superfund cleanup of a Site
owned by that federal agency.
24
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Five-Year Review (FYR) - An evaluation that may be
required by § 121 (c) of CERCLA and consistent with
the NCP (40 CFR §300.430(f)(4)(ii)). Regions should
conduct a review at Superfund sites where the remedy
does not allow for unlimited use and unrestricted
exposure. FYRs are designed to determine whether the
remedy at a site remains protective of human health
and the environment. Where remedial actions are still
under construction, FYRs can help confirm that
immediate threats have been addressed and that the
remedy is expected to be protective when all remedial
actions are completed.
Governmental Controls - Controls using the
regulatory authority of a government entity to impose
restrictions on citizens or sites under its jurisdiction.
Generally, EPA must turn to state, local, or tribal
governments to enforce existing controls of this type
and to establish new controls. Typical examples of
governmental controls include zoning, the issuance of
building permits, and state and local ground water use
restrictions.
Grantee/Grantor - The entity to/from which
ownership of a property interest (e.g., an easement)
transferred.
is
Institutional Control Implementation and
Assurance Plan (ICIAP) - An ICIAP is a tool to help
systematically establish and document the activities
necessary to implement and ensure the long-term
stewardship of institutional controls (ICs). It also
specifies the persons and organizations that will be
responsible for conducting these activities. A detailed
ICIAP can help ensure that ICs are properly
implemented; operate effectively during their entire
lifespan; and serve as a single source of concise, site-
specific 1C information.
Informational Devices - 1C instruments that provide
information or notification that residual contamination
could remain on site. Common examples include state
registries of contaminated properties, notices in deeds,
and advisories.
Institutional Controls (ICs) - ICs are non-engineered
instruments, such as administrative and legal controls,
that help to minimize the potential for human exposure
to contamination and/or protect the integrity of a
response action. They are typically used in conjunction
with, or as a supplement to, other measures, such as
waste treatment or containment. There are generally
four categories of ICs: governmental controls;
proprietary controls; enforcement and permit tools with
1C components; and informational devices.
Land Use Control (LUC) - Any restriction or control,
including institutional controls and engineering
controls, arising from the need to protect human health
and the environment, such as the restriction of access
or limitation of activities at a site that has residual
contamination.
Layering - The use of different types of institutional
controls at the same time to enhance the protectiveness
of the remedy.
Long-term Stewardship (LTS) - Long-term
stewardship procedures generally include the
establishment and maintenance of physical and legal
controls, implementation entities, authorities,
accountability mechanisms, information and data
management systems, and resources that are necessary
to ensure that these sites remain protective of human
health and the environment. An example of LTS
procedures for ICs is an ICIAP, defined herein.
Potentially Responsible Parties (PRPs) - These are
individuals, companies, or any other parties that are
potentially liable for payment of Superfund cleanup
costs. Companies that generate hazardous substances
disposed of at a Superfund site, current and former
owners and operators of the site, and transporters who
selected the site for disposal of hazardous substances
may be responsible for part or all of the cleanup costs.
Maximum Concentration Limit (MCL) - The U.S.
Environmental Protection Agency (EPA) has
established National Primary Drinking Water
Regulations that set mandatory water quality standards
for drinking water contaminants. These enforceable
standards are called "maximum contaminant levels" or
"MCLs", which are established to protect the public
against consumption of drinking water contaminants
that present a risk to human health. An MCL is the
maximum allowable amount of a contaminant in
drinking water which is delivered to the consumer.
National Contingency Plan (NCP) - The National Oil
and Hazardous Substances Pollution Contingency Plan,
more commonly called the National Contingency Plan
or NCP, is the federal government's blueprint for
responding to both oil spills and hazardous substance
releases.
One-Call System - States have established one-call
systems since the 1960s to help excavators identify the
location of buried utility lines. The States have
recognized the need for these systems to prevent
damage to underground facilities and to protect the
public and environment from uncontrolled excavation.
The one-call infrastructure can also work to notify
these same excavators of underground ICs.
25
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Operations and Maintenance (O&M) - The NCP, 40
CFR§300.435(f)(l), defines O&M as the measures
"initiated after the remedy has achieved the remedial
action objectives and remediation goals in the ROD
(Record of Decision), and is determined to be
operational and functional, except for ground-or
surface-water restoration actions covered under 40
CFR§300.435(f)(4)." O&M measures are designed to
maintain the remedy at a site to ensure that the remedy
remains protective of human health and the
environment.
Proprietary Controls - Use of real property law to
prohibit certain activities that may interfere with the
engineering remedy applied at a site, or to restrict
activities or future uses of a resource that may result in
unacceptable risk to human health or the environment.
The most common examples of proprietary controls are
easements and covenants.
Record of Decision (ROD) - A document that selects
the remedial action at a CERCLA site. It is a legal
document that is an important part of the remedy
selection process carried out in accordance with
CERCLA. It includes, but it not limited to the
following: a basis for the action, the selected remedy,
a discussion of the supporting rationale, and response
to stakeholder comments.
Record of Decision Amendment - A CERCLA
decision document prepared when there has been a
fundamental change to the remedy selected in a Record
of Decision (ROD). The fundamental change to the
remedy may be as a result of new information.
Remedial Action Objectives (RAOs) - Specific goals
for protecting human health and the environment.
RAOs are developed by evaluating ARARs that are
protective of human health and the environment and
the results of the remedial investigations, including the
human and ecological risk assessments.
"Run With the Land" - A term indicating that a
proprietary control will bind subsequent owners of the
affected parcel as opposed to one that is personal and
binds only the original parties.
Superfund - See CERCLA
Uniform Environmental Covenants Act (UECA) -
A model state legislation that addresses the use of
proprietary controls as ICs (e.g., environmental
covenants) and can be used to reduce the legal and
management complications and common law
impediments associated with ICs. UECA was
developed by the National Conference of
Commissioners on Uniform State Laws.
http://www.environmentalcovenants.org/ueca
Unilateral Administrative Order (UAO) - A legal
document signed by EPA directing any person to take
corrective action or refrain from an activity. It
describes the violations and actions to be taken, and
can be enforced in court.
Unlimited Use/Unrestricted Exposure (UU/UE) - As
discussed in EPA guidance documents, UU/UE
generally refers to a situation when there are no
exposure or use limitations required for the remedy at a
site to be protective.
Zoning - A widely used type of land use control that is
based upon the police power. Zoning ordinances
typically consist of a map indicating the various land
use zones (or districts) in the jurisdiction, and text that
sets forth regulations for the development of land by
zone.
26
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APPENDIX 2: SAMPLE 1C OVERLAY MAP
Restrictive
Covenant
(1.5 acres)
Feet
Approx. Site Area V7Z\ Existing Cap Area / (g)MW-2S- Active Ground Water
Restrictive Covenant Monitoring Well
Parcel Boundaries
Surface Water (K\ MW-22S Decommissioned Ground Water
Monitoring Wetl
Disclaimer: This map and any boundary lines within the map are approximate and subject to change. The map does not purport
to be a survey. The map is for informational purposes only regarding EPA's response actions at the Site, and is not intended for
any other purpose.
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