# Presentation: 712512

## Institutional Controls

- Melissa Franolich
- U.S. EPA, HQ
- (202) 564-6300
- Mike Bellot
- U.S. EPA, HQ
- (703) 603-8905

## Institutional Controls

- Definitions
- IC framework
- Categories of ICs
- EPA’s expectations for IC use
- IC Strategy
- Goals
- Site work
- Workplans
- Guidance update

## What Is an IC?

- Institutional controls are non-engineered administrative and legal controls used to minimize exposure and protect the integrity of a remedy
- Not fences or signs

## When Are ICs Used?

- Threshold
- Unlimited use and unrestricted exposure
- Before, during, and after cleanup
- ­  When contamination is first discovered to limit exposure
- ­	During cleanup
- ­	When residual contamination is left in place after site cleanup

## How Do ICs Work?

- Work by:
- Limiting land or resource use
- Providing information to modify behavior

## Regulatory Framework

- Protect human health and the environment
- Statutory preference for treatment and the use of permanent remedies
- Restore groundwater to its maximum beneficial use
- Use a combination of methods (treatment, engineering and ICs)
- Short-term and long-term management to prevent or limit exposure to hazardous waste constituents

## The NCP

- Emphasizes the use of ICs
- To supplement the use of engineering controls in all phases of cleanup
- As a component of the completed remedy
- Cautions against use as a sole remedy unless active response measures are impractical

## EPA Expectations for IC Use

- Combination of methods to achieve protection of human health/environment
- ICs supplement engineering controls
- Don’t expect ICs will often be the sole remedial action
- Remediate contaminated soils to prevent/limit direct exposure of human and environmental receptors

## EPA Expectations for IC Use (Cont.)

- ICs if the cleanup does not allow for “unrestricted use and unlimited exposure”
- ICs layered or used in series to increase reliability
- Layering ICs means using different types of ICs at the same time
- ICs in series is the use of ICs at different points in the investigation and remediation

## Use of Mechanisms General Trend

-  Most common IC Mechanism reported by category
-  Governmental controls – 370
-  Proprietary controls – 354
-  Enforcement devices – 354
-  Informational devices - 270

## Individual Mechanisms General Trend (Cont.)

- Most commonly used IC mechanisms reported
-  Consent Decree - 190
-  Deed restriction (unspecified type) - 136
-  Restrictive covenant -132
-  Deed notice - 100

## Why ICs? 

- Why ICs?

-  Most common IC objectives reported
-  Protect the integrity of the remedy – 659
-  Prohibit ingestion exposure – 638
-  Protect dermal contact – 363
-  Protect inhalation exposure – 274
-  Prohibit residential use – 254
-  Prohibit other use of groundwater – 188
-  Prohibit plume movement - 150

## General Categories

- Governmental controls
- Zoning/permits
- Proprietary controls
- Easements/covenants
- Enforcement tools with IC
- (CD/UAOs)
- Informational devices
- Fishing advisories/State registries

## Acquisition of Property

- CERCLA 104(j)
- Authorizes EPA to acquire interests in real estate
- May only use this authority if State provides assurance that it will accept transfer of the interest following completion of the remedial action
- Solutions:
- 	► Third-party beneficiary
- 	► New state laws
- 	► Alternative grantee

## EPA IC Strategy

- Each Region identify one program and one legal IC coordinator
- Regional resource for IC issues, training, etc.
- Develop a management level advisory group (MAGIC)
- Made up of one program manager from each Region and 5 Regional Counsel reps.
- Develop a National IC Strategy
- Develop Regional Workplans
- Deal with national policy & workload issues
- EPA Regions populated baseline IC information on 900 construction completion sites, including deleted sites

## Five Goals

- Define a nationally consistent approach for tracking and evaluating whether appropriate institutional controls have been implemented
- Using the IC Tracking System and independent evaluation
- Define a resource appropriate approach to remedy IC-related issues identified at Superfund sites

## Five Goals (Cont.)

- Identify and implement pipeline business process improvements to minimize future  problems
- Establish a tiered approach and appropriate time line for population, continual updates, and maintenance of the IC database

## Specific Actions

-  Populate ICTS with Tier I data by June 30th
-  Develop Regional Workplans
-  Conduct research
-  Conduct QA and fill data gaps
-  Need to identify potential solutions
-  Undertake corrective measures
-  Describe expectations for remedy changes
-  Capacity building
-  Internal/external coordination

## Regional Workplans

- Regional workplans were in place by
- 	October 31, 2004 to:
- Assess and initiate action at all deleted sites with IC issues identified through the IC tracking system, within one year
- Assess and initiate necessary action addressing IC issues at all other remaining construction completion sites at the time of the regularly scheduled five year review
- Expedite review of IC issues at those sites in either category where known factors warrant assigning a site a higher priority

## Deleted Sites Reportedly Without ICs

-  Deleted site considerations
-  Typically older sites – old information in the file
-  Not in compliance with current guidance
-  Typically little to no ongoing EPA involvement
-  Disproportionate Regional workload
-  Constitute highest potential workload (resources and
-     length of time to fix)
- ► Require research, IC identification, evaluation, negotiation, selection, implementation and arrangements for monitoring and enforcement

## Construction Completion Sites

-  Typically more recent sites
-  Much larger universe of sites
-  CC sites with ICs reportedly not in place is not
- 	 in conflict with current guidance
-  EPA typically has an ongoing involvement
-  There are some actions planned but not
- 	 implemented
-  Likely require less time and resources than
- 	 deleted sites

## Five-Year Review Sites

- All other CC sites should be assessed during Five-Year Reviews.
- Region has flexibility to move up the IC review - factors include:
- 	1.	Potential or actual breach of the IC poses  	significant human health risk
- 	2. The site is being considered for 	    		 redevelopment, evidenced by contact from a  	 developer, a land use change, or visual 	 	 evidence of activity

## Guidance Update

- Identifying, Evaluating and Selecting ICs - Final 2002
- Model RD/RA CD Language - Draft April 2005
- “How-To” Guidance Manual
- ICs and Communities
- Final March 2005
- Implementation, Monitoring and Enforcement
- Final sign-off
-  Evaluating IC Effectiveness at the Five-Year Review
- Working draft to Regional Workgroup in March 2005
-  IC Implementation and Assurance Plans
- Draft outline
-  Life-Cycle Costs
- Ongoing

## Conclusion 

- Conclusion