Managers and attorneys associated with contaminated sites should familiarize
themselves with appropriate state statutes and identify the governmental bodies
that have jurisdiction over the sites, according to guidance
on institutional controls issued by the Environmental Protection Agency.
In addition, the guidance from EPA's Office of Solid Waste and Emergency
Response said it may be useful to collaborate with attorneys and remedial and
removal practitioners familiar with the laws, regulations, and practices in the
jurisdiction where the site is located.
The guidance, dated December 2012, pertains to site cleanups under the
Comprehensive Environmental Response, Compensation, and Liability Act and the
Resource Conservation and Recovery Act, and to brownfields, federal facilities,
and underground storage tank sites.
The document is titled Institutional Controls: A Guide to Planning,
Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated
The guidance is the second in a series on the use of institutional controls,
EPA said. The first document, Institutional Controls: A Site Manager's Guide
to Identifying, Evaluating and Selecting Institutional Controls at Superfund and
RCRA Corrective Action Cleanups, was issued in September 2000.
Also in December, the agency issued a guidance
document for EPA regional offices to assist them in developing institutional
control implementation and assurance plans. The document is titled
Institutional Controls: A Guide to Preparing Institutional Control
Implementation and Assurance Plans at Contaminated Sites.
In January 2012, Mathy Stanislaus, EPA's assistant administrator for OSWER,
told BNA that issuing guidance for institutional controls at relevant cleanup
sites was one of office's priorities for that year (43 ER S-26, 1/13/12).
EPA defines institutional controls as “non-engineered instruments, such as
administrative and legal controls, that help to minimize the potential for
exposure to contamination” and help “protect the integrity of a response
action.” The controls are typically designed to work by limiting land and
resource use or by providing information that helps modify or guide human
behavior at a site.
In general, the new guidance for site managers and attorneys is intended to
provide them, as well as other interested parties, with information and
recommendations that should be useful for planning, implementing, maintaining,
and enforcing institutional controls.
The guidance recommends that site managers and attorneys meet with community
members and local government representatives throughout the institutional
controls life cycle to ensure that they are understood and accepted as
In addition, an appropriate tool such as a consent decree, order, or permit
under CERCLA, RCRA, or state law should be used to conduct the cleanup,
including any institutional controls that are part of the cleanup action,
according to the guidance.
The guidance identifies and addresses many of the common issues that may be
encountered when using institutional controls under EPA's cleanup programs. It
also provides an overview of the agency's policy regarding the roles and
responsibilities of interested parties involved in various aspects of the
institutional controls life cycle.
The second set of guidance provides EPA regions with a template for
developing an institutional control implementation and assurance plan (ICIAP) at
contaminated sites where the response action includes an institutional controls
An ICIAP is a document designed to systematically establish and document
activities associated with implementing and ensuring the long-term stewardship
of institutional controls and to specify the persons and entities responsible
for conducting the activities.
The guidance for regions recommends that the ICIAP be developed before, or at
the same time as, the design of the engineered response--such as brownfields
remedial work plans--and finalized with the design completion.
By Pat Ware
The guidance on institutional controls for managers of contaminated sites and
other interested parties is available at http://www.epa.gov/superfund/policy/ic/guide/Final%20PIME%20Guidance%20December%202012.pdf.
The guidance on institutional controls for EPA regions is available at http://www.epa.gov/superfund/policy/ic/guide/index.htm.