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United States Environmental 

Protection Agency

Office of Solid Waste and 

Emergency Response

OSWER 9355.0-89

EPA-540-R-09-001

November 2010

Interim Final

Institutional Controls:

A Guide to Planning, Implementing, Maintaining, and 

Enforcing Institutional Controls at Contaminated Sites

1. PURPOSE

The purpose of this guidance is to provide site managers of 

contaminated sites, site attorneys, F

1

F and other interested parties 

with information and recommendations that should be useful 

for planning, implementing, maintaining,F

2

F and 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. It addresses 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 various aspects of planning, implementing, 

maintaining, and enforcing ICs. A thorough understanding of 

the concepts and sources in this and related documents 

referenced here should help ensure that ICs are properly 

implemented and operate effectively during their lifespan.

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, September 2000 (OSWER 9355.0-74FS-P, 

EPA 540-F-00-005) (A Site Manager’s Guide to ICs), 

provides guidance for identifying, evaluating, and selecting 

ICs.

 

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 under the various cleanup programs listed 

above. Similarly, because CERCLA removal actions are generally discrete, 

short-term actions, EPA generally relies on state agencies to plan, implement,

maintain, and enforce ICs following a removal action.

2

The term “maintenance” refers to those activities, such as monitoring and 

reporting, that ensures ICs are implemented properly and functioning as 

intended. 

This document addresses crosscutting multi-program IC 

issues, while recognizing that there are some differences 

among the cleanup programs. F

3

F It defines ICs as used in this 

document, describes their role in contaminated site cleanups, 

and discusses four general life cycle stages ― planning, 

implementing, maintaining, and enforcing ICs. References to 

additional guidance documents including those mentioned in 

the text of this document are included in Appendix A. This 

 

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. 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 facility will 

be made based on the applicable statutes and regulations.

Table of Contents

U1. PurposeU................................................................ 1

U2. Definition and Role of Institutional ControlsU......... 2

U3. Planning for Institutional ControlsU ........................ 5

U4. General Implementation IssuesU ........................... 9

U5. Implementing Proprietary ControlsU .................... 14

U6. Implementing Governmental ControlsU ............... 20

U7. Implementing Informational DevicesU.................. 22

U8. Maintaining Institutional ControlsU ....................... 24

U9. Enforcing Institutional ControlsU .......................... 27

U10. SummaryU.......................................................... 31

UAppendix A. ReferencesU ........................................ 33

UAppendix B: Glossary of TermsU ............................. 35
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document is designed to provide general guidance and does 

not include an exhaustive list of considerations.

Regions and authorized states are encouraged to coordinate

among different tribal and government agencies and consult

with the local community. Legal requirements for maintaining 

ICs and community acceptance of the need for ICs to provide 

for protection from residual waste and the land use limitations 

that can go along with ICs, are often important to the longterm effectiveness of ICs.

Assistance with ICs is available from EPA Headquarters staff 

in the Office of Superfund Remediation and Technology 

Innovation (OSRTI), the Office of Emergency Management 

(OEM), the Office of Brownfields and Land Revitalization 

(OBLR), the Office of Site Remediation Enforcement 

(OSRE), the Office of Resource Conservation and Recovery

(ORCR), the Office of Underground Storage Tanks (OUST), 

the Federal Facilities Restoration and Reuse Office (FFRRO), 

the Federal Facilities Enforcement Office (FFEO), the Office 

of General Counsel (OGC), and IC Coordinators in the EPA 

Regional offices.

Typical Key Activities in the IC Life 

Cycle

 Planning may include activities leading up to 

the establishment of an IC. It can include an 

evaluation of the type of IC contemplated, 

potential instruments that might be used to 

implement the selected IC, potential parties 

who will be responsible for the various 

activities, criteria for termination of the ICs, 

issues that might impact the effectiveness of 

the ICs, and estimated costs and funding 

sources.

 Implementing may include activities 

undertaken to put the ICs in place including 

drafting and signing the specific documents 

necessary to establish the IC, and arranging 

for any technical and legal support that may be 

needed for monitoring and reporting. ICs may 

be implemented at any stage in the cleanup 

process.

 Maintaining includes both monitoring and 

reporting which are generally conducted to 

routinely and critically evaluate ICs to 

determine whether the IC instrument remains 

in place and whether it meets the stated 

objectives and performance goals.

 Enforcing can include actions taken to 

address ICs that have been breached or 

improperly implemented, monitored, or 

reported. IC enforcement can involve a range 

of activities, including informal communications 

to seek voluntary compliance to more formal 

steps, when appropriate.

2. DEFINITION AND ROLE OF 

INSTITUTIONAL CONTROLS

For purposes of this document, EPA defines ICs as nonengineered instruments, such as administrative and legal 

controls, that help to minimize the potential for human 

exposure to contamination and/or protect the integrity of a 

response action.F

4

F ICs are typically designed to work by 

limiting land or resource use or by providing information that 

helps modify or guide human behavior at a site. Some 

common examples of ICs include zoning restrictions, building 

or excavation permits, well drilling prohibitions, easements,

and covenants. 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.

As response components, ICs are designed to achieve the 

precise substantive restrictions articulated in the decision 

documents that are needed at a site to achieve cleanup 

objectives.F

5

F The evaluation of whether an IC is needed at a 

site is a site-specific determination. Regions and authorized 

states should consider whether the site meets unlimited use 

and unrestricted exposure (UU/UE) as one of the factors in 

deciding when an IC is appropriate at a site. UU/UE is 

generally the level of cleanup at which all exposure pathways 

present an acceptable level of risk for all land uses.

Regions or authorized states 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,

particularly in the Proposed Plan and other steps in the 

CERCLA cleanup process. Regions or authorized states 

should consider the impacts of the IC on current and 

reasonably anticipated future land uses, and should maintain a 

solid administrative record. ICs should be carefully evaluated, 

selected, and narrowly tailored to meet the cleanup objectives. 

As an example, a response selecting a capped landfill may 

require an IC. To ensure protection of both the engineering 

component and human health and the environment, it may be 

necessary to prohibit activities that compromise the response 

 

4

The words “response action” or “response” are used to include remedial and 

removal actions under CERCLA and similar actions under other programs. 

The NCP provisions for CERCLA removal actions address ICs through a 

particular process (i.e., post-removal site controls, such as ICs, are typically 

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.”

5

In cases where EPA or 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, including ICs.
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action and/or result in exposure to humans. Thus it may be 

appropriate to prohibit heavy machinery usage on or near the 

capped area, while allowing light recreational uses (e.g., 

soccer fields). The relevant decision document should clearly 

articulate the substantive restrictions (e.g., groundwater shall 

not be used for human consumption) needed to address the 

exposure pathways and the 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)

0B2.1 Role of ICs

ICs may be necessary to ensure protectiveness and/or to 

protect a remedy. If any cleanup options being evaluated 

leave waste 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 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). 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.

The site manager and site attorney should discuss reasonably 

anticipated future uses of the site with local land use planning 

authorities, local and state officials, the public, tribes and other 

federal agencies as appropriate, as early as possible 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) that may be appropriate, taking into account legal 

implementation issues, jurisdictional questions, the impact of 

layering ICs, and reliability and enforcement concerns. It is 

also important for the site manager to recognize that, in 

addition to restricting certain land uses, ICs can also be used 

to restrict or modify specific activities at sites (e.g., fishing 

prohibitions).

1B2.2 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 (planning, implementing, maintaining, and 

enforcing ICs).

Proprietary controls are generally created pursuant to state 

and tribal law to 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. The most common 

examples of proprietary controls are easements and covenants.

Many states have enacted statutes addressing the 

implementation and long-term effectiveness of proprietary 

controls. One model that has been developed is the Uniform 

Environmental Covenants Act (UECA)F

6

F, which can be 

adopted as is or in modified form by states to provide 

advantages over traditional common law proprietary controls.

Governmental controls impose restrictions on land use or 

resource use, using the authority of a government entity. 

Typical examples of governmental controls include zoning;

building codes; state, tribal, or local ground water 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 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., to monitor and report on an IC’s effectiveness). 

They may be issued unilaterally or negotiated.

 

6

UECA was developed by the National Conference of Commissioners on 

Uniform State Laws. HUhttp://www.environmentalcovenants.org/uecaU
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Informational devices provide information or notification to 

local communities that residual or contained contamination 

remains on site. As such, the site manager and site attorney 

should make sure to provide language that clearly conveys the 

purpose of the informational device. Typical informational 

devices include state registries of contaminated sites, notices 

in deeds, tracking systems, and fish advisories.

The four categories of ICs described above are typically 

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 is typically not available at an active 

federal facility, and base master plans are typically no longer 

relevant at transferring federal facilities. In addition, more 

than one category of IC can be used to ensure a given 

objective is fully addressed (see Section 3.3).

2B2.3 Program-specific Role of ICs in Cleanups

Most cleanup programs use ICs, and the challenges of 

planning, implementing, maintaining and enforcing ICs may 

be similar across the programs, with some differences at active 

federal facilities. Generally, under each program, site 

managers and attorneys should fully evaluate ICs during the 

development of cleanup alternatives 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 guidance 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. It highlights key crosscutting principles 

rather than enumerating the program-specific variations. 

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 National Contingency Plan (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 F

7

F; 2) 

ground water should be returned to its beneficial use wherever 

practicable in a reasonable time frameF

8

F; and 3) ICs should 

 

7

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, November 1991. Office of Emergency 

and Remedial Response (OERR) 9380.3-06FS.

8

For more information on remedy selection see Rules of Thumb for 

Superfund Remedy Selection, August 1997. EPA 540-R-97-013 OSWER 

9355.0-69

supplement engineering controls to prevent or limit exposure, 

but ICs normally “shall not substitute for active response 

measures.”F

9

F Thus, ICs are expected to play an important role 

by minimizing the potential for human exposure and 

protecting engineered remedies,F

10

F but they are not intended to 

be a way “around” treatment or ground water restoration. 

Under the NCP, ICs are not to be used as the sole remedy 

unless active response measures are determined to be 

impracticable.F

11

F An IC-only remedy is considered a “limited 

action” and as such is not the same as a “no action” remedy 

decision. In cases where EPA determines that “no action” is 

needed under CERCLA, the decision document should state 

that the “no action” decision does not preclude EPA from 

reasserting its authority to later require a response, including 

ICs.

The use of ICs following Fund-financed removal actions is 

discussed in previous EPA guidance that addresses postremoval site controls (PRSCs) (Policy on Management of PostRemoval Site Control, OSWER 9360.2-02, December 1990). 

Generally, Regions should treat ICs like PRSCs. F

12

F The NCP 

states that to the extent practicable (emphasis added) 

provision for PRSCs following a Fund-financed removal 

action at both NPL (National Priorities List) 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(l)). Such controls may be conducted by state, tribal, 

or local governments; potentially responsible parties (PRPs); 

or EPA’s remedial program for some federal-lead Fundfinanced responses at NPL sites upon completion of the 

removal action.F

13

F EPA encourages the Regions to coordinate 

with the state, local governments, 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 

 

9

These expectations appear in 40 CFR § 300.430(a)(1)(iii).

10 Regulations that define protectiveness may include requirements for 

restricting land use in certain situations. These may be determined on a sitespecific basis to be an applicable, or relevant and appropriate requirement 

under CERCLA.

11 See 40 CFR § 300.430(a)(1)(iii)(A), (B), (C), and (D). 

12 Unlike ICs, PRSC can include a broader array of items such as site 

maintenance activities, repairs, O&M, and environmental monitoring.

13 It is important to note that EPA does not use the Fund to pay for IC 

monitoring or enforcement at removal sites. CERCLA § 104(c)(3) requires 

states to pay for or ensure the payment of all future routine O&M following 

Fund-financed remedial actions.
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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) for 

corrective action for releases from solid waste management 

units (EPA 1996), pages 19,448-19,464; Final Guidance on 

Completion of Corrective Action Activities at RCRA Facilities

(“Corrective Action Completion Guidance”), 68 FR 8,457-8,764 

(February 25, 2003) and an EPA memorandum titled Ensuring 

Effective and Reliable Institutional Controls at RCRA 

Facilities, 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 current 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 19432.

Federal Facilities. EPA’s FFRRO and FFEO have issued 

guidance on describing and documenting ICs in federal 

facility response actions in Records of Decision (RODs), 

remedial designs (RD), and remedial action work plans

(RAWP) in the Sample Federal Facility Land Use Control 

ROD Checklist with Suggested Language (2006), which 

provides language for creating enforceable LUC requirements. 

The LUC Checklist includes sample language for ICs to 

include in a ROD, RD, RAWP, or other post-ROD document.

Because some federal agencies may have somewhat different 

procedures, it is important when dealing with federal facility 

issues to coordinate with FFRRO and 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. 

The site manager and site attorney are encouraged to work 

together to make sure that the types of ICs used are consistent 

with the level of cleanup, and the proposed re-use of the sites.

3. PLANNING FOR INSTITUTIONAL 

CONTROLS

Full life-cycle planning (i.e., planning, implementing, 

maintaining, enforcing, modifying if necessary, and 

terminating) is recommended to ensure the long-term 

durability, reliability, and effectiveness of ICs. Many 

problems experienced by practitioners using ICs can be 

avoided by critically evaluating and thoroughly planning for 

the entire IC lifespan early in the response selection and 

design process. F

14

Site managers and site attorneys should seek input from state, 

tribal, and local governments, responsible parties, affected 

communities, and other stakeholders during the response 

selection process in order to ensure that the most appropriate 

response, including IC(s), is selected. Early cooperation and 

coordination among these parties with IC planning activities 

can be critical to the long-term stewardship at a site. Longterm protectiveness at the site often depends on compliance 

with the ICs to assure the remedy continues to function as 

intended.

3BIt may be beneficial for state, tribal, and local governments to 

work with, and reach a common understanding F

15

F with, the 

responsible parties and other stakeholders about various IC 

roles and responsibilities. This common understanding will 

likely vary depending upon whether federal, state, and/or local 

authority is used. Whenever possible, Regions should 

document in writing any arrangements made between parties 

with responsibilities for IC implementation, maintenance, and 

enforcement. Existing state and local programs may provide a 

good framework or foundation for ICs. The following are 

additional considerations that may be important in evaluating 

and planning for the IC life cycle.

 

14In addition to the remedy selection process, ICs may also be chosen as part 

of a non-time critical removal action and should be evaluated as part of the 

Engineering Evaluation/Cost Analysis Study (EE/CA) under CERCLA.

15 Parties may be able to reach a common understanding regarding their 

respective IC roles and responsibilities through various mechanisms that may 

be available under State law (e.g., a Memorandum of Understanding, 

Administrative Order on Consent, contract, or enforceable agreement).
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4B3.1 Selection of ICs

As part of a remedial action, evaluation and selection of ICs 

should generally follow a process similar to other remedy 

components. This typically includes an evaluation of the 

substantive restrictions on the use of property that may be 

needed to protect engineering controls and human health and 

the environment. Site managers and site attorneys should also 

evaluate the capability and capacity of the local governmental 

(or other) entities that will be responsible for implementing, 

maintaining, and enforcing the potential ICs (see Section 3.8). 

In parallel, they should engage with communities to ensure the 

community is fully aware of ICs under consideration and seek 

community input (see Section 3.7).

A preliminary IC evaluation should typically be included as 

part of site investigation efforts. These may include, for 

example, a RI/FS developed during CERCLA remedial 

actions; an Engineering Evaluation/Cost Analysis study 

(EE/CA) in CERCLA non-time critical removal actions; and 

in similar Brownfields and UST investigations and decision 

documents.

Under CERCLA, the proposed restriction should normally be 

identified in the Proposed Plan, for notice and opportunity to 

comment by potentially affected landowners and the public. 

ICs are typically then selected and memorialized in the ROD; 

generally they are implemented through various types of legal 

instruments (e.g., an easement). When evaluating different 

types of IC instrument(s), Regions should normally consider: 

(1) what are the basic use restrictions needed to ensure that the 

response actions remain protective and effective, and what 

types of IC instrument(s) could achieve those restrictions (i.e., 

what are the potential routes of exposures and how would the 

IC instrument(s) help minimize those risks)? (2) what tools 

and strategies are potentially available and what are their legal 

and practical limits (e.g., are IC lifecycle costs prohibitive)? 

and, (3) who will ultimately be responsible for activities 

through each phase of the lifespan of the IC?

For emergency and time-critical removals, EPA, states, or 

responsible parties should conduct a preliminary IC evaluation 

as early in the response process as possible. Before 

commencing a CERCLA removal action, EPA should discuss 

with the State and/or PRPs the need for ICs following a 

removal action, and seek a written commitment that the State 

and/or PRP 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 the removal action does not result in 

UU/UE, especially when 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.

5B3.2 Determining Which Legal Tools to Apply

The site attorney should carefully examine state and local laws 

relevant to the ICs being considered. F

16

F To help ensure a 

thorough evaluation, this examination should normally be 

done as a standard practice during the identification and 

analysis of the response action. The examination typically 

occurs during the Superfund FS for remedial actions, the 

EE/CA process for Superfund non-time critical removal 

actions, the RFI/CMS process during the RCRA corrective 

action and permitting processes or the equivalent closure

process under Brownfields and UST. Some of the key 

considerations for this examination are: 

Based on an early evaluation of land title records, are

proprietary controls durable?

Who has the legal authority for implementing and 

enforcing proprietary controls? 

Who can hold a property interest (i.e., be the grantee) for 

a proprietary control?

 

16 Some State and local laws and regulations relating to land use may not be 

enforceable on federal facilities.

Planning for Institutional Controls

Selection of ICs (Section 3.1)

Determining Which Legal Tools to Apply 

(Section 3.2)

Layering (Section 3.3)

IC Implementation and Assurance Plans 

(Section 3.4)

Cost Estimation (Section 3.5)

Funding (Section 3.6)

Community Involvement (Section 3.7) 

Capacity for Implementing and Managing ICs 

(Section 3.8)
Page 7

Which state, tribal, or other agency has the legal authority 

and willingness to accept the transfer of an interest in real 

property?

Can real property law in the jurisdiction be used to 

implement the selected IC in a way that will make it 

binding on future land owners (i.e., “run with the land”) 

and function in perpetuity, if necessary?

Are there any restrictions on the use of appurtenant 

easements (i.e., an easement, or interest, created to benefit 

an adjoining property) versus in gross easements (interest 

created was not for the benefit of a particular adjoining 

property)? 

Are there state laws that authorize ICs (e.g., whether the 

state has adopted UECA, and what role is allowed under 

that statute for EPA)?

What are the limits of the local government zoning and 

permitting authority?

Which state and/or local agencies have the legal 

authorities to control the potential exposure points (e.g.,

commercial fishing, market place, restaurant, 

sport/recreational/subsistence fishing)?

Do these regulatory agencies actively enforce existing 

regulations?

The specific provisions of ICs usually depend on the specific 

site conditions as well as the type of legal instruments 

available.

6B3.3 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 enhance 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 eating contaminated fish and/or shell fish. F

17

F 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 response objectives. 

The layering of ICs and extent of ICs should be commensurate 

with the amount, concentrations, toxicity and other 

characteristics of the residual waste. Site managers and site

attorneys should also consider informing the entity responsible 

for maintaining a particular IC that layering does not diminish 

 

17 For guidance on institutional controls at contaminated sediment sites, 

please see Contaminated Sediment Remediation Guidance for Hazardous 

Waste Sites, December 2005. EPA-540-R-05-012, OSWER 9355.0-85 or 

Principles for Managing Contaminated Sediment Risks at Hazardous Waste 

Sites, February 2002. OSWER Directive 9285.6-08

the importance of its responsibilities. For an additional 

explanation of layering, see A Site Manager’s Guide to ICs.

7B3.4 IC Implementation and Assurance Plans

To ensure effective implementation of ICs, we recommend 

using an IC Implementation and Assurance Plan (ICIAP).

18

F

Regions generally should include an ICIAP, or a reference to 

it, in the final action decision document and site O&M plan. F

19

F

An ICIAP is 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. EPA recommends that the Regions prepare a

detailed ICIAP which can help ensure ICs are properly 

implemented and operate effectively during their entire 

lifespan, and that can function as a single-source of concise 

site-specific IC information. At PRP-lead Superfund sites, the 

revised model Remedial Design/ Remedial Action (RD/RA) 

Consent Decree (CD) incorporates the concept of ICIAPs and 

provides some optional model language regarding their use. 

See Model RD/RA Consent Decree, Office of Site 

Remediation Enforcement, Office of Enforcement and 

Compliance Assistance. October 2009, sections IV & IX).

The ICIAP should identify the existing or anticipated 

enforcement documents and approaches that may be used to 

enforce the ICs, where applicable. It should also describe how 

the combination of ICs for the site relate to the reasonably 

anticipated future land use assumption used in the response 

selection process, especially for special siting circumstances 

(e.g., schools), as well as resource use restrictions called for in 

the decision document and how they will be effective and 

durable over their lifetime. Finally, the ICIAP should address 

effective steps for information disclosure to affected 

communities, and full cost accounting of ICs throughout the 

life of the cleanup project.

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 (site investigation, response selection, 

response implementation, and long-term stewardship), it is 

generally recommended to initiate the ICIAP prior to, or at the 

same time as, the design (i.e. RD phase under CERCLA) of 

the physical response action and finalize it with the 

completion of the response action. This approach should allow 

 

18 An ICIAP may not be appropriate for emergency removals and timecritical removals since information needed for IC planning and 

implementation may not be available prior to a removal action.

19 ICIAPs do not replace the need to consider ICs in the Feasibility Study 

analysis or including ICs in decision documents.
Page 8

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. 

If the ICIAP is not developed in time for inclusion in decision 

documents, those documents may note the usefulness and 

potential scope for an ICIAP. The criteria and responsible 

authority for terminating each selected IC should be identified 

as part of the full life-cycle planning process in the ICIAP.

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 well documented. 

In such circumstances, developing and implementing an 

ICIAP in collaboration with appropriate federal, state and/or 

local jurisdictions, in advance of and/or in conjunction with 

the engineered response should help ensure protectiveness for 

populations at risk; by receiving timely outreach and 

education, those populations can modify their fishing and fish 

eating behaviors.

EPA is developing a separate guidance on preparing IC 

implementation and assurance plans.

8B3.5 Cost Estimation

There are several reasons why a complete and realistic 

estimate of the full life-cycle cost of ICs is often an important 

part of the IC planning process. For example, an accurate 

estimate of the full costs to all parties (e.g., EPA, the State, 

local government, property owners, federal agencies, and 

responsible parties) can help evaluate the cost-effectiveness of 

alternative remedies during response selection, where ICs are

an important component of total remediation and/or removal 

costs. Early in the cleanup process, such as during the RI/FS, 

EE/CA, or CMS, cost information would typically be 

compiled to assist in response decision-making, using the best 

information available at the time. During the response action 

design phase, more precise information usually is developed 

and can be used for designing and planning the ICs and for 

preparing the ICIAP.

In addition, IC maintenance, and enforcement costs may 

extend beyond the 30-year period traditionally used in many 

response cost calculations.F

20

F These continuing costs should be 

acknowledged when developing response cost estimates and 

can be important in evaluating long-term effectiveness. 

 

20 “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 may be 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, July 2000, EPA 

540-R-00-002 OSWER 9355.0-75)

Finally, accurate response cost estimates are typically 

important so that agencies, governments, responsible parties, 

and other organizations with the long-term responsibility for 

the ICs can know their financial obligations prior to entering 

into settlements. Their involvement can help ensure that 

adequate resources will be available in the long-term for 

maintaining and enforcing ICs outside of an agency’s direct 

control, and can significantly increase the reliability of the ICs 

and overall protectiveness of the response. For more 

information on cost estimation, please see a Guide to 

Developing and Documenting Cost Estimates During the 

Feasibility Study, July 2000, EPA 540-R-00-002 OSWER 

9355.0-75.

9B3.6 Funding

Reliable cost estimates can also be important to parties, such 

as states and PRPs, who will be responsible for site cleanups 

and ICs. Parties responsible for the cleanups are often required 

to provide assurances to regulatory authorities that they will 

complete the O&M, including ICs. F

21

F Regions should ensure 

that whatever entity will be responsible for maintaining the IC, 

including local governments, has the capacity to do so. Cost 

estimates may also help the planning process for removal 

actions when appropriate. Under RCRA, the owner/operator 

of a facility is responsible for conducting corrective action

which includes ICs.

An important part of this assurance can be the availability of 

State or PRP funds throughout the life of the O&M. Further 

information regarding assurance requirements and costs is 

provided in Sections 4.4, 6.5, and 8.7 herein.

10B3.7 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 to 

understand the future land uses being considered at a site, and 

understand how ICs may impact future land uses. Land use 

planning decisions are generally 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. As mentioned in the Land Use in 

the CERCLA Remedy Selection Process directive (OSWER 

9355.7-04, May 25, 1995), 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...” F

22

F Thus, community input is 

 

21 See, for example, 40 CFR § 264.101 for financial assurance requirements 

for corrective action at RCRA-permitted facilities.

22 Land Use in the CERCLA Remedy Selection Process (OSWER Directive 

9355.7-04; May 1995) available at http://www.epa.gov/swerosps/bf/htmldoc/landuse.htm.
Page 9

often critical in helping site managers and site attorneys 

develop assumptions regarding the reasonably anticipated 

future land use for a site, and in selecting ICs.

Site managers and site attorneys are encouraged to work with 

the Community Involvement Coordinators (CICs) 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. Community understanding and support 

can significantly improve the likelihood that ICs will be 

appropriately selected, implemented and maintained 

effectively. 

Regions 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 

achieves levels that allow for unrestricted use, or leave levels 

that lead to restricted uses and rely on ICs. When waste is left 

in place and ICs are needed, Regions should provide the 

affected community an opportunity to review the analysis 

(e.g., a proposed plan) that supports the choice of leaving 

waste in place as opposed to a more aggressive cleanup.

Once cleanup actions have been completed, the local 

community may be impacted by ICs and associated land use 

limitations if there is residual waste on site that requires 

continued management. As such, one of the critical roles a 

community can play is to identify potential issues regarding 

state or local government capacity or ability to manage and 

oversee the ICs effectively. In the event that there is a 

question about the ability to manage and oversee ICs

effectively, Regions should consider whether it may be 

appropriate to consider removal of additional waste to 

eliminate the need for ICs, or rely on other ICs that can be 

effective in ensuring that reuse would not pose a threat to 

human health or the environment. 

Finally, it should be recognized that public input can help 

identify combinations of ICs that can more effectively 

facilitate the return of environmentally distressed properties to 

beneficial use. For example, CERCLA Fund-financed 

response actions may require certain state assurances for 

implementing, maintaining, and enforcing ICs at remedial 

action sites following completion of the remedial action, and 

for implementing post-removal site controls at removal sites. 

Involving community members in the evaluation of the 

options may provide valuable information and foster the 

understanding, acceptance, and support for ICs that can be 

critical to support the long-term reliability of the cleanup.

1B3.8 Capacity for Implementing and Managing ICs

When ICs are to be employed as a component of a site 

response, Regions should carry out an analysis to determine if 

the state and local agencies responsible for oversight and 

management of the controls have the ability and capacity to 

implement, maintain and enforce the controls. ICs can only be 

a reliable component of site cleanup if the responsible 

agencies have the ability, willingness and capability to oversee 

and manage these controls. The Regions should consider a 

number of factors when evaluating ability, willingness and 

capability for the management of ICs, including:

Can the ICs be accurately mapped?

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?

Is it possible to establish informational ICs that 

effectively disseminate information on the location of 

controls, compliance status, and monitoring reports to 

interested stakeholders, state and local environmental 

officials?

Is there a source of funding, or is it possible to 

establish a mechanism to provide funds, for the 

operation and maintenance 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?

4. GENERAL IMPLEMENTATION

ISSUES

A number of factors should be considered to evaluate 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, the 

specific circumstances at each site, and which 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.

12B4.1 Documentation of Use Restrictions and IC Instruments 

in Decision Documents

For most cleanup programs, use restrictions and IC

instruments relied upon to help achieve protectiveness should 

be incorporated in site decision documents; often such an IC

can be based upon a preexisting state or local law or program. 

The decision document(s) should describe the rationale for 
Page 10

using the ICs in helping to achieve protectiveness (e.g., their 

role in maintaining the effectiveness of the response action)

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 resource 

use restrictions that are the objectives of the IC.

General Implementation Issues

Documentation of Use Restrictions and IC 

Instruments in Decision Documents (Section 

4.1)

Drafting IC Language in the Selected 

Instruments (Section 4.2)

Role of Local Governments and Communities 

(Section 4.3)

State Assurance for Stewardship at CERCLA 

Fund-lead Sites (Section 4.4)

ICs and Landowners (Section 4.5)

Different cleanup programs utilize different authorities, 

processes, and documentation of response actions. The main 

remedy 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 the decision 

document to select and authorize removal actions (Superfund 

Removal Guidance for Preparing Action Memoranda, September 

2009 which updates and replaces Superfund Removal Procedures: 

Action Memoranda Guidance, OSWER 9360.3-01). Because 

ICs are generally not selected as part of the removal action, 

the Action Memorandum should generally 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 

non-federal. 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, other documents that may 

include information related to the remedy and/or ICs for the 

site are Superfund orders, CDs, and related documents. The 

RD, ICIAP, IC requirements in an O&M plan, five-year 

review (FYR) or other periodic remedy reviews, or equivalent 

documents also may provide IC details. For federal facilities

under CERCLA, LUC implementation details are generally 

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 complex 

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 the federal and state environmental laws, regulations, and 

programs involved, 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. As a general principle, site managers and site 

attorneys are encouraged to present information in decision 

documents that, for any ICs selected in the decision document:

Clearly describes the objectives to be attained in terms of 

specific land and resource use restrictions;

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 

interim or permanent measures).

An analysis of this type of information will generally help the 

site manager and site attorney appropriately select the IC

instrument(s) that can meet the response action objectives. 

Providing this information to the public should also aid the 

public's understanding of the need for the specific ICs and 

their relationship to the overall response. This analysis should 

be appropriately documented in the decision document(s).

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 that 

should be protective based on the proposed response actions, 

the ICs that can help ensure protectiveness, and which entity 

will assume responsibility for implementing, maintaining and 

enforcing the restriction, where possible.

For additional information on federal facilities, see EPA’s 

Sample Federal Facility Land Use Control ROD Checklist 

with Suggested Language, October 2006.

Modifying Existing Response Action Decision Documents. In 

some circumstances, it may be appropriate for site managers 

and site attorneys to work together to clarify or specify IC 

requirements in existing decision documents (e.g., where IC 

language is vague or incomplete). At Superfund sites, if the 

change to a Superfund remedial action is deemed minor or not 

significant, it may be appropriate to clarify the ROD through a 
Page 11

memo to be added to the site file. If the change is determined 

to be significant, but not fundamental, an ESD may be 

appropriate. In some instances, a site manager and site 

attorney may determine that an opportunity for public

comment is appropriate for sites with significant stakeholder 

interest. 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 remedial action objectives (RAOs). In 

addition, if an appropriate IC cannot be developed to attain the 

RAOs described in the ROD; a revision to the overall remedy 

may be warranted.

Regions should continue to review and strengthen ICs with 

periodic reviews that take changes in land use into account.

For a site-wide ready for anticipated use (SWRAU)

determination, F

23

F the Regions consider whether all ICs called 

for in the decision documents are in place and continue to be 

effective. IC instruments, such as notices, can be effective 

controls and should be considered when evaluating a SWRAU

determination. In some cases, it may be appropriate to 

strengthen, layer, or include supplemental ICs at the site to 

ensure protectiveness of human health. In the event that a 

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 (e.g., the ROD). If a decision document is

amended to require additional ICs, then the Region may want 

to wait to evaluate whether the site achieves SWRAU.

If the RAOs can be met using new or additional ICs, Regions 

should evaluate what type of modifications, if any, to existing 

remedy decision documents and associated enforcement 

documents (if any) may be appropriate. Where the Region 

makes changes to the engineering component of the remedy, 

the site manager and site attorney also should ensure that any 

existing ICs are consistent with the revised remedy. For 

information on changing Superfund remedies, see 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. When documenting 

significant 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)).

To document IC changes to the 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 

 

23 As further discussed in Section 9, this determination is made for purposes 

of the Government Performance and Results Act.

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.

13B4.2 Drafting IC Language in the Selected Instruments

This section provides recommendations for identifying and 

addressing several potential issues regarding IC language in a 

variety of contexts. 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. Regions generally should ensure that 

the IC language in the instrument clearly states the IC 

objectives (e.g., restrict well drilling) and their relationship to 

the response action (e.g., prevent human consumption of 

contaminated ground water).

Using Subject-Matter Experts and Stakeholder Input 

It may be useful to consult subject-matter experts and 

stakeholders in developing appropriate IC provisions. For 

example, special expertise may be needed to develop language 

for proprietary controls, governmental controls, or 

informational devices.

When developing the 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; several EPA offices including

OSRTI, Office of Enforcement and Compliance Assurance 

(OECA), FFRRO, FFEO and OGC; responsible parties; site 

owner (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 (such as covenants, easements and notices) 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 sites, attorneys may consider drafting 

enforcement documents that would require the responsible 

parties to provide supporting information (e.g., a certification 

from a real estate attorney) demonstrating that the covenant, 

easement, or notice 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.
Page 12

Through active interagency and intergovernmental 

coordination, the site attorney and site manager usually can 

better ensure that the language used leads to effective ICs that 

meet the IC objectives stated in the decision document and 

that can be appropriately implemented, maintained, and 

enforced within the jurisdiction. Community involvement in 

the development process to promote the acceptance and 

understanding of ICs can help in developing ICs that are 

reliable, durable, and effective over time.

Useful IC Provisions. The following provisions should be 

considered for inclusion in the IC documents:

Notification to lessees. Enforcement documents such as 

Administrative Orders on Consent (AOCs) and CDs may 

reference existing lease agreements and require lessors to 

notify existing lessees and sub-lessees of the residual 

contamination and the restrictions on the use of the 

property. Also, a notice of the residual contamination and 

use restrictions should be included in any future leases or 

subleases of the property and such leases and subleases 

should be made subject to any proprietary controls.

● Notification to EPA, states, tribes, and local governments.

The site attorney and site manager should determine 

whether proprietary controls and enforceable documents 

should require the signator or owner of a proprietary 

interest to give prior notice to EPA (or other lead agency), 

as well as the state, tribal, and local governments, of any 

changes in land use, property transfers, or any other 

activity that may affect the protectiveness of the IC and/or 

the engineered response action. In addition, the IC should 

have clear provisions for notification in the event of a 

breach of the IC. Such notifications should indicate, or 

provide enough information to determine, if the IC 

process and environmental performance objectives are 

being met.

Site description. IC documents should include a 

comprehensive site description to help focus the ICs 

needed on specific areas of the site or on specific 

environmental issues. Regions should avoid applying ICs 

to the entire site rather than the specific area requiring the 

restriction, where this would result in the needless 

restriction of areas that should not have been subject to 

ICs. Thus, it is important to accurately describe the parcel 

boundaries and the location of any residual contaminants

as well as provide a map to reflect these boundaries and 

locations. Appropriate mapping can show both the 

location of site-related contamination and where ICs have 

been implemented. It is also helpful to note the location 

of any structures (including temporary structures 

associated with response activities), zoning, ownership, 

and other information deemed relevant for the intended 

use of the site. It should be noted that the location and 

dimensions of the residual contamination may change 

over time (e.g., due to contaminant migration or 

attenuation). A number of descriptors can be used to 

characterize the location and other factors about the site.

Information describing suggested location variables can 

be found in Section 3 of the Institutional Control Data 

Standard, Standard No.: EX000015.1, January 6, 2006, 

Environmental Data Standards Council (EDSC). At some 

sites it may be appropriate to develop dual descriptions, 

where the EDSC standards are different from the legal 

description.

Termination. The site manager and site attorney should 

determine the criteria for terminating a particular IC and 

who will have the authority to make and implement that 

determination.

14B4.3 Role of Local Governments and Communities

While EPA, the state, or tribe may take the lead on many 

response actions, local governments and community members 

typically plan and regulate land use at the site. Local 

governments and community members can offer valuable 

information on the land use controls available in their area, 

and may help develop creative solutions that can help ensure 

protection of human health and the environment while also 

considering the interests of other local stakeholders. Local 

governments are often the only entities that have legal 

authority to implement certain types of ICs (e.g., zoning 

restrictions). Therefore, local governments and community 

members generally are important partners for implementing, 

maintaining, and enforcing certain ICs.

Site managers and site attorneys are encouraged to involve 

both community members and local governments early in the 

response process, and to discuss reasonably anticipated future 

Some Potential Key Roles for Local 

Governments and Community Members

Provide input on the reasonably anticipated future 

use at the site.

Provide information and input on the available land 

use controls within the jurisdiction of the local 

government. 

Implement, maintain, and enforce zoning and 

permitting regulations.

Evaluate building permit requests, site plans, and 

zoning applications.

Provide notice to EPA and the state regarding land 

use changes at the site.

Provide information relevant to the planning, 

design, and execution of periodic reviews, such as 

the CERCLA Five-Year Review (FYR) process.
Page 13

land use, public health protection goals, and the IC 

instruments being considered to achieve these goals. In 

addition, it can be important to clearly discern the regulatory 

jurisdictions of different state and local resource agencies and 

public health agencies regarding their authorities and 

programs. This process often encourages multiple face-to-face 

meetings with local officials and community members by both 

site managers and CICs. The involvement of local 

governments and community members in IC planning and 

implementation can lead to more effective and appropriate 

ICs, and avoid delays in developing them or completing the 

cleanup.

15B4.4 State Assurance for Stewardship at CERCLA Fundlead 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.” These assurances are normally 

documented in a cooperative agreement for State-lead sites, or 

in a Superfund State Contract (SSC) for Fund-lead sites.

Detailed cooperative agreements and contracts with State

agencies may contain much more detailed information about 

IC implementation than an ICIAP. These cooperative 

agreements, contracts, or commitment letters can be used to 

clarify the State’s role in implementing ICs that are part of the 

remedy selected in the ROD. For example, they may include 

detailed activities, deliverables, schedules, and tracking 

mechanisms. However, they cannot be used to provide Federal 

funds to the state or local agencies for maintaining and 

enforcing ICs that fall under the umbrella of O&M at Fundlead sites. See Section 8.7 for further details on the limits of 

the use of Fund money.

An agreement to fund the initial implementation of ICs and 

formalize O&M responsibilities may enable the State to 

provide the necessary assurance. However, if the State is 

unwilling or unable to provide this assurance, the site manager 

and site attorney may need to consider other ICs or, if 

necessary, choose an alternate remedy that does not need ICs 

to ensure protectiveness. Therefore, it is important that a site 

manager and site attorney fully understand the capability and 

willingness of the State to provide assurances for ICs before 

Superfund remedy decisions are made. 

Prior to initiating a time-critical or non-time-critical removal 

action, Regions are encouraged to seek a written commitment

from the State, local government, or PRP 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 

applicable or relevant and appropriate requirements (ARARs)

request letter (which may already be happening 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.

16B4.5 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, landowners specifically may be liable for costs 

associated with or performance of the cleanup.

There may be instances under any of the cleanup programs 

where a restriction needs to be placed on the property of a 

landowner who did not cause or contribute to the 

contamination. Under CERCLA, 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). Similar authorities may not be available to 

states or EPA under other cleanup programs (e.g., different 

liability provisions apply to UST and RCRA cleanups). EPA

strives to ensure that the parties responsible for the 

contamination implement and maintain ICs, including those 

restrictions on properties not owned by them. F

24

F In such cases, 

a responsible party may need to negotiate with landowners in 

order to obtain cooperation or agreements to maintain an IC 

on their property. If responsible parties are unable to negotiate 

an IC with landowners, the Region may need to reassess the 

response action or pursue other strategies to implement the 

selected IC. Where responsible parties are unwilling to work 

with landowners to implement ICs, the Region should ensure 

that IC commitments or requirements made in enforcement 

documents (e.g. commitments in settlements, requirements in 

administrative orders) are met. Where landowners of 

contaminated property are unwilling to have an IC 

implemented on their property, the Region may require them 

to take an appropriate action through enforcement tools such 

as a Unilateral Administrative Order (UAO). These scenarios 

are addressed in more detail in Section 9.4 herein.

Where a response action involves ICs that are to be 

implemented on properties owned by parties who did not 

cause or contribute to the contamination, the community

(including all property owners involved) and local government 

should be involved early during the response process. 

Moreover, any affected landowners should be given adequate 

notice of the proposed response action and the opportunity to 

comment. This can occur, for example, in the Proposed Plan 

 

24 “Enforcement First” to Ensure Effective Institutional Controls at 

Superfund Site, OSWER Directive 9208.2, March 17, 2006.
Page 14

and comment period process used for CERCLA remedial

actions.

The sections below discuss some specific considerations when 

contemplating a remedy that calls for landowners who either 

qualify for conditional limitations on, or exclusions from, 

liability or who are otherwise not liable to take steps to 

implement or maintain ICs.

Conditional Limitations on or Exclusions from, Liability for 

Landowners of Contaminated Property. Some selected 

response actions may call for ICs to be implemented on 

properties owned by parties who did not cause or contribute to 

the contamination but nonetheless may have responsibilities 

for implementing and maintaining ICs on their properties. For 

example, the Small Business Liability Relief and Brownfields 

Revitalization Act, Pub. Law 107-118 (the Brownfields 

Amendments), enacted in January 2002, amended CERCLA to 

provide and clarify certain qualified liability limitations for 

landowners, including: (1) bona fide prospective purchasers; 

(2) contiguous property owners; and (3) innocent landowners. 

These qualified liability limitations are conditioned on 

meeting certain threshold criteria and continuing obligations. 

Particularly relevant to ICs is the continuing obligation to 

comply with any land use restrictions and to not impede the 

effectiveness or integrity of any ICs established, relied on, or 

connected with a response action. For more information on 

these statutory liability protections available to landowners, 

see 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” Guidance), March 6, 

2003.

Some responses may also call for ICs on properties owned by 

parties subject to a liability protection (e.g., landowners of 

uncontaminated properties that have liability protection and 

the properties are otherwise integral to a response action). For 

example, an IC can be used to protect the integrity of a ground 

water sampling well that is in place to monitor the migration 

of a contaminated ground water plume. It may be challenging 

to implement ICs in these scenarios because the landowners 

have a liability protection that shields them from liability for 

the response action. Early and meaningful outreach to these 

landowners, including describing the purpose and objectives 

of the response and the need for the IC, is particularly 

important in these cases.

For landowners that may not qualify for the qualified liability 

limitations contained in the 2002 Brownfields amendments, 

EPA has enforcement tools that may alleviate some concerns 

about their CERCLA liability 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, the 

goal of which was to relieve residential owners of the fear 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 

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.

Additional Considerations. The challenges presented by 

implementing ICs on properties owned by landowners who 

did not cause or contribute to the contamination are 

heightened when the desired IC is a proprietary control. These 

challenges are significant but 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.

5. IMPLEMENTING PROPRIETARY 

CONTROLS

Proprietary controls generally use real property and contract 

law to place restrictions on, or otherwise affect the use of 

property or related resources. Common examples of 

proprietary controls include covenants and easements, which 

give their holders “property interests,” or 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)

Proprietary Control Strategies (Section 5.2)

Documenting the Proprietary Control (Section 

5.3)

Selecting the Grantee (Section 5.4)

Implementing Proprietary Controls at CERCLA 

Fund-lead Sites (Section 5.5)

State Assurance Requirements for Acquiring 

Real Estate Interests under CERCLA (Section 

5.6)

Establishing ICs through RCRA Orders and 

Permits (Section 5.7)

17B5.1 Principles of Proprietary Controls

For a proprietary control to be put in place, a transaction

typically occurs in which a property interest is conveyed from 

the owner of the land, known as the “grantor,” to some other 

party who will be the “holder,” also known as the “grantee.” 

The term “grantee” refers to the party holding the reserved 

uses (e.g., property interests). This transfer of interest 

generally is memorialized in a written agreement, which is 

then recorded in the local land records.

For example, a property owner (grantor) may agree to restrict 

the drilling of ground water wells on his/her property and 

grant the right to prohibit the drilling of wells to another party. 
Page 15

Through the recording of a proprietary control, the restricted 

uses normally are considered to be “running with land” so that 

all future owners or interest holders would be bound by them. 

Selecting an appropriate grantee can be one of the most 

critical issues in the effective implementation of a proprietary 

control, and is discussed in Section 5.4 herein.

The implementation of a proprietary control may or may not 

be part of a larger transaction involving the sale or transfer of 

the underlying property. Some states do not consider certain 

proprietary controls (e.g., covenants) to constitute interests in 

real estate. However, the process for implementing such a 

control will typically be similar to that needed when the 

control does constitute an interest in real estate. 

Since proprietary controls rely heavily on state law and 

practice, it is important to be aware of all relevant state 

legislation and regulations. States can address some of the 

legal impediments to the long-term durability of proprietary 

controls through legislation (e.g., statutorily allowing the 

environmental covenant to “run with the land”). Several states 

have adopted some or all of UECA, model legislation that may 

reduce the legal and management complications associated 

with using environmental covenants as ICs. The site manager 

and site attorney should determine whether there are any such 

state statutes, and whether they can help ensure the 

protectiveness of the remedy before the response action is 

chosen and thereafter as part of any periodic review, 

maintenance and/or optimization of the remedy.

18B5.2 Proprietary Control Strategies

At many sites, the responsibility for implementing proprietary 

controls typically rests with the responsible party or 

landowner. At many CERCLA Fund-lead cleanups, EPA or 

the State (depending on which is the lead agency) will 

typically have implementation responsibility as part of the 

response action. Required activities are usually documented in 

a CD or an administrative cleanup order (either unilateral or 

on consent). At a minimum, the document should state the 

objective of the IC, the location of the property and specific 

areas to be covered by the IC, the specific type of proprietary 

control anticipated, the party who will be the grantee, and a 

requirement that the responsible party provide notice to EPA 

and/or the state if the control is violated.

Generally, when the responsible party owns the land that is 

being restricted, the proprietary control should be 

memorialized in an enforceable easement or restrictive 

covenant. If the response action includes the use of a 

restriction on the use of land not owned by the responsible 

party, that responsible party should use its “best efforts”F

25

F to 

 

25 “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 

lien or encumbrance (Model RD/RA Consent Decree, Office of Site 

obtain a proprietary interest. This can include responsible 

party compensation to the affected landowners for the 

proprietary control. To secure an agreement with the owner of 

the affected property as to the valuation of the property 

interests, one or more independent appraisals may be 

necessary.

If the responsible party cannot obtain the necessary interests 

despite its best efforts, EPA and/or the state may acquire the 

interests, and the responsible party may be required to 

reimburse EPA and/or the state for all costs incurred in 

acquiring the interests. EPA has authority to acquire property 

interests for purposes of conducting remedial action at 

CERCLA sites provided that the State agrees to accept transfer 

of the real estate interest when O&M is initiated.F

26

F For 

additional information on other enforcement strategies that 

may be appropriate, see Section 9.4.

For purposes of allowing EPA to directly enforce certain 

proprietary controls, EPA may pursue the role of a “third party 

beneficiary.” That is, another party such as a responsible 

party or a state would serve as the grantee of the easement or 

covenant that specifically provides third-party rights of 

enforcement to EPA. Other viable parties with legitimate 

interests in ensuring ICs remain in place, such as neighbors, 

local governments, and environmental and civic organizations, 

may also act as third-party beneficiaries. This approach can 

strengthen the effectiveness of the IC by providing an 

additional means of ensuring compliance. Site managers and 

site attorneys should consider the third-party beneficiary 

approach whenever a proprietary control is used. 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.

19B5.3 Documenting the Proprietary Control

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, legally 

effective, and enforceable. The language of each document 

should be tailored to the site characteristics, IC objectives 

(land and/or resource use restrictions), and performance 

standards (if any) designated in the decision document. F

27

 

Remediation Enforcement, Office of Enforcement and Compliance 

Assistance. October 2009, paragraph 28).

26 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, State Assurance Requirements for 

Acquiring Real Estate Interests Under CERCLA.

27 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
Page 16

Responsibilities and Approvals. A draft proprietary control is 

typically 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 (e.g., RCRA, CERCLA).

Depending upon the complexity of the control or jurisdiction, 

the proprietary control also may need to be reviewed and 

approved by EPA’s OGC 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, the U.S. Department of 

Justice (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 by the regulatory agency, the 

responsible party should ensure that it is executed and 

recorded in the land records. The site manager should place a 

copy of the recorded instrument in the site file.

Contents of a Proprietary Control Document. Proprietary 

controls, such as easements, should generally 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. F

28

F It is 

often important for the language to clearly show the 

relationship of the specific IC instruments to the land and 

resource use restrictions called for in the decision document. 

Typically, the document should contain all substantive parts of 

the actual restriction, and at a minimum, normally should 

provide:

A detailed legal description of the site;

A list of uses that will be restricted;

A clear description of who will execute the document;

A clear description of the area to be restricted, particularly 

where less than an entire parcel is affected;

A complete description of the types and location of 

residual contaminants and response action components;

The precise names of the parties involved (including the 

grantee and grantor as they appear on title documents, and 

any third party beneficiaries);

 

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.

28 Depending upon state law, a covenant may not represent an interest in real 

property. For example, state law may specify that an environmental covenant 

does not constitute an interest in real property if a state agency is the grantee 

nor has “agency” status under UECA.

Provisions for third-party or other enforcement, as 

necessary;

The parties’ rights, including resource and use 

restrictions;

Language 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 for notification to EPA and/or the state 

prior to transfer or lease, or if there is an IC violation;

Information regarding indemnification of the state or 

other grantee;

Provision for notification to lessees of the IC, and

Discussion of any common law impediments, where 

appropriate.

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 

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 are generally 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 
Page 17

property. Unrecorded interests, such as leases, may also 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 

holder(s) of the senior interest(s), and identify the risk of harm 

that could occur, and the potential liability that may arise, if 

the recorded environmental restrictions are not respected.

20B5.4 Selecting the Grantee

Another critical issue in the effective implementation of a 

proprietary control can be the selection of the holder of the 

property interest or covenant (i.e., the “grantee”). Generally, 

the grantee, sometimes referred to the “holder,” 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. 

Finally, if proprietary controls are implemented under state 

legislation that is tailored to the requirements of ICs (e.g., a 

state’s adoption of UECA), it may be possible for a grantor of 

a property interest or covenant to also be the grantee.

Because of the important role a grantee plays in establishing 

and maintaining a proprietary control, a thorough evaluation 

of the viability of potential grantees and covenant holders 

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 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 engineered 

response may be necessary.

Selecting 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, CERCLA requires that 

the state must agree to accept transfer of certain real estate 

interests following completion of the remedial action.

If it is ultimately determined that the United States will be 

acquiring a real estate interest, 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 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 A Procedural Guide for the Acquisition of Real Property 

by Government Agencies (1972). Although this guide may be 

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.

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 holder 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. If part of the response relies on the seller 

or other third party to retain a limited interest, consideration 

should be given as to whether the seller will be able and 

willing to enforce the control for the duration 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 it 

is being done under 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.

Other Considerations in Selecting Grantees. A responsible 

party may become the grantee by acquiring a real property 

interest from other landowners as part of its obligation to 

ensure that the response action is properly implemented. By 

taking title to an easement or similar property interest, the 

party or facility owner/operator typically ensures that it will be 

in a position to maintain the IC. Furthermore, it will often 

have an incentive to maintain the IC because a failure could 

make further response actions necessary. If enabled under 

state law, the lead agency should be designated as a third-party 

beneficiary. Third-party beneficiary status should allow the 

lead agency (the beneficiary) to enforce the restrictions of the 

covenant or easement. If the lead agency cannot enforce the 
Page 18

IC as a third party, the lead agency may be able to compel the 

responsible party (e.g., the facility owner/operator) to carry 

out its obligations under a CD, order, or permit. If the 

responsible party is unresponsive or bankrupt, this approach 

may be ineffective and, at a minimum, the enforcement of the 

control may be substantially delayed.

If a responsible party owns the property that is subject to an 

IC, it may also reserve the property interest or covenant when 

selling the property. A potential disadvantage of this approach 

can be that the proprietary control may not be implemented 

until the sale. In this situation, the enforcement document 

normally should provide assurances (e.g., specify that the 

owner will reserve the property interest or covenant upon sale 

of the property, will comply immediately with the ICs, and 

will place a notice of the ICs with the appropriate recorder of 

deeds shortly after the effective date of the enforcement 

document). Regardless of who holds the property interest or 

covenant, it is usually appropriate to state in the covenant or 

easement that EPA is a third-party beneficiary. To facilitate 

enforcement of the IC, the enforcement document and/or 

permit should also require notice to EPA and/or the state, as 

appropriate, upon any breach of the IC.

21B5.5 Implementing Proprietary Controls at CERCLA Fundlead Sites

If the cleanup is a CERCLA Fund-lead action, EPA or the 

State (depending upon which is the lead agency) will typically 

be responsible for ensuring that the control is implemented 

and that appropriate property interests are conveyed. For 

removal actions, EPA encourages the Regions 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 PRP. If a 

commitment to implement an IC cannot be obtained prior to 

the removal action, then EPA should continue searching for 

PRPs to implement the IC and negotiating with the State to do 

the same.

Administratively, the process is similar to that taken by a 

responsible party at an enforcement-lead site. Because these 

controls are largely legal in nature, site attorneys typically are 

responsible for drafting IC language. However, the site 

manager and site attorney will typically work together to 

complete the necessary steps for actual implementation. 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 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 and the power of condemnation through the 

exercise of eminent domain.

Property Acquisition. EPA may seek donations of property 

interests (e.g., ground water extraction rights) from 

landowners in accordance with 49 CFR § 24.108.F

29

F If a 

donation cannot be obtained, EPA may choose to acquire 

interests in real property through negotiated purchase for fair 

market value. The costs of acquiring property interests 

typically would be recoverable, a factor to consider when a 

property owner is a responsible party. If valuation issues arise, 

the site manager should work with the appropriate state and 

EPA Regional and Headquarters attorneys to resolve the issue. 

Prior to initiating negotiations to acquire real property or 

interests in real property, EPA should establish an amount that 

it believes reflects 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 benefit.

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. F

30

F If condemnation is being 

considered under CERCLA § 104(j), the site manager and site 

attorney should contact OGC for assistance and should ensure 

that EPA has obtained the requisite assurance from the state to 

accept the transfer of the interest once O&M has begun for 

that portion of the remedial action. If condemnation is sought 

under other authorities, coordination with experts under those 

authorities should be initiated early in the process.

2B5.6 State Assurance Requirements for Acquiring Real 

Estate Interests under CERCLA

EPA can acquire real property or any interest in real property 

at Fund-lead and enforcement-lead sites under CERCLA §

104(j) to conduct a remedial action provided that the state 

 

29 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.

30 Some state agencies may not have powers of eminent domain.
Page 19

agrees to accept transfer of the real estate 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). There is no authority equivalent to 

that of CERCLA § 104(j) for Superfund removal, RCRA, 

Brownfield, or UST 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. In most UECA states, 

as long as EPA is not the holder, EPA’s enforcement status as 

“agency” is not considered a real property interest and 

therefore not subject to § 104(j) assurance requirements (for 

more discussion, see Section 9.3).

Whether a specific proprietary control constitutes a real estate 

interest under CERCLA § 104(j), thereby requiring state 

assurance, is a complicated issue that requires site-specific 

determinations. If there is a question regarding whether 

specific proprietary controls would require state assurances 

under § 104(j)(2), the site attorney should consult with OGC 

to determine whether a specific proprietary control would 

require state assurances under § 104(j)(2).

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 OSRTI, OSRE, and 

OGC.F

31

In the event that it is necessary for EPA to acquire a real 

property interest, and the state assurance requirement under §

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 transfer. In other 

states, real property transfers 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.

 

31 For more information, see CERCLA Delegation 14-30

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, e.g., 

governmental controls. 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 the proposed plan, and certainly 

before the State concurs on the ROD.

As a general matter, EPA in practice transfers or releases all 

real property interests before a Superfund site enters the O&M 

phaseF

32

F, 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 for the expected life 

of the IC.

23B5.7 Establishing ICs 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 are often 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 will generally 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 

 

32 “Completion of the remedial action” is the point at which O&M measures 

would be initiated pursuant to 40 CFR § 300.435(f)
Page 20

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 (i.e., a proprietary control). RCRA facility owners may 

also 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 

holder(s) of the senior interest(s), and identify the risk of harm 

that could occur if the recorded environmental 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 authority may include the ability to 

impose certain land-use controls and ground water restrictions, 

require informational devices (e.g., notices), and establish 

building codes and state registries of contaminated sites, 

among other things. These regulatory and informational 

devices may serve as highly effective ICs if they are 

appropriately implemented, maintained, and enforced. In some 

cases, existing state or local government regulations may serve 

as ICs. In other cases, new state or local laws or regulations 

may be most appropriate. Site attorneys should review state or 

local laws and regulations as they pertain to ICs at a specific 

site if the site manager is considering relying on or utilizing a 

state or local land use law or other type of 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 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. Because each state and local government has 

different laws and regulations on land use, the site attorney 

should review those laws and regulations as they pertain to the 

ICs at a specific site. 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, or 

participates in, planning, implementing, maintaining, or 

enforcing governmental controls, site managers and site 

attorneys are encouraged to reach a common understanding

with the state, tribal and local governments before the ICs are 

implemented to document and clarify the roles, 

responsibilities, and legal authorities. Details of such 

arrangements should be included in the ICIAP or equivalent 

plan.

Implementing Governmental Controls

Ground Water Use Restrictions (Section 6.1)

Zoning Ordinances (Section 6.2)

Fishing Bans and Waterway Use Restrictions 

(Section 6.3)

Other Uses of State And Local Police Power 

(Section 6.4)

Cooperative Agreements to Support Initial 

Implementation of ICs at CERCLA Fund-lead 

Sites (Section 6.5)

24B6.1 Ground Water Use Restrictions

Ground water use restrictions are frequently used to limit or 

prohibit certain uses of ground water. Implementation of such 

restrictions normally depends upon state laws governing 

ground water ownership and use. Numerous states have 

adopted laws that could be used to restrict ground water use at 

contaminated sites. Ground water laws commonly involve 

water-use restrictions and well construction and abandonment 

requirements. This is a broad category and such restrictions 

can take a variety of forms, including: the establishment of 

ground water management zones or protection areas; 

prohibitions or limitations on certain uses of ground water 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 which protect, 

maintain and improve water quality including ground water. 

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.

State and tribal agencies with the authority to establish ground

water use restrictions typically have a well-defined 

administrative process. For example, the California’s State 

Water Resources Control Board, which has joint authority 

over water allocation and water quality protection, guides nine 

Regional Water Quality Control Boards located in the major 

watersheds of the state. The regional boards serve as the 

frontline for state and federal water pollution control efforts.

In many cases, the implementation of state or local ground

water use restrictions takes a significant amount of time. For 
Page 21

this reason, the site manager is encouraged to ensure 

coordination can begin early and to actively monitor the 

progress in implementing this type of IC.

Well construction permit processes can also be used to 

implement restrictions on ground water use. A number of state 

and local governments have adopted statutes 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. The site manager should ensure that early 

coordination occurs with the appropriate permitting agency 

and should proactively monitor and verify that the permit 

restrictions continue for as long as they are needed. 

25B6.2 Zoning Ordinances

Generally, zoning is also an exercise of state and local 

government “police power.” Zoning ordinances typically 

consist of a map indicating the various land-use zones in the 

community, and text that sets forth the regulations for the 

development of land. An ordinance may regulate land use, 

building height, area of structures, density of population, and 

the overall intensity of use. Zoning can serve as an effective 

mechanism when a large number of parcels are affected by a 

response action. For example, an overlay zone could be used 

to restrict development along a contaminated stream. 

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 

will often work with municipal and county officials regarding 

zoning ICs.

Implementing Zoning Controls. To evaluate the 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 

conventional practices that are common among most 

jurisdictions.

Unless a re-zoning (i.e., a zoning ordinance amendment to 

change the zoning designation of one or more parcels) is done 

as part of a jurisdiction-wide comprehensive plan and zoning 

ordinance amendment, it will typically require a formal 

application by the owner of the parcel to be re-zoned.F

33

F In 

most cases, a series of public hearings before a planning 

commission and/or governing body (e.g., city council, county 

board of supervisors) will then follow. 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 need for 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.

Limitations of Zoning Controls. 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. An area can be re-zoned and/or zoning 

variances may be granted. Therefore, it may be important to 

regularly evaluate whether the local zoning ordinance is still in 

place and is operating in a way that continues to ensure the 

effectiveness and integrity of the cleanup and its objectives. 

Thus, zoning may not be a fully effective mechanism unless it 

is routinely maintained and enforced over the long-term. 

Local governments may not have the resources necessary for 

such oversight. The site manager and site attorney may 

consider using CERCLA §104(d) cooperative agreements at 

Fund-lead sites to fund the initial (but not O&M) 

implementation of ICs. Funding agreements between 

responsible parties and local governments also may provide 

resources to the local government for activities that are not 

considered normal functions of government, including costs 

for implementing, maintaining, and/or providing notice of any

changes in zoning or site use.

Site managers and site attorneys should also 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. 

Therefore, even where the site is located in an industrial zone, 

an amendment may be needed to prohibit less intensive land 

uses, such as new residential buildings. Finally, 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 restrictions will be adequately 

addressed using the jurisdictional definitions.

 

33 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 22

26B6.3 Fishing Bans and Waterway Use Restrictions

Commercial fishing bans are sometimes used as a 

governmental control to ban commercial fishing for specific 

species or sizes of fish or shellfish. Usually, state public 

health agencies and/or resource agencies establish these bans. 

Another governmental control that may be used is a waterway 

use restriction where subsurface contamination remains in 

place. The restriction typically is placed to ensure the 

integrity of the remedy (e.g., capping). State and local 

agencies may be responsible for enforcing this type of 

restriction.

27B6.4 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. State or local governments also could require 

that anyone seeking a building permit for construction 

activities in a particular area be notified of contamination and 

informed of any relevant management standards. 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). Excavation issues may also be 

addressed, to some extent, through an already existing state or 

local government requirement to contact a designated office 

(e.g., an existing “One-Call” excavation notification systemF

34

F) 

before excavating. 

28B6.5 Cooperative Agreements to Support Initial 

Implementation of ICs at CERCLA Fund-lead Sites

The site manager and site attorney may consider using 

CERCLA § 104(d) cooperative agreements, as appropriate, to 

support the initial (but not O&M) implementation of ICs by 

state and local governments at Superfund 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. 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 will generally 

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 

governments. To involve other essential state agencies, the 

state-lead agency typically enters into an intergovernmental 

 

34 For more information about state one-call systems, please see 

HUhttp://www.epa.gov/oswer/docs/iwg/OneCall.pdfU

agreement with these other agencies. States may also 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. Such activities, including costs for 

implementing, maintaining, and/or providing notice of any 

changes in zoning or site use, may also be funded through 

funding agreements between responsible parties and local 

government.

It is important to note that EPA does not generally use the 

Fund to pay directly for IC monitoring or enforcement at 

removal sites. The Fund may, however, pay for IC monitoring 

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.

At remedial sites, CERCLA prohibits the use of Fund monies 

for O&M activities, including the processing of permit 

applications for projects at sites where there is an IC in place 

(see Section 8.7).

7. IMPLEMENTING INFORMATIONAL 

DEVICES

Informational devices are designed to provide information or 

notification that residual or contained contamination remains 

on site. Typical information devices include state registries, 

notices filed in local land records, tracking systems, and 

advisories.

Implementing Informational Devices

Recorded Notices (Section 7.1)

State Registries of Contaminated Sites (Section 

7.2)

Advisories (Section 7.3)

Community Involvement (Section 7.4)

29B7.1 Recorded Notices

Unlike proprietary controls, notices contained in deeds or 

other instruments to be filed in the local land records are not 

intended to convey an interest in real property. Consequently, 

such notices do not serve as enforceable restrictions on the 

future use of the property. As a matter of practice, such notices 

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 
Page 23

reviewing the chain of title (e.g., lenders, prospective 

purchasers) regarding contamination on the property and to 

identify whether there are resulting restrictions. As a result, 

where exposure should be limited, a notice in a deed or other 

instrument alone generally will not be sufficient to assure 

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.

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. October 

2009, 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 and a description of the type, 

location, and concentration of residual contamination and any 

associated 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 and limitations for recording 

notices. 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.

30B7.2 State Registries of Contaminated Sites

Some states maintain registries of contaminated sites, which 

can act as an informational IC. The registries often include a 

list of contaminated sites in the state; annual reports to the 

legislature summarizing the status of each site on the registry; 

requirements for inclusion of a notice in deeds that the site is 

contaminated; and requirements that any person conveying 

title to property on the registry disclose to all potential 

purchasers that the property is on the registry. Some laws 

provide that the use of property on the registry cannot be 

substantially changed without the state’s approval. The site 

manager and site attorney should determine whether such 

registries exist early in the response action evaluation process.

A potential limitation of the use of state registries as ICs is 

that the procedure for listing and removing ICs from registries 

vary by state and are often discretionary, potentially making 

the available site information inconsistent or out of date. In 

addition, information contained in a registry may not be 

consistently accessed by prospective developers or local 

government officials in the development application review 

process. Nevertheless, registries can be useful in combination 

with other measures as part of an overall response for a site by 

providing information to the public and regulators. 

31B7.3 Advisories

Advisories are typically publicly issued warnings that provide 

notice to potential users of a land, surface water, ground water, 

or other resource of some 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 ground water at levels that pose a threat to human 

health; or a state may issue fish consumption advisories F

35

F to 

protect people from the risks of eating contaminated fish 

caught in local waters. Advisories are generally 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 Agency for Toxic Substances and Disease 

 

35 Unlike fishing bans, fish consumption advisories are not enforced by a State 

or local agencies but rather provide notice to the public of risks posed by 

contamination.
Page 24

Registry (ATSDR), 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 are often 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. 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 a breach.

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 mechanisms 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.

Maintaining Institutional Controls:

General Considerations (Section 8.1)

Operations and Maintenance (Section 8.2)

Periodic Reviews (Section 8.3)

State, Tribal, and Local Government Oversight 

(Section 8.4)

Out-Sourced Monitoring (Section 8.5)

Community Monitoring (Section 8.6)

Funding for IC Monitoring and Reporting 

(Section 8.7)

32B8.1 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 use before the land use 

changes actually do occur. The site manager F

36

F 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 are 

meeting the stated objectives and performance goals and are 

providing the protection required by the response.

Comprehensive monitoring is generally 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 quarterly 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 

document early in the site management process.

3B8.2 Operations and Maintenance

Effective IC monitoring typically begins with a thorough 

understanding of the IC objectives and 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 which 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 implementation or 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 

 

36 Even the site manager may change over time. For instance, the site 

manager who initiates the IC may be at EPA but ultimately the relevant site 

manager may become a representative from the State.
Page 25

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 ground water 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 may also 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 long-term 

stewardship.

34B8.3 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. When changes to site conditions are likely to take 

place in less than a year (e.g., the site is an area being 

redeveloped or there has been a change in the zoning 

designation), more frequent monitoring should take place. 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 Superfund 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. The periodic 

review provides an important opportunity for a site manager to 

conduct an objective review of the status and performance of 

ICs.

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 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 attorney should generally 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 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 enforcement team should review the 

enforceable document to determine if the settling party may be 

required to implement additional ICs 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 may also be necessary at Superfund 

remedial sites if additional ICs or other actions are necessary

(or if ICs are being discontinued). 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.

35B8.4 State, Tribal, and Local Government Oversight

State, tribal, and local governments are generally important 

partners in the long-term monitoring and reporting of ICs. 

Depending on the IC instrument and which agency is the lead 

agency, the state, tribal, or local government may have direct 

authority for long-term monitoring of ICs. At sites that rely 

upon state, tribal or local governments to implement, monitor 

and enforce ICs, the parties responsible for the cleanup at that 

site should cooperate with those governmental authorities to 

ensure the ICs remain effective. The site manager and 

responsible party are encouraged to coordinate with these 

governments when developing an approach to inspecting, 

monitoring, and reporting on ICs. Further, the site manager 

and site attorney should actively encourage the state, tribal, 

and/or local governments to undertake monitoring of ICs in 

order to avoid the need to change the response action. Such 

monitoring activities may include:

Inspecting and reporting on sites following the issuance of 

building/excavation permits to ensure compliance with

their terms;
Page 26

Inspecting and reporting on sites for compliance with 

proprietary controls when the state or local government is 

the holder of a property interest, such as an easement;

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. In states that have 

adopted legislation enabling environmental covenants, state 

law may specify certain criteria as to who qualifies as a 

grantee, and also may reserve enforcement authority for the 

state in the event that the state is not the grantee. Since the 

grantee may assume responsibility for monitoring and 

reporting on its status, a potential grantee should understand 

its responsibilities before accepting the conveyance of a 

proprietary control. Thus it generally is 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(s)

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.

36B8.5 Out-Sourced Monitoring

In some instances, monitoring and reporting services may be 

contracted out, or otherwise arranged by the entity obligated to 

do monitoring. However, 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 

method of monitoring; and the reporting obligations are 

clearly defined (i.e. to whom the contractor reports and the 

frequency and content of reports).

37B8.6 Community 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 will often have a vested interest in ensuring 

compliance with the ICs, they are generally 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. 

38B8.7 Funding for IC Monitoring and Reporting

The availability of resources should be considered when 

monitoring and reporting plans are developed. State agencies, 

local governments, and other organizations may require 

additional funding to meet IC monitoring and reporting 

requirements. This process should begin with developing a 

cost estimate for monitoring and reporting activities over the 

full life-cycle of the IC. The site manager and site attorney 

may provide state, tribal and local government officials with 

information they may want to consider concerning possible 

approaches and strategies to ensure that adequate funding will 

be available to provide adequate IC monitoring, reporting, and 

enforcement, including:

Using trust funds, surety bonds, letters of credit, insurance

or other means of financial assurance, as appropriate;

Billing the responsible party;

Requiring the responsible party to set up escrow accounts; 

and 

Using settlement proceeds to fund site-specific accounts 

for ICs.

In some instances, it may be possible for state, tribal or local 

authorities to use CERCLA section 107 liability provisions to 

secure PRP financing for these purposes. It may also be 

possible to ensure that all potential future IC costs are covered 

by the financial assurance requirements section of an 

enforcement document, where appropriate (e.g., three-party 

consent decree between U.S., state, and PRP). Additionally, 

financial assurance mechanisms should be reviewed 

periodically to ensure that they remain adequate.

Under the Brownfields Program, EPA provides grants to state 

and local governments to carry out site assessment and 

cleanup activities and to nonprofit organizations to carry out 
Page 27

cleanup. Pursuant to EPA's grant guidelines F

37

F and section 

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 designed to prevent human 

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.

For Fund-financed remedial actions, CERCLA § 104(c) 

requires states to pay for, or ensure payment of, all future 

O&M for remedial actions. EPA may not use the Fund for 

O&M activities except for oversight of O&M activities. 

Generally, it may be appropriate to consider initial 

implementation of ICs as part of a remedial action; generally, 

IC monitoring, reporting, and enforcement are considered as

O&M-type activities.

Guidance on when a remedy may be considered to be in the 

O&M phase is provided in Operation and Maintenance in the 

Superfund Program, OSWER 9200.1-37S, EPA 540-F-01-004, 

May 2001.

Regarding CERCLA Fund-financed emergency and timecritical removal actions, EPA generally does not provide 

financial assistance to states for ICs. For non-time-critical 

removal actions, EPA does not generally use the Fund to pay 

directly for IC monitoring or enforcement, (although the 

Agency may provide financial assistance for initial 

implementation through cooperative agreements).

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. F

38

F 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.

 

37 For more information on EPA’s guidelines for Brownfields Assessment 

Grants, please see: http://www.epa.gov/oswer/docs/grants/epa-oswer-orcr-09-

04.pdf

38 The EPA has recently elevated the importance of ensuring ICs, required as 

part of the remedy, are being enforced. A new Government Performance and 

Results Act (GPRA) performance measure, the Site-wide Ready for 

Anticipated Use (SWRAU), and another new measure, the Cross Program 

Revitalization Measure (CPRM) contain specific IC requirements. For more 

information on how ICs relate to the land revitalization performance 

measures, see Guidance for Documenting and Reporting Performance in 

Achieving Land Revitalization (EPA 2007).

39B9.1 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 effectively addressed at the site manager and site 

attorney level with a phone call and appropriate follow-up. 

Such follow-up may include site visits and letters to ensure 

complete communication and to create 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.

Enforcing Institutional Controls

General Considerations (Section 9.1)

Enforcement of Governmental Controls 

(Section 9.2)

Enforcement of Proprietary Controls 

(Section 9.3)

Enforcement and Permit Tools with IC 

Components (Section 9.4)

Informational Devices (Section 9.5)

Commencement of New Actions (Section 9.6)

Other Enforcement Concerns (Section 9.7)

State, Tribal, and Local Government 

Enforcement Roles and Assurances (Section 

9.8)

For Superfund remedies that include ICs, EPA strives to 

ensure that the potentially responsible parties implement, 

maintain, and enforce ICs, as appropriate. See “Enforcement 

First” 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 potentially 

responsible party participation in carrying out Superfund site 

cleanups, including any IC obligations. 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. Ensuring that ICs are 

properly implemented and remain protective is important to 

both EPA and potentially responsible parties. Therefore case 

teams should first pursue a cooperative approach when 

working with potentially responsible parties to enforce ICs.

40B9.2 Enforcement of Governmental Controls

Governmental controls are typically implemented and 

maintained by a governmental entity other than the one 

performing or overseeing the site cleanup. This does not 

relieve responsible parties from monitoring and reporting on

the effectiveness of the ICs (e.g., notifying regulators of any 
Page 28

change to or breach of a relied upon governmental control). 

Some of the most common governmental controls used in 

CERCLA, Brownfields, UST, and RCRA remedies are zoning 

ordinances, excavation/building codes, well 

construction/abandonment requirements, ground water 

regulations, ground water management zones, fishing 

bans/restrictions; waterways use restrictions, and restrictions 

on, in, and/or near water/shoreline access and/or 

development.F

39

Several difficulties can arise when using ICs in the form of 

governmental controls including: (1) the IC instrument may 

have not 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 classification). The 

challenge for site managers and site attorneys in the use of 

these types of ICs is that implementing, maintaining, and 

enforcing ICs generally fall within the authority and discretion 

of the originating governmental entity. These challenges are 

compounded by the fact that communication between the 

environmental regulators and the relevant governmental 

decision-maker (e.g., the well permitting office) may not be 

part of the established administrative process of that entity.

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.

In addition, site managers and site attorneys should evaluate 

the capability and willingness of a governmental entity to 

implement and enforce any proposed IC in the form of a 

governmental control, and involve that entity early in the 

response process when discussing the types of ICs being 

considered. In certain cases under Superfund, cooperative 

agreements may be developed to assist the local government 

in the initial (but not O&M) implementation of the necessary 

ICs at Fund-lead sites. Local governments may also arrange 

for direct compensation from other parties for the 

implementation, maintenance, and enforcement of ICs. It may 

be beneficial for the state, tribal and local governments to 

 

39 Note: these tools may not be available at certain federal facilities. The 

federal facility is generally responsible for monitoring, reporting, and 

enforcing any violations of the ICs and other land use controls at CERCLA 

cleanups, even for surplus property that has been transferred to private use. 

EPA and often state agencies may enforce the ROD and other post-ROD 

enforceable document if a federal facility fails to enforce or rectify any IC 

breach.

work with and reach a common understanding with the 

responsible parties and other stakeholders about various IC 

implementation issues including the roles and responsibilities 

of the local government in enforcing these controls. This 

common understanding will likely vary depending upon 

whether federal, state, and/or local authority is used. Where 

appropriate, the site manager or site attorney may consider 

providing IC training to local government.

41B9.3 Enforcement of Proprietary Controls

The most common examples of proprietary controls used in 

CERCLA, Brownfields, UST, and RCRA cleanups are 

easements and covenants. The requirements for enforcing 

proprietary controls may vary considerably among states, and 

site attorneys are encouraged to coordinate with attorneys 

familiar with the laws of the particular jurisdiction.

If proprietary controls are implemented under state legislation 

that are tailored to the requirements of ICs (e.g., a State’s 

adoption of UECA), there likely will be clear enforcement 

procedures for the state, a grantee, a third-party beneficiary or 

others. 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. If no specific state 

law addressing environmental covenants exists, these controls 

will be based more generally on the state’s contract and real 

property law.

Under either state statute or case law, certain enforcement 

challenges may arise. The grantee will generally have the 

primary responsibility for enforcing a proprietary control. 

EPA will typically 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 proprietary 

control restrictions and obligations 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. Furthermore, in states that have adopted legislation 

tailored to the requirements of environmental covenants, (such 

as those recommended in UECA), the Region may be able to 
Page 29

refer an enforcement action to DOJ for appropriate action in 

state or federal court where EPA qualifies as an “agency” that 

signed the covenant. Regions 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 

enforcer.

42B9.4 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, 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, or RCRA authority. F

40

F The remedies available may 

include requiring the defendant to implement the IC or, in 

some circumstances, pay certain costs or penalties. Such 

 

40 A consent decree can also be enforced as an order of the court.
Page 30

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 AOC may 

require a facility operator to secure a proprietary control to 

prevent a particular type of land use. However, the land owner 

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”

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 best efforts (e.g., 

Figure 1. Examples of IC Categories and Enforcement Processes

IC 

Categories IC Authorities and Examples Typical Enforcement Processes

Governmental 

Controls

Police Power

Zoning ordinances

Ground water 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 under state property law if they are a thirdparty 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 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. Regions should consult with 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 Federal Facility Agreements 

(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.
Page 31

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 

Superfund remedial actions, the site attorney may consider 

acquiring or condemning the necessary real property interests 

subject to the requirements of CERCLA §104(j).F

41

F 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.

43B9.5 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 are not typically 

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.

4B9.6 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 may also use these authorities to seek a court 

order imposing the IC.

 

41 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.

45B9.7 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 

implementing, maintaining, and enforcing the ICs over the 

duration of the period in which ICs may be needed. In some 

cases, ICs, and, therefore, enforcement instruments, need to be 

retained for a long period of time. In other cases, such as 

RCRA permits that have a specific period of performance and 

long-term requirements for ICs, retaining an adequate 

instrument mechanism may be needed to ensure the long-term 

durability, reliability, and effectiveness of the control. An 

additional area of concern is the change of ownership of 

facilities subject to orders without proper notification to the 

site manager. A RCRA order, or other enforceable device, 

may include a requirement for notification of change of 

ownership.

46B9.8 State, Tribal, and Local Government Enforcement 

Roles and Assurances

Many governmental controls are established under state, tribal, 

or local jurisdiction. To keep remedies protective, Regions 

should encourage states, tribes, and local agencies to be 

proactive in ensuring that ICs subject to their authorities are 

properly maintained. The site manager and site attorney may 

choose to request some form of written commitment from the 

appropriate state, tribal, or local government regarding its 

capability and willingness to maintain, oversee, and enforce

the ICs.

In considering the capabilities and willingness to maintain, 

oversee, and enforce the ICs, the source of funding for these 

activities can be a particularly important factor, since a lack of 

funding may lead to IC breaches and an un-protective 

response action. The format for these commitments will likely 

vary depending upon the available state, tribal and/or local 

authority. A written ICIAP or equivalent document can be a 

valuable tool in helping define goals, planned activities, and 

roles, and in establishing relationships.

10. SUMMARY

ICs are often a vital component of remedies in most cleanup 

programs, including the five programs addressed in this 

guidance. However, over time, Regions should continue to 

review their effectiveness in light of any changes to land use, 

communities, laws, the condition and location of subsurface 

materials, and responsible entities. This guidance document 

provides an overview of some key issues the Regions may 

encounter when evaluating whether ICs are properly selected, 

implemented, maintained, and enforced.
Page 32

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 is often 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, 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, selection of 

an appropriate grantee and careful drafting of the 

language of the conveyance is often important.

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 monitoring and reporting on 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. 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 should be taken.
Page 33

APPENDIX A. REFERENCES

ASTSWMO 2007. Coordination of Federal Removal Actions and 

State Remedial Activities, Association of State and Territorial 

Solid Waste Management. HUhttp://www.astswmo.orgUH

/files/publications/cercla/removals/CG-final.pdf

DOJ 1972. A Procedural Guide for the Acquisition of Real 

Property by Government Agencies (1972). U.S. DOJ. (Although 

this guide is somewhat out of date with regard to appraisal 

matters, it is still current with regard to direct acquisition 

(negotiated purchase) and condemnation procedures).

DOJ 2000. Uniform Appraisal Standards for Federal Land 

Acquisitions (2000) prepared by the Interagency Land Acquisition 

Conference, 2000. HUhttp://www.usdoj.gov/enrd/land-ack/U

DOJ, undated. Title Standards 2001. Contains detailed 

information on acceptable forms of title evidence and 

requirements for the form of conveyance to the United States. 

HUhttp://www.usdoj.gov/enrd/2001_Title_Standards.htmlU

EDSC 2006. Institutional Control Data Standard, Standard 

No.: EX000015.1, January 6, 2006, Environmental Data 

Standards Council. HUhttp://www.exchangenetwork.net/

standards/IC_Data_Standard_01_06_2006_Final.pdfU

EPA 1990b. Policy on Management of Post-Removal Site 

Control, OSWER 9360.2-02, December 1990.

EPA 1991. Policy Towards Owners of Residential Properties 

at Superfund Sites, OSWER Directive 9834.6, July 3, 1991. 

HUhttp://www.epa.gov/compliance/resources/policies/cleanup/su

perfund/policy-owner-rpt.pdfU

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 1993, Conducting Non-Time-Critical Removal Actions 

Under CERCLA, OSWER, EPA/540/F/009, December, 1993.

EPA 1995a. Land Use in the CERCLA Remedy Selection 

Process, OSWER directive 9355.7-04, May 25, 1995.

EPA 1995b. Final Policy Toward Owners of Property 

Containing Contaminated Aquifers, November 1995.

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).

EPA 1997. Rules of Thumb for Superfund Remedy Selection, EPA 

540-R-97-013, OSWER 9355.0-69. 

EPA 1999a. A Guide to Preparing Superfund Proposed Plans, 

Records of Decision, and other Remedy Selection Decision 

Documents,” July 1999, EPA 540-R-98-031, OSWER 9200.1-23. 

HUhttp://www.epa.gov/superfund/policy/remedy/sfremedy/supersede

.htmU

EPA 1999b. 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.

EPA 2000a. Institutional Controls: A Site Manager’s Guide to 

Identifying, Evaluating and Selecting Institutional Controls at 

Superfund and RCRA Corrective Action Cleanups, “A Site 

Manager’s Guide to ICs,” September 2000 (OSWER 9355.0-

74FS-P, EPA 540-F-00-005). 

HUhttp://www.epa.gov/superfund/policy/ic/guide/index.htmU

EPA 2000b. Guide to Developing and Documenting Cost 

Estimates During the Feasibility Study, OSWER 9355.0-75, 

EPA 540-R-00-002, July 2000.

EPA 2001. Operation and Maintenance in the Superfund 

Program, OSWER 9200.1-37S, EPA 540-F-01-004, May 2001. 

HUhttp://www.epa.gov/superfund/policy/pdfs/sheet.pdfUH

EPA 2003a. Final Guidance on Completion of Corrective Action 

Activities at RCRA Facilities, 68 Fed. Reg. 8,457-8,764 (February 

25, 2003). (“Corrective Action Completion Guidance”). 

HUhttp://www.epa.gov/epaoswer/hazwaste/ca/resource.htmU

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. HUhttp://www.epa.gov/compliance/ 

resources/policies/cleanup/superfund/common-elem-guide.pdfU

EPA 2003c. Guidance on the Resolution of the Post-ROD 

Dispute, OSWER, FFRRO an OECA, November 25, 2003. 

HUhttp://www.epa.gov/fedfac/documents/post_rod_112503.htmU

EPA 2004a. Institutional Controls: Third-Party Beneficiary 

Rights in Proprietary Controls, Office of Enforcement and 

Compliance Assistance memorandum, April 19, 2004. 

EPA 2004b. Superfund Relocation Statement of Work Template 

and Users’ Guide OSWER 9320.0-108, August 2004, page 8). 

HUhttp://www.epa.gov/superfund/community/relocation/modelsow.pdfU

EPA 2004c. Interim Enforcement Discretion Guidance 

Regarding Contiguous Property Owners, January 13, 2004. 

HUhttp://www.epa.gov/compliance/resources/policies/cleanup/su

perfund/contig-prop.pdfU

EPA 2006a. Sample Federal Facility Land Use Control ROD 

Checklist With Suggested Language.

HUhttp://www.epa.gov/fedfac/documents/icchecklist.pdfU

EPA 2006b. “Enforcement First” to Ensure Effective 

Institutional Controls at Superfund Sites, May 17, 2006, OSWER 

9208.2. HUhttp://www.epa.gov/compliance/resources/policies/ 

cleanup/superfund/enf-first-ics.pdfU

EPA 2007. Ensuring Effective and Reliable Institutional Controls 

at RCRA Facilities, Office of Solid Waste and Office of Site 

Remediation Enforcement, June 14, 2007.
Page 34

HUhttp://www.epa.gov/waste/hazard/correctiveaction/pdfs/ic_memo.

pdfU

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. 

HUhttp://www.epa.gov/swerffrr/documents/remo-icm.htmUH 

EPA 2009b. Model RD/RA Consent Decree, Office of Site 

Remediation Enforcement, Office of Enforcement and 

Compliance Assistance. October 2009. 

http://www.epa.gov/compliance/resources/policies/cleanup/superf

und/rev-rdra-2009-mem.pdf
Page 35

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 ground 

water that there is some existing or impending risk associated 

with the use of these resources.

Appurtenant - A legal term meaning “belonging to” or 

“incidental to.” An easement that is deemed to be appurtenant 

benefits an adjacent parcel of land and is usually held by the 

owner of the adjacent land. For example, an easement 

allowing the owner of a parcel of land the right to cross an 

adjoining parcel would be deemed appurtenant to the 

easement holder’s parcel of land.

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 hazardouswaste 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 may also include 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 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 may also 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 

rather is used in the NCP as a shorthand way to refer to 

various types of proprietary controls.

Easement - A right that allows the holder to use the property 

of another or restrict its use according to the terms of the 

easement. An “affirmative” easement allows the holder 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.
Page 36

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 

within hours of determining that a removal is required.

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.

Explanation of Significant Differences (ESD) – A CERCLA 

decision document prepared when there has been a significant 

change in cost, 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.

Environmental Data Standards Council (EDSC) - This 

organization was established in 1999 to oversee a consensusbased process for developing and promoting environmental 

data standards. In 2005, the responsibility for overseeing the 

consensus-based process was transferred to the Exchange 

Network Leadership Council.

http://www.exchangenetwork.net/standards

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 ground water use restrictions.

Grantee/Grantor - The entity to/from which ownership of a 

property interest (e.g., an easement) is transferred.

Informational Devices - IC instruments that provide 

information or notification that residual or capped 

contamination could remain on site. Common examples 

include state registries of contaminated properties, notices in 

deeds, and advisories.

In Gross - A 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 generally will be “in gross” because the restrictions

generally are not for the benefit of any particular neighboring 

parcel owned by the holder of the easement.

Institutional Controls - Non-engineered instruments, such as 

administrative and legal controls, that help to minimize the 

potential for human exposure to contamination and/or protect 

the integrity of a response action. They are typically 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-timecritical 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. 

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 - Use of real property law to prohibit 

certain activities that may interfere with the engineering 

remedy applied at a site, or to restrict activities or future uses 

of a resource that may result in unacceptable risk to human 

health or the environment. The most common examples of 

proprietary controls are easements and 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 
Page 37

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.

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.

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 which 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 or IC responsibilities 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.

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 

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. http://www.environmentalcovenants.org/ueca

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 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.