OSWER 9355.0-89
EPA-540-R-09-001
December 2012
Institutional Controls:
A Guide to Planning, Implementing, Maintaining, and
Enforcing Institutional Controls at Contaminated Sites
&EPA
United States Environmental
Protection Agency
Office of Solid Waste and
Emergency Response
Office of Enforcement and
Compliance Assurance
1. PURPOSE
The purpose of this guidance is to provide managers of
contaminated sites, site attorneys,1 and other interested parties
with information and recommendations that should be useful
for planning, implementing, maintaining, 2and enforcing
institutional controls (ICs) for Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, or
Superfund); Brownfields; federal facility; underground storage
tank (UST); and Resource Conservation and Recovery Act
(RCRA) site cleanups.3 It highlights some of the common
issues that may be encountered and provides an overview of
EPA's policy regarding the roles and responsibilities of the
parties involved in the various life-cycle stages of ICs while
Table of Contents
1. Purpose 1
2. Definition and Role of Institutional Controls 2
3. Planning for Institutional Controls 7
4. General Implementation Issues 14
5. Implementing Proprietary Controls 17
6. Implementing Governmental Controls 23
7. Implementing Informational Devices 26
8. Maintaining Institutional Controls 28
9. Enforcing Institutional Controls 31
10. Summary 34
Appendix A: References 36
Appendix B: Glossary of Terms 38
1 The terms "site manager" and "site attorney," as used in this document, refer
to personnel from the lead agency involved in a CERCLA (remedial and
removal), Brownfields, federal facility, UST, or RCRA cleanup project.
Where the lead agency is a federal agency other than the EPA, EPA and the
federal agency may share some site manager/site attorney responsibilities or
EPA may retain them independently depending on the responsibility under
any of the five cleanup programs. The term "site" is used generically in this
guidance to also represent areas of contamination managed under all five of
these cleanup programs. The terms "CERCLA," and "Superfund," generally
include both remedial and removal sites. In addition, the term "responsible
party" as used in this document is intended to mean a person or entity with
cleanup or IC responsibilities or expectations under the various cleanup
programs listed above.
2
The term "maintenance" refers to those activities, such as monitoring and
reporting, that ensures ICs are implemented properly and functioning as
intended.
3
This document provides guidance to the Regions on how EPA generally
intends to plan, implement, maintain, and enforce institutional controls as part
of a cleanup project. While this document relies heavily in many areas on
CERCLA-specific terminology and examples, it is intended to provide
guidance for all EPA cleanup programs, including RCRA, Brownfields,
federal facilities, and underground storage tanks. The guidance is designed to
help promote consistent national policy on these issues. It 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, 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.
recognizing that there are some differences among the cleanup
programs.
This is the second in a series of guidance documents on the
use of ICs. The first document, Institutional Controls: A Site
Manager's Guide to Identifying, Evaluating and Selecting
Institutional Controls at Superfund and RCRA Corrective
Action Cleanups, Office of Solid Waste and Emergency
Response (OSWER) 9355.0-74FS-P, EPA 540-F-00-005,
September 2000, (A Site Manager's Guide to ICs), provides
more detailed guidance on identifying, evaluating, and
selecting ICs at CERCLA and RCRA cleanups.
Both the Site Managers Guide to ICs and this guidance
address key questions that Regions should ask when
considering ICs. The recommendations provided herein
should among other things, help site managers and site
attorneys: (1) understand the strengths, weaknesses, and costs
for planning, implementing, maintaining, and enforcing ICs,
(2) evaluate ICs as rigorously as any other response
alternative, and (3) develop procedures to coordinate with
Page 1
-------
implementing entities early and often throughout the cleanup
process. Ultimately, this should help site managers and site
attorneys choose the most appropriate ICs to protect human
health and the environment.
This guidance addresses crosscutting, multi-program IC issues
but recognizes that there are some important differences
among the cleanup programs. Differences in state and federal
authorities may warrant different approaches to response to
ensure that IC decisions remain enforceable.
Site managers and site attorneys are encouraged to coordinate
among different tribal and government agencies and consult
with the local community throughout the cleanup process.
Legal requirements for maintaining ICs and community
acceptance of the need for ICs to provide protection from
residual contamination often are important to the long-term
effectiveness of ICs.
This document is designed to provide general guidance and
does not include an exhaustive list of considerations nor does
the list of considerations apply to all types of sites equally
(e.g., monitoring of small UST sites may be done more
infrequently than at complex CERCLA sites). Before
proceeding to evaluate and select response actions that may
Typical Key Activities in the IC Life Cycle
• Planning may include activities leading up to
implementation of an IC. This stage may include an
evaluation of: the type(s) of use restrictions
necessary at a site, potential ICs that might be relied
upon to implement the selected restrictions,
potential parties who may be responsible for long-
term IC activities, criteria for terminating the ICs,
issues that might impact the effectiveness of the
ICs, estimated costs, and funding sources.
• Implementation may include activities undertaken
to put the ICs in place including drafting, negotiating,
and signing the specific documents necessary to
legally establish the IC.
• Maintenance includes long-term monitoring and
reporting activities that may be necessary to
routinely and critically evaluate the effectiveness of
ICs in consideration of cleanup objectives and
cleanup goals.
• Enforcement can include actions taken to address
ICs that have been breached or improperly
implemented or maintained. IC enforcement may
involve a range of activities, including informal
communications and seeking voluntary compliance
to more formal, legal steps, when appropriate.
• Modification/Termination may include legal or
administrative steps taken to modify IC instruments
(e.g., changing the area that the IC restricts or
modifying monitoring requirements) or terminating
the IC because cleanup objectives, cleanup goals,
and/or other IC conditions have been met.
include ICs, Regions need to carefully consider whether the
implementing entities (e.g., local, state or tribal governments)
have the inherent resources and capacity to plan for,
implement, maintain, and enforce ICs. In particular, Regions
should not assume that state, local or tribal governments have
the resources to implement and maintain ICs, but rather should
give careful consideration to determine whether ICs can be put
in place in a long-term protective manner.
2. DEFINITION AND ROLE OF
INSTITUTIONAL CONTROLS
For purposes of this document, EPA defines ICs as non-
engineered instruments, such as administrative and legal
controls, that help to minimize the potential for exposure to
contamination and/or protect the integrity of a response
action.4 ICs typically are designed to work by limiting land
and/or resource use or by providing information that helps
modify or guide human behavior at a site. ICs are a subset of
Land Use Controls (LUCs). LUCs include engineering and
physical barriers, such as fences and security guards, as well
as ICs. The federal facility program may use either term in its
decision documents. For purposes of this guidance, the term
ICs is used, but the concepts also apply to LUCs.
Site managers and site attorneys should provide adequate
opportunities for public participation (including potentially
affected landowners and communities) when considering
appropriate use of ICs. Those opportunities should include
providing appropriate notice, and opportunities for comment,
such as the Proposed Plan and other steps in the CERCLA
cleanup process. Site managers and site attorneys should
consider the impacts of the IC on current and reasonably
anticipated future land uses, and should maintain an adequate
administrative record to support the Agency's cleanup
decisions. ICs should be carefully evaluated, selected, and
narrowly tailored to meet the cleanup objectives for the site in
a manner that does not unnecessarily restrict the reasonably
anticipated future land use or resources.
As an example, a response selecting a capped landfill may rely
on an IC to help ensure protectiveness. It may be appropriate
for that IC to prohibit heavy machinery usage on or near a
capped area, while allowing for light recreational uses (e.g.,
soccer fields) that do not result in unacceptable risks.
4 The words "response action" or "response" are used to include remedial and
removal actions under CERCLA and similar actions under other programs.
The National Contingency Plan (NCP) provisions for CERCLA removal
actions address ICs through a particular process (i.e., post-removal site
controls, such as ICs, typically are implemented following removal actions,
not as part of removal actions). Generally, this guidance attempts to
distinguish removals from other response actions, including CERCLA
remedial actions or responses under other programs covered by this guidance,
through use of the term "remedy" or "remedial action." Further, for purposes
of this guidance, when RCRA authority is referenced in general, this includes
RCRA-equivalent state authorities that also may be used to implement ICs.
Page 2
-------
In general, at any site relying on an IC, the relevant decision
documents should clearly articulate the substantive restrictions
(e.g., groundwater shall not be used for human consumption)
or notices needed to address the exposure pathways and risks
necessitating ICs.
Definition and Role of Institutional Controls
• Role of ICs (Section 2.1)
• Types of ICs (Section 2.2)
• Program-specific Role of ICs in Cleanups
(Section 2.3)
2.1 Role of ICs
As response components, ICs typically are designed to achieve
the substantive use restrictions selected in a response selection
document in order to achieve the cleanup objectives. The
evaluation of whether an IC is needed at a site is a site-specific
determination. Site managers and site attorneys should
consider whether the site would meet unlimited use and
unrestricted exposure (UU/UE) as one of the factors in
deciding when an IC is appropriate at a site. UU/UE generally
is the level of cleanup at which all exposure pathways present
an acceptable level of risk for all land uses.
If any cleanup alternative being evaluated leaves residual
contamination in place, ICs should be considered to ensure
that unacceptable risk from residual contamination does not
occur. Cleanup actions such as capping waste in place,
construction of containment facilities, monitored natural
attenuation, and long-term pumping and treating of
groundwater, may leave residual contamination on site where
restrictions or notices provided by ICs to supplement the
engineering controls can help ensure protection of human
health and the environment. ICs, where appropriate, can be
used in the context of either short-term temporary site
solutions (e.g., restoration responses that will not leave waste
in place above unacceptable levels upon completion) or long-
term permanent solutions (e.g., containment responses that
will leave waste in place in perpetuity).
As a site moves through the response selection process, site
managers and site attorneys should collect information and
develop assumptions about the reasonably anticipated future
land use (for CERCLA-specific guidance, see Land Use in the
CERCLA Remedy Selection Process, OSWER 9355.7-04, May
1995 and Considering Reasonably Anticipated Future Land
Use and Reducing Barriers to Reuse at EPA-lead Superfund
Remedial Sites, OSWER 9355.7-19, March 2010). Site
managers and site attorneys should consider the reasonably
anticipated future land use during response selection and take
it into account when selecting ICs and drafting IC language in
decision documents. Furthermore, site managers and site
attorneys should clearly and explicitly document reasonably
anticipated future land use assumptions upon which the
response action rests.5
The site manager and site attorney should discuss reasonably
anticipated future land uses of the site with local land use
planning authorities, local and state officials, landowners, the
public, tribes, and other federal agencies as appropriate, as
early as possible. This can be done, for example, during the
scoping phase of the Remedial Investigation/Feasibility Study
(RI/FS) for CERCLA or RCRA Facility
Investigation/Corrective Measures Study (RFI/CMS) for
RCRA. At sites where any media will not be cleaned up to a
level that supports UU/UE, the site manager and site attorney
should discuss any IC instruments (in addition to active
response measures where needed) that may be appropriate,
taking into account financial concerns, legal implementation
issues, jurisdictional questions, the impact of layering multiple
ICs, and reliability and enforcement concerns. It also is
important for the site manager to recognize that, in addition to
restricting certain land uses, certain types of ICs also can be
used to restrict or modify specific activities at sites (e.g., fish
consumption prohibitions).
2.2 Types of ICs
For purposes of this guidance, ICs are divided into four
categories: proprietary controls, governmental controls,
enforcement and permit tools with IC components, and
informational devices. Within each category, there are a
number of instruments that may be employed. The following
paragraphs summarize each category of ICs and each are
discussed in Sections 3 through 9 as they relate to four stages
of the IC life cycle described in this guidance. For additional
guidance on the benefits and limitations of the various IC
types, see A Site Manager's Guide to LCs or Section 3.2
below.
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 typically authorize
proprietary controls. In some states, the authority comes solely
from common law. Other states have enacted statutes that
directly authorize these types of controls for the purpose of
5 In cases where EPA or an authorized state determines that "no action" is
needed under CERCLA, the decision document should document the
assumptions upon which the remedy is based. If conditions at the site change,
then EPA can assert its authority to later require a response.
Page 3
-------
preventing use in conflict with environmental contamination
or remedies. These statutes tend to divide into ones modeled
after the Uniform Environmental Covenants Act (UECA),6
and other non-UECA statutes.7 These UECA and non-UECA
state statutes can provide advantages over traditional common
law proprietary controls.
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 groundwater 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 or resource use
restrictions may be addressed in Base Master Plans, facility
construction review processes, facility digging permit systems,
and/or the facility well permitting systems.
Enforcement and permit tools with IC 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 IC effectiveness). These
legal tools may be issued unilaterally or negotiated.8
Informational devices provide information or notification
often 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 generally do not provide
enforceable restrictions.9 Typical informational devices
include state registries of contaminated sites, notices in deeds,
tracking systems, and fish/shellfish consumption advisories.
The four categories of ICs described above typically are
available for CERCLA, RCRA, Brownfields, federal facilities,
and UST cleanups. However, some of the individual
instruments may not be available for all site types. For
example, county zoning typically is not available at an active
federal facility, and Base Master Plans typically are no longer
relevant at transferring federal facilities. In addition, more
6 UECA was developed by the National Conference of Commissioners on
Uniform State Laws. See http://www.uniformlaws.org/ for more information.
7 See, e.g., Colo. Rev. Stat. §25-15-320 (2011); Cal. Civ. Code §1471 (2011).
8 While enforcement documents like CDs and FFAs typically are negotiated
with the appropriate entities, some administrative orders are issued
unilaterally.
9
For purposes of this guidance, when the term "IC" is used in a general
manner that suggests enforceable restrictions are required, it should be
assumed that informational devices themselves provide notice rather than
enforceable restrictions.
than one category of IC can be used to ensure a given
objective is fully addressed (see Section 3.2).
2.3 Program-specific Role of ICs in Cleanups
The challenges of planning, implementing, maintaining, and
enforcing ICs may be similar across the programs. Generally,
under each program, site managers and attorneys should fully
evaluate ICs during the development of cleanup alternatives
(e.g., during the FS stage of CERCLA or the CMS stage of
RCRA) and plan for the implementation, maintenance, and
enforcement challenges early in the cleanup process.
However, it may be important to recognize the program-
specific differences in the processes, authorities, and
responsibilities for planning, implementing, maintaining, and
enforcing ICs.
This section illustrates some of the program-specific factors
that should be considered. It is not intended to be an
exhaustive list of the requirements and practices in each
cleanup program. Although the cleanup programs do have
important differences, the cleanup objectives are similar in
that they use ICs in implementing cleanup decisions that are
protective of human health and the environment.
CERCLA. Under the NCP, the remedy selection process under
CERCLA is guided by several expectations. These include: (1)
treatment should be used wherever practicable to address
principal threat wastes;10 (2) groundwater should be returned
to its beneficial use wherever practicable in a reasonable time
frame;11 and (3) ICs should supplement engineering controls
as appropriate to prevent or limit exposure, but ICs normally
"shall not substitute for active response measures.. .as the sole
remedy unless such active measures are determined not to be
practicable, based on the balancing of trade-offs among
alternatives that is conducted during the selection of
remedy." 12Thus, consistent with the NCP, an IC-only remedy
may be appropriate under certain circumstances.
The remedy selection process that culminates in an IC-only
ROD should be carried out consistent with the statute (e.g.,
on-site remedial actions must meet or waive ARARs pursuant
to section 121(d)) and the NCP, including provisions which
address expectations (e.g., 40 CFR 300.430(a)(l)(iii)(D)),
developing a range of alternatives (40 CFR 300.430(e)(1) and
10 Principal threat wastes generally are source materials considered to be
highly toxic or highly mobile that generally cannot be reliably contained, or
would present a significant risk to human health or the environment should
exposure occur. For more information, please see A Guide to Principal Threat
and Low Level Threat Wastes, Office of Emergency and Remedial Response
(OERR) 9380.3-06FS, November 1991.
11 For more information on remedy selection see Rules of Thumb for
SuperfundRemedy Selection, EPA 540-R-97-013, OSWER 9355.0-69, August
1997.
12 These expectations appear in 40 CFR §300.430(a)(l)(iii).
Page 4
-------
(2)), and analyzing alternatives through the nine-criteria
analysis (40 CFR 430(e)(9)). ICs often play an important role
by minimizing the potential for exposure for residual
contamination and by protecting engineered remedies;
however, as provided in the NCP, ICs are not intended to be a
way "around" treatment or groundwater restoration.
Applicable or Relevant and Appropriate Requirements
(ARARs) - As with other statutory or regulatory provisions,
EPA may evaluate a state IC law or regulation to determine
whether all or a portion of the IC law or regulation is a
potential ARAR, consistent with CERCLA, the NCP, and
existing Agency guidance and policies. Such ARAR
determinations typically are made on a site-specific basis
considering the circumstances of the release, an analysis of the
specific statutory and regulatory provisions, and a number of
other factors.13 In general, any substantive portion of a state IC
law or regulation that meets the requirements of CERCLA
§121(d) and is consistent with the NCP (e.g., 40 C.F.R.
§300.400(g)(4)) may be considered as a potential ARAR.
Substantive standards typically establish a level or standard of
control, and may include a narrative requirement; in the
context of ICs, a substantive requirement could be one that,
for example, is designed to protect human health and the
environment by requiring land use or activity use restrictions
on property with residual contamination where that residual
contamination makes the property unsuitable for specific land
uses.
As a policy matter, a portion of a state IC law or regulation
that requires particular mechanisms or procedures (e.g., state-
approved recordation) to implement the IC may be considered
part of the substantive requirement if it provides for
enforceability of the IC. Procedural requirements tied to
discretionary state processes that could result in inconsistent
applications of a state IC law or regulation generally would be
considered administrative in nature (and not ARARs). For
example, a provision in a state IC law or regulation that allows
or requires state approval of a proprietary control, or grants
authority to the state to modify or terminate a proprietary
control without specified objective factors and meaningful
opportunity for public participation generally would not
constitute a standard that represents an ARAR.
In some cases, a portion of a state IC law or regulation that is
determined not to be an ARAR may be identified by the
Region in a CERCLA decision document as a to-be-
considered (TBC) criteria.14 In appropriate circumstances,
TBCs are used to help ensure the long-term protectiveness of
the response action.
13 For additional guidance on ARARs under CERCLA, see 40 C.F.R. §300.5
and 40 C.F.R. §300.400(g) of the NCP and CERCLA Compliance with Other
Laws Manual, EPA 540/G-89/006, August 1988, pages 1-10 through 1-12.
14 See 40 C.F.R. §300.400(g)(3).
Regardless of whether a state IC law or regulation is
determined to be an ARAR or TBC under CERCLA, for
responses that include ICs, the Region should strive to identify
enforceable ICs (such as proprietary controls) in the decision
document.
Measures with IC components - EPA has elevated the
importance of ensuring that ICs, required as part of a response,
are implemented, maintained, and enforced when appropriate.
This focus is reflected in two Government Performance and
Results Act (GPRA) performance measures: the Site-wide
Ready for Anticipated Use (SWRAU) measure and the Cross
Program Revitalization Measure (CPRM). Both contain
specific IC requirements. For example, for a SWRAU
determination, the site manager and site attorney normally
consider whether all ICs called for in the decision documents
are in place and continue to be effective. In order for a site to
qualify for this measure, all ICs used as part of the
justification for considering that a site is SWRAU must first
be determined to be "in place."
An "in place" determination will depend on the nature of the
IC(s) used at a site, but generally is satisfied when the IC is
implemented in accordance with applicable laws and
authorities. For example, an IC is "in place" through: the
enactment of ordinances, codes, or other regulations by local
government; recording of a proprietary control in the chain of
title for a property; issuance of enforcement tools or permits
by a regulatory authority; listing of a property on a state
registry of contaminated sites; and for active military bases,
use of Base Master Plans, instructions, orders, and dig permit
systems.
The second prong of the IC component of the SWRAU
measure is a finding that the IC(s) being relied upon in the
response action are determined to be "effective." Generally,
the site manager and site attorney may determine ICs to be
effective when they are operating as intended by the decision
documents (e.g., restricting specific land or resource uses,
protecting engineered remedy components, providing notice of
residual contamination). The evaluation of whether ICs are
effective is a site-specific determination. Site managers and
site attorneys should review the compliance and enforcement
history of the ICs (e.g., stakeholders are complying with the
restrictions or have adequate notice of the ICs, and if not, steps
have been taken, including enforcement actions, to address
those events).
Further consideration for determining IC effectiveness should
be given to whether enforceable ICs are needed at a site if not
already required. In some cases, it may be appropriate to
reinforce15 existing ICs or implement additional layered ICs to
15 For instance, this could include implementing a proprietary control
pursuant to a state's IC statute in place of a traditional common law
instrument in order to address any relevant legal impediments to their
enforceability.
Page 5
-------
ensure that ICs are effective in contributing to long-term
protectiveness at a site. See Section 1.2 of Recommended
Evaluation of Institutional Controls: Supplement to the
'Comprehensive Five-Year Review Guidance,' OSWER
Directive 9355.7-18, September 13, 2011, which provides a
recommended analysis of IC effectiveness during the
CERCLA five-year review (FYR) process; a similar analysis
to the one that typically is conducted for a SWRAU
evaluation. For more information on how ICs relate to the land
revitalization performance measures, see Guidance for
Documenting and Reporting Performance in Achieving Land
Revitalization, OSWER 9200.1-74, 2007.
CERCLA removals - The use of ICs following Fund-financed
removal actions is discussed in previous EPA guidance that
addresses post-removal site controls (PRSCs) (Policy on
Management of Post-Removal Site Control, OSWER 9360.2-02,
December 1990). Generally, site managers and site attorneys
should treat ICs like PRSCs.16 The NCP states that to the
extent practicable (emphasis added) provision for PRSCs
following a Fund-financed removal action at both National
Priorities List (NPL) and non-NPL sites is encouraged to be
made prior to the initiation of the removal action. Such control
includes actions necessary to ensure the effectiveness and
integrity of the removal action after the completion of the on-
site removal action (40 CFR §300.415(1)). Such controls may
be conducted by state, tribal, or local governments; potentially
responsible parties (PRPs); or EPA's remedial program for
some federal-lead Fund-financed responses at NPL sites upon
completion of the removal action.17 EPA encourages site
managers and site attorneys to coordinate with the state, local
governments, tribe and/or community groups prior to the
initiation of the removal action, to seek commitments for
conducting PRSC, and to notify the state of any
recommendation or decision regarding the need for ICs.
Further information to assist states and EPA with the transition
of responsibilities from the EPA removal program to the state
following an EPA removal action is provided in Coordination
of Federal Removal Actions and State Remedial Activities,
Association of State and Territorial Solid Waste Management
Officials (ASTSWMO), 2007.
RCRA. The use of ICs for RCRA cleanups is discussed in a
1996 Advance Notice of Proposed Rulemaking (ANPR),
Corrective Action for Releases from Solid Waste Management
Units at Hazardous Waste Management Facilities; Proposed
Rule, 61 FR 19,431-19,464, May 1, 1996; Final Guidance on
Completion of Corrective Action Activities at RCRA Facilities
(Corrective Action Completion Guidance), 68 FR 8,757-8,764,
16 Unlike ICs, PRSC can include a broader array of items such as site
maintenance activities, repairs, Operation &Maintenance (O&M), and
environmental monitoring.
17
It is important to note that EPA does not use the Fund to pay for IC
maintenance or enforcement at CERCLA sites. CERCLA §104(c)(3)(A)
requires states to pay for or ensure the payment of all future routine O&M
following Fund-financed remedial actions. See Section 4.3.
February 25, 2003; and an EPA memorandum titled Ensuring
Effective and Reliable Institutional Controls at RCRA
Facilities, Office of Site Remediation Enforcement and Office
of Solid Waste, June 2007.
Generally, under RCRA, ICs are included as components of
the corrective action and/or post-closure care requirements at a
facility, and as such may be incorporated into a permit or an
order. The Corrective Action Completion Guidance discusses
issues associated with completing corrective actions at RCRA
facilities, and provides for two types of completion
determinations: (1) Complete with Controls; and (2) Complete
without Controls. The Corrective Action Complete with
Controls determination may be appropriate at facilities where,
among other requirements, all that remains is performance of
required operations and maintenance (O&M) and monitoring
actions, and/or compliance with and maintenance of any ICs.
Facilities, or portions of facilities, that are not conducting
cleanup as part of corrective action may still have cleanup and
IC requirements as part of their facility post-closure care
permit requirements. RCRA permits and orders can be used to
restrict the use of a property by the facility owner/operator
and/or require that the owner operator implement, maintain,
and enforce proprietary controls, as needed. For example,
EPA-issued orders under RCRA §3008(h) or §7003 may
require, or prohibit, certain activities at the facility by the
current facility owner/operator, and also require as part of
corrective action that proprietary and/or governmental controls
are used to ensure long-term protectiveness. States may be
authorized to implement either or both of the corrective action
or base regulatory programs under RCRA and as such may
develop their own approaches for cleanup and ICs. For more
information on remedial action selection under RCRA see the
ANPR, page 19,432.
Federal Facilities. The purpose of this section is to provide
direction to site managers and site attorneys working on
federal facility hazardous waste sites to make decisions
regarding the implementation of ICs at federal facilities.
Federal facilities, in contrast to most private facilities, tend to
be large, often encompassing thousands of acres. The cleanups
are often complex due to the high levels of industrial activities
frequently occurring on Federal lands, such as manufacturing
and testing of weapons, maintaining aircraft and machinery,
recovering nuclear material, and disposing low-level
radioactive waste. Contamination from these industrial
activities can be spread over vast areas of United States
property. With such widespread contamination, ICs often play
a particularly crucial role in ensuring long term protectiveness
of remedies.
EPA has issued guidance on describing and documenting ICs
in federal facility response actions under CERCLA in Records
of Decision (RODs), remedial designs (RDs), and remedial
action work plans (RAWPs) in the Sample Federal Facility
Land Use Control ROD Checklist with Suggested Language
CLUC Checklist), OSWER Directive 9355.6-12. The LUC
Checklist provides recommended language for creating
Page 6
-------
enforceable LUC requirements to include in a ROD, RD,
RAWP, or other post-ROD document. The LUC/IC
information contained in these documents should be analogous
to that required in an IC Implementation and Assurance Plan
(ICIAP), as described in Section 3.3 of this guidance.
A Site Manager's Guide to ICs notes that federal facilities may
differ significantly from privately owned sites in the process
by which ICs are implemented or in the types of ICs that are
available. Some ICs, such as local governmental controls, may
not be available at active federal facilities. A broader variety
of ICs may be available upon transfer of these facilities out of
federal government ownership. For instance, the Department
of Defense has the authority to restrict property by retaining
property interests (e.g., implementing an easement) in those
properties that are being transferred outside of federal
ownership during base closure. Additionally, if a property is
being transferred to another federal entity, ICs may be
addressed through a transfer document and/or a separate
Memorandum of Understanding (MOU). For more guidance
on ICs and property transfer, see Institutional Controls and
Transfer of Real Property under CERCLA §120(h)(3)(A), (B),
or (C), February 2000.
As discussed in Section 2.1, the evaluation of whether ICs are
needed at a site is a site-specific determination. During
response selection, if any cleanup alternative being evaluated
leaves residual contamination in place, ICs should be
considered as a means to ensure that unacceptable risk from
residual contamination does not occur. At active federal
facilities, land or resource use restrictions may be addressed in
Base Master Plans, facility construction review processes,
facility digging permit systems, and/or the facility well
permitting systems.
Because some federal agencies may have somewhat different
procedures, it is important when dealing with federal facility
issues to coordinate with EPA's Federal Facility Restoration
and Reuse Office (FFRRO) and Federal Facility Enforcement
Office (FFEO) and the specific federal agency in question.
Brownfields and UST Sites. State and local governments
often define the cleanup levels at Brownfields and UST sites
and typically oversee cleanups and determine whether ICs will
be allowed or are required. While IC tracking may be required
by many state or tribal regulatory programs, ultimately,
individual property owners are required to ensure that ICs
remain in place and are protective. The site manager and site
attorney are encouraged to work with state, local, and/or tribal
governments to make sure that the types of ICs used are
consistent with the level of cleanup and the proposed reuse of
the site.
3. PLANNING FOR INSTITUTIONAL
CONTROLS
Full life-cycle planning of ICs is recommended to ensure their
long-term effectiveness. Planning for ICs should begin early
and be an ongoing process. It generally should begin prior to
selecting substantive use restrictions and continue during the
process of converting desired use restrictions into actual IC
instruments; that planning, in turn, should include establishing
approaches for assuring compliance with ICs over their
duration. Many common problems experienced by
practitioners using ICs often can be avoided by critically
evaluating and thoroughly planning for the entire IC lifespan,
to the extent possible, early in the response selection and
design process.18
During all stages of IC planning and particularly early on, site
managers and site attorneys should seek input (and evaluate
the capacity for IC involvement) from state, tribal, and local
governments, responsible parties, affected communities,
natural resource trustees,19 and other stakeholders in order to
help ensure that the most appropriate response, including ICs,
is selected. Early cooperation and coordination among these
parties often can be critical to ensuring long-term IC
protectiveness at a site. Affected stakeholders should be made
aware of ICs under consideration and have an opportunity to
provide input. The following subsections highlight additional
considerations that may be important in evaluating and
planning for the IC life cycle.
3.1 Selecting ICs
The Site Manager's Guide to ICs discusses recommended
factors that generally should be considered when evaluating
and selecting ICs as part of site cleanups. The process of IC
evaluation and selection generally should begin with
identifying the need for ICs. As discussed in Section 2.1
above, if any cleanup alternatives being evaluated leave
residual contamination in place, ICs should be considered to
ensure that unacceptable risk from residual contamination
does not occur. In addition, as discussed in Section 2.1 above,
site managers and site attorneys should consider the
18In addition to the remedy selection process, ICs also may be chosen as part
of removal actions, in which case they should be planned for and evaluated as
part of the Engineering Evaluation/Cost Analysis study (EE/CA) under
CERCLA.
19
Federal, state, tribal and, in some cases, foreign governments may be
considered natural resource trustees. Although EPA is not a natural resource
trustee itself, it usually is responsible under CERCLA §122(j)(l) for: (1)
notifying federal natural resource trustees of settlement negotiations with
potentially responsible parties, if the release of hazardous substances may
have resulted in injuries to natural resources under their Trusteeship; and (2)
encouraging the participation of Federal Natural Resource Trustees in
settlement negotiations. See
http://www.epa.gov/superfund/programs/nrd/primer.htm for more
information.
Page 7
-------
reasonably anticipated future land use during response
selection and take it into account when selecting ICs and
drafting IC language in decision documents. Furthermore, site
managers and site attorneys should clearly and explicitly
document reasonably anticipated future land use assumptions
upon which the response action rests.
Cleanup objectives can be used to identify the overall role (if
any) for substantive land and/or resource use restrictions.
Where appropriate, these objectives should "clearly state what
will be accomplished through the use of ICs."20 For example,
a cleanup objective may describe the need to "restrict the use
of groundwater as a drinking water source.. ."21 The process of
identifying appropriate substantive land and/or resource use
restrictions as part of a CERCLA cleanup action generally
should follow a process similar to other response components.
This typically includes an evaluation of the substantive
restrictions that may be needed to protect engineering controls
and human health and the environment. For example, as part
of the CERCLA remedy selection process, alternatives
generally are evaluated using the nine criteria set forth in the
NCP.22
First, a preliminary IC evaluation typically should be included
as part of site investigation efforts. These may include, for
example, during an RI/FS developed for CERCLA remedial
actions; an EE/CA study for CERCLA non-time critical
removal actions; the RFI/CMS process during the RCRA
corrective action and permitting processes, and in similar
Brownfields and UST investigations and decision documents.
IC decisions generally should be documented in proposed
cleanup plans and in final cleanup decision documents. For
example, for CERCLA cleanups, the proposed restriction and
need for ICs should normally be identified in the Proposed
Plan, for notice and opportunity to comment by potentially
affected landowners and the public. Such use restrictions or
notices typically are then selected and memorialized in the
ROD.
For emergency and time-critical removals, EPA, states, tribes,
or responsible parties should conduct a preliminary IC
evaluation as early in the response process as possible. As
appropriate, before commencing a CERCLA removal action,
EPA should discuss with the state and/or responsible parties
the need for ICs following a removal action, and seek a
written commitment that the state and/or responsible parties
will assume responsibility for ICs at the site (Policy on
Management of Post-Removal Site Control, OSWER 9360.2-02,
December 1990). EPA may consider requiring an IC in the
removal decision document (i.e., action memorandum) when
20
A Site Manager's Guide to ICs, p. 5.
21
A Site Manager's Guide to ICs, p. 5.
22 See 40 CFR §300.430(e).
the removal action does not result in UU/UE, and especially in
those cases where EPA will not likely initiate a remedial
action upon the completion of the removal action.
In RCRA Corrective Action cleanups, ICs should be evaluated
as early as possible, such as when contamination is first
discovered at the facility or during the RFI. ICs should be
more fully evaluated as part of the CMS or equivalent, or
during the design of any interim measures for the facility. In
cases where EPA or the state uses performance standards or a
similar approach, or in less complex sites, the submission or
approval of a formal CMS might not be required. However,
ICs should still be evaluated as early as possible under these
alternative approaches. Typically, at Corrective Action
facilities, the facility owner/operator recommends a response
action based on the CMS or equivalent, the lead agency
evaluates the response action recommendation and decides
what response to propose for public comment, and with
owner/operator and public input, makes the final response
selection, typically through a permit or order. Each step in this
remedy evaluation and selection process provides an
opportunity to evaluate and plan for the full life cycle of any
ICs.
3.2 Choosing Among Different Types of IC Instruments
When cleanup objectives in general describe the type of
substantive restrictions that may be needed, the next step
typically involves choosing the appropriate IC instrument(s).
The choice of a particular type of IC instrument (or layered
instruments) may impact the approach for conducting future
maintenance and assuring IC compliance.
Section 4.1 discusses documentation of ICs in decision
documents. While the objectives of the IC normally should be
clearly specified in decision documents, in some cases it may
be appropriate to defer selection of the precise IC instrument,
or combination of ICs, until after the decision document is
issued.
Site-specific circumstances will ordinarily inform the selection
of the most appropriate and effective IC instruments at the
site. When choosing IC instruments, site managers and site
attorneys generally should take into account the following
considerations.
General Considerations. Although not an exhaustive list,
general IC instrument considerations include:
(1) The intended duration of the IC - short-term ICs
(especially if land sales are not expected) may not need to "run
with the land," while long duration ICs that "run with the
land" (such as proprietary controls, or long-term government
controls, or both) may be more appropriate.
(2) The number of parcels that need to be restricted - when
many separately-owned parcels are to be covered by ICs,
proprietary controls can become difficult to negotiate and
execute. Because proprietary controls typically are parcel
Page 8
-------
specific, disparate implementation and compliance could
occur among a group of parcels where proprietary controls are
selected. Government controls, on the other hand, often can
cover a large area with a single legal/regulatory requirement.
(3) Whether affected landowners are supportive of
implementing ICs on their properties - as discussed in Section
4.4, establishing ICs with non-source property owners (or
property owners who did not cause or contribute to the
contamination on their property) can be difficult and may
trigger the need for more complex negotiations with
landowners to implement proprietary controls. In some cases,
it may be appropriate to obtain agreement with affected
landowners on ICs other than proprietary controls, such as
informational devices or governmental controls, on an interim
or final basis.
(4) State/local government cooperation - state and local
governments' support for and agreement with the goal(s) of
the IC is important. Whether those entities can and do agree to
assist with IC implementation, maintenance and/or
enforcement normally are crucial considerations, especially
when governmental controls will be relied upon.
More Detailed Considerations. When evaluating different
types of IC instrument(s),23 site managers and site attorneys
also should normally consider the following additional factors:
(1) Will the IC instrument(s) achieve the necessary substantive
use restrictions and/or provide adequate notice of site
conditions (i.e., what are the potential routes of exposures and
how would the IC instruments) help minimize those risks)?
(2) What are the various legal and practical limits for long-
term compliance assurance (e.g., are IC life-cycle costs
prohibitive)?
(3) Who will ultimately be responsible for compliance
assurance activities through each phase of the IC life cycle?
(4) Are the parties responsible for activities aware of their
roles and capable to fulfill their responsibilities?
In addition, the site attorney should carefully examine state
and local laws relevant to the ICs being considered.24
Potentially relevant considerations for evaluating different
possible ICs include:
• Based on an early evaluation of land title records, are
proprietary controls practical and potentially effective?
• Who would have the legal authority for implementing and
enforcing proprietary controls?
• Who could hold a property interest (i.e., be the grantee)
for a proprietary control?
• Which state, tribal, or other agency has the legal authority
and willingness to accept the transfer of an interest in real
property?
• Does the jurisdiction's real property law allow proprietary
controls to "run with the land" and bind future
landowners?
• Are there state laws that authorize ICs, and if so, how
should Regions consider using those laws when making
cleanup decisions?
• What are the limits of the local government's zoning and
permitting authority (e.g., what restrictions exist in
current zoning ordinances, and what are the zoning
amendment and variance procedures)?
• Which state and/or local agencies have the legal
authorities to control the potential exposure points (e.g.,
commercial fishing, restaurant,
sport/recreational/subsistence fishing)?
• Do these regulatory agencies actively enforce existing
environmental regulations?
These and other considerations are addressed more fully in
Sections 4 through 9 of this document.
IC Layering. Often ICs are more effective if they are layered
or implemented in series. Layering can involve using different
types of ICs at the same time to help ensure the protectiveness
of the response action. For example, layering governmental
controls and informational devices is a common approach
used at sediment sites to control human health exposure
through consumption of contaminated fish and/or shellfish.25
Although layering can have its advantages as an IC strategy,
site managers and site attorneys should evaluate whether
layering may lead to misunderstandings over accountability or
to an unnecessarily restrictive response (e.g., preventing reuse)
if ICs are not narrowly tailored to meet the cleanup objectives
identified in the decision documents. The layering of ICs and
extent of ICs should be commensurate with the amount,
concentrations, toxicity, and other characteristics of residual
contamination. Site managers and site attorneys also should
consider informing the entity responsible for maintaining a
particular IC that layering does not diminish the importance of
23
See also the discussion of the benefits and limitations of various IC
categories in A Site Manager's Guide to ICs.
24
For example, some state and local laws and regulations relating to land use
may not be enforceable on federal facilities.
25
For guidance on ICs at contaminated sediment sites, please see
Contaminated Sediment Remediation Guidance for Hazardous Waste Sites,
EPA-540-R-05-012, OSWER 9355.0-85, December 2005, or Principles for
Managing Contaminated Sediment Risks at Hazardous Waste Sites, OSWER
Directive 9285.6-08, February 2002. Guidance also is available for
implementing ICs at Superfiind lead-contaminated residential sites (Superfund
Lead-Contaminated Residential Sites Handbook, Office of Emergency and
Remedial Response, OSWER 9285.7-50, August 2003).
Page 9
-------
its responsibilities. For an additional explanation of layering,
see A Site Manager's Guide to ICs.
3.3 IC Implementation and Assurance Plans
An ICIAP is a document designed to systematically: (a)
establish and document the activities necessary to implement
and ensure the long-term stewardship of ICs; and (b) specify
the persons and/or organizations that will be responsible for
conducting these activities.26 As such, ICIAPs can be useful
tools for planning and, in turn, for assuring effective
implementation, maintenance, and enforcement of ICs because
they can serve as a single-source of concise site-specific IC
information.27 At PRP-lead Superfund sites, the model
Remedial Design/Remedial Action Consent Decree (RD/RA
CD) incorporates the concept of ICIAPs and provides model
language regarding their use (see Model RD/RA Consent
Decree, Office of Site Remediation Enforcement, Office of
Enforcement and Compliance Assistance, July 2011, Sections
IV & IX).
ICIAPs generally should focus on the details of how ICs will
be implemented, maintained, enforced, modified, and
terminated (if applicable). The ICIAP should identify existing
or anticipated enforcement documents and approaches that
may be used to enforce the ICs, where applicable. It also
should describe how the IC approach for the site relates to the
reasonably anticipated future land use assumption used in the
response selection process, especially for special siting
circumstances (e.g., schools).
The relative role of various stakeholders can be an important
component of ICIAPs, because planning for the involvement
of parties such as RPs, state and local governments, and third
parties can be crucial for effective IC management. By
attempting to specify the roles of stakeholders, the ICIAP
often can facilitate arrangements that should lead to a
"common understanding"28 among the parties as to their roles
and obligations. For example, in a situation involving a zoning
ordinance that has been selected as an IC, an ICIAP could
26 ICIAPs do not replace the need to consider ICs in the CERCLA Feasibility
Study analysis or including ICs in decision documents.
27
An ICIAP may not be appropriate for emergency removals and time-
critical removals since information needed for IC planning and
implementation may not be available prior to a removal action.
28 A "common understanding" regarding the respective IC roles and
responsibilities of the parties may be memorialized through mechanisms
available under state law (e.g., a MOU, Administrative Order on Consent,
contract, or enforceable agreement). For example, the City of Excelsior
Springs and the Missouri Department of Natural Resources entered into an
MOU together to ensure that ICs are in place to restrict the use of groundwater
for a potable drinking water supply. Furthermore, the MOU provides that the
city will: (1) notify the state of any deviations or modifications to the
ordinance; (2) review the remediated site before siting potable water supply
wells within the area covered by the ordinance; and 3) contact the Department
if they intend to drill a potable well in the ordinance area.
explain how EPA and/or the state and responsible parties are
supposed to be notified before a zoning amendment, variance,
or similar action is considered.
The ICIAP may be developed at different times during the
cleanup process, depending upon the size and complexity of
the cleanup and the cleanup authority or program under which
it is being developed. Although information related to the
development of the ICIAP may be generated throughout the
cleanup process (e.g., site investigation, response selection,
response implementation, and long-term stewardship), it
generally is recommended that the ICIAP be initiated prior to,
or at the same time as, the design (e.g., RD phase of
CERCLA) of the engineered response action and finalized
with the completion of that response action. This approach
should allow time for the site managers, site attorneys, and
other interested parties to complete detailed post-response
discussions with potential IC implementers, inspectors, and
other stakeholders. Finally, the criteria and authority for
modifying and terminating each selected IC should be
identified as part of the full life-cycle planning process in the
ICIAP.29
As an example, the need for early development of an ICIAP
may occur at contaminated sediment sites where CERCLA
remedial investigations are in progress and human health
exposures from eating contaminated fish are documented. In
such circumstances, developing and implementing an ICIAP
in collaboration with appropriate federal, state, tribal, and/or
local jurisdictions in advance of and/or in conjunction with the
engineered response should help ensure protectiveness for
populations at risk.
For specific information on developing ICIAPs, see
Institutional Controls: A Guide to Preparing Institutional
Controls Implementation and Assurance Plans at
Contaminated Sites, OSWER Directive 9200.0-77, EPA-540-
R-09-002, December 2012.
3.4 IC Cost Estimation and Funding
A thorough and realistic estimate of the full life-cycle cost of
ICs is normally an important step of the IC planning process.
Accurate cost estimates can help site managers evaluate the
cost-effectiveness of alternative remedies during response
selection. Further, a clear picture of long-term IC costs can
help inform IC stakeholders of their potential financial
obligations prior to parties entering into settlements or other
arrangements. This may help ensure that adequate resources
and funding will be available for IC life-cycle costs. Parties
responsible for the cleanups often are required to provide
assurances to regulatory authorities that they have the
29
For less complex sites, the elements of an ICIAP may be included as part of
other deliverables, such as the remedial design or O&M Plan.
Page 10
-------
financial capacity to fund the work.30 See Section 4.3 for more
information on state O&M assurances at CERCLA sites.
Cost information typically should be compiled early in the
cleanup process, such as during the RI/FS, EE/CA, or CMS, to
help inform response decisions.31 During the design phase of a
response, more accurate IC cost information may be available
and can be used to further plan for ICs. Many long-term IC
costs, such as those associated with IC maintenance and
enforcement activities, may extend beyond the 30-year period
traditionally used in many response cost calculations and, as
such, should be acknowledged when developing cost
estimates.32 For more information on cost estimation, please
see a Guide to Developing and Documenting Cost Estimates
During the Feasibility Study, EPA 540-R-00-002, OSWER
9355.0-75, July 2000.
The availability of funding resources for IC life-cycle
activities also should be considered early on during the IC
planning process. Consistent with the "polluter pays" policy,
EPA generally strives to ensure that parties responsible for
contamination pay for the cleanup, including IC-related
costs.33 The site manager and site attorney may provide state,
tribal, and local governmental officials with information
concerning possible approaches and strategies to ensure that
adequate funding will be available by responsible parties for
IC costs, including:
• Using trust funds, surety bonds, letters of credit,
insurance, or other means of financial assurance, as
appropriate;
• Billing arrangements with the responsible party;
30
See, for example, 40 CFR §264.101 for financial assurance requirements
for corrective action at RCRA-permitted facilities.
31
EPA's Office of Brownfields and Land Revitalization has developed an IC
and engineering controls (ECs) cost calculator for Brownfields properties.
This template may assist site managers in tracking the implementation and
long-term stewardship costs of ICs and ECs. While this calculator was
developed specific to Brownfield's properties, it also may provide a useful
framework for local governments to consider and plan for short- and long-
term IC costs for the other cleanup programs detailed in this guidance. See
http://www.epa.gov/brownfields/tools/ic ec cost tool.pdf.
32
"Past USEPA guidance recommended the general use of a 30-year period
of analysis for estimating present value costs of remedial alternatives during
the FS (USEPA 1988). While this maybe appropriate in some circumstances,
and is a commonly made simplifying assumption, the blanket use of a 30-year
period of analysis is not recommended. Site-specific justification should be
provided for the period of analysis selected, especially when the project
duration (i.e., time required for design, construction, O&M, and closeout)
exceeds the selected period of analysis." (Guide to Developing and
Documenting Cost Estimates During the Feasibility Study, EPA 540-R-00-
002, OSWER 9355.0-75, July 2000)
33
See "Enforcement First" to Ensure Effective Institutional Controls at
SuperfundSites, OSWER 9208.2, May 17, 2006.
• Requiring the responsible party to set up escrow accounts;
and
• Using settlement proceeds to fund site-specific special
accounts34 for ICs and other appropriate response actions.
In some instances, it may be possible for state, tribal, or local
authorities to use CERCLA's §107 liability provisions to
secure responsible party financing for ICs. It also may be
possible to ensure that future IC costs are covered by financial
assurance requirements of an enforcement document (e.g., a
three-party consent decree between the U.S., state, and
responsible party).
A variety of programs and tools may be available to help fund
IC costs. For example, EPA's Brownfields program provides
grants to states and local governments to carry out site
assessment and cleanup activities and to nonprofit
organizations to carry out cleanup. Pursuant to EPA's grant
guidelines35and §104(k)(4)(C) of CERCLA, a local
government that is a Brownfields grant recipient can use up to
ten percent of the grant to monitor and enforce ICs that are
designed to prevent exposure to any hazardous substance from
a Brownfields site. States can use grant funds to establish or
enhance their response program for addressing Brownfields
sites, including O&M or long-term monitoring activities. In
addition, funding provided to state and tribal response
programs under CERCLA § 128(a) can be used to monitor and
maintain ICs, including the development of IC databases.
Further, the site manager and site attorney may consider using
CERCLA § 104(d) cooperative agreements, as appropriate, to
support the initial implementation of ICs (but not O&M) by
state and local governments at CERCLA Fund-lead sites.
CERCLA authorizes EPA to enter into cooperative
agreements with state and local governments to help conduct
response actions at remedial action sites and non-time-critical
removal sites.36 A Superfund cooperative agreement is the
assistance vehicle that transfers EPA funds for a response to
state, tribal, or local governments and documents both EPA
and recipient responsibilities for a site. EPA generally will
enter into cooperative agreements with the state-lead agency
(usually the state's pollution control agency) as designated by
the state's governor and, less commonly, with local
34 For more information, please see Guidance on the Planning and Use of
Special Account Funds, OSRTI/OSRE, OSWER Directive 9275.1-20, August
2003.
35
For more information on EPA's guidelines for Brownfields Assessment
Grants, please see: http://www.epa.gov/swerosps/bf/assessment grants.htm.
36 The Bunker Hill Superfund site IC program in Idaho is funded by cleanup
remedy funds including a mix of PRP funds, state contributions, and federal
funds pursuant to a cooperative agreement. For more information on the IC
program at Bunker Hill, see Idaho's administrative code, available at
http://adminrules.idaho.gov/rules/current/index.html. and additionally the
Panhandle Health District's IC program, available at
http://www.phdl.idaho.gov/institutional/institutionalindex.cfm.
Page 11
-------
governments. To involve other essential state agencies, the
state-lead agency typically enters into an intergovernmental
agreement with these other agencies. States also may enter
into intergovernmental agreements with local governments as
an alternative to a direct cooperative agreement between EPA
and the local government.
Cooperative agreements should not be used to support
activities that are considered normal functions of state or local
government. If the implementation of a specific IC would
require the state or local government to perform activities that
are not within its normal governmental functions, those
activities may be funded through a cooperative agreement.
Such activities, including costs for implementing, maintaining,
and/or providing notice of any changes in zoning or site use,
also may be funded through funding agreements between
responsible parties and local government.
It is important to note that CERCLA prohibits the use of Fund
monies for O&M activities at remedial sites (see Section 4.3).
EPA generally does not use the Fund to pay directly for IC
costs at removal sites except where the removal program is
handing over responsibility for the site to the remedial
program and before the remedy has been constructed and has
reached O&M.
3.5 Accurate Mapping of Residual Contamination, IC
Boundaries, and Other Site Features
The IC planning and selection process often benefits from the
preparation of detailed maps that illustrate areas of residual
contamination, remedy components, and other relevant site
features such as existing infrastructure, underlying zoning, and
environmentally sensitive areas. With the aid of such maps,
for example, site managers can better evaluate whether ICs
should be used for one or more properties. This, in turn, may
influence the selection of the appropriate IC instruments (see
Section 3.2). In addition, maps normally can be useful as a
starting point for property record reviews that often are carried
out when implementing proprietary controls. Maps also can
show whether ICs should be used for only portions of or entire
parcels. After the planning stages, when ICs typically are
being drafted and implemented, maps often can be used or
further improved for use within IC documents (such as
proprietary controls) and, in turn, within IC tracking systems
or as a focal point of an ICIAP or other IC planning document.
There is no standardized procedure for creating IC maps, but
site managers and site attorneys should keep certain key
considerations in mind during the mapping process, including
that: (1) IC instruments may require metes and bound or other
types of legal description of the IC area; (2) mapping using
Global Positioning System (GPS) coordinates may be more
easily communicated to third parties and overlaid with other
relevant spatial information; (3) local governments often
identify property by parcel number; (4) the underlying zoning
boundaries and related restrictions often are relevant features
to the map; and (5) other site features and related site
information such as buildings or underground infrastructure,
and flood, seismic, or stormwater drainage areas also may be
relevant to the map.
Electronic maps constructed using geographical information
systems (GIS) technology may serve as effective baseline IC
maps. IC areas typically can be mapped based on data
collected from a land survey or other means, such as GPS
technology. The real property affected by residual
contamination usually can be identified from parcel maps,
which often are available from the County tax assessor offices
in either paper or electronic GPS-compatible format, and from
existing land surveys (often available within property records).
If these are not available, new land surveys can be
commissioned. City planning departments often maintain
zoning maps. Site features generally can be learned from
recent land surveys or from site inspections. Environmental
information ranging from flood, seismic, and other features
normally can be gathered from local sources.
Where possible, site managers and site attorneys should avoid
applying ICs to the entire site or parcel rather than the specific
area requiring the restriction, where this would result in the
needless restriction of areas. Since the location and
dimensions of the residual contamination may change over
time (e.g., due to contaminant migration), site managers and
site attorneys should continuously update maps, to the extent
possible, so that these maps remain accurate to changing
conditions at the site.
3.6 Community Involvement
Another important aspect of IC planning normally is
community involvement. Site managers and site attorneys
should work with the community early in the process so that
they understand the future land uses being considered at a site
and how ICs may impact future land uses. Land use planning
decisions generally are intended to serve the interests of the
community, and communities typically play a central role in
shaping policies at the local government level regarding land
use planning. Where there are concerns that "the local
residents near the Superfund site may feel disenfranchised
from the local land use planning and development
process.. .EPA should make an extra effort to reach out to the
local community to establish appropriate future land use
assumptions..."37Thus, community input often is critical in
helping site managers and site attorneys develop assumptions
regarding the reasonably anticipated future land use for a site,
and in selecting ICs as a component of the response action.
Further, community input may help site managers develop
creative approaches for communicating the scope and purpose
of ICs in order to help ensure protection of human health and
37
Land Use in the CERCLA Remedy Selection Process, OSWER Directive
9355.7-04, May 1995, and Considering Reasonably Anticipated Future Land
Use and Reducing Barriers to Reuse at EPA-lead Superfund Remedial Sites,
OSWER 9355.7-19, March 2010.
Page 12
-------
the environment while considering the interests of local
stakeholders.
Site managers and site attorneys are encouraged to work with
community liaisons, such as Superfund Community
Involvement Coordinators, to develop strategies to ensure that
the community understands why ICs are needed (e.g., why it
may not be feasible to clean up the site to levels that allow for
unrestricted use), how the ICs will work as part of the cleanup
to protect human health and the environment, and any
potential implementation issues associated with an IC. This
process often encourages multiple face-to-face meetings with
local officials and community members by both site managers
and community liaisons. Community understanding and
support can significantly improve the likelihood that ICs will
be selected, implemented, maintained, and enforced
effectively. To help foster better community understanding,
there may be resources available for communities to hire
independent technical advisors to interpret and explain
technical reports, site conditions, the use of and need for ICs,
and EPA's cleanup decisions as a general matter.38
Site managers and site attorneys should ensure communities
have meaningful opportunity to review proposals for site
remedies and provide adequate information to allow informed
public comment regarding the choices between cleanup
alternatives that either allows for unrestricted use or leaves
residual contamination at levels that make ICs an appropriate
component of the remedy.
The local community may be impacted by ICs and associated
land and/or resource use limitations if there is residual
contamination on site. As such, one of the critical roles a
community can play is to identify potential issues regarding
state, local, or tribal government capacity to carry out IC
responsibilities. In some cases, issues regarding stakeholder
capacity may prompt site managers and site attorneys to
consider a new alternative proposed cleanup plan that
increases active remediation so as to reduce the reliance on
ICs, or relies on different ICs than originally contemplated
that can more reliably ensure protection of human health or
the environment.
3.7 Consultation with Indian Tribes
Where ICs are being considered as a component of a site
response action on tribal lands, the appropriate Agency official
should consult with the appropriate tribal officials consistent
with the EPA Policy on Consultation and Coordination with
38 For instance, Superfund offers grants to communities under the Technical
Assistance Grant (TAG) and Technical Assistance Services for Communities
(TASC) programs. For more information, see
http://www.epa. gov/superfund/communitv/tag/resource.htm. See alsojnterim
Guidance: Providing Communities with Opportunities for Independent
Technical Assistance in Superfund Settlements, OSRE and OSRT1, September
2009.
Indian Tribes, May 4, 2011. The Agency recognizes that
consultation and coordination with federally recognized tribes
often is critical to ensuring the long-term effectiveness of ICs
where they are a part of the cleanup.
3.8 Governmental and Stakeholder Capacity for
Implementing and Maintaining ICs
When ICs are to be employed as a component of a site
response, site managers and site attorneys should carry out an
analysis to determine if the state, local, and tribal governments
or other stakeholders (e.g., responsible parties) have the ability
and capacity to implement, maintain, and enforce the ICs. The
site manager and site attorney should consider a number of
factors when evaluating ability, willingness, and capability for
the management of ICs, including, but not limited to:
• Can the ICs be accurately mapped via GIS or other
software?
• Is it possible to use the states' one-call system(s) to
prevent breaches?
• Is it possible to establish a mandatory monitoring and
reporting program to routinely review ICs to ensure
their continued effectiveness?
• What enforcement authorities are available to ensure
ICs are maintained?
• Have the responsible parties (if any) been cooperative
and reliable in fulfilling obligations in the past, if
applicable?
• Is it possible to establish informational ICs that
effectively disseminate information on the location of
controls, compliance status, and results of monitoring
reports to interested stakeholders and state, local,
and/or tribal officials?
• Is there a source of funding, or is it possible to
establish a mechanism to provide funds, for the
implementation, maintenance, and enforcement of
ICs?
• How are IC expenditures to be tracked? Is there a
history of expenditures that can be used to refine
future planning estimates for the long-term costs of
maintaining ICs?
As discussed in section 3.3, it may be beneficial for state,
tribal, and local governments to work with, and reach a
"common understanding" with responsible parties and other
stakeholders about various IC roles and responsibilities.
Whenever possible, site managers and site attorneys should
document in writing any arrangements made between parties
with responsibilities for IC implementation, maintenance, and
enforcement.
Page 13
-------
4. GENERAL IMPLEMENTATION
ISSUES
A number of factors should be considered when evaluating
whether ICs can be effectively implemented as part of a
response action. These factors, and the roles of the various
interested parties, may differ depending on the type of IC
instrument, site-specific circumstances, and which cleanup
authorities are being applied. At many sites, responsible
parties may have the primary responsibility for implementing
and ensuring the long-term effectiveness of ICs. This section
addresses some general issues and concepts typically
encountered in implementing ICs.
General Implementation Issues
• Documentation of Use Restrictions and IC
Instruments in Decision Documents (Section
4.1)
• Using Subject-Matter Experts and Stakeholder
Input (Section 4.2)
• State Assurance for IC Stewardship at
CERCLA Fund-lead Sites (Section 4.3)
• ICs and Landowners (Section 4.4)
4.1 Documentation of Use Restrictions and IC Instruments
in Decision Documents
As response components, use restrictions or notices relied
upon to help achieve protectiveness should be incorporated in
site decision documents; often such use restrictions can be
achieved by an IC that is based upon a preexisting state or
local law or program. The decision document(s) should
describe the rationale for using ICs in helping to achieve
protectiveness (e.g., how they help reduce exposure to risk
posed by contamination at the site) and should include as
much detail about the ICs as possible. Specifically, the
decision documents should describe how the recommended
ICs accomplish the specific land and/or resource use
restrictions, provide adequate notice of contamination left in
place, or otherwise help minimize the potential for exposure to
contamination and/or protect the integrity of the cleanup.
Different cleanup programs utilize different authorities,
processes, and documentation of response actions. For
instance, the main decision documents used for Superfund
remedial actions generally are RODs, Explanation of
Significant Differences (ESDs), and ROD Amendments. For
CERCLA removal actions, the Action Memorandum is
developed to select and authorize removal actions (Superfund
Removal Guidance for Preparing Action Memoranda, September
2009). Because ICs generally are not selected as part of the
removal action, the Action Memorandum generally should
indicate that the state will be the lead agency for planning,
implementing, maintaining, and enforcing ICs in those cases
where ICs would be appropriate after the removal action and
where the site is not under federal ownership. Examples of
RCRA documents that may contain IC language include
permits and orders, corrective action decision documents
known as Statements of Basis, Final Decision/Response to
Comments, and equivalent documents issued by authorized
states. Brownfields, UST, and federal facility sites often have
equivalent decision documents, cooperative agreements, or
work plans.
In addition to decision documents, the RD, ICIAP, O&M plan,
FYR, or equivalent documents also may provide IC details at
CERCLA sites. For federal facilities under CERCLA, LUC
implementation details generally are placed in a post-ROD
enforceable document usually called a LUC Remedial Design
or Remedial Action Work Plan or a LUC Implementation
Plan.
Specificity of Language in Decision Documents - Selecting
Restrictions and ICs. Because many ICs involve legal
analysis and issues, site attorneys should play a leading role in
developing the appropriate language. Developing the
appropriate language may require a combination of expertise
in federal and state environmental laws, regulations, and
cleanup authorities, as well as local and state real estate law
and practice. One of the challenges that site attorneys and site
managers may face is translating the substantive land and
resource use restrictions selected in the decision document
into IC instruments. Vague or missing language about the
restrictions in the decision document may have unintended
consequences including either under- or overly-prescriptive IC
instruments. Site managers and site attorneys are encouraged
to present information in decision documents that, for any ICs
selected in the decision document:
• Describes the risks necessitating the ICs;
• Clearly describes the cleanup objectives (e.g., specific
land and/or resource use restrictions) to be attained by the
IC component;
• Includes a map and describes the geographic location of
the restricted areas;
• Identifies the entities responsible for implementing,
maintaining, and enforcing the ICs;
• Discusses plans for maintaining and, as appropriate, the
enforceability of the anticipated IC instrument(s);
• Evaluates the likelihood that the ICs can be effectively
implemented; and
• Identifies the necessary lifespan of the IC (e.g., either as
temporary or permanent measures).
An analysis of this type of information generally will help the
site manager and site attorney appropriately select the IC
instrument(s) that can meet the cleanup objectives. Providing
this information to the public also should aid the public's
understanding of the need for the specific ICs and their
relationship to the overall response.
Page 14
-------
It is recognized that at the time of decision document signature
there may be some uncertainty as to the specific IC instrument
to be implemented at the site. Every effort should be made to
provide as much specificity at the time of the decision
including, where appropriate, the types of uses of the site (i.e.,
the reasonably anticipated future land use assumptions made
when selecting the cleanup) that should be protective based on
the proposed response actions.
Modifying Existing Response Action Decision Documents. In
some circumstances, it may be appropriate for site managers
and site attorneys to clarify or specify IC requirements in
existing decision documents (e.g., where IC language is vague
or incomplete). At CERCLA sites, if the change to a remedial
action is deemed minor or not significant, it may be
appropriate to clarify the decision made in the ROD through a
memo to be added to the site file. If the change is determined
to be significant, but not fundamental, an ESD may be
appropriate. Finally, in some cases, a fundamental change to a
Superfund remedy may be necessary; in such cases, a ROD
amendment should be prepared. This may occur in situations
where, for example, an implemented remedy that relies in part
on an IC fails to attain the cleanup objectives.39 When
documenting significant and fundamental changes made to a
remedy in the Superfund program, the lead agency must
comply with the public participation requirements of
CERCLA § 117(c); the NCP also has provisions that address
public participation (see e.g., 40 CFR §§300.435(c)(2)(i) and
300.825(a)(2)).
Site managers and site attorneys should continue to review and
ensure effectiveness of ICs with periodic reviews that, for
example, take changes in land use into account. In the event
that a periodic review (e.g., a CERCLA FYR) identifies the
need to modify the existing IC(s), it may be appropriate to
modify the original decision document. If the cleanup
objectives in the original ROD can be met using enhanced or
additional ICs, the site manager and site attorney should
evaluate what type of modifications, if any, to existing remedy
decision documents and associated enforcement documents
may be appropriate.
In some circumstances, the Region may make changes to the
engineering component of the original remedy or the original
cleanup decision may need to be changed to reflect changing
site conditions. In such circumstances, the site manager and
site attorney should ensure that existing ICs used as a
component of the original cleanup decision continue to
achieve the use restrictions needed to help ensure
protectiveness at the site.
39
See Chapter VII of A Guide to Preparing Superfund Proposed Plans,
Record'! of Decision, and other Remedy Selection Decision Documents, EPA
540-R-98-031, OSWER 9200.1-23, July 1999, for more guidance on
determining which post-ROD document is most appropriate for use based on
site-specific circumstances.
To document IC changes to a removal action, the Region
should either supplement or amend the action memorandum as
appropriate depending upon the nature of the IC and the
change.
Under RCRA, a permit modification or change to a corrective
action order may be necessary if the previously understood
conditions, selected remedies, or overall operations change.
The requirements for modifying an existing permit may vary
from state to state. If the selected response, including any ICs,
differs from the proposed response as discussed in the
Statement of Basis, the final permit modification should
reflect such changes.
As stated previously, Brownfields and UST cleanup
requirements vary by state authority, so the state site manager
and site attorney should research the existing administrative
procedures for modifying response decisions.
4.2 Using Subject-Matter Experts and Stakeholder Input
Vague or inappropriate IC language can lead to confusion and
conflict in establishing effective ICs and, in some cases, may
result in the creation of unintended rights and/or obligations. It
may be useful to consult subject-matter experts and
stakeholders in developing appropriate IC provisions. For
example, special expertise may be needed when drafting
proprietary controls that must comply with local requirements.
When developing specific IC language, the site attorney may
consider consulting, where appropriate, with officials from
national professional organizations; the state attorney
general's office; state environmental protection agency; local
government planning agencies; responsible parties; site
owners (if different from the responsible party); other federal
agencies; and community stakeholders. Such consultations can
help to ensure that IC instruments that are identified and
implemented are recorded in local land records and comply
with the real property law and recording statutes of the
appropriate jurisdictions. Such consultations can be especially
useful because state laws can vary significantly.
For enforcement-lead cleanups, site attorneys may consider
drafting enforcement documents that require the responsible
parties to provide supporting information (e.g., a certification
from a real estate attorney) demonstrating that the covenant,
for instance, meets the appropriate requirements for the
jurisdiction. In the case of local governmental controls such as
zoning, the site attorney and site manager should work closely
with local government staff to ensure that the IC can be
implemented, maintained, and enforced effectively.
Through active interagency and intergovernmental
coordination, the site manager and site attorney usually can
better ensure that the language used leads to effective ICs that
can help meet the cleanup objectives stated in the decision
document and that can be effectively implemented,
maintained, and enforced within the jurisdiction. Engaging
Page 15
-------
communities during the development process can help them
understand the need for ICs and thus help increase the
likelihood that those ICs are effective over time.
4.3 State Assurance for IC Stewardship at CERCLA
Fund-lead Sites
In general, CERCLA § 104(c)(3)(A) requires the state to
provide assurance that it will assume responsibility for O&M
of a Fund-financed remedial action. The NCP (40 CFR
§300.510(c)(1)) provides that "the State must assure that any
institutional controls implemented as part of the remedial
action at a site are in place, reliable, and will remain in place
after the initiation of O&M. The State and EPA shall consult
on a plan for operation and maintenance prior to the initiation
of a remedial action." It generally is appropriate for Regions to
consider initial implementation of ICs as part of a remedial
action, and IC maintenance and enforcement activities as part
of O&M. Guidance on when a remedy may be considered to
be in the O&M phase is provided in Operation and
Maintenance in the SuperfundProgram, OSWER 9200.1-37S,
EPA 540-F-01-004, May 2001.
State assurances are normally documented in a cooperative
agreement for state-lead sites or in a Superfund State Contract
(SSC) for Fund-lead sites. These cooperative agreements and
SSCs (and less commonly, commitment letters) can be used to
clarify the state's role in implementing, maintaining, and
enforcing ICs that are part of the remedy selected in the ROD.
For example, they may include detailed activities,
deliverables, schedules, and tracking mechanisms. While
cooperative agreements can be used to fund initial
implementation of ICs, they cannot be used to provide federal
funds to the state or local agencies for IC costs (e.g., expenses
associated with maintaining and enforcing) that fall under the
umbrella of O&M at CERCLA Fund-lead sites (see Section
3.4).
An agreement to fund the implementation of ICs and
formalize O&M responsibilities may enable the state to
provide the necessary CERCLA §104 assurances regarding
future IC responsibilities. However, if the state is unwilling or
unable to provide this assurance, the site manager and site
attorney may need to consider other types of IC instruments
or, if necessary, choose an alternate remedy that does not rely
on ICs to help ensure protectiveness. Therefore, it generally is
important that a site manager and site attorney fully
understand the capability and willingness of the state to
provide assurances for ICs before remedy decisions are made.
Prior to initiating a CERCLA time-critical or non-time-critical
removal action, site managers and site attorneys are
encouraged to seek a written commitment from the state, local
government, tribe, or responsible party that they will assume
responsibility for ICs. Where the state will be responsible for
the ICs following a non-time critical removal action, the
request for commitment could be included in the ARARs
request letter (which may already be in process prior to
signature of the decision document). For PRSCs, the Region is
encouraged to obtain the commitment prior to initiating the
removal action. For an emergency removal, the Region may
seek a written commitment after initiating the removal action.
See Superfund Removal Procedures - Removal Enforcement
Guidance for On-Scene Coordinators, OSWER 9360.3-06, April
1992.
4.4 ICs and Landowners
Generally, owners of contaminated property are responsible
for addressing the contamination on their property, including
implementing and/or maintaining ICs. Under CERCLA, for
instance, even non-source landowners of property that
hazardous substances reached, or landowners who purchased
property after it became contaminated with hazardous
substances, may be liable for costs associated with the
cleanup. Therefore, there may be instances where a response
action calls for a restriction or notice to be placed on the
property of a landowner who did not cause or contribute to the
contamination. As a result, these landowners may have
responsibilities for implementing and maintaining ICs on their
properties.
This scenario could arise, for example: (1) where
contamination has migrated from a source property to
separately owned neighboring properties; (2) where an IC is
needed on a property as part of monitoring for the threat of an
up-gradient release (e.g., in conjunction with a groundwater
sentinel well); or (3) where a new purchaser acquires property
with contamination solely caused by other parties.
The implementation and management of ICs in scenarios like
these can be complex and problematic, and often involves
negotiation between responsible parties, landowners, and
EPA. EPA strives to ensure that the parties responsible for the
contamination implement and maintain ICs, including those
restrictions or notices on properties not owned by them.40
Where responsible parties lead cleanup actions, they often
may need to (and indeed may be obligated under enforcement
documents such as settlements or administrative orders)41
negotiate with landowners in order to obtain cooperation or
agreements to implement an IC on their property. If the
responsible party and landowner fail to agree on IC-related
issues, EPA may need to reassess the response action or
pursue other strategies, including enforcement approaches (see
Sections 5.2 and 9), to implement the selected IC.
40 «
Enforcement First" to Ensure Effective Institutional Controls at
Superfund Sites, OSWER Directive 9208.2, March 17, 2006.
41
See, for example, paragraph 27 of the model RD/RA CD listing EPA's
expectations of settling responsible parties regarding ICs needed on properties
owned or controlled by other persons. (Model RD/RA Consent Decree, Office
of Site Remediation Enforcement, Office of Enforcement and Compliance
Assistance, July 2011)
Page 16
-------
Conditional Limitations on, or Exclusions from, Liability for
Landowners of Contaminated Property. In some cases,
landowners may not immediately agree with a responsible
party's request to implement an IC. In these cases, a prudent
first step that either responsible parties or EPA may take is to
engage the landowner as early in the process as possible. After
a dialogue is initiated, the party should maintain
communication42 with the landowner to explain: (1) the goals
of the cleanup including the need for ICs; (2) EPA's legal
authority;43 (3) available liability protections; and (4) relevant
enforcement discretion policies. Regions also may provide a
copy of EPA's "Common Elements"44 guidance, which
addresses a number of issues, including: the bona fide
prospective purchaser (BFPP), contiguous property owner
(CPO), and innocent landowner (ILO) provisions of the 2002
Small Business Liability Relief and Brownfields
Revitalization Act, Pub. Law 107-118 (the Brownfields
Amendments). These liability protections, however, are
conditioned on meeting certain threshold criteria and post-
acquisition continuing obligations that include, among others,
the need to: (1) exercise appropriate care to stop or prevent
hazardous substance releases; (2) fully cooperate, assist, and
provide access to persons authorized to perform a response
action; (3) be in compliance with land use restrictions
established or relied on as part of the response action; and (4)
to not impede the integrity or effectiveness of any IC
employed in connection with the response action. In some
circumstances, a landowner may need to implement an IC in
order to meet the statutory criteria of the relevant liability
protection.
Even when landowners could not qualify for these liability
protections, EPA has enforcement tools that may alleviate
some concerns about their CERCLA liability exposure as
owners of contaminated property. EPA issued its Policy
Towards Owners of Residential Properties at Superfund Sites,
OSWER Directive 9834.6, July 3, 1991, an enforcement-
discretion policy to address residential owners' concern that
they may be subject to an enforcement action even though
they had not caused the contamination on the property.
Similarly, EPA has issued an Interim Enforcement Discretion
Guidance Regarding Contiguous Property Owners, January
42
EPA can communicate with a landowner in a variety of ways, including:
websites; mailings; community meetings and public availability sessions; in-
person communication; and through existing community organizations and
local governments. Third-party neutrals also can be used to help explain why
land or other media needs to be restricted and why ICs are necessary. EPA's
Conflict Prevention and Resolution Center is a resource for information
concerning third-party neutrals. See: http://www.eDa.gov/adr/.
43
Under CERCLA, for instance, EPA has authority to obtain property access
under §104(e), to order parties to perform site cleanup under §106, and to
acquire real property interests under §104(j).
44
See Interim Guidance Regarding Criteria Landowners Must Meet in Order
to Qualify for Bona Fide Prospective Purchasers, Contiguous Property
Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common
Elements "), Office of Site Remediation Enforcement, March 2003.
13, 2004, and a Final Policy Toward Owners of Property
Containing Contaminated Aquifers, November 1995, which
discuss EPA's enforcement position with respect to
contiguous property owners and owners of property that
contains an aquifer that has become contaminated as a result
of subsurface migration. These enforcement-discretion
policies outline the circumstances and explain steps that
landowners could take to help assure that EPA exercises its
enforcement discretion in their favor. In particular, the
Residential Homeowner and Contaminated Aquifers policies
provide that EPA generally will not take CERCLA
enforcement actions against these classes of landowners to
perform response actions or pay response costs provided that
the owners did not cause or contribute to the release, cooperate
with those taking response actions, and comply with ICs,
among other conditions.
Additional Considerations. Where landowners resist
continued efforts to implement ICs on their properties, site
managers and site attorneys should carefully consider the
variety of enforcement approaches and other tools (e.g.,
property acquisition in Sections 5.5 and 5.6, use of third-party
neutrals, etc.). Often these IC implementation challenges are
heightened when the desired IC is a proprietary control (see
Section 5.2 for more detail on strategies to implement
proprietary controls). While the implementation challenges are
significant, so are the benefits of proprietary controls, such as
their enforceability and long-term effectiveness. These
considerations should be balanced when determining when to
pursue other types of ICs such as deed notices or
governmental controls.
5. IMPLEMENTING PROPRIETARY
CONTROLS
Since proprietary controls typically rely heavily on state law
and practice, it is important to be aware of all relevant state
legislation and regulations that may affect the effectiveness of
ICs when they are used as part of a cleanup. As noted
previously, several states have adopted UECA model
legislation (in whole or in part) or have enacted non-UECA
based statutes that similarly provide for future use restrictions
to "run with the land" in an effort to help reduce the legal and
management complications associated with using proprietary
controls as ICs. The site manager and site attorney should
understand the relative role of common law or state statutes
and determine whether and how the state's legal landscape for
proprietary controls can help effectively ensure the
protectiveness of the remedy. This should be done before the
response action is chosen (e.g., as part of the RI/FS at
CERCLA sites) and thereafter as part of any periodic review
of the response action (e.g., as part of CERCLA FYRs).
Proprietary controls typically involve private agreements that
place restrictions on, or otherwise affect, the use of property or
related resources. Common examples of proprietary controls
Page 17
-------
include covenants and easements that convey to their
grantees45 "property interests" that typically provide them
with the right to restrict use of the land, but generally not
possession of the land.
Implementing Proprietary Controls
• Principles of Proprietary Controls (Section 5.1)
• Implementing Proprietary Controls at
Enforcement-Lead Sites (Section 5.2)
• Implementing Proprietary Controls at CERCLA
Fund-lead Sites (Section 5.3)
• State Assurance Requirements for Acquiring
Real Estate Interests under CERCLA (Section
5.4)
• Selecting the Grantee (Section 5.5)
• Proprietary Control Documentation (Section
5.6)
• Establishing Proprietary Controls through
RCRA Orders and Permits (Section 5.7)
5.1 Principles of Proprietary Controls
As discussed in Section 2.2, proprietary controls occur under
the authority of state common law or, in many states, under
state statutes including UECA statutes and non-UECA based
statutes. Generally, proprietary controls are written
agreements between the property owner (or grantor) and a
second party (grantee), where the grantor agrees to refrain
from certain actions or to perform certain actions designed to
protect the response action or human health and the
environment. Through the recording of a properly drafted and
executed proprietary control, the restricted uses may "run with
the land" so that future owners of the affected land would be
bound by these restrictions. For example, a property owner
(grantor) may agree to restrict the drilling of groundwater
wells on his/her property by granting the right to prohibit the
drilling of wells to another party and, in doing so, bind
successor owners.
Most states, including both common law states and those
relying on UECA/non-UECA statutes, authorize proprietary
controls to be transferred as property interests.46 Site managers
45
"Grantee" is a traditional property law term describing a person to whom
property is conveyed. States that have passed legislation based on UECA have
created different legal concepts specific to those jurisdictions. For example,
UECA jurisdictions typically define "holder" and "environmental covenant"
to reflect, respectively, the grantee and the servitude that imposes the land or
resource use restrictions. The model UECA provides that "[hjolder means the
grantee of an environmental covenant..." See definition 6 in Section 2 of the
model UECA.
46 States that follow the common law approach (e.g., those without UECA or
non-UECA statutes) in some cases may treat proprietary controls, or certain
types of proprietary controls, as contracts concerning the use or restriction of
land, rather than as property interests. The rules governing these types of
property restrictions based on contract can differ slightly from the rules
governing property interests, particularly with respect to the circumstances
under which they "run with the land." In addition, in some cases, the
and site attorneys should confirm the nature of proprietary
controls in their jurisdiction as property interests during the IC
selection process to determine whether the rules governing
property interests apply.
5.2 Implementing Proprietary Controls at Enforcement-
Lead Sites
At enforcement-lead sites where ICs have been selected as
part of the cleanup, the responsibility for implementing
proprietary controls typically rests with the responsible party.
Many of EPA's model CERCLA enforcement documents
contain provisions regarding expectations of responsible
parties with regards to executing proprietary controls.47 The
Model RD/RA CD, for instance, addresses the need for the
responsible parties subject to the CD (characterized in the CD
as "Settling Defendants") to implement proprietary controls.
Under the Model RD/RA CD, when any Settling Defendant
owns or controls the land to be restricted, that party is required
to execute and record in the appropriate land records office
proprietary controls that, among other requirements, grant a
right of access to conduct any activity regarding the CD and
grant the right to enforce selected use restrictions to one or
more parties as determined by EPA. The Model RD/RA CD
recommends that EPA be designated as a third-party
beneficiary (see Section 5.5), allowing EPA to maintain the
right to enforce the proprietary control without acquiring an
interest in real property. Alternatively, the model recommends
that EPA be designated as the approving "Agency" in UECA-
based states.
If the land to be restricted is owned or controlled by persons
other than any Settling Defendant, the Model RD/RA CD
includes a provision that would require the Settling Defendant
to negotiate with such landowners in order to obtain
cooperation or agreements to implement the proprietary
control, as discussed in Section 4.4. To do so, the Model
RD/RA CD provision states that Settling Defendant should
use its "best efforts"48to secure any required proprietary
implementation of proprietary controls characterized as contracts concerning
the use of land must occur during the transfer of the underlying property,
rather than as a separate transaction.
47 See, e.g., Model RD/RA Consent Decree, Office of Site Remediation
Enforcement, Office of Enforcement and Compliance Assistance, July 2011,
Section IX "Access and Institutional Controls." Additionally, it should be
noted that many of EPA's model enforcement documents, such as the above
referenced Model RD/RA CD, contain requirements associated with other
types of ICs. Among others, these provisions cover: required notices to
successors-in-title of any ICs or use restrictions associated with the site; the
use of ICIAPs; conditions for transfer of real property located at the site; and
requirements to cooperate with EPA's, or the state's, efforts to secure and
ensure compliance with any governmental controls. Finally, as a general
matter, enforcement documents themselves can impose enforceable
restrictions on the use of property by responsible parties.
48
"Best Efforts" is defined for the purposes of the EPA CERCLA Model
RD/RA Consent Decree to include the payment of reasonable sums of money
in consideration of access, access easements, land/water use restrictions,
restrictive easements, and/or an agreement to release or subordinate a prior
Page 18
-------
controls. "Best efforts" generally can include compensation by
the responsible party to the affected landowners for the
proprietary control. The valuation of the property interests,
and therefore the determination of appropriate compensation,
may involve one or more independent appraisals.
If the Settling Defendant cannot secure a proprietary control
despite its best efforts, EPA (e.g., consistent with CERCLA
§104(])) and/or the state may acquire the property interests.
Under CERCLA §104(j), EPA has authority to acquire
property interests for purposes of conducting remedial action
provided that the state agrees to accept transfer of the real
estate interest following completion of the remedial action.49
The Settling Defendant may be required to reimburse EPA
and/or the state for all costs incurred in acquiring the property
interests. For additional discussion of CERCLA §104(j), see
Sections 5.3 and 5.4. For additional information on other
enforcement strategies that may be appropriate when
attempting to secure proprietary controls, see Sections 4.4 and
9.4.
5.3 Implementing Proprietary Controls at CERCLA Fund-
lead Sites
If the cleanup is a CERCLA Fund-lead action, EPA or the
state (depending upon which is the lead agency) typically will
be responsible for ensuring that the control is implemented
and that appropriate property interests are conveyed.
For removal actions, EPA encourages the site managers and
site attorneys to coordinate with the state, local governments,
and/or community groups prior to the initiation of the removal
action, to seek commitments for conducting any prescribed
PRSCs and ICs, and to notify the state of any recommendation
or decision regarding the need for ICs. Most PRSCs and ICs
following removal actions are conducted by the state or
responsible party. If a commitment to implement an IC cannot
be obtained prior to the removal action, then EPA should
continue searching for responsible parties to implement the IC
and negotiating with the state to do the same.
EPA's process for acquiring property interests in the form of
proprietary controls at CERCLA Fund-lead sites is similar to
that taken by a responsible party at an enforcement-lead site.
Because these controls are legal documents, site attorneys
typically draft IC acquisition language. One of the key
responsibilities for the site manager is to provide the site
attorney(s) with a clear scope of the land/resource area to be
restricted. Another key activity is conducting a title analysis
lien or encumbrance (Model RD/RA Consent Decree, Office of Site
Remediation Enforcement, Office of Enforcement and Compliance
Assistance, July 2011, paragraph 28).
49
Although EPA may acquire property interests at remedial sites, and receive
reimbursement for costs incurred in acquiring the interests, there is no explicit
equivalent authority for CERCLA removal, RCRA, Brownfield, or UST
cleanups. See discussion in Section 5.6.
that includes an accurate legal description and identifies
encumbrances and prior recorded interests. State attorneys
general offices and local attorneys can be excellent resources
for identifying the specific jurisdictional requirements for the
control to be implemented.
In the process of implementing a proprietary control and
ensuring that appropriate property interests are conveyed, site
managers and site attorneys may face issues associated with
just compensation, powers of condemnation, and the exercise
of eminent domain.
Property Acquisition. Proprietary controls often qualify as
property interests. As such, they should be acquired consistent
with state and local rules and procedures that cover
acquisitions of real property. Accordingly, selecting the
grantee of the proprietary control property interest, as
discussed in Section 5.5, normally marks an important step in
proprietary control acquisition and later implementation.
While the grantee can range among various parties, EPA can
act as the grantee at Fund-lead sites. In these cases, the United
States must acquire the proprietary control property interest
and, in turn, rules governing United States real property
acquisition, as well as CERCLA rules relating to property
acquisition, apply.
If it is ultimately determined that the United States will be
acquiring an interest in real property, 40 USC §3111 requires,
as a precondition of acquisition, that the Attorney General
review and approve the sufficiency of the title. This means
that title evidence must be obtained, the land must be
physically inspected, and the conveyance instrument must be
prepared. Authority to review and approve the title rests with
the Land Acquisition Section, Environment and Natural
Resources Division of the U.S. Department of Justice (DOJ)
and with certain other federal agencies with delegated
authority, such as the U.S. Army Corps of Engineers. More
detailed procedural guidance is available in DOJ's .1
Procedural Guide for the Acquisition of Real Property by
Government Agencies, 1972. Although this guide maybe out
of date with regard to appraisal matters, it is still current with
regard to direct acquisition (negotiated purchase) and
condemnation procedures. Also, DOJ's Title Standards 2001
contains detailed information on acceptable forms of title
evidence and requirements for the form of conveyance to the
United States. Further, the procedures for acquiring interests
in real property are subject to the provisions of EPA's
CERCLA Delegation 14-30, "Acquisition of Real Property."
Among other things, this delegation describes the approvals
needed for the acquisition of real property. Acquisition by
EPA of interests in real property should be coordinated with
the Office of Superfund Remediation and Technology
Innovation (OSRTI), Office of Site Remediation Enforcement
(OSRE), and Office of General Counsel (OGC).50
50 For more information, see CERCLA Delegation 14-30.
Page 19
-------
When EPA will be the grantee of a proprietary control, in
addition to 40 USC §3111, CERCLA §104(j) also applies.
CERCLA §104(j) authorizes EPA to acquire real property or
property interests by donation, purchase, lease, or
condemnation when needed for a remedial action. Consistent
with CERCLA §104(j), therefore, EPA may seek donations of
property interests (e.g., groundwater extraction rights) from
landowners in accordance with 49 CFR §24.108.51
Alternatively, if a donation cannot be obtained, EPA may
instead choose to acquire property interests through negotiated
purchase for fair market value or condemnation.
The site manager should work with the appropriate state and
EPA Regional and Headquarters attorneys to resolve any
valuation issues. Prior to initiating negotiations to acquire real
property or interests in real property, EPA should establish the
fair market value. As a practical matter, the fair market value
of real property interests to be acquired for use as proprietary
controls may be nominal due to offsetting benefits of the
cleanup project (see Section B-12 of the Uniform Appraisal
Standards for Federal Land Acquisitions, DOJ, 2000,
prepared by the Interagency Land Acquisition Conference, for
a discussion of offsetting benefits).
Obtaining a voluntary conveyance through donation or
negotiation is preferred over initiating a condemnation action.
Federal real property acquisition regulations require agencies
to make every reasonable effort to acquire real property
expeditiously by negotiation (see 49 CFR §24.102(a)).
However, if a property owner is unwilling to sell, is willing to
sell but agreement cannot be reached on price, or if the owner
is unable to correct title defects, the lead agency may, under
certain circumstances, initiate condemnation proceedings
under federal or state law. If condemnation is being
considered, the site manager and site attorney should ensure
that EPA has obtained the requisite assurance from the state to
accept the transfer of the property interest once O&M has
begun for that portion of the remedial action pursuant to
CERCLA §104(j) and contact OGC for assistance.
There is no authority equivalent to that of CERCLA §104(j)
for Superfund removal, RCRA, Brownfields, orUST
cleanups. For this reason, if EPA provides oversight or is
otherwise involved in a cleanup other than a Superfund
remedial action, EPA is not expressly authorized by statute to
acquire real property. However, the state may have such
authority as a matter of state law.
51 This regulation, promulgated under the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 as amended, addresses
requirements for donations of real property for federal and federally assisted
projects.
5.4 State Assurance Requirements for Acquiring Real
Estate Interests under CERCLA
As discussed immediately above, under CERCLA § 104(j)
EPA can acquire real property or any interest in real property
when needed for a CERCLA remedial action (this authority
exists similarly at Fund-lead and enforcement-lead sites).
However, CERCLA §104(j)(2) only authorizes EPA to do so
if the state agrees to accept transfer of the real property
interests when O&M is initiated. In accepting the transfer of
real property interests from EPA, the state's CERCLA liability
as an owner is limited by CERCLA § 104(j)(3).
Whether a specific proprietary control constitutes a real
property interest under CERCLA §104(j), thereby requiring
state assurance, is a complicated issue that requires site-
specific determinations. In states with legislation based on the
model UECA, for instance, as long as EPA is not the "holder,"
EPA's enforcement status as the approving "agency" is not
considered a real property interest and therefore not subject to
§104(j) assurance requirements (see Section 9.2). If there is a
question regarding whether specific proprietary controls
would require state assurances under CERCLA §104(j)(2), the
site attorney should consult with OGC and OSRE.
In the event that it is necessary for EPA to acquire a real
property interest, and the state assurance requirement under
CERCLA §104(j) applies, the state must provide written
assurance prior to such transfer that it will accept the transfer
of the interest following completion of the remedial action.
This assurance should then be documented through a SSC,
cooperative agreement, or other authorized signed document.
There are a few challenges common to transfers of real estate
interests from EPA to a state. For example, some state
agencies lack the authority to accept a real estate interest. In
other states, real property can be accepted, but they are
managed by a property management agency and not by an
environmental agency, potentially leading to unreliable
maintenance and enforcement of the IC. A few state agencies
have authority to transfer real estate interests to third parties
such as conservation trusts. This situation may present
challenges for some states because the state is still required to
provide assurances under §104(j)(2). Therefore, it is important
that the site manager and site attorney understand the state-
specific requirements prior to the selection of ICs that require
a property acquisition.
A number of options can be considered if a state is unable to
provide assurance that it will accept transfer of real estate
interests. One option is to use other types of ICs as part of the
response action. Another option is to have the real property
interest conveyed to a party other than the state. For example,
if a third party acquires a real estate interest and holds it in its
own name, the exercise of CERCLA §104(j) authority may
not apply because EPA has not acquired a real property
interest. To minimize disruptions to the implementation of the
remedy, the best practice is to raise the issue of real property
acquisition early, such as during the RI/FS or development of
Page 20
-------
the Proposed Plan, and certainly before the state concurs on
the ROD.
As a general matter, EPA transfers or releases real property
interests before a CERCLA site enters the O&M phase52
regardless of who will ultimately accept the real estate interest
(e.g., the state or some other entity). Prior to selection of the
remedy, the site manager and site attorney should thoroughly
evaluate the transferee's willingness and capability to fulfill its
IC responsibilities throughout the expected life of the IC.
5.5 Selecting the Grantee
Another critical issue in the effective implementation of a
proprietary control can be the selection of the grantee.
Generally, the grantee holds the covenant or title to the real
property interest and has the primary responsibility for
maintaining and enforcing the proprietary control. Examples
of possible grantees of a property interest or covenant include
states, responsible parties, local governments, civic or other
associations (if authorized under federal, state, or local law to
hold title to real property and take legal action to maintain an
IC), conservation organizations, trusts, and other appropriate
third parties. EPA may be the grantee at remedial action sites
under CERCLA consistent with §104(j).
Common law generally allows for varying type of grantees,
ranging from neighboring landowners to third-party land trusts
to environmental agencies. In states with statutes covering
proprietary controls, the type of grantees often varies from
common law states. Statutes tend to increase the breadth of
parties who can enforce the proprietary control. In the case of
UECA-based statutes, a unique party known as a "holder" is
introduced. A "holdef' is defined to mean the grantee of an
environmental covenant.53 Further, UECA statutes broadly
allow for many parties to act as "holders" and under these
statutes it may be possible for a party (such as the affected
landowner) to act as both the grantor of a proprietary control
property interest as well as the grantee/holder.
Because of the important role a grantee plays in establishing
and maintaining a proprietary control, a thorough evaluation
of the viability of potential grantees should be performed prior
to, or during, the response selection process. In evaluating
potential grantees, consideration should be given to: (1)
whether the potential grantee is likely to exist for the duration
of the control; (2) whether the grantee is willing and able to
maintain the IC (e.g., by expending necessary funds to
maintain the control or taking legal action against any party
that violates the proprietary control); and (3) whether it is
52
"Completion of the remedial action" is the point at which O&M measures
would be initiated pursuant to 40 CFR §300.435(f).
53
See definition (6) in Section 2 of the model UECA, available at:
http://www.uniformlaws.org/shared/docs/environmental%20covenants/ueca f
inal oct03.pdf.
appropriate to assign this responsibility to an entity that is not
accountable through a CD, order, permit, or other enforceable
instrument (unless EPA or the state is a third-party
beneficiary). If a suitable grantee cannot be identified, then
alternative ICs or a change in the level of cleanup may be
necessary. For further guidance on selection of a grantee, see
Institutional Controls: Third-Party Beneficiary Rights in
Proprietary Controls, Office of Enforcement and Compliance
Assistance memorandum, April 19, 2004.
EPA as a Grantee Under CERCLA. EPA may choose to be
the grantee of a proprietary control at remedial action sites
under CERCLA to ensure that site use is consistent with the
remedy. EPA also may perform this role where the land
subject to restrictions belongs to a responsible party under
CERCLA but the owner of the property cannot create a
proprietary control through a conveyance to himself/herself
under the laws of the state. However, as discussed in Sections
5.3 and 5.4, there are rules and procedures that cover
acquisitions of real property interests and requirements for
state assurances under CERCLA and other laws when the
United States will be acquiring a property interest.
Selecting a Grantee Under RCRA. In contrast to CERCLA,
RCRA does not expressly grant EPA authority to acquire
property interests in order to conduct cleanups. Therefore, if a
proprietary control creates an interest in real property, EPA
may not be the grantee in a RCRA cleanup. However, where
the cleanup is being done under an authorized state hazardous
waste program, the state may have the authority to serve as the
grantee.
If the state cannot be the grantee, the owner/operator or third
party should be designated as the grantee of the property
interest. If the property in question is being sold, the
owner/operator can retain a limited interest while conveying
the title to the buyer. A potential disadvantage of this approach
can be that the proprietary control may not be implemented
until the sale of the property. In this situation, the enforcement
document should specify requirements for recording the
proprietary control upon sale of the property. Before taking
this approach, consideration should be given as to whether the
seller will be able and willing to enforce the control for the life
of the IC. If the site is cleaned up under an order, the order can
require the selling owner/operator to effectively enforce the
control. If cleanup is being conducted pursuant to a permit,
steps should be taken to ensure that long-term enforcement is
not lost through expiration of the permit. Otherwise,
consideration should be given to requiring the owner/operator
to transfer the retained interest to a third party (e.g., a land
trust or local government), or identifying a third-party
beneficiary that is willing to assume enforcement
responsibilities.
Third-Party Beneficiary Status. Where available under state
law, site managers and site attorneys should consider a third-
party beneficiary approach whenever a proprietary control is
used. Third-party beneficiary status enables the designated
Page 21
-------
beneficiary to enforce the restrictions of the proprietary
control. Thus, this approach can strengthen the effectiveness
of the IC by providing an additional means of ensuring
compliance. An example would be at a Fund-lead site where
the state serves as the grantee to the proprietary control and
EPA is designated as a third-party beneficiary to the
agreement with rights or enforcement. This same basic
approach can be taken at an enforcement-lead site where the
responsible party serves as the grantee and the lead agency
acts as a third-party beneficiary. Other viable parties with
legitimate interests in ensuring ICs remain in place and who
have the financial and organizational capabilities to maintain
and enforce the proprietary control, such as neighbors, local
governments, and environmental and civic organizations, also
may act as third-party beneficiaries. For further information on
third-party beneficiary rights, see Institutional Controls: Third-
Party Beneficiary Rights in Proprietary Controls, Office of
Enforcement and Compliance Assistance memorandum, April 19,
2004.
5.6 Proprietary Control Documentation
As previously discussed, the form of a proprietary control
needs to comply with the laws of the jurisdiction in which the
property is located, and should be implementable and
enforceable. The language of each document should be
tailored to the site characteristics, selected land and/or
resource use restrictions, and performance standards (if any)
designated in the decision document.54
Responsibilities and Approvals. A draft proprietary control
typically is developed by the responsible party, EPA, and/or a
state (depending on site lead). The site attorney and site
manager typically would review and approve the controls. The
responsible party may find it necessary to obtain the services
of an experienced real estate attorney in the design and
implementation of proprietary controls. This can be important
because the exact requirements often vary by the type of
proprietary control, the jurisdiction, and cleanup authority or
program.
Depending upon the complexity of the control or the specific
requirements of the jurisdiction, the proprietary control also
may need to be reviewed and approved by EPA's OGC, state
agency attorneys, and/or the state attorney general. If it is
determined that the United States is to be the grantee of a
property interest at a private site, DOJ will review and approve
the title to the property interest to be acquired unless the
assistance of another federal agency with delegated approval
authority is obtained. Once the document has been approved
54
Where appropriate, use of sample language or model proprietary control
documents may be useful. For example, some states have developed templates
for proprietary controls consistent with their legislation, partly to ensure that
the controls are enforceable and run with the land. Using some sample
language can reduce the amount of time spent drafting and negotiating with
state agencies, responsible parties, and other entities with a role in the
proprietary control.
by the regulatory agency, the responsible party should ensure
that it is executed and recorded in the land records. The site
manager should then place a copy of the recorded instrument
in the site file.
Contents of a Proprietary Control Document Proprietary
controls generally should contain language of conveyance to
effectuate a transfer of an interest in real property. As a
general rule, such language is drafted in terms of a grantor
conveying a property interest to a grantee. It often is important
for the language to clearly show the relationship of the legal
instrument to the land and resource use restrictions called for
in the decision document. Typically, the proprietary control
should, at a minimum, include:
• The legal authority for the proprietary control;
• A detailed legal description of the site;
o A clear description of the area to be restricted,
particularly where less than an entire parcel is
affected;
o A complete description of the types and location
of residual contaminants and response action
components, as appropriate;
• The name and location of any administrative record for
the response action reflected in the proprietary control;
• A list of land and resource uses that will be restricted;
• A description of who will execute the document;
• The precise names of the parties involved (including the
grantee and grantor as they appear on title documents, and
any third-party beneficiaries);
• Provisions for third-party or other enforcement, as
necessary;
• The parties' rights and obligations in the document;
• Language of intent to clearly express whether the IC is
binding on subsequent purchasers (i.e., that the
proprietary control "runs with the land");
• Specific notice and approval requirements for modifying
or terminating the IC;
• A requirement to notify all parties involved (i.e., EPA,
state, local government, local zoning boards, any third-
party enforcement entities) prior to transfer or lease, or if
there is an IC violation;
• A provision that injunctive relief may be available; and
• A provision for notification to lessees of the IC.
When developing the legal instrument, it may be important to
have the site surveyed, have permanent monuments erected to
properly document the location of the affected area, and
conduct a review of title to the property to identify all parties
who have a lien on or interest in the property. Clearly defining
property and IC boundaries may prevent unnecessary
confusion and may facilitate beneficial reuse. Accurate maps
Page 22
-------
should be prepared (in both paper and GIS versions) to depict
the physical areas subject to restrictions. These maps should
be made available to the public, which can help provide notice
and important information about the ICs.
Finally, the site manager and site attorney should attempt to
resolve any "subordination" issues early in the IC evaluation
and selection process before implementing a proprietary
control. As a general rule, in most states, real property
interests generally are prioritized according to the order in
which they are recorded in the land records. A property may
be subject to several recorded interests, such as mortgages, tax
liens, utility easements, and judgments. In addition, a property
may have surface land rights that may be separate from
mineral or water rights and the separate rights may need to be
considered in drafting effective proprietary controls. To avoid
a situation where a proprietary control is subordinate to a prior
or "senior" interest, a subordination agreement may be used to
switch the priority around. A subordination agreement is a
legally binding agreement by which a party holding an
otherwise senior lien or other property interest consents to a
change in the order of priority relative to another party holding
an interest in the same real property. Obtaining a
subordination agreement can help ensure that the IC is
enforceable against all parties with an interest in the property
and not extinguished if a senior lien holder forecloses on the
property.
In order to understand whether a subordination agreement is
necessary, it normally is important to conduct a thorough title
search to identify all parties holding prior interests in the
property. Unrecorded interests, such as leases, also may need
to be subordinated to ensure that lessees abide by the
easement/covenant. If subordination of senior interests is not
possible, the lead agency should frequently notify the
grantee(s) of the senior interest(s) and stakeholders, and
identify the risk of harm that could occur, and the potential
liability that may arise, if the recorded environmental
restrictions are not respected.
5.7 Establishing Proprietary Controls through RCRA
Orders and Permits
Many of the considerations in establishing ICs at CERCLA
sites also apply to Brownfields, UST, and RCRA corrective
action sites. However, the requirements under these cleanup
programs often are imposed through legal instruments that
differ from one program to another. In the RCRA program,
states play a key role by imposing ICs under their own
authorities as part of their cleanup activities.
For RCRA cleanups and post-closure care, enforceable
requirements generally will be established through a permit
(e.g., the corrective action portion of an operating permit, or a
post-closure permit), or by EPA through an order under
RCRA §3008(h) or §7003. RCRA §7003 allows EPA to
require cleanup where there is potential imminent and
substantial endangerment related to either solid or hazardous
waste. In addition, RCRA §7003 does not distinguish between
on-site and off-site contamination. If there is solid waste as
defined by RCRA §1004(27), and the other elements have
been met, there is no need to show the existence of a
hazardous waste to require cleanup.
Permits and orders alone can impose enforceable restrictions
on the use of property by the facility owner/operator. Orders
and permits can be crafted to require that the owner/operator
refrain from selling the land unless the purchaser agrees to: (1)
abide by the restrictions contained in the order or permit; and
(2) require any future purchasers to do the same. RCRA
permits for treatment, storage, and disposal have a statutory
duration of ten years and should be renewed as needed to
ensure maintenance of corrective measures and ICs. Although
orders don't expire, care should be taken when drafting orders
to ensure that enforceable IC provisions continue to remain in
effect.
In cases where it is necessary for the restrictions to extend
beyond the period of performance of a permit or order,
proprietary controls should be crafted that run with the land
and bind future landowners, as well as the current
owner/operator, where feasible given state law requirements.
For example, a permit or order may direct the owner/operator
to convey such an interest to someone who will then maintain
the IC. RCRA facility owners also may be required to reserve
a property interest when they sell the property and to make the
lead agency a third-party beneficiary. Model permit and order
language does not yet exist under RCRA for this purpose,
although several states are developing such models. If
subordination of senior interests is not possible, the lead
agency should frequently notify the grantees(s) of the senior
interest(s), and identify the risk of harm that could occur if the
recorded use restrictions are not respected.
6. IMPLEMENTING GOVERNMENTAL
CONTROLS
State, tribal, and local governments generally have a broad
range of regulatory authority to implement a variety of ICs.
The authority of government to exercise controls to protect the
public's health, safety, and general welfare is referred to as
"police power." This conventional role includes, for example,
zoning, land use controls, groundwater restrictions, and
building codes. Often, a permitting scheme is used to control
certain types of activities, changes in land and/or resource use,
and excavation and grading activities. These conventional
government (typically local government) regulations and
activities often can be relied on or leveraged to serve as highly
effective ICs if they are appropriately implemented,
maintained, and enforced. Indeed, some jurisdictions expressly
list pre-existing laws and regulations that are suitable for use
as ICs. Further, state and local jurisdictions can, and
sometimes do, enact regulations designed specifically for use
as ICs. Site attorneys should review state or local laws and
regulations as they pertain to ICs at a specific site if the site
Page 23
-------
manager is considering relying on or utilizing a state or local
law to put ICs in place at a site.
State and local governments may impose land use and other
government controls at their discretion. EPA has no authority
to compel state or local governments to amend or adopt new
regulations to impose an IC, or to keep regulations that
currently impose an IC. Any controls established in this way
generally operate independently of RCRA and CERCLA, and
are enforced through local governmental processes or state
law, where applicable. Where appropriate, the site manager or
site attorney may consider providing information on the role
of ICs in EPA cleanup programs to local governments.
In addition, when a local government is responsible for a
governmental control serving as an IC, site managers and site
attorneys are encouraged to help arrange a "common
understanding"55 with or between state, tribal, and local
governments; responsible parties; and other IC stakeholders
before the control is implemented to document and clarify the
respective roles, responsibilities, and legal authorities of the
parties. Details of such arrangements should be included in an
ICIAP or equivalent plan (see Section 3.3).
Implementing Governmental Controls
• Groundwater Use Restrictions (Section 6.1)
• Zoning Ordinances (Section 6.2)
• Fish Consumption Bans and Waterway Use
Restrictions (Section 6.3)
• Other Uses of State And Local Police Power
(Section 6.4)
6.1 Groundwater Use Restrictions
Groundwater use restrictions are frequently used to limit or
prohibit certain uses of groundwater. Generally, two sets of
laws and regulations cover groundwater use. First, there are
those concerned with maintaining an adequate water supply,
and therefore address quantity of use. These laws and
regulations generally are administered by states, but in some
cases by local agencies. Second, health regulations may be
promulgated to ensure protective water quality when
groundwater is used; such regulations typically establish well
construction and operation requirements. They may be
administered by state health agencies, local health agencies
(e.g., county health departments), or both. Further, in some
cases, local regulations directly restrict the use of
groundwater. These overlapping sets of laws and regulations
are further divided into rules that cover: (1) small private
55 Common understandings between state and local governments can be
achieved through a variety of mechanisms, such as EPA Cooperative
Agreements pursuant to CERCLA §104(d), or state law mechanisms (e.g.,
MOU, Administrative Order on Consent, contract, or enforceable agreement).
See also supra text accompanying footnote 29.
wells; and (2) public water supply wells, typically meaning
wells serving more than 25 people.
While the legal landscape over groundwater varies among
states, groundwater laws commonly involve water-use
restrictions and well construction and abandonment
requirements. Within these broad categories of laws,
restrictions can take a variety of forms, including: the
establishment of groundwater management zones or protection
areas; prohibitions or limitations on certain uses of
groundwater in particular areas; capping or closing of wells;
and limitations on the drilling of new wells.
The State of Florida, for example, has five water management
districts that protect, maintain and improve water quality
including groundwater. A consumptive use program and a
program to close old and/or abandoned wells, and the proper
construction of new wells are among the regulatory programs
each water management district may implement.56
In Texas, state law authorizes the state environmental agency
to set municipal setting designations (MSD) that limit the use
of groundwater within the MSD - typically an area beneath a
particular contaminated site. The state can only approve an
MSD if the city approves it first by either: (1) enacting an
ordinance restricting the use of groundwater at the property; or
(2) by issuing a restrictive covenant, enforceable by the city,
and an accompanying city resolution to do the same.
The well construction permit processes also can be used to
implement restrictions on groundwater use. A number of state
and local governments have adopted statutes or ordinances
controlling new well installations and requiring permits for
existing wells. These permitting programs may include
requirements for well installation, licensing of well drillers,
prohibitions or restrictions on the drilling of new wells in
areas of contamination, and requirements and controls on the
operation of wells (withdrawal rates/pumping rates). These
types of governmental controls also often have specific
administrative processes.
While groundwater-related government controls offer many
possibilities for ICs, their potential usefulness as an
appropriate IC, as well as the jurisdiction's willingness to
monitor and enforce them, varies with site specifics and across
56 For more information on these water management districts, see
http://www.dep. state.fl.us/secretarv/watman/. EPA has entered into
Memorandums of Agreement (MOAs) with two water management districts
to develop a framework for cooperation between parties and to set forth the
mutual understanding of the parties concerning efforts to minimize the
potential effects of groundwater contamination in areas within each water
district's jurisdiction that are impacted or potentially impacted by Superfiind
sites, including procedures for information sharing and assisting in the
implementation of certain ICs through the application of regulatory practices
within each water district's jurisdiction. For the MOA between EPA and the
Southwest Florida Water Management District, see:
http://www.swfwmd.state.fl.us/files/database/site file sets/1958/Memorandu
m of Agreement EPA MOA Southern Solvents.pdf.
Page 24
-------
jurisdictions. Further, though the awareness of IC issues
continues to grow, no standardized procedure for
implementing local ICs exists. In many cases, therefore, the
implementation of state or local groundwater use restrictions
takes a significant amount of time. For this reason, the site
manager is encouraged to ensure coordination begins early in
the response process and to actively monitor the progress in
implementing this type of IC.
6.2 Zoning Ordinances
Generally, zoning is an exercise of state and local government
"police power." Zoning ordinances typically divide the
community into various land use zones (industrial, light
industrial, commercial, mixed commercial and residential,
residential, open space, etc.), depicted by a zoning map.
Within each use zone, zoning ordinances usually enumerate a
list of permitted uses. Zoning areas also can include "overlay
zones" or "floating zones" that operate in addition to the
conventionally zoned areas, overlaying an additional set of
restrictions (e.g., flood-specific construction rules) in existing
zoned areas. In addition, zoning ordinances often set forth the
regulations for the development of land such as building
height, area of structures, density of population, and the
overall intensity of use. When the zoning designation matches
the goals of the IC (e.g., zoning designation is industrial and
the goal of the IC is to prevent exposures to contamination by
non-workers on the property), zoning can serve as an effective
instrument. Zoning can be especially useful when a large
number of parcels are affected by a response action. On the
other hand, special zoning tools can be effective as more
targeted ICs; for example, a zoning ordinance that establishes
an overlay zone restricting residential development along a
contaminated stream can help reduce exposure that poses a
threat to human health.
The authority to regulate land use, with the exception of
federal lands, generally falls within the domain of state and
tribal governments. However, states generally delegate much
of this regulatory authority to municipal and county
governments. Therefore, the site manager and site attorney
often work with municipal and county officials regarding
zoning controls.
To evaluate the potential effectiveness of zoning controls, the
site manager and site attorney should first determine which
local government, if any, has zoning jurisdiction over a site.
The site manager and site attorney should then meet with the
planning staff of the jurisdiction to discuss the objectives of
the cleanup, the potential role of ICs in that cleanup, and
specific land use regulations that may be considered to meet
those objectives. Administrative controls vary by jurisdiction
within each state. However, there are some conventional
practices that are common among most jurisdictions.
If pre-existing zoning restrictions meet the goals of an IC (e.g.,
reduce exposure to contamination), then discussions with
planning staff should address whether any anticipated changes
to the ordinance are likely and what procedures for assuring
zoning compliance exist.
If pre-existing zoning restrictions would not be effective for
purposes of an IC, it may be appropriate to discuss with local
government officials the possibility of pursuing a re-zoning
process (i.e., a zoning ordinance amendment to change the
zoning designation of one or more parcels). A re-zoning
process might occur as part of a jurisdiction-wide
comprehensive plan and zoning ordinance amendment, or it
could be initiated through a formal application by the owner of
the parcel to be re-zoned.57 In most cases, a series of public
hearings before a planning commission and/or governing body
(e.g., city council, county board of supervisors) may occur. It
may be important for the site manager, site attorney, and/or
other agency representatives to participate in these hearings to
explain the cleanup process, the potential role of a proposed
IC, and to answer questions posed by members of the public,
planning commissioners, and members of the jurisdiction's
governing body.
Final approval or denial of the zoning application will
generally come from the governing body of the jurisdiction. If
the application is denied, the applicant may explore options
for modifying the application and/or appealing the decision
either within the jurisdiction (e.g., with a zoning board of
appeals), or in a state or federal court, depending upon the
nature of the challenge.
Although zoning ordinances can be useful tools, they can have
significant limitations. For example, the zoning designation in
a particular area may be of limited duration. Alternatively, an
area can be re-zoned and/or zoning variances may be granted.
Site managers and site attorneys also should be aware that
some zoning ordinances can use cumulative zoning, meaning
that less intensive uses, such as single family homes, may be
permitted in zones designated for intensive, industrial uses.
Additionally, zones broadly identified as either industrial or
commercial may, depending on the actual use restriction
language in the ordinance, permit certain other types of uses
(e.g., child care facilities) that could pose a risk to human
health based on the levels of residual contamination and
potential exposure pathways at the site. Therefore, even where
the site is located in an industrial zone, the ordinance may not
serve as an effective IC unless it also prohibits less intensive
land uses, such as new residential buildings. Some
jurisdictions explicitly state the activities allowed in each
district while others identify only activities that are prohibited.
It is important that the site manager and site attorney
understand whether the use restrictions will be adequate to
help ensure protectiveness based on existing jurisdictional
definitions. Finally, as with other types of ICs, zoning may not
57
The site manager and site attorney may negotiate a consent decree, an
administrative order, and/or permit language that requires the property owner
to apply for a zoning change, if necessary.
Page 25
-------
be a fully effective instrument unless it is routinely maintained
and enforced over the long-term.
These potential limitations point to a need for Regions relying
on ICs as part of a cleanup to work with local governments to
retain institutional knowledge of the use and underlying
purpose of a zoning ordinance being used as an IC. For
example, it may be important for the Region to coordinate
with a local government regularly to evaluate whether the
local zoning ordinance remains in place and is operating as
intended. These long-term responsibilities may impose
additional burdens on a local government and, if this is the
case, the site manager and site attorney should assess whether
and which opportunities for local government assistance may
be available (see Section 3.4).
As is the case with groundwater use restrictions discussed in
Section 6.1, zoning controls offer many possibilities for ICs;
however, their potential usefulness as an appropriate IC as
well, as the jurisdiction's willingness to monitor and enforce
them, varies with site specifics and across jurisdictions.
6.3 Fish Consumption Bans and Waterway Use
Restrictions
Fish consumption bans are sometimes used as a governmental
control to ban consumption for specific species or sizes of fish
or shellfish. Usually, state public health agencies and/or
resource agencies establish these consumption bans. Another
governmental control that may be used is a waterway use
restriction (e.g., regulated navigation area) where subsurface
contamination remains in place. The restriction can help
ensure the integrity of the remedy (e.g., sediment capping).
Generally, state and local agencies may be responsible for
enforcing these types of restrictions but regulated navigation
areas typically are coordinated with the U.S. Coast Guard
and/or U.S. Army Corps of Engineers.
6.4 Other Uses of State and Local Police Power
In addition to land use controls such as zoning and subdivision
ordinances, local governments may exercise their police
power to protect the public in other ways. For example, they
may adopt ordinances that regulate certain activities on
contaminated sites that could threaten human health or the
environment; an ordinance, for example, might include a ban
on swimming or other potentially inappropriate activities in
specified areas.
In addition, state or local governments may choose to use their
existing permit procedures to help monitor and enforce IC
restrictions that are selected as part of a cleanup. For example,
local governments could decide to use a permitting process to
notify anyone seeking building permits (e.g., for construction
activities, excavation or grading permits, or land development
permits) of remaining site contamination and to impose
relevant management standards addressing human health
exposure risks. Such measures could be used to control or
prohibit certain types of construction that would result in
unacceptable exposures (e.g., excavation in areas where
subsurface contamination has not been fully removed).58 It
also may be possible to address notification issues related to
excavation by screening "One Call"59 excavation tickets for
excavations planned within IC areas.
7. IMPLEMENTING INFORMATIONAL
DEVICES
Informational devices are designed to provide information or
notification that residual contamination remains on site.
Typical information devices include notices filed in local land
records, state registries, tracking systems, and advisories.
Implementing Informational Devices
• Recorded Notices (Section 7.1)
• State Registries of Contaminated Sites and ICs
(Section 7.2)
• Advisories (Section 7.3)
• Community Involvement (Section 7.4)
7.1 Recorded Notices
Unlike proprietary controls, notices contained in deeds or
other instruments to be filed in the local land records by
themselves generally are not designed to serve as enforceable
restrictions on the future use of the property.60 As a matter of
practice, such notices usually are contained in deeds
conveying real property or an interest therein, or some other
written instrument that would be examined during a title
search on a particular parcel or parcels. These documents are
intended to provide notice to anyone reviewing the chain of
title (e.g., lenders, prospective purchasers) about
contamination on the property and can help identify potential
land and/or resource uses that could result in unacceptable
exposures to contamination.
58 For example, the City of Aspen Ordinance No. 25 (1994) sets permitting
procedures for excavation and development at the Smuggler Mountain
Superfiind site,
http://www.epa. gov/ictssw07/public/export/08/COD980806277/948917.pdf.
For the Mouat Industries site, a Superfiind Overlay District was created by the
Town of Columbus, Montana through implementation of a zoning ordinance,
http://www.epa.gov/ictssw07/public/export/08/MTD021997689/1050934.pdf.
Lastly, the Jasper County (Missouri) Commission promulgated a health
ordinance requiring soil testing at properties where new residential
development occurs in mining- or smelting-affected areas of the county,
http://health.iaspercountv.us/environmental/environmental ordinance/environ
mental contamination ordinance.htm.
59
For more information about state one-call systems, please see
http://www.epa.gov/oswer/docs/iwg/onecall svstems.pdf.
60 Some states do provide enforceability of deed notices under the state's
police powers.
Page 26
-------
A notice in a deed alone generally may not be sufficient to
ensure protectiveness. Nevertheless, often there are benefits
from the use of such notices. For example, notices may
effectively discourage developers from purchasing the
property for inappropriate land uses and lenders from funding
development for such uses. Furthermore, recorded notices may
serve to notify property purchasers as to the release or threat
of a release of hazardous substances at the property, which
could prove relevant to purchasers who wish to qualify for
CERCLA liability protections, such as the BFPP protection.
Notices to be filed in the local land records have been
commonly used for general notification of site conditions in
remedies under RCRA, Brownfields, UST, and CERCLA
programs. This includes, for example, the requirements of
§ 120(h)(3) of CERCLA pertaining to federal facilities or the
Model RD/RA CD requirement that any settling defendant
owner record a notice to successors-in-title informing future
owners of the NPL listing, the ROD, and the CD. (See Model
RD/RA Consent Decree, Office of Site Remediation
Enforcement, Office of Enforcement and Compliance
Assistance, July 2011, Section V, paragraph 9).
Additionally, there are explicit notice requirements for certain
situations under RCRA. Specifically, 40 CFR §264.119(b)(1)
states that for post-closure notices, owners/operators of RCRA
hazardous waste disposal units are responsible for submitting
a survey plat and ensuring that a permanent notation is made
on the deed stating that: (1) hazardous waste management
occurred on the property; (2) its use is restricted under RCRA
40 CFR §264 Subpart G; and (3) the survey plat and other
applicable information is available at the local zoning
authority or other authority with jurisdiction over local land
use and with the EPA Regional Administrator. According to
40 CFR §264.119(b), these actions must be completed within
60 days of closure certification.
Because individual state requirements for Brownfields and
UST sites vary, the site manager and site attorney should
research the specific requirements within the appropriate
jurisdiction.
Notices can be somewhat easier to develop and implement
than proprietary controls. Notices typically consist of a legal
description of the property; description of the type, location,
and concentration of residual contamination; and any
recommended use restrictions. The drafter(s) of the notice
should take care to avoid unintentionally suggesting that the
notice creates rights and/or obligations. For example, the
recording requirements of some jurisdictions may actually
require the conveyance of a property interest as a condition of
filing an instrument in the deed records.
The site attorney may work with an attorney familiar with the
recording statutes of the jurisdiction where the site is located
to determine the requirements, limitations, and consequences
relating to recording notices on a piece of property. This
should be done well in advance of selecting a notice as part of
the response action. For example, a statute may indicate what
documents are recordable, the contents of a recordable
document, and the procedures for their recordation. Also,
jurisdictions vary on whether the landowner's approval is
needed to record a notice. In some jurisdictions, third parties
can record notices, whereas in other jurisdictions only the
landowner can record a notice. In jurisdictions that allow the
removal of the notice by the owner at any time, the
enforcement device and/or permit should be clear that the
notice must remain in the land records. Also, a small number
of jurisdictions remove notices after a specific period of time.
In these jurisdictions the enforceable agreement and/or permit
should have a re-filing requirement for the notice.
7.2 State Registries of Contaminated Sites and ICs
Many states maintain registries of contaminated sites or ICs
that may serve as useful informational devices. Registries can
include database listings, web-based maps, document-based
inventories, or all of these. Registries are sometimes
established under state law registry acts and may impose other
requirements, such as: annual reporting to the state legislature
summarizing the status of sites on the registry; recording a
notice in the local land records that the property is
contaminated; or disclosing to potential purchasers that the
property is on the registry. Some registry acts also require
state approval of any substantial change in the use of the
property. In addition to those prepared under registry acts,
many states otherwise prepare web-based maps or database
registries, providing access to ICs. The majority of states
maintain some type of IC registry, though the scope and
comprehensiveness varies.
A potential limitation on the use of state registries as
informational devices is that the procedures for listing and
removing sites and information about them from registries
vary from state to state and often are discretionary, potentially
rendering available site information inconsistent or out of date.
In addition, prospective developers and local government
officials who are involved in the development application
review process may not consistently access site registries (or
state IC resources). Nevertheless, when used in combination
with other cleanup measures, registries may be a useful
component of overall site response.
7.3 Advisories
Advisories typically are publicly issued warnings that provide
notice to potential users of a land, surface water, groundwater,
or other resource of existing or potential risk associated with
that use. For example, an advisory may be issued to owners of
private wells in areas where contamination has been detected
in groundwater at levels that pose a threat to human health; or
Page 27
-------
a state may issue fish/shellfish consumption advisories61 to
protect people from the risks of eating contaminated
fish/shellfish caught in local waters. Advisories generally are
issued by public health agencies, either at the federal, state, or
local level (e.g., health advisories issued by the U.S. Agency
for Toxic Substances and Disease Registry under CERCLA
§104(i)). The site manager and site attorney should work
closely with the Agency for Toxic Substances and Disease
Registry (ATSDR) and state or local government officials to
discuss the appropriateness of such advisory services, and to
explore options for supporting advisories. Depending on the
situation, certain advisories have a specific threshold that must
be met for issuance. Therefore, the site manager and site
attorney should coordinate early with the appropriate agencies
if an advisory will be a component of the response.
7.4 Community Involvement
Due to the nature of informational devices, particularly
advisories, community involvement and outreach often are an
important part of the process. Consideration should be given
to using multiple tools to inform the community such as web
sites, mailings, outreach to community associations, and
possibly public meetings.62 Informed community members
can be in a position to provide valuable information on
possible IC breaches that might otherwise go unnoticed. In
developing informational devices, it is helpful to provide
information about the ICs and contact information for
reporting incidents that might result in unacceptable exposure
to contamination.
8. MAINTAINING INSTITUTIONAL
CONTROLS
Often the most useful post-implementation approach to
ensuring the long-term effectiveness of ICs and maintaining
the integrity of the cleanup is rigorous periodic monitoring and
reporting. The site manager and site attorney should examine
available tools designed to ensure IC compliance at all stages
throughout the enforcement process. Generally, the
responsible parties, including federal facilities, have the
primary obligation to monitor and report on the effectiveness
of the ICs. This section discusses some of the tools that may
be available to the site manager for ensuring appropriate
monitoring and reporting of ICs.
61 Unlike fishing bans, fish consumption advisories are not enforced by a state
or local agency but rather provide notice to the public of risks posed by
contamination.
62 For example, the Fish Contamination Education Collaborative (FCEC) was
developed as a public education and outreach organization for the Palos
Verdes Shelf Superfiind site. The FCEC's outreach includes outreach to
anglers, communities, and commercial fishermen in the risks of consuming
fish contaminated with PCBs and DDT. The FCEC also maintains a public
website that contains information related to fish consumption guidelines. For
more information, see the FCEC website at
http: //www, pvsfi sh.org/index. php/home.
Maintaining Institutional Controls:
• General Considerations (Section 8.1)
• Operation and Maintenance (Section 8.2)
• Periodic Reviews (Section 8.3)
• State, Tribal, and Local Government
Participation in IC Maintenance Activities
(Section 8.4)
• Out-Sourced IC Monitoring (Section 8.5)
• Community IC Monitoring (Section 8.6)
8.1 General Considerations
Because land use and ownership changes can occur over a
relatively short time, developers and other parties may not be
fully aware of the ICs that have been put in place as part of a
cleanup. It generally should be more effective and protective
of human health to proactively address potential weaknesses
in ICs revealed by changes in land and/or resource use before
land and/or resource use changes actually occur. The site
manager should ensure that there is a process in place to
facilitate the routine and critical evaluation of the ICs to
determine: (1) whether the instrument remains in place; and
(2) whether the ICs continue to be effective in helping avoid
exposure risks as part of the cleanup selected in the decision
document, and/or are helping protect the integrity of the
response action.
Comprehensive monitoring generally is more effective when
there is early planning and coordination, a clear delineation of
roles and responsibilities, and detailed reporting requirements.
In most situations, it is recommended that monitoring and
reporting requirements be layered to increase the likelihood
that any breaches will be detected early (e.g., by assigning the
monitoring responsibility for an IC to more than one party). At
the same time, it is important to ensure that each party with
monitoring and reporting responsibility is held accountable
and does not make shared responsibility a reason for less
vigilant monitoring. Where monitoring and reporting is
assigned to more than one entity, a mechanism, such as the
designation of an entity with the lead monitoring and reporting
responsibility, may be useful in ensuring a successful
monitoring and reporting effort. In addition, the site manager
may want to include frequent reminders of the restrictions via
such means as correspondence, notification in access letters
for routine monitoring, and affixing warning labels to well
casings that reiterate applicable restrictions. In many cases, a
good way to help ensure effective and comprehensive
monitoring is to develop and use an ICIAP or equivalent
planning document early in the site management process.
State one-call systems may be an effective way to help ensure
that activities, particularly site excavations, do not conflict
with land and/or resource restrictions during the life cycle of
the IC. States typically established one-call systems to help
excavators identify underground utility lines and other
infrastructure before they start digging into the ground.
Page 28
-------
Depending on how such systems are designed and operated,
they also may be useful in identifying ICs.
8.2 Operation and Maintenance
Effective IC monitoring typically begins with a thorough
understanding of the use restrictions, the desired audience for
each IC, and recognition of the potential weaknesses of each
IC. A primary tool for site managers can be a detailed O&M
plan, an ICIAP, or other plan related to the long-term
stewardship of ICs that should describe at a minimum: (1)
monitoring activities and schedules; (2) responsibilities for
performing each task; (3) reporting requirements; and (4) a
process for addressing any potential IC issues that may arise
during the reporting period.
Provisions describing IC monitoring, reporting, and
enforcement mechanisms can be included in an appropriate
decision document, ICIAP, and/or enforcement document.
Such provisions can include a requirement in a CD to develop
a detailed monitoring and reporting plan, or a description of
the requirements themselves. At RCRA sites with a permit or
order in place, the IC monitoring and reporting requirements
may be specified in a separate document (and referenced in
the permit or order) or in the permit and/or order itself. Most
Brownfields and UST sites have similar decision documents,
cooperative agreements, or work plans, and IC monitoring and
reporting should be included in those documents as well. If the
site manager anticipates that monitoring or reporting
requirements may be changed at some point, language should
be added to the appropriate enforceable document to explain
the process for approval of the change.
The requirements and frequency of IC monitoring normally
will vary depending upon site-specific circumstances, such as
the types of IC instruments and monitoring tools used and how
the IC is used to help ensure protectiveness. In many cases,
inspections and reporting can be incorporated into other site
activities, such as routine groundwater monitoring and annual
reports. If, after a sufficient period, the reliability of the ICs is
better understood, the site manager may revisit the monitoring
practices on a site-specific basis.
Long-term stewardship procedures should be in place to
ensure proper maintenance and monitoring of effective ICs.
The procedures can be included in the site O&M plan. The
plan should address procedures to ensure regular inspection of
ICs at the site; in appropriate circumstances, an annual
certification to EPA that the required ICs are in place and
effective may be useful. The entities responsible for
implementing the plan also may send annual or semi-annual
reminder letters to property owners to remind them of the
existence of an IC and its provisions. Additionally, such
entities should explore whether additional actions can help
ensure compliance with the ICs. These actions could include
the development of a communications plan and exploring the
use of the state's one-call system as part of a site's long-term
stewardship plan.
8.3 Periodic Reviews
As discussed above, monitoring should be sufficiently
frequent to ensure that ICs remain effective. In the absence of
information to support a different review period, annual
reviews are recommended. Reviews may include
documentation to show that ICs remain in place and are
effective.
A shorter review period, or more frequent monitoring that
supplements an annual review, may be appropriate when more
frequent land activities or potential changes in land and/or
resource uses are anticipated; this could be the case, for
example, in more urban settings. Changes in land use might be
anticipated, for example, when the site is located in an area
being redeveloped or in an area where there has been a change
in the zoning designation. Examples of activities that could
compromise the integrity of a response action (e.g., rupture an
engineered cap) or result in unacceptable exposure to residual
contamination may include excavations, new construction,
utility repairs, and building alterations or demolition. Further,
when engineering controls require more frequent inspection or
maintenance (e.g., with vapor intrusion mitigation systems),
more frequent visual inspections (or remote integrity
monitoring) may be necessary to ensure that the IC component
of a cleanup is still effective.
If it is highly unlikely that site conditions will change, a
monitoring period longer than a year may be appropriate.
Some laws or regulations may specify a minimum review
period for certain situations, such as the FYR required for
certain CERCLA remedial actions. Section 121 of CERCLA
requires FYRs when remedial actions result in hazardous
substances, pollutants, or contaminants being left in place. The
NCP further clarifies that FYRs are to be conducted when
remedial actions do not allow for UU/UE. In order to evaluate
the continued protectiveness of a remedy during the CERCLA
FYR process, monitoring and site inspection activities
generally take place. Therefore, a periodic review (such as the
FYR process at CERCLA sites) provides an important
opportunity for a site manager to conduct an objective
evaluation of the status and performance of ICs.63
During the periodic review, the site manager, facility
owner/operator, or other review/enforcement authority
normally should inspect the site and critically evaluate the
effectiveness of the ICs in protecting human health and the
environment and/or ensuring the integrity of any engineered
response action (e.g., conduct site visits and/or field surveys if
appropriate, and review aerial photos or other physical
documentation to determine if there is any land or resource
use inconsistent with the response). In addition, the site
63 For additional guidance on determining protectiveness of IC remedies
during the CERCLA FYR process, see Recommended Evaluation of
Institutional Controls: Supplement to the 'Comprehensive Five-Year Review
Guidance,' OSWER Directive 9355.7-18, September 13, 2011.
Page 29
-------
attorney generally should review updated title work to the
property to determine whether proprietary controls have been
modified or terminated, and should review the local
government's zoning regulations for the site to determine if
there have been any changes. Also, the enforcement team
should follow up on the review provision in any settlement
document and, if appropriate, request that the settling parties
investigate the performance of the ICs.
If more frequent monitoring events are appropriate, the Region
should consider a focused review of building permits, zoning
code amendments, zoning variance requests, and well permit
applications; this review can be done through a coordinated
approach with local agencies who issue these permits or are
responsible for zoning matters. Monitoring also could include
a review of one-call excavation records or of real estate
listings, sales, and foreclosures. Finally, more frequent
monitoring also could include visual inspections by Regional
personnel who are routinely present on site to carry out
oversight duties.
If the ICs are not in place by the time of the periodic review, a
schedule should be prepared that indicates when the ICs are to
be implemented and the person or entity responsible for that
activity should be identified. If EPA determines that additional
ICs are necessary to protect human health and the
environment, the site manager and site attorney should review
the enforceable document to determine if the settling party
may be required to implement additional ICs consistent with
the cleanup's decision documents, or take additional actions
(e.g., enforcement tools that may allow for modifications or
pursuit of additional work under certain circumstances). An
ESD or ROD amendment also may be necessary at CERCLA
remedial sites if additional ICs are contemplated or if ICs are
being discontinued (see Section 4.1). In the case of RCRA,
when the IC is being implemented by a facility-specific
mechanism like a RCRA corrective action permit or order,
that document may need to be amended to reflect the current
status of the facility.
8.4 State, Tribal, and Local Government Participation in
IC Maintenance Activities
State, tribal, and local governments generally are important
partners in the long-term stewardship of cleanup sites,
including the IC component at those sites. Depending on the
IC instrument and which agency is the lead agency, the state,
tribal, or local government may have direct authority for the
long-term maintenance and enforcement of ICs. At sites where
this is the case, the parties responsible for the cleanup should
cooperate with those governmental authorities to ensure the
ICs remain in place and are effective. The site manager and
site attorney are encouraged to coordinate with these
governmental authorities and other IC stakeholders (e.g.,
responsible parties) when proposing a comprehensive, long-
term approach to using ICs at the site, and where appropriate,
help those authorities and stakeholders make their own
arrangements for a "common understanding" on their
respective roles for maintaining ICs over the long term.64
Further, the site manager and site attorney should actively
encourage the state, tribal, and/or local governments and
interested stakeholders to ensure proper monitoring of ICs,
and explain that if this is not done, it may be necessary to
change the response action to ensure protectiveness of human
health. Such monitoring activities may include:
• Inspecting and reporting on sites following the issuance of
building/excavation permits to ensure compliance with
their terms;
• Inspecting and reporting on sites for compliance with
proprietary controls when the state, local government, or
tribe is the grantee (or "holder" if this term is used in a
state's UECA-based law) of a property interest;
• Inspecting and reporting on compliance with zoning
restrictions; and
• Reporting proposed zoning amendments that may
significantly alter land use at the site or in the vicinity of
the site.
State, tribal, and local government laws also may influence the
implementation of proprietary controls. As discussed in
Section 2.2, proprietary controls generally are authorized
under state common law or, in many states, under state
statutes. In states that have adopted legislation enabling
statutory proprietary controls, state law may specify certain
criteria as to who qualifies as a grantee or "holder" in UECA-
based states, and also may provide enforcement authority for
the state or local jurisdiction even if not named as the grantee.
Since the grantee may assume responsibility for monitoring
and reporting on the IC status, a potential grantee should
understand its responsibilities before accepting the
conveyance of a proprietary control. Thus, it is critically
important for the site manager and site attorney to evaluate
thoroughly the capability and willingness of a state, tribal, or
local government to report on and pursue problems with the
IC for as long as it remains in place.
In some cases, the grantee may share monitoring
responsibilities with contractors (see discussion on third-party
monitoring below), community stakeholders, local
governments, or others who have agreed to participate in the
monitoring and reporting. Where possible, the arrangements
among these parties should be documented in writing to
describe commonly understood roles and responsibilities for
proper and effective monitoring, reporting, and follow-up. In
situations where EPA is the grantee, the site manager and site
attorney should ensure that procedures are in place to
appropriately monitor, report on, and follow-up on whether
the parties are fulfilling their responsibilities at the site and to
transition or terminate those responsibilities once the response
action is complete.
64
See supra text accompanying footnotes 29 and 56.
Page 30
-------
8.5 Out-Sourced IC Monitoring
In some instances, IC monitoring activities (such as title
searches, mapping, internet-based remote monitoring of land
activities, site inspections, and reporting services) may be
contracted out, or otherwise arranged by the entity that
assumes responsibility to do monitoring. This arrangement
does not alter any legal obligations of responsible parties,
grantees, and others for maintaining the response action and
ensuring its protectiveness. When monitoring and reporting
activities are conducted under a contract, the site manager and
site attorney should ensure that the scope of monitoring
activities is clear, an adequate funding source is available for
the duration of this monitoring, and the reporting obligations
are clearly defined (i.e., to whom the contractor reports and
the frequency and content of reports).
8.6 Community IC Monitoring
Local residents, community associations, and interested
organizations can be valuable resources for day-to-day
monitoring of ICs. Because community members who live or
work near the site often will have a vested interest in ensuring
compliance with the ICs, they generally are the first to
recognize changes at the site. Although local residents should
not be relied upon as the primary or sole means of monitoring,
the site manager should encourage local stakeholders to
become involved in monitoring ICs. Community monitoring
can be fostered through public outreach activities to inform
nearby residents of the purpose of the ICs and what types of
activities may adversely affect the integrity of the response
action. In addition to public meetings and notices, mailings to
nearby homeowner associations and property owners may be
used to provide community stakeholders with information
about the ICs and contact information for reporting a breach.
9. ENFORCING INSTITUTIONAL
CONTROLS
This section provides an overview of the types of enforcement
tools that may be available for dealing with potential problems
involving improper or incomplete implementation,
maintenance, and breaches of ICs. The site manager and site
attorney should examine IC compliance at all stages
throughout the enforcement process. This section illustrates
some of the more common enforcement actions that site
managers and site attorneys may encounter, and is not
intended to provide a comprehensive discussion of all
enforcement actions available at a given site.
Enforcing Institutional Controls
• General Considerations (Section 9.1)
• Enforcement of Proprietary Controls
(Section 9.2)
• Enforcement of Governmental Controls
(Section 9.3)
• Enforcement and Permit Tools with IC
Components (Section 9.4)
• Enforcement of Informational Devices (Section
9.5)
• Commencement of New Actions (Section 9.6)
• Other Enforcement Concerns (Section 9.7)
9.1 General Considerations
Often, the preferred and fastest approach for dealing with IC
enforcement is to seek voluntary compliance through early
problem identification and informal communication. Many
issues can be addressed effectively at the site manager and site
attorney level with a phone call and appropriate follow-up.
Such follow-up may include site visits, letters to ensure
complete communication, and creating a record. However,
there may be occasions when more formal steps are necessary.
Enforcement can occur in several ways depending upon the
type of IC instrument, the authority being used, the party
attempting to compel an activity, and the party responsible for
taking an action.
For CERCLA responses that include ICs, EPA strives to
ensure that the responsible parties implement, maintain, and
enforce ICs, as appropriate (see "EnforcementFirst" to Ensure
Effective Institutional Controls at Superfund Sites, OSWER
9208.2, May 17, 2006). EPA uses a variety of negotiation and
enforcement tools to obtain responsible party participation in
carrying out Superfund site cleanups, including any IC
obligations.65 Ensuring that ICs are properly implemented and
remain protective is important to both EPA and responsible
parties. Therefore, case teams should first pursue a
cooperative approach when working with responsible parties
to enforce ICs.
9.2 Enforcement of Proprietary Controls
As discussed in Section 2.2, proprietary controls generally are
authorized under state common law or, in many states, under
state statutes, including UECA-type statutes. Accordingly, the
legal requirements, including those related to the authority
granted to parties for enforcing proprietary controls, may vary
considerably among states, and site attorneys are encouraged
65 See Negotiation and Enforcement Strategies to Achieve Timely Settlement
and Implementation of Remedial Design and Remedial Action at Superfund
Sites, Office of Enforcement and Compliance Assurance memorandum, June
17, 1999.
Page 31
-------
to coordinate with attorneys familiar with the contract and real
property laws of the particular jurisdiction.
If proprietary controls are implemented pursuant to state IC
legislation, there likely will be clear enforcement procedures
outlined in the statute. Generally, under state-adopted laws
modeled after UECA, many parties may have the authority to
enforce an "environmental covenant," including: (1) any
parties to the covenant or any party given the right to enforce
under the covenant; (2) the state environmental agency; (3) a
person whose interest in the real property or liability may be
affected by the violation of the covenant (this can include
responsible parties); and (4) a unit of local government.
Regardless of whether the authority for a proprietary control is
from state statute or common law, certain enforcement
challenges may arise. The grantee (or "holder" if this term is
used in a state's UECA-based law) generally will have the
primary responsibility for enforcing a proprietary control.
EPA typically will rely on another party to act as the grantee,
due to the limitations on EPA's authority to hold proprietary
interests. The grantee may be able to enforce the proprietary
control against the owner(s) of the property pursuant to state
law in state court. To help ensure that a grantee other than
EPA takes appropriate action in the event of an IC violation, it
can be useful for that grantee and other parties to enter into
agreements that clearly define the roles and responsibilities of
the grantee.
In those cases where EPA is the grantee or has authority to
enforce a proprietary control as a third-party beneficiary, the
Region should refer the case to DOJ for appropriate action in
state or federal court where an enforcement action can remedy
the violation. For a more detailed discussion of the third-party
beneficiary status, consult Institutional Controls: Third-Party
Beneficiary Rights in Proprietary Controls, Office of
Enforcement and Compliance Assistance memorandum, April 19,
2004. When enforcing a UECA environmental covenant, the
Region may be able to refer an enforcement action to DOJ for
appropriate action in state or federal court where EPA
qualifies as an "agency" that signed the covenant. Site
managers and site attorneys should note that state law may
specify that the agency's enforcement right in the covenant is
not based on an interest in real property, and is thus not an
acquisition of real property by EPA.
In the RCRA, Brownfields, and UST context, EPA has no
authority to be the grantee, so enforcement by EPA is not
available unless it is a third-party beneficiary or it has agency
rights under a state's UECA or other statute. If a proprietary
control is used and another party is the grantee, the regulatory
agency may be able to rely on the grantee to act as the
enforcement party.
9.3 Enforcement of Governmental Controls
Governmental controls typically are implemented and
maintained by government agencies other than EPA. For
example, local government agencies generally control zoning,
land use designations, and well installations, even though EPA
and/or a state environmental agency may oversee and approve
the response action. Tribal, state, and local governments
generally are authorized to amend their existing regulations or
adopt new ones, to keep in place current rules or regulations,
or to enforce rules or regulations that ensure compliance with
ICs.
Several difficulties can arise when using ICs in the form of
governmental controls including: (1) the IC instrument may
not have been implemented or, if implemented, may not
address the specific environmental problem because of
vagueness or some other deficiency in the drafting of the IC;
(2) the IC may not have been appropriately monitored or
reported (e.g., failure to notify environmental regulators that a
zoning ordinance expires); (3) a governmental entity may not
actively respond to an identified problem or breach of an IC;
and (4) a governmental entity may inadvertently undermine
the IC through its own actions, undertaken for unrelated
purposes (e.g., amending zoning to allow uses that would not
have been allowed under the prior designation).
A challenge for site managers and attorneys in relying upon
and enforcing governmental controls is that IC
implementation, maintenance, and enforcement generally fall
within the authority and discretion of the originating
governmental entity. This challenge is compounded if
communication between environmental regulators and the
relevant governmental decision-maker (e.g., the well
permitting office) is not part of the entity's established
administrative process. Thus, where site managers and
attorneys are unable to determine whether a governmental
control remains in place and effective, they may choose to rely
on EPA's inspection, information gathering, or remedy review
authorities to obtain information necessary to make that
determination. Moreover, as discussed in Section 3.3 and 3.8,
an ICIAP may be in place or a "common understanding" may
have been reached among state, tribal, or local governments
and other stakeholders. If so, the ICIAP or the document
memorializing the "common understanding" may contain
provisions that describe appropriate steps to take if local or
state agencies are not maintaining or enforcing the
governmental controls being relied on as ICs.
Where state, tribal, or local agencies are not monitoring or
enforcing their own governmental controls, the selected
cleanup for the site may need to be modified to ensure
protectiveness of human health. Under a CERCLA CD,
responsible parties may remain responsible for IC compliance,
for performing any required monitoring and reporting on the
effectiveness of the ICs (e.g., notifying regulators of any
change to or breach of a relied upon governmental control), or
for additional work (e.g., carrying out a modified remedial
action). Further, as discussed in Section 9.6, EPA has
additional enforcement options.
Page 32
-------
Typically, governmental control activities are governed by a
defined administrative process. Site attorneys should
familiarize themselves with this process, including written
petitions and/or administrative hearings, in the event an action
to enforce a governmental control is necessary.
9.4 Enforcement and Permit Tools with IC Components
Enforcement and permit tools that may be used to require
implementation and maintenance of an IC, or seek a remedy
for an IC breach, include CDs, FFAs, Unilateral
Administrative Orders (UAOs), and permits. Through these
instruments, EPA or another regulatory agency may be able to
specify the restrictions and requirements for implementing,
maintaining, and/or fixing a breach to the IC in the
enforceable document. If the responsible parties fail to carry
out their obligations under a CD, order, or permit, EPA or
another regulatory agency may be able to enforce those
obligations under the appropriate CERCLA, Brownfields,
UST, orRCRA authority.66 The remedies available may
include requiring the defendant to implement the IC or, in
some circumstances, pay certain costs or penalties. Such
payments may be required to reimburse an agency that has
incurred the cost of implementing or maintaining the control,
cover the costs incurred when addressing IC breaches, and/or
pay penalties (stipulated and/or statutory).
An action pursuant to the CD, order, FFA, or permit generally
will be effective only against the parties specified in these
documents. For example, a provision in a CD or
Administrative Order on Consent (AOC) may require a
facility operator to secure a proprietary control to prevent a
particular type of land use. However, the landowner may not
be a party to the CD or AOC and, therefore, would not be
obligated to convey the interest. Furthermore, the
requirements of the CD may not be enforceable against any
successor-in-title if the successor was not a party to the CD.
If proprietary controls are needed on property that is not
owned by a responsible party, enforcement documents
generally require that the responsible party use "best efforts"67
to obtain access and to implement the controls. In cases where
the responsible party does not use its best efforts to implement
the proprietary controls, EPA can seek to enforce the relevant
provisions of the CD, order, FFA or permit in place. If the
responsible party is unable to acquire proprietary controls on
the property of concern despite exercising its "best efforts"
(e.g., the property owner is unwilling to sell or agree on a
price for an easement or other property interest), there are
several approaches to consider, depending on the situation.
For CERCLA remedial actions, the site attorney may consider
acquiring or condemning the necessary real property interests
66 A consent decree also can be enforced as an order of the court.
67 See supra text accompanying footnote 49.
subject to the requirements of CERCLA §104(j).68 Under
CERCLA, many state statutes, and typically under consent
agreements such as CDs, the responsible party may be
required to reimburse EPA and/or the state for the cost of
acquiring the control either through negotiated purchase or
condemnation. Alternatively, this may be resolved by
selecting and implementing different types of ICs. If other ICs
are not viable and the long-term protectiveness of the response
is threatened, it may be necessary to reconsider the response
action that was selected. For additional discussion of strategies
that may be appropriate when attempting to secure proprietary
controls, see Sections 4.4 and 5.2.
9.5 Enforcement of Informational Devices
The most common informational devices used in UST,
Brownfields, federal facility, RCRA, and CERCLA cleanups
are notices filed in local land records, state registries, and
advisories. Notices are useful devices, but typically are not
enforceable. However, some states recently have established
laws that allow the state to enforce placement of notices in the
local land records under state environmental laws. Similarly,
many states are developing laws that require sites with ICs to
be placed in a registry. However, these laws typically only
apply to the listing of sites in registries, and do not
affirmatively limit land or resource use at a site.
9.6 Commencement of New Actions
Where ICs are not properly implemented or maintained, it
may be necessary to commence an enforcement action against
the responsible party. For example, it may be possible to issue
a UAO to require the responsible party to use "best efforts" to
acquire real property interests limiting future land use where
zoning restrictions are repealed.
In the event of an IC violation, the site attorney may consider
issuing an administrative order under CERCLA § 106(a)
and/or RCRA §7003 (a) requiring that the IC be maintained if
there is a resulting actual or threatened imminent and
substantial endangerment to human health and the
environment. If the administrative order is not complied with,
EPA may seek judicial enforcement of the order. If the party
responsible for enforcing an IC fails to do so in a timely
manner, EPA also may use these authorities to seek a court
order imposing the IC.
In cases where ICs that were originally selected as a
component of a cleanup are not or cannot be implemented in a
manner that helps ensure protectiveness of human health,
different ICs or additional active remediation may be needed
and it may be necessary to amend the decision documents
68 Under the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (URA) (Pub. L. No. 91-646), negotiations that include
offering compensation are required to be completed first.
Page 33
-------
(e.g., ROD) to ensure that the response action is protective of
human health, as required by CERCLA §121.
9.7 Other Enforcement Concerns
One significant enforcement concern may be the premature
close-out of CDs, orders, FFAs or permits despite a long-term
requirement for ICs. Often, a responsible party is anxious to
close out its CD, order, or permit and end its relationship with
regulatory agencies through those documents once the
construction work is complete and routine site maintenance
has commenced. It is important that the site manager and site
attorney retain the appropriate enforcement authority for
ensuring satisfactory completion of the cleanup (which may
require state, tribal, or local government actions to implement,
maintain, and enforce the ICs over the duration of the period
in which ICs may be needed).
An additional area of concern is the change of ownership of
facilities subject to orders (e.g., RCRA corrective action order)
without proper notification to the site manager. A RCRA
order, or other enforceable device, may include a requirement
for notification of change of ownership.
10. SUMMARY
ICs often are a vital component of remedies in most cleanup
programs, including the five programs addressed in this
guidance. However, over time, site managers and site
attorneys should continue to review their effectiveness in light
of any changes to land use, laws, the condition and location of
hazardous substances, and responsible entities. This guidance
document provides an overview of some key issues the site
managers and site attorneys may encounter when evaluating
whether ICs are properly selected, implemented, maintained,
and enforced.
• When planning and selecting ICs, the site manager and
site attorney should familiarize themselves with
appropriate state statutes and identify the governmental
bodies that have jurisdiction over the site. It may be
useful to collaborate with attorneys and remedial and/or
removal practitioners familiar with the laws, regulations,
and practices in the jurisdiction where the site is located.
• Meeting with community members and local government
representatives often is important throughout the IC life
cycle to ensure that the need for ICs is understood and
accepted as necessary for ensuring protection of human
health and the environment.
• An appropriate tool, such as a CD, order, FFA, or permit
(e.g., under CERCLA, RCRA, and/or state law) should be
used in order to implement the cleanup, including any ICs
that are part of the cleanup action.
• If a proprietary control is being implemented, close
review of appropriate statutes and common law and, in
turn, selection of an appropriate grantee and careful
drafting of the language of the conveyance often is
important.
Page 34
-------
Figure 1. Examples of IC Categories and Enforcement Processes
ic
Categories IC Authorities and Examples Typical Enforcement Processes
Governmental
Controls
Police Power
• Zoning ordinances
• Groundwater use restrictions
• Building codes/permit requirements
Local government jurisdiction; enforcement may be possible
through administrative process or legal action.
State agency; enforcement may be possible through
administrative process or legal action.
Proprietary
Controls
State statutory and common law
• Easements and covenants
The grantee of a proprietary control may be able to seek legal
action against the property owner for activities prohibited by its
proprietary control.
EPA, the state, or another party may be able to enforce the
proprietary control understate property law if they are a third-
party beneficiary of the easement or covenant.
Even if they are not the grantee, EPA or any other state or federal
agency that signed the covenant may be able to enforce the
proprietary control in states that have adopted legislation similar
to UECA as the "agency" that approves of the covenant.
EPA may be able to order a responsible party to implement a
proprietary control.
Informational
Devices
Police Power
• Health advisories
• Fish consumption advisories
• Deed notices
• State registries of waste sites
• Tracking systems
While informational devices typically are not themselves
enforceable, site-specific circumstances may warrant action by
EPA. Site managers and site attorneys should consult with the
Office of Enforcement and Compliance Assurance (OECA) to
discuss possible action such as issue an order to a responsible
party if an imminent and substantial endangerment exists at a site
due to lack of a recorded notice.
Public health agencies; issuance through administrative process.
Enforcement
and Permit
Tools with IC
Components
Federal and State statutory law
• Superfund CDs, UAOs, AOCs,
and FFAs
• RCRA orders and permits
• Orders issued under state
authority
EPA may be able to use a variety of legal instruments to require
responsible parties or the signatories of the agreement to control
the use of land or resources.
If a responsible party is the grantor or grantee of the proprietary
control, EPA may be able to employ these tools to enforce the
requirements of the IC as the "agency" that approves of the
covenant.
• If an IC in the form of a governmental control is used, the
site manager and site attorney should work closely with
the state or local government that has jurisdiction to
ensure that it has the capability and willingness to
implement and enforce the control.
• A good way to ensure effective implementation of ICs is
to develop an ICIAP that documents responsibilities over
the full life cycle of each IC, and include this plan, or a
reference to it, in the final decision documents. EPA is
developing guidance on recommended contents for such a
plan.
• A strategy for implementing and maintaining ICs should
be included in the O&M plan for Superfund sites,
included in an ICIAP, or developed as part of the permit
or order that implements a response decision under
RCRA. For federal facilities under CERCLA, the
analogous information should be placed in a ROD, RD,
RAWP, or other post-ROD enforceable document. In
addition, the site manager and site attorney should discuss
appropriate monitoring roles with the local government
and appropriate state agencies.
• If an IC is not being properly maintained, or is violated,
appropriate enforcement actions or other measures should
be taken to ensure protectiveness.
Page 35
-------
APPENDIX A: REFERENCES
ASTSWMO 2007. Coordination of Federal Removal Actions
and State Remedial Activities, Association of State and
Territorial Solid Waste Management, 2007.
http://www.astswmo.org/Files/Policies and Publications/CER
CLA and Brownfields/removals/CG-final.pdf
DOJ 1972. A Procedural Guide for the Acquisition of Real
Property by Government Agencies, U.S. DOJ, 1972.
(Although this guide is somewhat out of date with regard to
appraisal matters, it still is current with regard to direct
acquisition (negotiated purchase) and condemnation
procedures).
http://fimsinfo.doe.gov/RE/aca guide fed 1972.pdf
DOJ 2000. Uniform Appraisal Standards for Federal Land
Acquisitions, prepared by the Interagency Land Acquisition
Conference, 2000.
http://www.usdoi. gov/enrd/land-ack/
DOJ, 2001. Title Standards 2001. (Contains detailed
information on acceptable forms of title evidence and
requirements for the form of conveyance to the United States.)
http://www.fws.gov/refuges/realtv/pdf/DOJ 2001.pdf
EPA 1988. CERCLA Compliance with Other Laws Manual:
Interim Final, EPA/540/G-89/006, August 1988.
http://www.epa.gov/superfund/policv/remedv/pdfs/54Qg-
89006-s.pdf
EPA 1990. Policy on Management of Post-Removal Site
Control, OSWER 9360.2-02, December 1990. (available
through the National Service Center for Environmental
Publications, http://www.epa.gov/nscep/index.html)
EPA 1991a. Policy Towards Owners of Residential Properties
at Superfund Sites, OSWER Directive 9834.6, July 3, 1991.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/policv-owner-rpt.pdf
EPA 1991b. A Guide to Principal Threat and Low Level
Threat Wastes, OERR, 9380.3-06FS, November 1991.
http://www.epa.gOv/superfund/health/conmedia/gwdocs/pdfs/t
hreatpdf
EPA 1992. Superfund Removal Procedures - Removal
Enforcement Guidance for On-Scene Coordinators, OSWER
9360.3-06, April 1992.
http://www.oscreadiness.org/cec courses/removal.htm
EPA 1995a. Land Use in the CERCLA Remedy Selection
Process, OSWER directive 9355.7-04, May 25, 1995.
http://epa.gov/superfund/communitv/relocation/landuse.pdf
EPA 1995b. Final Policy Toward Owners of Property
Containing Contaminated Aquifers, November 1995.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/contamin-aaui-fs.pdf
EPA 1996. Corrective Action for Releases from Solid Waste
Management Units at Hazardous Waste Management
Facilities; Proposed Rule, Federal Register, Volume 61,
Number 85, 19,431-19,464, May 1, 1996.
http://www.epa.gov/fedrgstr/EPA-WASTE/1996/Mav/Dav-
01Zpr-547.pdf
EPA 1997. Rules of Thumb for Superfund Remedy Selection,
EPA 540-R-97-013, OSWER 9355.0-69, August 1997.
http://www.epa.gOv/superfund/policv/remedv/rules/rulesthm.p
df
EPA 1999a. A Guide to Preparing Superfund Proposed Plans,
Records of Decision, and other Remedy Selection Decision
Documents," EPA 540-R-98-031, OSWER 9200.1-23, July
1999.
http://www.epa.gov/superfund/policv/remedv/rods/pdfs/guide
decision documents 071999.pdf
EPA 1999b. Negotiation and Enforcement Strategies to
Achieve Timely Settlement and Implementation of Remedial
Design and Remedial Action at Superfund Sites, OECA
memorandum, June 17, 1999.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/neg-enfst-mem.pdf
EPA 2000a. Institutional Controls: A Site Manager's Guide to
Identifying, Evaluating and Selecting Institutional Controls at
Superfund and RCRA Corrective Action Cleanups, OSWER
9355.0-74FS-P, EPA 540-F-00-005, September 2000. (A Site
Manager's Guide to ICs)
http://www.epa.gov/superfund/policv/ic/guide/guide.pdf
EPA 2000b. Guide to Developing and Documenting Cost
Estimates During the Feasibility Study, OSWER 9355.0-75,
EPA 540-R-00-002, July 2000.
http://www.epa.gov/superfund/policv/remedv/pdfs/finaldoc.pd
f
EPA 2000c. Institutional Controls and Transfer of Real
Property under CERCLA Section 120(h)(3)(A), (B), or (C),
2000.
http://www.epa. gov/fedfac/documents/fi-icops 106.htm
EPA 2001. Operation and Maintenance in the Superfund
Program, OSWER 9200.1-37FS, EPA 540-F-01-004, May
2001.
http ://www. epa. gov/superfund/policv/pdfs/sheet.pdf
EPA 2002. Principles for Managing Contaminated Sediment
Risks at Hazardous Waste Sites, OSWER Directive 9285.6-08,
2002.
http://www.clu-
in.org/do wnload/contaminantfocus/sediments/92-85608-s.pdf
Page 36
-------
EPA 2003a. Final Guidance on Completion of Corrective
Action Activities atRCRA Facilities, 68 Fed. Reg. 8,457-
8,764, February 25, 2003. {Corrective Action Completion
Guidance)
http://www.epa.gov/osw/hazard/correctiveaction/resources/gui
dance/gen ca/compfedr.pdf
EPA 2003b. Interim Guidance Regarding Criteria
Landowners Must Meet in Order to Qualify for Bona Fide
Prospective Purchaser, Contiguous Property Owner, or
Innocent Landowner Limitations on CERCLA Liability
("Common Elements"), OECA memorandum, March 6, 2003.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/co mmon-elem-guide.pdf
EPA 2003d. Superfund Lead-Contaminated Residential Sites
Handbook, OERR, OSWER 9285.7-50, August 2003.
http://www.epa.gov/superfund/lead/products/handbook.pdf
EPA 2003e. Guidance on the Planning and Use of Special
Account Funds, OSRTI/OSRE, OSWER Directive 9275.1-20,
August 2003.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/plan-use-specacct.pdf
EPA 2004a. Institutional Controls: Third-Party Beneficiary
Rights in Proprietary Controls, OECA memorandum, April
19, 2004.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/ic-thd-ptv-rights.pdf
EPA 2004c. Interim Enforcement Discretion Guidance
Regarding Contiguous Property Owners, OECA, January 13,
2004.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/contig-prop.pdf
EPA 2005. Contaminated Sediment Remediation Guidance for
Hazardous Waste Sites, EPA-540-R-05-012, OSWER 9355.0-
85, 2005.
http://www.epa.gov/superfund/health/conmedia/sediment/guid
ance.htm
EPA Sample Federal Facility Land Use Control ROD
Checklist With Suggested Language, {LUC Checklist),
OSWER 9355.6-12
http://www.epa.gov/compliance/resources/policies/federalfacil
ities/enforcement/cleanup/checklist-draft-aug06.pdf
EPA 2006b. "Enforcement First" to Ensure Effective
Institutional Controls at Superfund Sites, OSWER 9208.2,
May 17, 2006.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/enf-first-ics.pdf
EPA 2007a. Ensuring Effective and Reliable Institutional
Controls atRCRA Facilities, Office of Solid Waste and
OSRE, June 14, 2007.
http://www.epa.gov/osw/hazard/correctiveaction/resources/gui
dance/ics/ic memo.pdf
EPA 2007b. Guidance for Documenting and Reporting
Performance in Achieving Land Revitalization, OSWER
9200.1-74, 2007.
http://www.epa.gov/fedfac/sf ff final cprm guidance.pdf
EPA 2009a. Superfund Removal Guidance for Preparing
Action Memoranda, September 2009. (Updates and replaces
Superfund Removal Procedures: Action Memoranda
Guidance, OSWER 9360.3-01, September 1990.)
http://www.epa.gov/osweroel/docs/oil/ncp/Superfund remova
1 guide for preparing action memo.pdf
EPA 2009b. Interim Guidance: Providing Communities with
Opportunities for Independent Technical Assistance in
Superfund Settlements, OSRE and OSRTI, September 2009.
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/interim-tap-sf-settle-mem.pdf
EPA 2010. Considering Reasonably Anticipated Future Land
Use and Reducing Barriers to Reuse at EPA-lead Superfund
Remedial Sites, OSWER Directive 9355.7-19, 2010.
http://www.epa.gov/superfund/programs/recvcle/pdf/reusedire
ctive.pdf
EPA 2011a. EPA Policy on Consultation and Coordination
with Indian Tribes, May 4, 2011.
http://www.epa.gov/tribal/pdf/cons-and-coord-with-indian-
tribes-policv.pdf
EPA 201 lb. CERCLA Model Remedial Design/Remedial
Action Consent Decree, OSRE andDOJ, July 2011. {Model
RD/RA CD)
http://www.epa.gov/compliance/resources/policies/cleanup/su
perfund/rdra-2012-amd.pdf
EPA 201 lc. Recommended Evaluation of Institutional
Controls: Supplement to the 'Comprehensive Five-Year
Review Guidance,' OSWER Directive 9355.7-18, September
13,2011.
http://www.epa. gov/superfund/policv/ic/guide/641333 .pdf
EPA 2012. Institutional Controls: A Guide to Preparing
Institutional Controls Implementation and Assurance Plans at
Contaminated Sites, OSWER Directive 9200.0-77, EPA-540-
R-09-002, December 2012.
http://www.epa.gov/superfund/policv/ic/guide/index.htm
Page 37
-------
APPENDIX B: GLOSSARY OF TERMS
For purposes of this guidance, the following terms are defined
as:
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 groundwater
that there is some existing or impending risk associated with
the use of these resources.
Brownfields Site - Real property, the expansion,
redevelopment, or reuse of which may be complicated by the
presence or potential presence of a hazardous substance,
pollutant, or contaminant. See CERCLA §101(39) for
additional information on what sites may qualify as
Brownfields under CERCLA.
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.
Common Law - The body of English law developed primarily
from judicial decisions based on custom and precedent,
unwritten in statute or code, and constituting the basis of the
legal system in all of the U.S. except Louisiana.
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA, or Superfund) - Legislation enacted in
1980 to identify, investigate, and clean up the nation's most
contaminated hazardous waste sites and respond to emergency
situations involving hazardous substances, pollutants, or
contaminants.
Condemnation - The process by which a government agency,
exercising the power of eminent domain, acquires an interest
in property.
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.
Conveyance - The transfer of title to property or an interest in
property (e.g., an easement) from one person to another.
Cooperative Agreement - An agreement, including CERCLA
§ 104(d) agreements, that transfers money for the
accomplishment of authorized activities or tasks.
Corrective Action - EPA can require RCRA treatment,
storage, and disposal facilities (TSDFs) handling hazardous
waste to undertake corrective actions to clean up
contamination resulting from failure to follow hazardous-
waste management procedures or other mistakes.
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 also may 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 also may 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
used in the NCP as a shorthand way to refer to various types
of proprietary controls.
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.
Emergency Removal Action - A CERCLA emergency removal
action generally occurs when a release or threatened release
requires the lead agency to initiate on-site cleanup activities
promptly after determining that a removal is required.
Enforcement and Permit Tools with LC 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
Page 38
-------
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 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.
Five-Year Review (FYR) - An evaluation that may be required
by § 121(c) of CERCLA. 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 turns 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 groundwater use restrictions.
Grantee/Grantor - The entity to/from which ownership of a
interest (e.g., an easement) is transferred.
minimize the potential for human exposure to contamination
and/or protect the integrity of a response action. They
typically are 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 IC
components; and information 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.
Memorandum of Understanding (MOU) - A non-enforceable
document that outlines the intentions of its signatories.
Non-Time-Critical Removal Action - A CERCLA non-time-
critical removal action occurs when at least six months are
available after determining that a removal is appropriate and
before on-site cleanup activities must begin.
Overlay Zone - A set of zoning regulations that supplement
(i.e., overlay) those of the underlying district. Developments
within the overlay zone normally conform to the requirements
of both zones, or the more restrictive of the two. Overlay
zones may be used to address issues such as historical areas,
flood plains, and environmental contamination.
Holder - a term used in the UECA model defining a special
type of grantee with specified rights and obligations related to
environmental covenants; this term typically also is expressly
set forth in UECA-based state laws. UECA provides that
"Holder means the grantee of an environmental covenant..."
Lnstitutional Control Lmplementation and Assurance Plan
(LCLAP) - An ICIAP is a tool designed to help systematically
describe and document the recommended activities related to
implementing and ensuring the long-term stewardship of ICs.
It also should specify the persons and organizations
responsible for conducting these activities. A detailed ICIAP
can help ensure that ICs are properly implemented; that ICs
operate effectively during their entire lifespan; and is intended
to serve as a single source of concise, site-specific IC
information.
Lnformational Devices - IC 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.
Lnstitutional Controls (LCs) - Non-engineered instruments,
such as administrative and legal controls, that help to
Post-Removal Site Controls (PRSCs) - Actions necessary to
ensure the effectiveness and integrity of the removal action
after the completion of the on-site removal action.
Proprietary Controls - Controls on land use or activities that
are considered private in nature because they tend to affect a
single parcel of property and are established by private
agreement typically 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.
Prospective Purchaser Agreement - An agreement between
EPA or a state and the prospective purchaser of a property
known to be contaminated. Under the agreement, EPA or the
state typically provides the purchaser with a covenant not to
sue for the contamination existing at the site as of the date of
the agreement. In return, the purchaser usually provides EPA
with a benefit, which may include carrying out actual cleanup
work and/or funding for cleanup at the site. EPA generally
would enter into such an agreement at sites where an EPA
action has been, is currently being, or will be taken. Parties
seeking to operate on or lease contaminated property also may
be eligible for such an agreement.
Page 39
-------
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 to document a fundamental change to the
remedy selected in a ROD. The fundamental change to the
remedy may be needed as a result of new information.
Resource Conservation and Recovery Act (RCRA) - The
public law that creates the framework for the proper treatment,
storage, and disposal of hazardous and nonhazardous solid
waste. RCRA focuses on active and future facilities and does
not address abandoned or historical sites that are managed
under CERCLA, commonly known as Superfund.
Responsible Party - The term "responsible party" as used in
this document is intended to mean a person or entity with
cleanup responsibilities (including ICs implementation,
maintenance, and/or enforcement) under the various cleanup
programs addressed in this guidance.
"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.
Site-wide Ready for Anticipated Use (SWRAU) - A
performance measure under the Government Performance and
Results Act to describe final and deleted construction-
complete NPL sites where, for the entire site: (1) all cleanup
goals in the ROD(s) or other remedy decision document(s)
have been achieved for media that may affect current and
reasonably anticipated future land uses of the site, so that there
are no unacceptable risks; and (2) all ICs or other controls
required in the ROD(s) or other remedy decision document(s)
have been put in place.
Subdivision Ordinance - A local ordinance that regulates the
conversion of land into building lots for development. The
regulations establish requirements for streets, utilities, site
design, and procedures for dedicating land for open space or
other public purposes to the local government (or fees in lieu
of dedication). In short, subdivision ordinances regulate land
conversion, whereas zoning ordinances regulate land use.
Superfund State Contract (SSC) - An agreement between EPA
and a state generally before remedial action begins at
Superfund sites. Typically, the SSC documents the state's
assurances under CERCLA and outlines the roles and
responsibilities of both parties.
Time-Critical Removal Action - A time-critical removal action
occurs when less than six months are available after
determining that a removal is appropriate and before on-site
cleanup activities must begin.
Uniform Environmental Covenants Act (UECA) - A model for
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.
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.
Page 40
------- |