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Director, Office of Partnerships aiici Regional Assistance, Region VIll
Director, Waste Management Division, Region DC
Director, Office of Compliance and Enforcement, Region. X
The purpose of this memo is to transmit the final guidance entitled "Institutional Controls:
ijuitle to Understanding Institutional Controls at Superfund, Browiiiekis, Federal
Facilities, Underground Storage T mks, and Resoun e t '.>i.$ervaftkm and Reeovety Act Cleanups."
The Institutional i Ym.'roh s fC J Citizen's « andc is one of a cot tee: a® oi O^AVkR 0E€ A
c!'Vr,»rK ;»» address K'-rciaictl lupie-; and is intended to ce.mplesnem marc detailed IC praetttioncr
euidance. Specifically, iI\c IC Citizen's Guide: I} tlc!ntc> ICs and other related terms; 2)
iIsscunncs the differcft! f\pc^ uflCs; 31 discusses when, why, and how K \ are u
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S2
United States	OSWER 9255.0-98
Environmental Protection	EPA-540-R-04-004
Agency	February 2005
Institutional Controls:
A Citizen's Guide to Understanding Institutional Controls at
Superfund, Brownfields, Federal Facilities, Underground
Storage Tank, and Resource Conservation and Recovery Act
Cleanups
Table of Contents
PURPOSE 	1
WHAT ARE INSTITUTIONAL CONTROLS? 	2
WHEN ARE ICs USED?	2
WHY CAN'T ALL THE CONTAMINATION BE
REMOVED?	 3
ARE ICs RELIABLE?	3
HOW MANY ICs ARE REQUIRED? 	3
WHO IS RESPONSIBLE FOR MAKING SURE ICs
WORK AS INTENDED?	4
WILL ICs HINDER THE USE OF THE SITE? 	4
HOW AND WHEN CAN THE COMMUNITY GET
INVOLVED? 	5
CONCLUSION 	5
GLOSSARY	6
Terms that appear in bold can be found in a
glossary at the end of the document. Many of
these terms describe some types of ICs.
PURPOSE
The purpose of this guide is to provide
community members with general information
about the role of institutional controls (ICs)
in Superfund, Brownfields, Federal Facilities,
Underground Storage Tanks (UST) and
Resource Conservation and Recovery Act
(RCRA) cleanups occurring in their
neighborhoods. This guide will also discuss
the community's role in providing input for
the selection of ICs and helping to monitor
them to ensure that human health and the
environment remain protected in the future.
Key Points
•	ICs are legal and administrative tools used
to maintain protection of human health and
the environment at sites.
•	ICs are often an important part of the
overall cleanup at a site.
•	ICs can be used for many reasons and
come in different types. These include
restricting site use, modifying behavior, and
providing information to people.
•	There are 4 general types of ICs:
governmental, proprietary, enforcement,
and informational
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ICs are designed to lower the potential for
people and the environment to be exposed to
contamination.
ICs are usually most effective when
layered and used in series to improve
protectiveness.
ICs should fit the needs of the specific
site and community.
The community can play an important
role in identifying potential future uses of the
site.
A cooperative relationship should be
established early between government, the
entity doing the cleanup and the community.
Seeking community input and
involvement can maximize the effectiveness
of ICs.
Communities can play a vital role as
"eyes and ears" for monitoring ICs.
Federal, state, tribal, and local
governments and parties responsible for the
cleanup should keep the public informed of
cleanup decisions that may affect them.
What Are Institutional Controls?
ICs are generally administrative and legal tools
that do not involve construction or physically
changing the site. ICs are generally divided
into four categories:
1) Government Controls- include local laws
or permits (e.g., county zoning, building
permits, and Base Master Plans at military
facilities);
2)	Proprietary Controls- include property
use restrictions based on private property law
(e.g., easements and covenants);
3)	Enforcement Tools- include documents
that require individuals or companies to
conduct or prohibit specific actions (e.g.,
environmental cleanup consent decrees,
unilateral orders, or permits); and,
4)	Informational Devices- include deed
notices or public advisories that alert and
educate people about a site.
In many site cleanups, ICs help reduce the
possibility that people will come in contact
with contamination and may also protect
expensive cleanup equipment from damage.
The use of ICs is not a way "around"
treatment, but rather part of a balanced,
practical approach to site cleanup that relies on
both engineered and non-engineered remedies.
When Are ICs Used?
ICs are normally used when waste is left onsite
and when there is a limit to the activities that
can safely take place at the site (i.e,. the site
cannot support unlimited use and unrestricted
exposure) and/or when cleanup equipment
remains onsite. ICs are often used throughout
a site cleanup, including when:
contamination is first discovered (i.e., to
protect people from coming in contact with
potentially harmful materials while the
contamination is being investigated)
cleanup work is ongoing (in some cases it
may take many years to complete cleanup)
• some amount of contamination remains on-
site as part of a cleanup remedy.
ICs can play an important role when a cleanup
is conducted and when it is too difficult or too
costly to remove all contamination from a site.
ICs are rarely used alone to deal with
contamination at a site. Typically, ICs are part
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of a larger cleanup solution and serve as a non-
engineered layer of protection. ICs are
designed to keep people from using the site in a
way that is not safe and/or from doing things
that could damage the cleanup equipment, thus,
potentially jeopardizing protection of people
and the environment. For example, an IC may
be necessary at a former landfill to notify the
community and guard against excavators
digging through a clay barrier that is meant to
stop rain water from entering the landfill.
It is also important to remember that ICs are
frequently used to protect cleanup equipment
while the cleanup is being conducted. For
example, sites may require complex
technologies that remove, treat, and discharge
groundwater. Operation of these systems may
be needed for a long time in order to reach the
cleanup goals.
Most cleanups will need to use a combination
of engineered remedies and ICs. ICs provide
an additional level of safety and help to make
sure the remedy remains securely in place.
Also, it is important to understand that a
cleanup is not finished until all necessary
action has been taken to protect people and the
environment from contamination at the site.
Why Can't All The Contamination Be
Removed?
Removing all traces of contamination from a
site is often not possible or practicable because
of the types and location of contamination.
However, the presence of some residual
contamination does not mean that a site can't
be used safely.
Use of a site with residual contamination is
considered safe if exposure to contamination is
prevented. ICs can help a site be reused. A
common example of a site reuse is when a
surface barrier layer is installed over
contaminated soil and the area is used for
athletic fields, a golf course, or a park because
ICs are in place to prevent disturbance of the
barrier layer.
Are ICs Reliable?
All ICs have strengths and weaknesses. With
this understanding, it is important to choose the
best combination of ICs that will be protective
of human health and the environment. One key
challenge is that ICs are often implemented,
monitored, and enforced by various levels of
federal, state, tribal, or local governments.
Therefore, it is critical to make sure there are
enough IC safeguards and overlaps so no
significant risk to human health or the
environment or damage to the remedy occur.
EPA guidance encourages the use of ICs in
"layers" and/or in "series" to enhance overall
protectiveness. Layering ICs means using
more than one IC at the same time, all with the
same goal (e.g., a consent decree, deed notice,
and covenant stopping the use of drinking
water wells). Using ICs in series uses different
ICs over time when site circumstances or IC
processes change. For example, restrictions
can gradually be reduced as progress is made
toward cleanup goals. Used in such
overlapping ways ICs can be more securely
relied upon to provide an important measure of
safety. Thus, usually more than one kind of IC
is put in place at a single site.
How Many ICs Are Required?
The decisions about how many and what types
of ICs are needed are usually very site-specific.
There are many important factors to consider
when deciding how many ICs are required at a
site. A few common considerations include:
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•	the level of experience and resource
capacities of the party doing the cleanup
•	who the intended ICs will affect and how
•	the type of enforcement mechanism used
(consent decree, order, permit, ordinance)
•	who will enforce the mechanism (i.e., EPA,
another federal agency at sites it owns, the
State, a local agency)
•	the likelihood of future redevelopment
and/or reuse of the site
•	the degree of cooperation exhibited by the
different levels of government and community
involved in the cleanup.
Who Is Responsible For Making Sure ICs
Work As Intended?
The responsibility for making sure that ICs
work depends largely on the type of IC and
who is conducting the cleanup. Overlapping
responsibilities sometimes make it difficult to
identify the person or entity responsible for the
IC. For example, zoning is often the
responsibility of a local zoning board,
easements are based on state law, and permits
or orders can occur at the federal, state, tribal
and local level. It is also common for several
entities to have some overlapping
responsibility for an IC. For example, an
agency that approves a cleanup frequently has
some responsibility for making sure that the
ICs work. However, the actual implementation
steps may be completed by the cleanup party
and/or another agency (i.e., local zoning
board). Exceptions are active military
facilities; the authority for regulating and
enforcing ICs typically lies with the
commanding officer.
Regardless of who is responsible, ICs should
be regularly monitored to make sure all the
requirements are still in place and the ICs
continue to work effectively. Because federal,
state, and tribal government officials are not
always located in the neighborhood of the site,
local governments and community members
can contribute to ensure that ICs work
properly. One way to improve the use of ICs is
to make sure that roles and responsibilities are
clearly stated early in the process of choosing
the ICs.
Will ICs Hinder The Reuse of the Site?
In many ways, ICs can help return a site to a
safe and productive reuse. ICs can identify
possible uses for a site and communicate use
limitations to present and future users. For
example, a site may be fit for industrial reuse,
but not for residential development. To
determine the appropriate types of ICs, it is
important to make sure that the preferred future
use of the land is taken into account. It is
important to recognize that ICs can affect
future development at a site. For this reason,
the appropriate mix of ICs is key. The
objective is not to have as many ICs as
possible, but to strike a balance that gives
reasonable assurance that the site remedy will
remain protective over time while being
consistent with the site's future use. In most
cases, the ICs can help shape the reuse of the
site to one that is suitable, safe, and positive for
the community.
Communities should be proactive in
communicating with appropriate decision-
makers about the types of land use they think
will be best for their community. Because each
community has a different history and different
development needs, it is critical that these
needs are effectively communicated to elected
officials and the cleanup agency so they can be
taken into consideration during selection of the
cleanup method and reuse plan for the site.
Opportunities for involvement include
attending public meetings, commenting on
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documents which state potential cleanup
methods, and participating in local groups.
How And When Can The Community Get
Involved?
Community input can be essential to selecting,
using, and monitoring ICs that are the best fit
for the community and the protectiveness of
the remedy. The cleanup agency or private
party and other stakeholders should develop a
working relationship with the community early
in the cleanup process. Mutual respect, trust,
and open and timely communication can
greatly enhance the ability of all involved to
ensure that the most effective ICs are used at
the site.
The first time the community can get involved
is during master planning meetings, zoning
hearings, land use planning meetings to name a
few. The community can also be involved in
the site investigation and remedy selection
process. Federal, state, tribal, and local
authorities should make information available
to the public so community members can
provide informed input into the remedy
selection process. EPA, States, Tribes, local
governments and cleanup parties should
evaluate ICs as thoroughly and rigorously as all
remedy components. This analysis will help to
identify potential strengths and weaknesses and
to develop the appropriate balance of ICs and
ultimately increase the long-term viability of
the remedy. Because ICs are remedy
components, they should be presented to the
community in documents and at meetings.
This is especially important for ICs that may
impose land use restrictions on property(ies)
next to the site. The potential impacts of the
ICs should be presented in a manner that can
be understood by the local community.
The second way in which the community can
be of great benefit is in assisting with
monitoring ICs. Individual residents and
business owners are the eyes and ears of a
community. They are often the first to notice
uses or excavation that appear inconsistent
with the site's future use or remedy
restrictions. By contacting the appropriate
party, an important series of checks and
balances can be developed. Cleanup parties
should work with the community to establish
an effective and user-friendly system for
reporting and monitoring information about the
site and ICs.
CONCLUSION
The institutional controls discussed in this guide
can be essential components of environmental
cleanups. It is important for citizens to understand
ICs and have the opportunity to take an active role
in their selection, use, and monitoring. Because
institutional controls are often in place long after
physical cleanup is finished, community
knowledge and input can be important in assuring
that the ICs remain protective of human health and
the environment. Working relationships between
governments, stakeholders and communities are
vital ingredients in the successful application of
cleanups, especially the IC components.
For additional information about ICs, refer to the
EPA web page at:
www.epa.gov/superfund/action/ic/index.htm. For
site specific information contact the Office of
Superfund Remediation and Technology
Innovation (OSRTI), the Federal Facilities
Restoration and Reuse Office (FFRRO), the Office
of Solid Waste (OSW or RCRA), the Office of
Brownfields Cleanup and Redevelopment
(OBCR), or the Office of Underground Storage
Tanks (OUST) and/or the respective state or local
agency. Information about EPA program offices
can be found online at http://www.epa. gov/oswer/.
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This document provides guidance to EPA Regions and States involved
in Superfund, Brownfields, Federal Facilities, Underground Storage
Tanks, and RCRA corrective action cleanups. It also provides
guidance to the public and the regulated community on how EPA
intends to evaluate and implement ICs as part of a cleanup decision.
The guidance is designed to implement national policy on these
issues. The document does not, however, substitute for CERCLA,
RCRA or EPA's regulations, nor is it a regulation itself. Thus, it does
not impose legally-binding requirements on EPA, States, or the
regulated community, and may not apply to a particular situation
based upon the circumstances. EPA and State decision-makers retain
the discretion to adopt approaches on a case-by-case basis that differ
from this guidance where appropriate. Any decisions regarding a
particular facility will be made based on the applicable statutes and
regulations. Therefore, interested parties are free to raise questions
and objections about the appropriateness of the application of this
guidance to a particular situation, and EPA will consider whether or
not the recommendations or interpretations in the guidance are
appropriate in that situation. EPA may change this guidance in the
future.
GLOSSARY
Consent Decree: Legal document approved by a judge that formalizes an agreement reached between
EPA and companies, governments, or individuals associated with contamination at the sites (potentially
responsible parties (PRPs)) through which PRPs will take certain actions to resolve the contamination at
a Superfund site.
Deed Notice: Non-enforceable, informational document filed in land records to alert the public to
important information pertaining to a land parcel.
Easement: Property right conveyed by the land owner to another party, giving the second party certain
rights to the land.
Enforcement Tools: Types of institutional controls that include orders compelling a party to limit
certain site activities as well as ensure the performance of affirmative obligations (e.g, consent decree,
RCRA permit, unilateral administrative order).
Governmental Controls: Types of institutional controls that impose land or resource restrictions using
the authority of an existing unit of government (e.g., state legislation, local ordinance, well drilling
permit, etc.).
Informational Devices: Type of institutional controls that provide information or notification to the
public of contamination remaining in place.
Institutional Controls: Non-engineered instruments, such as administrative and/or legal controls, that
help minimize the potential for human exposure to contamination and/or protect the integrity of a
remedy by limiting land and/or resource use (e.g., easement, fish advisory, local permit).
Proprietary Control: Type of legal instrument that has its basis in real property law and is unique in
that it generally creates legal property interests placed in the chain of title of a site property (e.g.,
easement, restrictive covenant).
Unilateral Administrative Order: Legal document signed by EPA directing a responsible party to take
corrective action or refrain from an activity; it may describe the violations and actions to be taken, and
can be enforced in court.
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Office of Solid Waste and Emergency	OSWER 9355.0-98
Response	EPA- 540-R-04-004
February 2005
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