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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 Sites.
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 necessary.
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 component.
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.
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