United
States
Environmental
office
of
Solid
Waste
and
OSWER
9355.0­
74FSP
ProtectionAgency
Emergency
Response
EPA
540F­
00405
September,
2000
Institutional
Controls:
A
Site
Manager s 
Guide
to
Identifling,
Evaluating
and\
IEm
Selecting
Institutional
Controls
at
Superfund
and
RCRA
Corrective
Action
Cleanups
ORCe
of
Solid
Waste
and
Emergency
Respoose
Purpose
Table
of
Contents
This
fact
sheet
provides
Superfund
and
RCRA
Coqective
Action
site
0
Purpose..
............................
1
I
managers
and
decision­
makerswith
an
overview
of
the
types
of
InstitutionalControls
(
ICs)
that
are
commonly
used
or
implemented,
and
0
Definition
and
Importance
of
ICs
............
1
outlines
the
factorsthat
shouldgenerallybe
consideredwhen
evaluating
0
Common
Misnomers
.....................
2
and
selectingICs
as
part
of
the
remedy.
For
more
detailed
informationon
0
Layering
and
Implementing
ICs
in
Series
......
2
the
different
types
of
instrumentsavailable,
site
managers
and
attorneys
0
A
Look
at
ICs
in
CERCLA,
the
NCP
and
RCRA
.
.
3
should
consult
the
document,
 
Institutional
Controls:
A
Reference
Manual
TypesofICs
..........................
3
(
WorkgroupDraft
­
March
1998). 
EPA
site
managers
should
also
work
Legal
Mechanisms
for
Imposing
ICs
Under
closely
with
Regional
attorneysand
Headquarters
staff
in
the
Office
of
CERCLA
RCRA
.....................
5
Emergency
and
Remedial
Response
(
OERR),
the
Office
of
Site
Remediation
Enforcement
(
OSRE),
the
Federal
Facihes
Restorationand
ICsand
FutureLandUse
.................
5
Reuse
Office
(
FFRRO),
the
Federal
FacilitiesEnforcementOffice
(
FFEO)
Screening
ICs
..........................
5
and/
or
the
Office
of
Solid
Waste
(
OSW)
on
any
site­
specificissues
that
Determiningthe
State
Role
................
6
may
arise
while
evaluating,
implementing,
enforcing,
or
monitoringICs.
2
Determining
the
Role
of
Local
Governments
....
7
EvaluatingICs
.........................
7
Definition
and
Importance
of
ICs
0
ICs
in
CERCLA
Removal
Actions
...........
8
0
Site
Manager
ResponsibilitiesAfter
ICs
are
Generally,
EPA
begins
the
remedy
evaluation
process
with
the
expectation
Selected..
............................
10
that
treatment
or
engineeringcontrolswill
be
used
to
address
principal
0
Conclusion..
..........................
10
threat
wastes
and
that
groundwaterwill
be
returned
to
its
beneficial
use.
0
Key
Concepts
..........................
10
The
National
Oil
and
Hazardous
SubstancesPollution
ContingencyPlan
Checklist
for
Implementing
ICs
.............
11
(
NCP)
emphasizes
that
ICs,
such
as
water
use
restrictions,
are
meant
to
0
ICMatrix
.........................
12­
25
supplementengineeringcontrolsduring
all
phases
of
cleanup
and
may
be
a
necessary
componentof
the
completed
remedy.
The
NCP
also
cautions
against
the
use
of
ICs
as
the
sole
remedy
unless
active
response
measures
are
determined
to
be
impracticable.
At
the
same
time,
ICs
play
an
importantrole
in
site
remedies.
Often,
ICs
are
a
critical
componentof
the
cleanup
process
and
are
used
by
the
site
manager
to
ensure
both
the
short­
and
long­
term
protection
of
human
health
and
the
environment.
For
this
reason
it
is
important
to
understand
what
constitutes
an
IC.
Specifically
for
EPA,
ICs:

 
Site
Manager,
as
used
in
this
fact
sheet,
refers
to
both
CERCLA
sites
and
RCRA
facilities.
In
RCRA,
project
managers
are
the
equivalent
to
site
managersin
CERCLA.

*
Thisdocumentprovides
guidance
to
EPA
Regions
and
states
involved
in
Superfund
and
RCRA
correctiveaction
cleanups.
It
also
provides
guidanceto
the
public
and
the
regulated
communityon
how
EPA
intendsto
evaluate
and
implement.
institutiona1controlsas
part
of
a
cleanup
decision.
The
guidanceis
designedto
implement
national
policy
on
these
issues.
The
document
does
not,
however,
substitutefor
CERCLA,
RCRA
or
EPA sregulations,
nor
is
it
a
regulation
itself.
Thus,
it
does
not
impose
legally­
bindingrequirementson
EPA,
States,
or
the
regulated
community,
and
may
not
apply
to
a
particular
situation
based
upon
the
circumstances.
EPA
and
State
decision
makers
retain
the
discretion
to
adopt
approacheson
a
case­
by­
casebasis
that
differ
from
this
guidancewhere
appropriate.
Any
decisionsregarding
a
particularfacility
will
be
made
based
on
the
applicable
statutes
and
regulations.
Therefore,
interestedparties
are
free
to
raise
questions
and
objections
about
the
appropriatenessof
the
applicationof
this
guidance
to
a
particularsituation,
and
EPA
will
consider
whether
or
not
the
recommendationsor
interpretationsin
the
guidance
are
appropriatein
that
situation.
EPA
may
changethis
guidancein
the
future.

1
are
non­
engineeredinstrumentssuch
as
administrativeand/
or
legal
controlsthat
minimize
the
potential
for
human
exposureto
contaminationby
limitingland
or
resourceuse;
are
generallyto
be
used
in
conjunctionwith,
rather
than
in
lieu
of,
engineeringmeasuressuch
as
waste
treatmentor
containment;
can
be
used
duringall
stages
of
the
cleanupprocess
to
accomplishvarious
cleanup­
relatedobjectives;
and,
should
be
 
layered 
(
i.
e.,
use
multiple
ICs)
or
implemented
in
a
series
to
provide
overlappingassurancesof
protection
from
contamination.
These
conceptsare
discussedin
the
text
box
below.

Some
examplesof
ICs
include
easements,
covenants,
well
drillingprohibitions,
zoning
restrictions,
and
specialbuildingpermit
requirements.
Deed
restriction
is
a
phrase
often
used
in
remedy
decision
documentsto
describe
easementsor
other
forms
of
ICs;
however,
this
is
not
a
traditional
property
law
term
and
should
be
avoided.
Fences
that
restrict
access
to
sites
are
often
termed
ICs;
however,
because
fences
are
physicalbarriers
instead
of
administrative
or
legal
measures,
EPA
does
not
consider
them
to
be
ICs.
ICs
are
among
the
tools
allowable
under
the
ComprehensiveEnvironmentalResponse,
Compensation,
and
Liability
Act
(
CERCLA)
[
as
amended
by
the
SuperfundAmendments
and
ReauthorizationAct
(
SARA)],
the
NCP,
and
the
ResourceConservationand
RecoveryAct
(
RCRA).
To
read
more
about
the
regulatory
framework
for
ICs,
refer
to
the
box
on
page
3
entitled,
 
A
Look
at
ICs
in
CERCLA,
the
NCP
and
RCRA. 
Finally,
where
protectivenessdepends
on
reducing
exposure,
ICs
are
a
responseaction
under
CERCLA
or
a
correctiveaction
under
RCRA.
Accordingly,
even
in
the
unusual
case
where
a
CERCLA
Record
of
Decision
(
ROD)
only
requiresthe
implementationof
ICs,
it
is
consideredto
be
a
 
limited
action, 
not
a
 
no
action 
ROD.
Likewise,
when
a
corrective
action
under
RCRA
includes
an
IC,
whether
it
is
part
of
an
interim
measure
or
occursat
the
end
of
the
cleanupas
part
of
the
final
correctivemeasure,
the
IC
is
considered
a
part
of
the
remedy.

ICs
are
vital
elementsof
responsealternativesbecausethey
simultaneouslyinfluenceand
Common
Misnomers
 
Deed
restriction 
is
not
a
traditional
property
law
term,
but
rather
is
a
generic
term
used
in
the
NCP
and
elsewhereas
a
shorthand
way
to
refer
to
types
of
ICs.
To
avoid
confusion,
site
managers
should
avoid
the
term
and
instead
be
specific
about
the
types
of
ICs
under
considerationand
their
objectives.
In
addition,
EPA
does
not
considerphysical
barriers
as
ICs.
Fences
that
restrict
access
to
sites
are
often
termed
as
ICs.
However,
fences
are
not
considered
by
EPA
to
be
ICs
.

supplementthe
physical
component
of
the
remedy
to
be
implemented.
On
the
one
hand,
the
right
mix
of
ICs
can
help
ensure
the
protectivenessof
the
remedy;
on
the
other,
limitationsin
ICs
may
lead
to
reevaluationand
adjustment
of
the
remedy
components,
includingthe
proposed
ICs.
At
some
sites,
remedy
contingenciesmay
protect
againstuncertainties
in
the
ability
of
the
ICs
to
provide
the
required
long­
term
protectiveness.
These
points
illustrate
how
important
it
is
for
site
managers
to
evaluate
ICs
as
thoroughly
as
the
other
remedy
componentsin
the
FeasibilityStudy
(
FS)
or
CorrectiveMeasures
Study
(
CMS),
when
looking
for
the
best
ICs
for
addressingsite­
specificcircumstances.
Adding
ICs
on
as
an
afterthought
without
carefullythinking
about
their
objectives,
how
the
ICs
fit
into
the
overall
remedy,
and
whetherthe
ICs
can
be
realisticallyimplemented
in
a
reliableand
enforceablemanner,
couldjeopardize
the
effectivenessof
the
entireremedy.

Often
ICs
are
more
effectiveif
they
are
layered
or
implementedin
series.
Layering
means
using
different
types
of
ICs
at
the
same
time
to
enhance
the
protectiveness
of
the
remedy.
For
example,
to
restrictland
use,
the
site
managermay
issue
an
enforcementtool
[
e.
g.,
Unilateral
AdministrativeOrder
(
IJAO)];
obtain
an
easement;
initiate
discussionswith
local
governments
about
a
potential
zoning
change;
and
enhance
future
awarenessof
the
restrictionsby
recording
them
in
a
deed
notice
and
in
a
state
registry
of
contaminated
sites.
Also,
the
effectivenessof
a
remedy
may
be
enhancedwhen
ICs
are
used
in
conjunctionwith
physical
barriers,
such
as
fences,
to
limit
access
to
contaminatedareas.

ICs
may
also
be
applied
in
series
to
ensureboth
the
short­
and
long­
term
effectiveness
of
the
remedy.
For
example,
the
site
manager
may
use
an
enforcementtool
to
require
the
land
owner
to
obtain
an
easement
from
an
adjacent
property
owner
in
order
to
conduct
ground
water
sampling
or
implement
a
portion
of
the
active
remedy.
This
easement
may
not
be
needed
for
the
long­
term
effectivenessof
the
remedy
and
is
terminatedwhen
the
constructionis
complete.
At
another
site,
the
site
manager
may
use
an
AdministrativeOrder
on
Consent
(
AOC)
or
permit
conditionto
prohibit
the
land
owner
from
developingthe
site
during
the
investigation.
Later,
the
site
manager
may
add
a
provision
to
the
ConsentDecree
(
CD)
or
the
permit
requiringthe
land
owner
to
notify
EPA
if
the
property
is
to
be
sold
and
to
work
with
the
local
government
to
implement
zoning
restrictions
on
the
property.
Layer1n.
g
and
Implementing
ICs
in
Series
ICs
are
more
effectiveif
they
are
layered
or
implemented
in
series.

LayeringICs
means
using
differenttypes
of
ICs
at
the
same
time
to
enhance
the
protectiveness
of
the
remedy.

Using
ICs
in
series
is
the
use
of
ICs
at
differentpoints
in
the
investigationand
remediationprocess
to
ensure
the
short­
and
long­
term
protection
of
human
health
and
the
environment.

2
Types
of
ICs
implementingICs
during
the
cleanupprocess
and
a
matrix
summarizingexamplesof
ICs
are
includedat
the
end
of
the
fact
sheet.

A
Look
at
ICs
in
CERCLA,
the
NCP,
and
RCRA
CERCLA
as
amended
by
SARA,
the
NCP
and
RCRA
support
the
use
of
ICs
in
remediation
of
a
site:

CERCLA­
Section
121(
d)(
2)(
B)(
ii)(
III)
refers
to
the
use
of
enforceablemeasures
(
e.
g.,
ICs)
as
part
of
the
remedial
alternativeat
sites.
EPA
can
enforcethe
implementationof
ICs,
but
not
necessarilytheir
long
term
maintenance.
For
example,
the
local
governmentwith
zoning
jurisdiction
may
agree
to
change
the
zoningof
the
site
to
prohibit
residentialland
uses
as
part
of
the
remedy,
but
the
local
governmentretains
the
authorityto
change
the
zoningdesignationin
the
future.
EPA
is
authorized,
under
CERCLA
section
l04(
i),
to
acquire
(
by
purchase,
lease
or
otherwise)
real
property
interests,
such
as
easements,
needed
to
conduct
a
remedial
action
provided
that
the
state
in
which
the
interest
is
to
be
acquired
is
willing
to
accept
transfer
of
the
interest
followingthe
remedial
action.
Transfersof
contaminatedFederal
property
are
subject
to
specialdeed
requirementsunder
CERCLA
sections
12O(
h)(
3)(
A)(
iii)
and120(
h)(
3)(
C)(
ii>(
I)
and(
II).

NCP­
the
NCP
provides
EPA's
expectationsfor
developingappropriateremedial
alternatives,
includingICs
under
CERCLA.
In
particular,
it
states
that
EPA
expects
to
use
treatment
to
address
the
principal
threats
posed
by
sites;
engineeringcontrols
for
wastes
that
pose
relatively
low
risk
or
where
treatmentis
impracticable;
and
a
combinationof
the
two
to
protect
human
health
and
the
environment[
40
CFR
300.430(
a)(
l)(
iii)(
A),(
B),
and
(
C)}.
In
appropriatesituations,
a
combination
of
treatment,
containment,
and
ICs
may
be
necessary.
The
NCP
also
emphasizesthe
use
of
ICs
to
supplement
engineeringcontrols
during
all
phases
of
cleanup
and
as
a
componentof
the
completedremedy,
but
chutionsagainst
their
use
as
the
sole
remedy
unless
active
responsemeasures
are
determinedto
be
impracticable[
40
CFR
300.430(
a)(
l)(
iii)(
D)].
In
the
case
where
ICs
are
the
entire
remedy,
the
responseto
comments
section
of
the
preamble
to
the
NCP
states­
that
special
precautionsmust
be
made
to
ensurethe
controlsare
reliable
(
55
Federal
Register,
March
8,
1990,
page
8706).
Recognizingthat
EPA
may
bot
have
the
authority
to
implement
such
controls,
the
NCP
requires
that
(
for
fund
financed
sites)
the
state
assure
that
the
ICs
implementedas
part
of
the
remedial
action
are
in
place,
reliable,
and
will
remain
in
place
after
the
initiationof
operationand
maintenance
[
40
CFR
300.5
IO(
c)(
I)].
Lastly,
for
Superfund
financed
and
private
sites,
the
NCP
also
requires
the
state
to
hold
any
interest
in
property
that
is
acquired
(
once
the
site
goes
into
O&
M)
to
ensure
the
reliabilityof
ICs
140
CFR
300.510(
f)].

RCRA­
RCRA
requirementsare
imposed
through
legal
mechanisms
different
from
those
used
under
CERCLA.
In
RCRA,
authorized
states
are
the
prjmary
decisionmakers,
this
results
in
a
wide
variety
of
state­
specificmechanismsbeing
available.
This
fact
sheet
does
not
attempt
to
list
all
of
the
state
and
local
IC
mechanisms,
but,
toidentify
key
principles
for
the
use
of
ICs.
If
the
IC
is
being
imposed
through
a
RCRA
permit,
steps
should
be
taken
to
ensure
that
long­
term
enforcement
is
not
lost
through
property
transfer
or
permit
expiration.
Cleanups
under
RCRA
are
conducted
in
connectionwith
the
c10,
sureof
regulated
units
and
facility­
wide
corrective
action
either
under
a
permit
[
RCRA
sections
3004(
u)
and
(
v)],
interim
status
order
[
RCW
section
3008(
h)]
or
imminenthazard
order
[
RCRA
section
70031
or
other
authorities.
It
shouldalso
be
noted
that
landfill
closurerequirementsunder40
CFR
264.1
19require
deed
notices
that
the
land
has
been
used
to
manage
hazardouswaste,,
althoughthe
notice
itself
does
not
restrict
future
use.
EPA
expects
to
use
a
combinationof
methods
(
e.
g.,
treatment,
engineering,
and
institutionalcontrols)
under
RCRA,
as
appropriate,
to
achieve
protection
of
human
health
and
the
environment.
EPA
also
expects
to
use
ICs,
such
as
water
and
land
use
restrictions,
primarilyto
supplementengineeringcontrols,
as
appropriate,
for
short­
and
long­
term
management
to
prevent
or
limit
exposureto
hazardouswastes
and
constituents.
ICs
are
not
generally
expected
to
be
the
sole
remedial
action.

GovernmentalControls­
Governmental
controlsare
usually
imulementedand
enforced
bv
a
state
or
local
eovemment
and
can
Y
General
Categories
include
zoning
restrictions,
ordinances,
statutes,
buildingpermits,
or
There
are
four
categoriesof
institutionalcontrols:
governmental
other
provisionsthat
restrict
land
or
resourceuse
at
a
site.
Local
controls;
proprietary
controls;
enforcement
and
permit
tools
with
IC
governmentshave
a
variety
of
land
use
control
measures
availablefrom
components;
and
informationaldevices.
Each
of
these
categoriesis
simpleuse
restrictionsto
more
sophisticatedmeasures
such
as
describedbelow.
In
addition,
a
checklistthat
highlightssteps
in
planned
unit
development
zoning
districts
and
overlay
zones.

3
Developmentzoning
districtsallow
for
more
flexible
site
planningand
overlay
zones
imposeadditionalrequirementsto
those
of
the
underlyingzoning
district.
Regardlessof
which
measuresare
relied
on,
the
land
use
control
should
be
carefullyevaluatedto
make
certainthat
there
are
no
exceptionswhich
could
allow
for
improperuse
of
the
site
(
e.
g.,
allowinga
day
care
center
use
within
an
industrialdistrict).
Once
implemented,
local
and
state
entities
often
use
traditionalpolice
powers
to
regulate
and
enforce
the
controls.
Since
this
categoryof
ICs
is
put
in
place
under
local
jurisdiction,
they
may
be
changed
or
terminated
with
little
notice
to
EPA,
and
EPA
generallyhas
no
authorityto
enforce
such
controls.

For
active
militarybases,
the
local
authorityfor
regulatingand
enforcing
ICs
is
the
CommandingOfficer.
Therefore,
EPA
and
the
state
should
work
with
the
installationpersonnel
to
incorporaterestrictions
into
the
base
master
plans,
instructions,
and
orders
used
by
the
Commanding
Officer
to
govern
conduct,
actions
and
activitieson
the
base
(
in
some
cases
these
restrictionsmay
be
imposed
as
permit
conditions
if
the
base
is
subject
to
RCRA
permit
requirements).

Proprietary
Controls­
These
controls,
such
as
easements
and
covenants,
have
their
basis
in
real
property
law
and
are
unique
in
that
they
generally
create
legal
property
interests.
In
other
words,
proprietary
controlsinvolve
legal
instrumentsplaced
in
the
chain
of
title
of
the
site
or
property.
The
instrument
may
include
the
conveyance
of
a
property
interest
from
the
owner
(
grantor)
to
a
second
party
(
grantee)
for
the
purpose
of
restricting
land
or
resource
use.
An
example
of
this
type
of
control
is
an
easement
that
provides
access
rights
to
a
property
so
the
Potentially
Responsible
Party
(
PRP),
facility
owner/
operator,
or
regulatoryagency
may
inspect
and
monitor
a
groundwater
pump­
and­
treat
system
or
cover
system.
The
benefit
of
these
types
of
controls
is
that
they
can
be
binding
on
subsequent
purchasers
of
the
property
(
successorsin
title)
and
transferable,
which
may
make
them
more
reliable
in
the
long­
termthan
other
types
of
ICs.

However,
proprietary
controls
also
have
their
drawbacks.
Property
law
can
be
complicatedbecause
a
property
owner
has
many
individual
rights
with
respect
to
his
or
her
property.
To
illustrate
this
point,
property
rights
can
be
thought
of
as
a
bundle
of
sticks,
with
each
stick
representinga
singleright
(
e.
g.,
the
right
to
collect
rents).
The
terminology,
enforceability,
andeffect
of
each
of
these
rights
is
largely
dependent
upon
real
property
common
law
and
the
state
where
the
site
is
located.
A
property
owner
can
convey
certain
rights
to
other
entities
(
eithervoluntarilyor
involuntarilythrough
condemnation)
and
keep
otherrights.
For
example,
if
it
is
determinedthat
a
long­
termeasement
is
required
to
ensureremedy
protectiveness,
this
 
right 
would
need
to
be
transferred
by
the
property
owner
to
another
entity.
For
the
easement
to
bind
subsequentpurchasers,
some
states
require
that
the
entity
be
an
adjacent
property
owner.
This
may
complicate
long­
term
monitoringand
enforcement
sincethe
party
receivingthe
right
(
the
grantee)
is
often
not
an
adjacent
property
owner.
To
eliminatethis
problem,
a
proprietary
controlmay
be
established
 
in
gross. 
This
means
that
the
holder
of
the
control
(
the
grantee)
does
not
need
to
be
the
owner
of
the
adjacent
property.
However,
it
should
be
noted
that
easementsin
gross
may
not
be
enforceableunder
the
laws
of
some
states.
State
property
laws
governing
easements
shouldthereforebe
researched
before
this
type
of
IC
is
selected
in
order
to
determineits
enforceabilityin
that
jurisdiction.

A
distinctionat
Federal
sitesbeing
transferred
to
the
private
sector
is
that
CERCLA
sections
120(
h)(
3)(
A)(
iii)
and120(
h)(
3)(
c)(
ii)
and(
iii)
require
that
property
interests
be
retained
by
the
Federal
government.
At
active
Federal
sites,
proprietary
controls
may
not
be
an
option
.

because
a
deed
does
not
exist
or
the
landholdingFederalagency
lacks
the
authority
to
encumber
the
property.
However,
the
landholding
Agency
may
be
willingto
enter
a
Memorandum
of
Understanding
(
MOU)
with
EPA
andor
state
regulatorsproviding
for
specific
IC
implementationplans,
periodic
inspectionsand
other
activitieswhich
it
will
undertake
(
in
lieu
of
deed
restrictions)
to
assure
that
ICs
for
the
active
site
will
remain
effective.

Enforcement
and
Permit
Tools
with
IC
Components­
Under
sections
104
and
106(
a)
of
CERCLA,
UAOs
and
AOCs
can
be
issued
or
negotiatedto
compel
the
land
owner
(
usually
a
PRP)
to
limit
certain
site
activitiesat
both
Federal
and
private
sites;
CDS
can
also
be
negotiatedat
private
sitesunder
122(
d).
Similarly,
EPA
can
enforce
permits,
conditionsandor
issue
ordersunder
RCRA
sections
3004(
a),
3004(
u)
and
(
v),
3008(
h),
or
7003.
These
tools
are
frequentlyused
by
site
managers,
but
may
also
have
significantshortcomingsthat
should
be
thoroughlyevaluated.
For
example,
most
enforcementagreements
are
only
binding
on
the
signatories,
and
the
property
restrictionsare
not
transferred
through
a
property
transaction.
For
example,
if
a
PRP
under
CERCLA
signs
a
CD
or
receives
a
UAO
and
then
sells
his
or
her
property,
many
types
of
ICs
would
not
be
enforceable
against
the
next
owner.
This
couldjeopardize
the
protectivenessof
the
remedy.
One
possible
solution
to
this
problem
is
to
ensure
that
the
enforcement
tool
contains
provisionsrequiring
EPA
or
state
notification
andor
approval
prior
to
a
property
transfer.
In
this
instance,
EPA
could
negotiatean
agreementwith
the
new
owner.
Another
solutionis
to
requiresignatoriesof
an
enforcementdocument
to
implement
additionallong­
term
institutionalcontrols
such
as
informationdevices
or
proprietarycontrols
(
i.
e.,
layering).

InSormationalDevices­
Informational
tools
provide
informationor
notificationthat
residual
or
capped
contaminationmay
remain
on
site.
Common
examples
include
state
registries
of
contaminatedproperties,
deed
notices,
and
advisories.
Due
to
the
nature
of
some
informational
devices(
e.
g.,
deed
or
hazard
notices)
and
their
potential
nonenforceability
it
is
importantto
carefullyconsider
the
objectiveof
this
categoryor 
ICs.
Informationaldevices
are
most
likely
to
be
used
as
a
secondary
 
layer 
to
help
ensure
the
overall
reliability
of
other
ICs.

ICs
at
Federal
Facilities
Because
of
Federal
ownership,
there
are
significantdifferencesin
the
way
ICs
are
applied
at
Federal
facilities.
Some
proprietary
or
governmentalcontrolscannot
be
applied
on
active
Federal
facilities.
However,
for
propertiesbeing
transferred
as
part
of
a
base
closure,
the
Department
of
Defense
does
have
the
authority
to
restrict
property
by
retaininga
property
interest
(
i.
e.,
an
easement
intended
to
assure
the
protectivenessof
the
remedy).
For
active
bases,
ICs
are
commonlyaddressed
throughremedy
selectiondocuments,
base
master
plans,
and
separate
MOUs.
More
detailed
information
on
ICs
and
Federal
facilitiesis
contained
in
 
InstitutionalControls:
A
4
Reference
Manual
(
WorkgroupDraft
­
March
1998)"
and
in
the
FFRRO
IC
guidance("
InstitutionalControls
and
Transferof
Real
Property
under
CERCLA
Section
120(
h)(
3)(
A),
(
B),
or
(
C),"
January,
2000).

Legal
Mechanisms
for
Imposing
ICs
Under
CERCLA
and
RCRA
CERCLA
and
RCRA
employ
the
same
types
of
ICs
to
reduce
exposure
to
residual
contamination.
However,
as
explainedbelow,
EPA's
legal
authorityto
establish,
monitor
and
enforce
ICs
varies
significantly
between
the
two
programs.
As
a
result,
officials
involvedin
cleanups
need
to
appreciatethe
range
of
optionsavailableunder
each
program
before
determiningwhether,
and
to
what
extent,
ICs
shouldbe
incorporatedinto
a
remedial
decision.

At
CERCLA
sites,
EPA
often
imposes
ICs
via
enforcement
tools
(
e.
g.,
UAOs,'
AOCs,
and,
CDs).
Since
these
enforcement
tools
only
bind
the
parties
named
in
the
enforcement
document,
it
may
be
necessaryto
require
the
parties
to
implement
ICs
that
"
run
with
the
land"(
Le.,
applied
to
the
property
itself)
in
order
to
bind
subsequent
land
owners.
For
Fund;
lead
CERCLA
sites,
the
lead
agency
has
the
responsibilityfor
ensuring
ICs
are
implemented.
Legal
mechanisms
such
as
UAOs,
AOCs
and
CDS
should
alsofequire
reportingto
EPA
andor
the
state
of
any
sale
of
the
property.

I,

Under
RCRA,
1,
Csare
typically
imposed
through
permit
conditions
or
by
orders
issued
under
section
3008(
h).
In
certain
circumstances
cleanup
may
also
be,
required
under
the
imminent
hazard
order
authority
of
sectipn
7003.
In
the
case
where
an
IC
is
meant
to
continuebeyond
the
expirationof
a,
peimit,
an
order
may
be
required
to
ensure
the
IC
remains
in
effect
for
the
long
term
RCRA
permit
writers
should
incorporateICs
as
specific
permit
conditions,
where
appropriate.
By
doing
so,
such
conditionswouldbe;
Tforceable
through
the
permit.
At
the
same
time,
peTii
writers
should
considerwhether
additionalICs
are
available(
e.
g.,
,
governmentaland/
orproprietarycontrols)
to
ensure
that
subsequent'propertyowners
will
be
aware,
of,
and
bound
by,
the
same
types
of
restrictions.
Similar
factors
should
be
considered
when
preparingRCRA
corrective
action
orders
to
ensure
that
both
the
current
facilityowner/
operator
and
any
subsequentproperty
owners
are
subjectfo
effectiveand
enforceable
ICs
that
will
minimize
exposureto
any
residual
contamination.

One
significantdifferencebetween
RCRA
and
CERCLA
is
that
RCRA
generally
does
not
authorize
EPA
to
acquire
any
interests
in
property.
Therefore,
many
proprietary
controls
(
such
as
easements)
will
require
the
involvementof
third
parties
(
e.
g.,
states
or
local
govemments)
under
RCRA.

ICs
and
Future
Land
Use
Land
use
and
ICs
are
usually
linked.
As
a
site
moves
through
the
SuperfundRemedial
Investigation/
Feasibility
Study
(
FWFS)
or
RCRA
Facility
InvestigationKorrective
Measures
Study
(
RFKMS),
site
managers
should
develop
assumptionsabout
reasonably
anticipated
future
landuses
and
considerwhether
ICs
will
be
needed
to
maintain
these
uses
over
time.
EPA's
land
use
guidance(
Land
Use
in
CERCLA
Remedy
Selection
Process,
OSWER
DirectiveNo.
9355.7­
04,
May
25,
1995)
states
that
the
site
manager
should
discuss
reasonably
anticipatedfuture
uses
of
the
site
withlocal
land
use
planning
authorities,
local
officials,
and
the
public,
as
appropriate,
as
early
as
possible
during
the
scopingphase
of
the
FWFS
or
RFI/
CMS.
Where
there
is
a
possibilitythat
the
land
will
not
be
cleaned
up
to
a
level
that
supportsunlimiteduse
and
unrestricted
exposure,
the
site
manager
should
also
discuss
potential
ICs
that
may
be
appropriate,
including
legal
implementationissues,
jurisdictionalquestions,
the
impactof
layeringICs
and
reliabilityand
enforceabilityconcerns.
It
is
also
important
for
the
site
managerto
recognizethat,
in
addition
to
land
uses,
ICs
can
be
used
to
affect
specific
activitiesat
sites
(
e.
g.,
fishing
prohibitions).

Screening
ICs
The
need
for
ICs
can
be
driven
by
both
the
need
to
guard
against
potential
exposure
and
to
protect
a
remedy.
If
any
remedial
options
being
evaluatedin
the
FS
or
CMS
leave
waste
in
place
that
would
not
result
in
unrestricteduse
and
unlimited
exposure,
ICs
shouldbe
consideredto
ensurethat
unacceptableexposurefTom
residual
contamination
does
not
occur.
However,
ICs
may
not
be
necessary
if
the
waste
that
is
left
at
the
site
allows
for
unrestricteduse
and
unlimited
exposure.
Remedy
options
that
typicallyleave
residual
wastes
on
site
and
necessitate
ICs
include
cappingwaste
in
place,
constructionof
containmentfacilities,
natural
attenuationand
long­
term
pumping­
and­
treatmentof
groundwater.

ICs
shouldbe
evaluatedin
the
same
level
of
detail
as
otherremedy
components.
ICs
are
considered
response
actionsunder
CERCLA
and
RCRA.
ICs
must
meet
all
statutoryrequirements,
and
are
subject
to
the
nine
evaluationcriteria
outlinedin
the
NCP
(
40
CFR
300.430
(
e)(
9)(
i))
for
CERCLA
cleanups.
The
balancing
criteriarecommended
for
correctiveactionsshould
generallybe
used
in
evaluatingICs
under
RCRA.
However,
before
applyingthese
criteria,
the
site
manager
should
first
make
several
determinations:

Objective­
Clearly
state
what
will
be
accomplishedthroughthe
'

use
of
ICs.

Example:
Restrictthe
use
of
groundwateras
a
drinkingwater
sourceuntil
the
Maximum
ContaminantLevels
are
met.

Mechanism­
Determine
the
specific
types
of
ICs
that
can
be
used
to
meet
the
variousremedial
objectives.

Example:
Work
with
the
localjurisdictionto
develop
ordinances
to
restrictwell
drilling
or
prohibit
groundwater
access
until
cleanupgoals
are
met;
record
the
groundwater
contaminationin
the
land
record
to
provide
notice
of
the
issue
to
the
public;
and
record
contaminated
aquifers
on
state
registry
to
maintain
institutionaltracking.

Timing­
Investigatewhen
the
IC
needs
to
be
implementedandor
secured
and
how
long
it
must
be
in
place.
SinceICs
are
often
5
,
implemented
by
parties
other
than
EPA,
the
time
required
to
secure
an
IC
should
be
taken
into
consideration.

Example:
A
deed
notice
may
be
required
in
the
short­
term,
and
a
formal
petition
for
a
zoning
changemay
be
necessaryin
the
long­
term,
both
of
which
need
to
be
in
place
prior
to
site
deletionfrom
the
NPL.

Responsibility­
Resech,
discuss,
and
documentany
agreement
with
the
proper
entities
on
exactly
who
will
be
responsiblefor
securing,
maintainingand
enforcingthe
control.
It
might
be
useful
to
secure
a
written
statement
of
the
appropriate
entities 
willingness
to
implement,
monitor,
and
enforcethe
IC
prior
to
the
signatureof
the
remedy
decision
document.

Example:
Work
with
the
State
to
determinewhether
it
is
willingand
able
to
hold
an
enforceableeasementto
ensure
appropriateland
use;
in
addition,
determinewhether
the
local
governmentis
willingand
able
to
change
and
enforce
the
applicablezoningrequirements.
If
assurancescannot
be
obtained,
then
ICs
may
not
be
a
viable
componentof
the
remedy.

Typically,
the
sitemanager
is
faced
with
balancingthe
relative
strengths
of
ICs
in
terms
of
enforceability,
permanence,
etc.,
with
achieving
remedial
objectives.
As
discussed
previously,
one
option
is
to
  
layer  
differentcontrolsto
ensure
long­
termreliability.
For
example,
layered
ICs
may
involveconcurrentuse
of
enforceableagreements,
deed
notices,
and
adoption
of
land
use
controlsby
a
local
government.
ICs
may
also
be
used
in
series.
For
example,
an
enforcementorder
may
prohibitthe
land
owner
from
disturbingthe
cap
on
hisher
property
(
i.
e.,
a
short­
term
control),
until
the
local
governmentgoes
through
the
process
of
restrictingthe
futureuse
of
the
land
(
i.
e.,
the
long­
termcontrol).

Determiningthe
State
Role
Where
EPA
is
implementinga
remedy,
states
often
play
a
major
role
in
implementingand
enforcingICs.
As
stated
previously,
some
governmental
controlsmay
be
establishedunder
statejurisdiction:
the
state
may
use
its
enforcement
tools
to
compel
the
PRP
or
facility
land
owner
to
limit
site
activities;
the
state
may
provide
the
notification
or
informationon
the
contaminationthat
remains
On­
site;
or
the
state
may
assume
ownership
of
a
property
in
order
to
implement,
maintain,
and
enforce
proprietary
controls.
Under
RCRA,
the
state
will
typically
be
imposingand
overseeingthe
remedialaction.

When
to
Begin
Coordinating
with
the
State
No
matter
what
role
the
state
assumes
with
ICs,
the
EPA
site
manager
shouldbegin
coordinatingwith
the
state
early
in
the
RIFS
(
for
CERCLA)
or
RFIKMS
(
for
RCRA)
process
or
after
samplinghas
been
completed
and
the
extent
of
the
risk
is
known.
Even
if
ICs
are
not
required
for
the
long­
termmaintenanceof
the
selectedremedy,
they
may
be
necessary
during
the
response
activities.
In
evaluatingthe
need
for
and
the
type
of
ICs
that
may
be
implemented
at
a
site,
the
site
manager
shouldconsultwith
their
Regional
attorney
to
determinewho
has
the
proper
legal
authorityto
implement
and
enforce
the
proposed
controls.
Certain
states
have
enacted
statutes
that
provide
the
state
with
the
legal
authority
to
restrict
land
use
at
contaminatedproperties.
In
addition,
several
states
have
adopted
statutesproviding
for
conservationeasements.
These
easements
.
ovemde
common
law
bamers
to
the
enforcementof
easementsby
parties
who
do
not
own
adjacent
property.
For
example,
at
many
sites,
the
state,
in
cooperationwith
the
PWs
or
facility
owner/
operator,
may
use
its
own
enforcementtools
to
restrict
the
use
of
the
land
and
ensure
that
the
selected
remedy,
includingICs,
is
implemented
and
maintained.
At
other
sites,
a
property
interest
may
be
conveyed
(
either
directly
or,
if
necessary,
through
EPA
at
Superfund
sites)
from
the
owner
of
the
land
to
the
state
which
becomes
the
holder
and
enforcer
of
a
proprietarycontrol.
Finally,
the
state
is
often
responsiblefor
issuing
advisoriesor
warnings
of
potentialrisks
(
e.
g.,
fishing
or
swimmingprohibitions),
andproviding
registriesof
hazardous
waste
sites
(
i,
e.,
informationalcontrols).

If
it
appears
that
the
state
&
I1
be
relied
upon
to
establish
the
ICs,
the
site
manager
should
immediatelytalk
to
state
agency
personnel
to
gauge
their
willingnessto
establish,
maintain
and
enforce
the
control,
if
necessary.
This
discussionis
encouraged
regardlessof
the
type
of
IC@)
that
will
be
implemented.
The
site
manager
should
work
with
his
or
her
state
counterpart
to
identify
and
contact
the
appropriate
state
agency
and
personnel
for
each
proposed
IC.
In
addition,
if
a
property
interest
is
conveyedby
the
land
owner
to
EPA
to
perform
a
remedial
action
(
e.
g.,
to
ensure
the
reliability
of
the
ICs
restrictingthe
use
of
the
land),
CERCLA
requires
the
state
to
accept
transfer
of
the
title
from
EPA
followingcompletionof
the
CERCLA
remedialaction.
If
the
state
does
not
agree
to
accept
title
to
the
property,
the
site
manager
must
find
another
party
to
assume
ownership
(
e.
g.,
a
local
government,
communitygroup
or
trust)
or
anothertype
of
IC
(
e.
g.,
local
government
~
ontrol)~
must
be
selected.
State
assurancesfor
O&
M
or
for
transfer
of
property
interest
are
formalized
in
a
SuperfundState
Contract
(
SSC),
cooperativeagreement,
or
MOU
that
is
negotiatedbetween
the
state
and
EPA.

State
Role
at
Fund­
Financed
CERCLA
Cleanups
The
state
assumes
other
responsibilitiesfor
ICs
if
the
remedial
action,
includingthe
ICs,
will
be
Fund­
financedunderCERCLA.
CERCLA
specificallyrequires
that
the
state
provide
assurancethat
it
will
assume
responsibility
for
operationand
maintenance
(
O&
M)
of
the
selectedremedy
before
a
Fund­
financedremedial
action
is
implemented.
The
NCP
requires
the
state
to
ensure
that
any
ICs
implemented
as
part
of
the
remedial
action
at
the
site
are
in
place,
reliable,
and
will
remain
in
place
after
the
initiationof
O&
M.
These
assurancesare
also
documentedin
a
cooperativeagreement,
SSC
or
MOU.

State
Role
at
RCRA
Sites
Factors
to
Consider
in
State
Coordination
3Likewise,
either
the
state
or
a
third
party
must
be
willing
to
accept
property
interests
at
PRP­
led
sites.

6
Under
RCRA,
states
will
typicallybe
the
implementingand
overseeing
agency.
Thereforethe
state,
when
authorizedand
overseeingcorrective
action,
will
be
responsiblefor
identifying
appropriateinstitutional
controls.
Where
EPA
is
overseeingthe
remedy
there
are
no
state
assurancerequirementsin
RCRA
CorrectiveAction.
However,
because
there
is
no
Federal
mechanism
in
RCRA
allowingEPA
to
acquire
interest
in
property,
EPA
may
be
forced
to
rely
on
third
parties
(
typicallystate
or
local
government)
to
establish,
maintain
and
enforce
most
types
of
ICs.

State
Role
at
Federal
Facilities
At
Federal
facilities,
the
landholdingagency
is
ultimatelyresponsible
for
all
response
activities.
The
state
is
not
required
to
provide
assurancethat
it
will
assume
responsibilityfor
O&
M.
However,
states
may
enter
into
an
agreementwith
the
landholdingFederal
agency
to
monitor
and
enforceICs
at
Federal
sites.

Determining
the
Role
of
Local
Governments
CERCLA,
RCRA,
and
the
NCP
do
not
specify
a
role
for
local
governmentsin
implementingthe
selectedremedy.
However,
a
local
government
is
often
the
only
entity
that
has
the
legal
authority
to
implement,
monitor
and
enforce
certain
types
of
ICs
(
e.
g.,
zoning
changes).
While
EPA
and
the
states
take
the
lead
on
CERCLA
and
RCRA
response
activities,
local
governmentshave
an
importantrole
to
play
in
at
least
three
areas:
(
1)
determiningfuture
land
use;
(
2)
helping
engagethe
public
and
assistingin
public
involvementactivities;
and
(
3)
implementationand
long­
term
monitoringand
enforcement
of
ICs.
Therefore,
it
is
critical
that
the
site
manager
and
his
or
her
state
counterpart
involve
the
appropriatelocal
governmentagency
in
discussionson
the
types
of
controls
that
are
being
considered.
The
capability
and
willingnessof
the
local
governmentto
implement
and
ensure
the
short­
or
long­
term
effectivenessof
the
proposed
ICs
should
be
consideredduringthe
RI/
FS
or
RFUCMS.
In
certain
cases,
cooperativeagreementsmay
be
consideredto
assist
local
governments
in
the
implementation,
monitoringand
enforcement
of
required
ICs.

Evaluating
ICs
Once
the
site
managerhas
consideredthe
objectives,
mechanism,
timing,
and
entityresponsiblefor
implementing,
monitoringand
enforcingthe
ICs,
the
next
phase
is
selectingthe
ICs.,
The
followingsections
contain
a
discussionof
the
CERCLA
and
RCRA
factorsthat
site
managers
should
generallyconsider
when
evaluatingICs
during
the
FS
or
CMS.
If
the
site
manager
proposesto
layer
or
use
the
1Cs
in
series,
he
or
she
should
tils0
characterizethe
likelihoodthat
this
approach
can
actually
be
achieyed.
It
is
important
to
note
that
at
CERCLA
sites,
the
statute
requiresmthe
site
manager
to
evaluateICs,
just
like
other
remedy
components,
against
the
nine
NCP
criteria.
The
site
manager
must
ensure
tiat
remedies
are
protectiveof
human
health
and
the
environment.
ICs
may
be
an
important
element
in
this
determination.
RCRA
shes
mmagers
have
the
latitudeto
use
balancingcriteria,
but
unlike
CkRCLA,
RCRA
regulationsdo
not
require
this
balancingstep.
The
CERCLA
and
RCRA
criteria
are
categorizedbelow
in
three
groups:
threshol?,
balancing,
and
modifying.
ICs
in
CERCLA
Removal
Actions
ICs
will
rarely
be
a
component
of
true
emergencieswhere
a
time
critical
action
serves
as
the
onlyresponse
at
a
site.
It
is
more
likely
that
a
site
manager
will
choose
ICs
as
a
componentof
a
non­
time
criticalremoval
action
or
duringa
follow­
upremedialaction.
A
post­
removalsite
controlagreement
must
be
completedbefore
commencinga
fund­
financedremovalaction
where
ICs
are
included
in
post­
removal
site
control
(
OSWER
DirectiveNo.
9360.22­
02).
As
in
the
remedial
process,
begin
consideringICs
when
conducting
an
analysisofland
use
assumptionsduringthe
removal
decisionmakingprocess
Where
a
final,
site­
wide,
non­
time
criticalremoval
remedy
decisionwill
be
made,
ICs
should
be
thoroughlyand
rigorouslyevaluatedwith
all
other
responseactions
in
the
EngineeringEvaluatiodCost
Analysis(
EWCA).
In
short,
because
ICs
are
consideredto
be
actions,
apply
the
full
criteriarequired
by
the
NCP
for
EE/
CA
evaluations.
It
is
anticipatedthat
ICs
would
not
be
chosenas
the
sole
action
for
a
removal.

It
is
fundamentalthat
a
remedy
under
RCRA
or
CERCLA
that
includesICs
meet
the
followingthresholdcriteria:

­
protect
human
health
and
the
environment;
and
7
for
CERCLA
sites,
comply
with
Applicableor
Relevant
and
AppropriateRequirements
(
ARMS).

The
site
manager
for
RCRA
facilitiesshouldalso
considerwhether
remedies
that
includeICs:

attain
media
cleanup
standards
or
complywith
applicablestandards
for
waste
management;
and
controIthe
source(
s)
of
releases
so
as
to
reduce
or
eliminate,
to
the
extent
practicable,
further
releases
of
hazardouswaste
that
might
cause
threats
to
human
health
and
the
environment.

Balancing
Criteria
The
sitemanager
evaluates
the
individual,
layered
or
series
of
ICs
to
determine
their
respectivestrengthsand
weaknesses.
ICs
are
also
evaluated
in
combinationwith
engineeredcontrolsto
identifythe
key
tradeoffs
that
shouldbe
balanced
for
the
site.
Followingare
balancing
m­
teriarequiredby
CERCLA
and
the
NCP
and
recommendedby
the
RCRA
program
in
guidance.

Long­
term
effectiveness
andpermanence
(
CERCLA)
or
reliability(
RCMhUnder
both
CERCLA
and
RCRA,
this
factor
assesses
the
permanenceireliabilityand
effectivenessof
ICs
that
may
be
used
to
manage
treatment
residuals
or
untreatedwastes
that
remain
at
the
site
over
time.
When
evaluatingwhether
an
IC
will
be
effectiveover
the
long­
term,
the
site
manager
should
considerfactorssuch
as:
whether
the
property
is
a
government­
owned
site
or
a
privately­
owned
site
that
is
likely
to
change
hands;
the
appiicabilityof
ICs
to
multiple
property
owners;
the
size
of
the
area
to
be
managed;
the
number
of
parcels;
the
contaminatedmedia
to
be
addressed;
the
persistenceof
the
contamination;
whether
site
contaminationis
well­
defined;
and
whether
local
governmentsorother
governingbodiesare
willing
and
able
to
monitorand
enforce
long­
term
ICs.
The
site
manager
shouldalso
considerthe
contaminatedmedia
to
be
addressed
by
the
ICs.
Different
ICs
may
be
required
for
differentmedia.

Where
ICs
must
be
effective
for
a
long
period,
either
proprietaryor
governmentalcontrolsshould
be
consideredbecause
they
generallyrun
with
the
land
and
are
enforceable.
However,
both
proprietaryand
governmentalcontrolshave
weaknessesin
terms
of
long­
term
reliability.
For
example,
with
proprietary
controls,
common
law
doctrinesmay
restrict
enforcementby
parties
who
do
not
own
adjoiningland.
This
can
render
proprietarycontrols
ineffective
if
EPA
or
another
party
capable
of
enforcingthe
control
is
not
the
owner
of
the
adjacent
property.
To
eliminate
this
problem,
proprietary
controls
may
be
established
"
in
gross,"
signifyingthat
the
holder
of
the
control
does
not
need
to
be
the
owner
of
the
adjacent
property.
However,
some
courts
do
not
recognize
in
gross
proprietarycontrols.

At
some
sites,
governmental
controlsmay
be
preferableto
proprietary
controls.
For
example,
the
site
manager
might
work
with
a
local
governmentto
pass
an
ordinance
to
restrict
constructionor
invasive
digging
that
might
disturbor
cause
exposureto
coveredresidual
lead
contaminationin
a
largeresidential
area.
The
implementationof
governmentcontrols
might
be
considereda
beneficial
addition
to
informationtools
that
may
be
forgotten
over
the
long
term
or
an
enforcementaction
that
would
be
binding
only
on
certain
parties.
Proprietarycontrols
would
likely
be
deemed
impracticalat
such
a
site
due
to
the
complex
and
uncertain
task
of
obtainingeasementsfrom
multiple
property
owners.

Like
proprietarycontrols,
the
use
of
governmentatcontrols
may
not
be
effectiveover
the
long
term.
Of
primary
concern
are
the
political
and
fiscal
constraintsthat
may
affect
the
ability
of
a
state
or
local
governmentto
enforcethe
controls.
Similarly,
governmentalcontrols
may
be
problematicwhen
the
local
or
state
government
is
or
may
become
the
site
owner
or
operatorbecause
of
the
appearance
of
a
conflict
of
interest.
Regardless
of
the
control
selected,
its
viability
over
the
long
term
needs
to
be
closely
evaluated.

Reductionof
toxicity,
mobili@,
or
volume
through
treatment­
This
CERCLA
and
RCRA
criterion
does
not
apply
since
ICs
are
not
treatment
measures.

Short­
termEffectiveness­
Short­
tern
effectivenessof
ICs
at
CERCLA
and
RCRA
sites
shouldbe
evaluated
with
respect
to
potential
effects
on
human
health
and
the
environmentduring
constructionand
implementation
of
the
remedy.
In
order
to
satisfy
this
criterion,
the
remedy
might
entail
the
use
of
an
IC
through
an
enforcementorder
to
compel
the
PRP
to
restrict
certain
uses
of
the
groundwaterat
or
down
gradient
from
the
site
duringremediation.
After
remediation
is
complete,
other
ICs
might
be
implementedif
residual
contaminationremains
on
site
(
ix.,
implementingICs
in
series).

Implementability­
This
CERCLA
and
RCRA
criterionevaluatesthe
administrativefeasibilityof
an
action
and/
or
the
activitiesthat
need
to
be
coordinatedwith
other
officesand
agencies.
Implementation
factorsthat
generallyshould
be
consideredfor
ICs
includewhether
the
entity
responsible
for
implementation
possesses
the
jurisdiction,
authority,
willingness
and
capabilityto
establish,
monitor
and
enforce
ICs.
A
proper
analysisof
implementabilitycan
be
complex,
consideringsuch
diversefactorsas
the
extent
to
which
land
being
restricted
is
owned
by
liable
parties
and
the
willingnessand
capability
of
the
local
government
or
other.
authorityresponsiblefor
establishing
codtrolsfor
land
or
resourceuse.

CosGThisCERCLA
and
RCRA
criterion
includes
estimated
capital
and
O&
M
costs.
InCERCLA,
estimatedcosts
for
implementing,
monitoring,
and
enforcingICs
should
be
developed.
For
example,
cost
estimates
for
ICs
might
includelegal
fees
associatedwith
obtaining
easementsrestricting
land
use,
the
costs
of
purchasingproperty
rights
(
e.
g..,
groundwaterrights,
easements),
or
the
wages
of
the
state
or
local
governmentpersonnel
that
will
regularly
monitor
the
IC
to
ensure
that
it
has
not
been
violated.
It
is
interesting
to
note
that
once
the
total
life­
cyclecosts
of
implementing,
monitoringand
enforcing
an
IC
­

which
may.
exceed
30
years
­
are
fully
calculated,
it
may
actually
be
less
costly
in
the
long
term
to
implement
a
remedy
that
requires
treatment
of
the
waste.
For
more
informationon
estimatingresponse
costs,
see
"
A
Guide
to
Developingand
Documenting
Cost
Estimates
Duringthe
FeasibilityStudy,"
EPA
540­
R­
00­
002,
OSWER
9355.0
075.
In
RCRA,
costs
historicallyhave
played
a
less
prominent
role
in
remediation
selection.
Typically
cost
estimates
are
expectedto
be
developed
at
the
discretion
of
the
ownerioperator,
although
8
implementorsshouldtake
into
account
sites
where
ICs
are
inappropriately
costly.

Modifying
Criteria
Typically
the
site
manager
presents
the
proposed
remedy,
including
ICs
to
the
state,
local
government,
and
community
for
comment
prior
to
implementation.
The
issues
and
concernsof
these
stakeholdersmay
result
in
modificationsto
the
remedy
and
are
addressed
by
the
site
manager
in
the
remedy
decisiondocument.
Followingis
a
discussionof
these
modifyingcriteria
(
note:
these
criteria
are
on&
recommendedin
RCRA
guidance).

StateAcceptance­
The
site
manager
should
make
the
appropriate
state
authorities
aware
of
the
basis
and
scope
of
the
ICs
to
be
implemented
under
CERCLA
or
RCRA,
and
what
role,
if
any,
the
state
is
expected
to
play
to
make
ICs
an
effectivepart
of
the
remedy.
The
state
can
formallyexpress
its
concernsabout
the
use
of
ICs,
in
general,
and
its
role,
in
particular,
or
indicateits
willingnessto
take
on
the
responsibilityfor
implementingand
enforcingthe
proposed
ICs.

If
the
state s
position
is
uncertain
at
the
time
the
remedy
is
selected
(
e.
g.,
for
CERCLA
sites,
when
the
ROD
is
signedor,
for
RCRA
facilities,
when
the
permidorder
is
issued
or
modified),
it
may
be
necessary
to
outline
contingentremedial
approachesin
the
decision
documents.
Specifically,
remedies
that
require
long­
termICs
to
remain
protectivemay
require
alternativeactions(
e.
g.,
additionalsoil
removal)
if
the
ICs
are
later
determinedto
be
unenforceableor
cannot
meet
the
remedial
objectives.
Alternatively,
at
a
RCRA
site,
it
may
be
necessary
to
leave
a
facility
under
a
permit
or
othermechanism
enforceableby
the
regulatingagency.
If
the
state s
willingnessor
ability
to
implement
or
enforce
an
IC
changes
after
remedy
selection,
the
protectivenessof
the
remedy
should
generallybe
re­
evaluated
and,
when
necessary,
remedial
decisionsrevised.
Under
CERCLA,
this
may
require
an
Explanationof
SignificantDifferences(
ESD),
or
even
a
ROD
amendment.
Under
RCRA,
a
permit
modificationor
changeto
a
correctiveaction
order
may
be
necessary.
It
is
important
to
note
that
under
no
circumstances
can
a
Fund­
financedCERCLA
remedial
action
be
initiatedwithout
receiving
state
assurances
on
ICs
and
property
transfer.

Local
Governmentand
CommunityAcceptance­
Involving
the
communityand
local
government
early
duringthe
remedy
decision
process
will
enable
the
site
manager
to
more
fully
evaluateIC
options.
Discussionswith
the
local
governmentand
community
give
the
site
manager
the
opportunity
to:

gather
local
governmentand
community
input
on
the
proposed
ICs;
identifywhether
a
particular
stakeholdergroup
may
be
harmed
as
a
result
of
a
proposed
IC
(
for
example,
will
a
ban
on
fishing
cause
an
economic
hardshipin
the
community);
receive
comment
on
the
impacts
of
the
potential
ICs
on
religiousor
cultural
customsand
beliefs(
e.
g.,
preventing
access
to
property
which
grows
the
plants
that
are
used
in
a
rn bal
ceremony);
and
determine
if
the
communityhas
special
needs
in
regardsto
the
IC
(
for
example,
will
it
be
necessary
to
publish
informational
devices
in
multiple
languages).

9
In
addition,
the
local
government
and
community s
response
to
certain
types
of
ICs
and
the
willingnessand
capabilityof
the
local
government
to
monitor
ICs
will
help
the
site
manager
determine
whether
the
ICs
will
be
effectiveoverall.
This
is
especially
important
if
nearby
property
owners
will
need
to
agree
to
implement
proprietary
controlsor
if
other
governmentalICs
(
e.
g.,
zoning
changes)
will
have
an
impact
on
the
community.
Early
involvementwill
also
enable
the
communityto
work
with
the
local
governmentto
developinnovative
approachesto
using
ICs,
especially
in
light
of
any
future
land
use
plans.

As
with
other
aspects
of
the
proposed
remedy,
the
community
should
have
the
opportunity
to
comment
on
the
proposed
IC
component
of
the
remedy
during
the
public
comment
period.
It
may
be
necessary
to
educate
the
community
about
ICs
so
that
its
members
understandhow
the
different
ICs
may
impact
their
property
and
activities.
Under
CERCLA,
it
may
also
be
possible,
as
long
as
all
appropriate
requirementsare
met,
to
provide
a
Technical
AssistanceGrant
to
the
communityso
they
can
hire
a
technical
expert
to
assist
them
in
evaluatingICs
and
the
overallremedy.

In
some
cases,
it
may
be
appropriatenot
to
identify
the
exact
IC
required
at
the
time
of
the
remedy
decision.
In
these
instancesthe
critical
evaluationof
the
availableICs
should
still
be
conductedand
the
specific
objective(
s)
of
the
ICs
shouldbe
clearly
stated
in
the
ROD
or
other
decision
document.
Examples
ofwhen
this
flexibilitymay
be
appropriateare
contingentremedies
based
on
pilot
studiesor
if
a
remedy
would
not
be
implemented
for
severalyears
and
the
state
is
developingenabling
language
for
ConservationEasements
authority.

Site
Manager
ResponsibilitiesAfter
ICs
are
Selected
The
site
manager s
responsibilitiesfor
ICs
does
not
end
once
the
ICs
are
selected.
Site
managers
also
should
ensurethat
the
ICs
are
actuallyimplemented,
are
reliable,
are
enforced,
and
remain
effective.
It
shouldbe
noted
that
NPL
sites
cannotbe
deleted
until
the
entire
remedy,
includingICs,
have
been
implemented.
This
may
involvethe
following:
workingwith
state
and
local
governmental
entitiesto
obtain
commitmentsand
resources
for
implementingand
enforcingICs,
includingnegotiatinga
CERCLA
SSC
with
the
stateto
obtain
assurancesthat
the
ICs
will
be
put
in
place,
are
reliable
and
will
remain
in
place
after
initiation
of
O&
M
activities;
ensuring
that
the
PRP
or
facility
owner
complies
with
the
provisions
in
the
enforcement
tools
to
implement
the
ICs
and
provides
notice
of
the
ICs
to
potential
future
usedowners
of
the
property;
workingwith
other
Federal
agencies
to
implementand
enforce
ICs;
acquiringproperty
for
implementation
of
the
CERCLA
remedy;
and
checkingthe
statusof
ICs
during
the
CERCLA
five­
yearreview.
Conclusion
The
ICs
outlined
in
this
fact
sheet
can
be
important
elements
of
environmentalcleanups.
ICs
play
an
important
role
in
limitingrisk
and
are
often
needed
to
ensurethat
engineeredremedies
are
not
affected
by
future
site
activities.
When
selectingICs,
the
site
manager
needs
to
evaluate
the
situationat
the
site,
define
the
needs
that
ICs
are
intended
to
address,
identifythe
kinds
of
legal
and
other
tools
available
to
meet
these
needs,
and
ensure
the
ICs
are
implementedeffectively.
All
of
this
requiresup­
front
planningand
workingcloselywith
the
Regional
office
attorneys,
the
state,
community,
and
PRps
or
facility
owner/
operators.
Key
conceptsto
keep
in
mind
when
implementingICs
are
provided
in
the
text
box
below.

If
you
have
questionsregardingthe
material
coveredin
this
fact
sheet,
consult
the
draft
document,
 
InstitutionalControls:
A
Reference
Manual 
or
contact
your
Regional
Coordinatorin
the
OERR
Technical
RegionalResponse
Center.
For
informationon
model
languagefor
enforcementor
legal
documents
used
to
implement
ICs,
consultyour
RegionalCounsel,
OSRE
or
the
Office
of
GeneralCounsel.

Key
Concepts
Under
the
NCP,
the
use
of
ICs
should
not
substitutefor
active
response
measures
(
unless
activemeasures
are
not
practicable).

If
the
site
cannot
accommodateunrestricteduse
and
unlimited
exposure,
an
IC
will
generallybe
required.

Make
sure
the
objective(
s)
of
the
IC
are
clear
in
the
decision
document.

Coordinateearly
with
state
and
local
governments.

Layer
ICs
andor
place
them
in
series
dependingupon
site
circumstances.

EvaluateICs
as
rigorouslyas
other
remedial
alternatives.

Understand
the
life­
cycle
strengths,
weaknesses
and
costs
for
the
implementation,
monitoringand
enforcementof
ICs.

Get
assurances,
in
writing,
from
entities
that
will
implement,
monitor,
and enforceICs.

Remember
that
since
all
ICs
have
weaknesses,
the
role
of
the
RCWCERCLA
decision
makers
is
to
select
the
best
ICs
to
protect
human
health
and
the
environment.

10
Checklist
for
Implementing
ICs
During
the
initial
phase
of
cleanup
(
Le.,
RI/
FS
or
RFIKMS),
the
site
manager
should:
­
establish
clear
objectives
(
what
are
you
trying
to
accomplish
through
the
use
of
ICs?)
discuss
future
land
use
plans
with
the
community
and
local
government
to
help
in
analyzing
the
appropriate
ICs
and
other
remedial
alternatives
evaluate
ICs
using
the
appropriate
threshold,
balancing,
and
modifying
criteria
coordinate
with
regional
attorneys
on
legal
matters
and
the
State
as
appropriate
be
innovative/
creative
but
realistic
I
I
­

During
remedy
selection,
the
site
manager
should:
present
information
that
helps
the
public
understandthe
impacts
of
the
specific
ICs
and
their
relationship
with
the
overall
remedy
clearly
describe
the
objectives
to
be
attained
by
ICs
specify
performance
standards
(
e.
g.,
prevent
exposure
to
contaminated
ground
water
by
prohibiting
well
drilling)
consider
layering
ICs
to
enhance
their
overall
effectiveness
discussions
with
entities
(
e.
g.,
local/
state
governments)
involved
in
implementing
ICs
discuss
the
kinds
of
controls
envisioned
and
include
enough
information
to
show
that
effective
implementation
of
the
ICs
can
reasonably
be
expected
discuss
plans
for
monitoring
land
use
and
other
aspects
of
the
remedy
that
depend
on
ICs
discuss
the
enforcement
mechanisms
that
are
anticipated
to
ensure
the
long­
term
reliability
of
the
ICs
­
­

continue
coordination
with
attorneys
I
~~

During
remedy
implementation
(
i.
e.,
RD/
RA
and
CMI),
the
site
manager
should:
ensure
that
appropriate
measures
are
taken
to
implementthe
ICs
(
e.
g.,
arrange
discussions
between
PRPs,
other
property
owners,
and
local
government
or
state
officials)
be
aware
that
ICs
need
to
be
fully
implemented
to
obtain
a
RCRA
permit
termination,
or
for
CERCLA
sites,
fully
implementedto
obtain
RA
completion,
a
site
completion,
and
partial
or
full
deletion
prepare
an
ESD
or
ROD
amendment
for
CERCLA
sites
or
a
permit
modification
or
order
revision
for
RCRA
sites
if
the
ICs
will
not
result
in
the
remedy
being
protective
of
human
health
and
the
environment;
if
this
becomes
necessary,
also
ensure
that
the
public
is
provided
an
opportunity
to
comment
on
the
proposed
replacement
ICs
I
I
During
Post­
Remediation
activities
(
e.
g.,
a
CERCLA
five­
year
review),
the
site
manager
should:
Evaluate
both
the
administrative/
legal
components
as
well
as
the
physical
evidence
to
ensure
that
ICs
are
both
implemented
and
fully
effective
­
Document
these
results
inthe
Five­
Year
Review
Report
(
for
CERCLA
sites)
I
0
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9)
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u
GLOSSARY
OF
TERMS
Administrative
Orders
on
Consent
(
AOC)
­
A
legal
agreement
signed
by
EPA
and
the
potentially
responsible
parties
(
PRPs)
through
which
the
PRP
agrees
to
pay
for
or
take
the
required
corrective
or
cleanup
actions,
or
refrain
from
an
activity.
It
describes
the
actions
to
be
taken,
may
be
subject
to
a
comment
period,
applies
to
civil
actions,
and
can
be
enforced
in
court.

Advisories
­
Warnings,
usually
issued
by
public
health
agencies,
either
at
the
federal,
state
or
local
level,
that
provide
notice
to
potential
users
of
land,
surface
water,
or
ground
water
of
some
existing
or
impending
risk
associated
with
their
use.

Appurtenant
­
A
traditional
property
law
term
used
to
describe
an
easement
that
is
created
to
benefit
an
adjacent
parcel
of
land
(
and
it
is
held
by
the
owner
of
that
land).
For
example,
an
easement
allowing
the
owner
of
one
parcel
the
right
to
cross
an
adjoining
parcel
would
be
appurtenant.
(
See
also
 
In
Gross )

Chain
of
Title
­
A
history
of
conveyances
and
encumbrances
affecting
a
title
from
the
time
that
the
original
patent
was
granted,
or
as
far
back
as
records
are
available.

Common
Law
­
The
body
of
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.

Condemnat,
ion
of
Property
­
When
a
local
government,
exercising
eminent
domain,
condemns
a
property
in
order
to
take
over
title.

Consent
Decree
(
CD)
­
A
legal
document,
approved
by
a
judge,
that
formalizes
an
agreement
reached
between
EPA
and
PRPs
through
which
PRPs
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
EPA
initiated
regulatory
enforcement
action.
The
consent
decree
describes
the
actions
PRPs
will
take
and
is
subject
to
a
public
comment
period.

Conservation
Easements
­
Statutes
adopted
by
some
states
that
establish
easements
to
conserve
and
protect
property
adnatural
resources.

Conveyance
­
The
transfer
of
title
to
property
or
a
right
of
that
property
(
i.
e.
easement)
from
one
person
to
another.

Cooperative
Agreement
­
An
assistance
agreement
whereby
EPA
transfers
money,
property,
services
or
anything
else
of
value
to
a
state,
university,
or
non­
profit
or
not­
for­
profit
organization
for
the
accomplishment
of
authorized
activities
or
tasks.

Covenants
­
A
promise
by
one
landowner
to
another
made
in
connection
with
a
conveyance
of
property.
Generally,
a
covenant
is
a
promise
by
the
holder
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
signed
and
usually
sealed
instrument
containing
some
legal
transfer,
bargain,
or
contract.

Deed
Notice
­
Commonly
refers
to
a
non­
enforceable,
purely
informational
document
filed
in
public
land
records
that
alerts
anyone
searching
the
records
to
important
information
about
the
property.

Deed
Restriction
­
Not
a
traditional
property
law
term,
but
rather
is
used
in
the
NCP
as
a
shorthand
way
to
refer
to
types
of
institutional
controls.

28
I
Easements
­
A
property
right
conveyed
by
a
landowner
to
another
party
which
gives
the
second
party
rights
with
regard
to
the
first
party s
land.
An
 
affirmative 
easement
allows
the
holder
to
enter
upon
or
use
another s
property
for
a
particular
purpose.
A
 
negative 
easement
imposes
limits
on
how
the
landowner
can
use
his
or
her
own
property.
3
Enforcement
Tools
­
Tools,
such
as
administrative
orders
or
consent
decrees,
available
to
EPA
under
CERCLA
and
RCRA
that
can
be
used
to
restrict
the
use
of
land.
Enforcement
authority
can
be
used
to
either
(
1)
prohibit
a
party
from
using
land
in
certain
ways
or
from
carrying
out
certain
activities
at
a
specified
property,
or
(
2)
require
a
settling
party
to
put
in
place
some
other
form
of
control,
such
as
a
proprietary
control.

Equitable
Servitude
­
A
real
estate
interest,
similar
to
a
covenant,
that
arose
when
courts
of
equity
enforced
agreements
that
did
not
meet
all
of
the
formal
requirements
for
a
covenant.

Government
Controls
­
Controls
using
the
regulatory
authority
of
a
governmental
entity
to
impose
restrictions
on
citizens
or
sites
under
itsjurisdiction.
Generally,
EPA
must
turn
to
state
or
local
governments
to
establish
controls
of
this
type.

In
Gross
­
A
traditional
property
law
term
used
to
describe
easements
that
provide
a
benefit
not
related
to
any
property
owned
by
the
holder
of
the
easement.
Easements
used
under
CERCLA
and
RCRA
will
generally
be
 
in
gross 
because
the
restrictions
are
generally
not
for
the
benefit
of
any
particular
neighboring
parcel
owned
by
the
holder
of
the
easement.

Informational
Devices
­
Informational
tools
that
provide
information
or
notification
that
residual
or
capped
contamination
may
remain
on
site.
Common
examples
include
state
registries
of
contaminated
properties,
deed
notices,
and
advisories.

Institutional
Controls
­
Non­
engineering
measures
intended
to
affect
human
activities
in
such
a
way
as
to
prevent
or
reduce
exposure
to
hazardous
substances.
They
are
almost
always
used
in
conjunction
with,
or
as
a
supplement
to,
other
measures
such
as
waste
treatment
or
containment.
There
are
four
categories
of
institutional
controls:
governmental
controls;
proprietary
controls;
enforcement
tools;
and
informational
devices.

Local
Permits
­
Special
permits
outlining
specific
requirements
before
an
activity
can
be
authorized.

Memorandum
of
Understanding
­
A
document
which
outlines
an
agreement
in
principle
between
its
signatories.

Proprietary
Controls
­
Tools
based
on
private
property
law
used
to
restrict
or
affect
the
use
of
property.

Reversionary
Interest
­
A
real
estate
interest
created
when
a
landowner
deeds
property
to
another,
but
the
deed
specifies
that
the
property
will
revert
to
the
original
owner
under
specified
conditions.

 
run
with
the
land ­
An
expression
indicating
a
right
or
restriction
that
affects
all
current
and
future
owners
of
a
property.

State
Use
Restrictions
­
Statutes
enacted
by
some
states
providing
authority
to
establish
use
restrictfons
specifically
for
contaminated
property.

State
Registries
of
Hazardous
Waste
Sites
­
Registries
established
by
state
legislatures
that
contain
information
about
properties.
Types
of
registries
include
a
list
of
hazardous
waste
sites
in
the
state;
annual
reports
submitted
to
the
legislature
summarizing
the
.
status
of
each
site
on
the
registry;
and
notice
with
the
deed
for
sites
on
the
registry
that
the
site
is
contaminated.

29
Superfund
State
Contract
(
SSC)
­
An
agreement
between
EPA
and
the
state
before
remedial
action
begins
(
at
Superfund
sites
where
EPA
is
leading
the
response
activities)
that
documents
the
state s
assurances
under
the
law
and
outlines
the
roles
and
responsibilities
of
both
parties.

Tailored
Ordinances
­
Ordinances
put
in
place
by
local
governments
with
broad
land
use
authority
to
control
access
to
or
the
use
of
certain
areas.
For
example,
ordinances
that
require
fences
or
buffers
around
or
that
ban
fishing
or
swimming
in
contaminated
areas.

Technical
Assistance
Grant
­
A
EPA
grant
awarded
to
eligible
community
groups
for
the
purpose
of
hiring
an
independent
technical
advisor,
enabling
community
members
to
participate
more
effectively
in
the
decision­
making
process
at
Superfund
sites.

Unilateral
Administrative
Order
(
UAO)
­
A
legal
document
signed
by
EPA
directing
the
PRPs
to
take
corrective
action
or
refrain
from
an
activity.
It
describes
the
violations
and
actions
to
be
taken,
and
can
be
enforced
in
court.

Zoning
Restriction
­
Zoning
authority
exercised
by
local
governments
to
specify
land
use
for
certain
areas.
For
example,
a
local
government
could
prohibit
residential
development
in
an
area
of
contamination
or
limit
gardening
in
certain
areas.

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