CEMP-RA

Engineer Pamphlet

1110-1-24

Department of the Army

U.S. Army Corps of Engineers

Washington, DC 20314-1000

EP 1110-1-24

15 December 2000

Engineering and Design

ESTABLISHING AND MAINTAINING

INSTITUTIONAL CONTROLS FOR 

 ORDNANCE AND EXPLOSIVES (OE)

PROJECTS

Distribution Restriction Statement

Approved for public release;

distribution is unlimited.
EP 1110-1-24

15 December 2000

ENGINEERING AND DESIGN

ESTABLISHING AND MAINTAINING

INSTITUTIONAL CONTROLS FOR

ORDNANCE AND EXPLOSIVES (OE)

PROJECTS

ENGINEER PAMPHLET

“Approved for public release; distribution is unlimited.”
EP 1110-1-24

15 Dec 00

AVAILABILITY

Electronic copies of this and other U.S. Army Corps of Engineers publications are available on the

Internet at http://www.usace.army.mil/inet/usace-docs/. This site is the only repository for all official

USACE engineer regulations, circulars, manuals, and other documents originating from HQUSACE.

Publications are provided in portable document format (PDF).

i

 DEPARTMENT OF THE ARMY EP 1110-1-24

 U.S. Army Corps of Engineers

CEMP-RA Washington, DC 20314-1000

Pamphlet 15 December 2000

No. 1110-1-24

Engineering and Design

ESTABLISHING AND MAINTAINING INSTITUTIONAL CONTROLS FOR

ORDNANCE AND EXPLOSIVES (OE) PROJECTS

TABLE OF CONTENTS

Paragraph Page

CHAPTER 1. GENERAL

Introduction 1-1 1-1

Policy 1-2 1-1

Regulatory Authorities 1-3 1-1

Responsibilities 1-4 1-2

Functional Roles 1-5 1-2

CHAPTER 2. OVERVIEW OF INSTITUTIONAL CONTROLS

Introduction 2-1 2-1

Legal Mechanisms 2-2 2-1

Engineering Controls 2-3 2-1

Educational Controls 2-4 2-2

CHAPTER 3. ESTABLISHING AN INSTITUTIONAL CONTROL PROGRAM

Introduction 3-1 3-1

Risk Management 3-2 3-1

Developing Site-Specific Objectives 3-3 3-2

Determine the Problems Requiring Change 3-4 3-2

Identify the Type(s) of Reuse Planned 3-5 3-4

Determine the Type(s) of Activities to be Restricted 3-6 3-4

Determine Site-Specific Requirements 3-7 3-4

Checklist for Establishing Site-Specific Objectives 3-8 3-4
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TABLE OF CONTENTS

Paragraph Page

CHAPTER 4. DEVELOPMENT OF AN INSTITUTIONAL CONTROL PROGRAM

Introduction 4-1 4-1

Institutional Analysis 4-2 4-1

Other Tools to Aid in the Development of an

 Institutional Control Program 4-3 4-4

CHAPTER 5. PRINCIPLES OF AN INSTITUTIONAL CONTROL PROGRAM

Introduction 5-1 5-1

An Institutional Control Program is Always Appropriate on

 Any Site Contaminated with OE 5-2 5-1

All Parties With Interest in the Property Must Be Involved 5-3 5-2

Notice in Various Forms is Useful in Protecting Communities 5-4 5-2

Every Institutional Control Program Must Have

 an Assurance Strategy 5-5 5-2

Multiple Levels of Control and Layers are Desirable for Any

 Institutional Control Program 5-6 5-2

Records are Necessary to Evaluate the Continuing

 Effectiveness of the Institutional Control Program

 during Recurring Review 5-7 5-2

The Federal Government Should Pay Separable Costs

 of Institutional Controls 5-8 5-3

CHAPTER 6. THE ESTABLISHMENT, IMPLEMENTATION AND

 TERMINATION OF INSTITUTIONAL CONTROLS

Introduction 6-1 6-1

Establishing Institutional Controls 6-2 6-1

Implementing an Institutional Control Program 6-3 6-4

Maintenance of an Institutional Control Program 6-4 6-7

Procedures for Modification or Termination of an

 Institutional Control Program 6-5 6-10
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TABLE OF CONTENTS

Paragraph Page

APPENDIX A – REFERENCES A-1

APPENDIX B – OVERVIEW OF THE BRAC PROGRAM B-1

APPENDIX C – EXAMPLES OF INSTITUTIONAL CONTROLS C-1

APPENDIX D – EXAMPLES OF REGULATIONS RELATED

 TO LAND USE CONTROL D-1

APPENDIX E – CHECKLIST FOR ESTABLISHING SITE-SPECIFIC OBJECTIVES E-1

APPENDIX F – SUMMARY OF INFORMATION REQUIRED FOR

 INSTITUTIONAL ANALYSIS F-1

APPENDIX G – SAMPLE DEED LANGUAGE G-1

APPENDIX H – CHECKLIST FOR IMPLEMENTING INSTITUTIONAL CONTROLS H-1

APPENDIX I – CHECKLIST FOR OPERATION AND MAINTENANCE OF

 INSTITUTIONAL CONTROLS I-1

APPENDIX J – CHECKLIST FOR MODIFYING OR TERMINATING

 INSTITUTIONAL CONTROLS J-1

GLOSSARY Glossary-1

TABLES

Table 3.1 Steps Required to Establish Site-Specific Objectives 3-2

Table 4.1 Five Elements of an Institutional Analysis 4-2

Table 4.2 Basic Elements of the Land Use Matrix 4-5

Table 5.1 Principles for Developing an Institutional Control Program 5-1
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CHAPTER 1

GENERAL

1-1. Introduction.

a. The OE response process is designed to enhance public safety and protect the human

environment from OE remaining from past DOD operations. The typical strategies for addressing the

presence of OE on a site are physical removals and institutional controls. Although physical removals

are conducted to reduce the amount of OE at a site, current technologies are not adequate to provide

for the detection and removal of all ordnance. Therefore, institutional controls are implemented to

manage residual risk remaining at an OE site. Institutional controls are also sometimes put into place

without a physical removal, as a stand-alone response.

b. Risk from OE can be managed if the public is informed about the hazards, is willing to take

reasonable precautions, and is willing to alter their behaviors. This document will focus on how

institutional controls may be used to successfully manage OE risk. This document will emphasize the

importance of encouraging meaningful stakeholder participation, supporting community needs and

fostering long-term community commitment during the development, implementation and maintenance of

institutional controls.

1-2. Policy. The policy of the USACE is to establish and maintain institutional controls in a manner

which fully meet customers’ expectations of quality, timeliness, and cost effectiveness within the bounds

of legal responsibility. An acceptable level of quality does not imply perfection; however, there should

be no compromise of functional, health, or safety requirements. Adherence to the Quality Management

principles outlined in Engineer Regulation (ER) 5-1-11, Program and Project Management and ER

1110-1-12, Quality Management, will contribute to achieving this goal. OE response procedures must

be formulated to ensure harmony with the USACE Strategic Vision and should be executed in concert

with activities presented in other USACE guidance.

1-3. Regulatory Authorities.

a. Major Subordinate Commands (MSC), district commands, OE Design Centers, and the OE

Mandatory Center of Expertise (MCX) will comply with all applicable laws and regulations. The

district, which serves as the Project Manager (PM), will provide general legal services. For Formerly

Used Defense Sites (FUDS) projects, the determination of the laws and regulations governing

environmental aspects for any specific OE project will be made in consultation with the OC supporting

the OE MCX. In the event of any sort of dispute with a regulator over the governing laws on a FUDS

project, the district providing general legal services will represent the agency in negotiations or adversary
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proceedings. For non-FUDS projects performed by the USACE under a different program or

authority (i.e., Base Realignment and Closure [BRAC], Installation Restoration [IR], Work for Others),

the appropriate legal representative of the sponsoring agency will be the lead counsel for all legal

matters, although USACE counsel will be available for consultation.

b. OE response actions will be executed in compliance with the OE requirements of Department

of Defense (DOD) 6055.9-STD; Army Regulation (AR) 385-61; AR 385-64; Department of the Army

Pamphlet (DA Pam) 385-61; Headquarters, Department of the Army (HQDA) LTR 385-98-1

“Explosives Safety Policy for Real Property Containing Conventional Ordnance and Explosives”; ER

1110-1-8153 “Ordnance and Explosives Response”; “Safety and Health Requirements for Ordnance

and Explosives Response Actions” to be published in ER 385-1-95; and any other applicable OE

publications listed at Appendix A. All USACE elements will comply with DOD and DA safety and

health regulations and procedures.

c. The regulatory authorities governing the establishment and maintenance of institutional controls

during OE response actions include: Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA); National Oil and Hazardous Substance Contingency Plan (NCP); Defense

Environmental Restoration Program (DERP); BRAC; Resource Conservation and Recovery Act

(RCRA); and 40 CFR Part 260 et al - Military Munitions Rule. These regulatory authorities are

discussed in detail in Engineer Pamphlet (EP) 1110-1-18, Ordnance and Explosives Response. Since

the BRAC process has dealt with issues of transferring or leasing land that may contain residual OE

contamination, Appendix B provides a general overview of the BRAC process. It is necessary to have

a basic understanding of this process in order to understand the scope of institutional controls that may

be used at transferring or transferred military properties.

1-4. Responsibilities. It is the responsibility of all USACE personnel involved with the OE Program to

safely execute OE response projects and to comply with applicable laws, regulations, and policies. A

detailed discussion of USACE organizational responsibilities for OE response projects is presented in

Engineer Regulation (ER) 1110-1-8153, Ordnance and Explosives Response.

1-5. Functional Roles. The following section provides a description of the functional roles for USACE

elements regarding the establishment and maintenance of institutional controls during OE response

projects. A more comprehensive description of the functional roles for the organizations during OE

response projects discussed below is provided in ER 1110-1-8153.

a. Headquarters, US Army Corps of Engineers. HQUSACE is responsible for monitoring the

Engineering Evaluation and Cost Analysis (EE/CA) report, a component of which is the Institutional

Control Plan. In the Institutional Control Plan, the establishment and maintenance of institutional

controls for a specific site are discussed.
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b. Major Subordinate Commands. In addition to the requirements stated in ER 1110-1-8153,

MSCs will perform the below listed functions pertaining to the establishment of institutional controls.

These responsibilities may be delegated to assigned districts within a MSC’s geographic area.

(1) Establish contact with zoning and permitting authorities;

(2) Coordinate with local authorities; and

(3) Coordinate maintenance inspections, including recurring reviews.

c. District. A district will perform those activities for institutional controls that are delegated to it

by the MSC.

d. OE Design Center. The OE Design Center will provide direct support to the MSCs and

districts, as requested, for establishing and maintaining institutional controls.

e. OE MCX. The OE MCX will:

(1) Review and provide comments and written concurrence or non-concurrence on products

related to institutional controls (e.g., Statement of Work, Work Plan, and Institutional Analysis,

Institutional Controls Plan) to ensure compliance with Federal, DOD, DA and USACE OE safety and

OE environmental regulations.

(2) Provide technical support to any USACE office conducting institutional controls activities in

areas where unexploded ordnance (UXO) is suspected or known to exist.

f. State, Local, and/or Tribal Governments/Authorities. State, local, and/or tribal

governments/authorities are critical to the development and selection of site-specific institutional controls

in concert with USACE.

g. Regulators. Regulators provide advice and assistance to the USACE and state, local, and/or

tribal governments in the development of a viable institutional control program for a particular site.

Once an institutional control alternative has been selected for a site, regulators will provide oversight to

ensure continued compliance with the institutional control.

h. Landowners. Landowners provide critical input into the development of a viable institutional

control program for their property. If an institutional control program is selected for their property, the

property owner will maintain compliance with the provisions of the institutional control and notify the

USACE and the appropriate, state, local, and/or tribal government with any proposed land use changes

for the site that may impact the effectiveness of the institutional control.
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CHAPTER 2

OVERVIEW OF INSTITUTIONAL CONTROLS

2-1. Introduction. Institutional controls are mechanisms which protect property owners and the public

from hazards contained on a site by limiting the access or use of a property, or by warning of the

hazard. Institutional controls are substantially the same as “land use controls,” as defined in the

Department of Defense’s Interim Policy on Land Use Controls Associated with Environmental

Restoration Activities (31 August 2000). This chapter discusses the three general types of institutional

controls: legal mechanisms, engineering controls, and educational programs. Specific examples of these

types of institutional controls are presented in Appendix C. This chapter also discusses some of the

strengths and limitations of these institutional controls, as well as their applications.

2-2. Legal Mechanisms.

a. This section provides an overview of the effectiveness of legal mechanisms. Specific legal

approaches including easements, restrictive covenants, reversionary interests, zoning, permitting, siting

restrictions, and overlay zoning have been used for many purposes other than limiting exposure to

environmental risks such as OE, and are described in detail in Appendix C.

b. Legal mechanisms are particularly effective types of institutional controls because:

(1) Other than periodic monitoring necessary for enforcement, legal mechanisms do not require

the physical maintenance that is necessary for other types of institutional controls, such as engineering

controls.

(2) Title recording systems, local planning commissions, and other administrative systems and

associated staff already exist in most jurisdictions and can be used to implement a legal mechanism as

part of an institutional control program. Additional funding may be required for the administering agency

depending on the extent of additional effort required due to the implementation of an institutional control

program at a site within their jurisdiction.

c. Legal mechanisms require constant oversight and support in order to remain effective.

Administrative programs to implement and enforce legal mechanisms are already in place; however, they

are sometimes not effective in protecting against inappropriate land use and should be used in

conjunction with other programs.
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2-3. Engineering Controls.

a. This document also considers engineering controls. Engineering controls either limit the

public’s access to a site or limit the public’s exposure to the residual contamination that remains on a site

to an acceptable level. Engineering controls can take on many forms and are often developed to meet

the specific conditions of a site. Engineering controls are most effective when implemented in concert

with other institutional controls, rather than as stand-alone mechanisms.

b. When using engineering controls to limit the public’s exposure to contaminants, the current

land use of the area around the contaminated site must be considered. For example, if the property is

surrounded by residential areas, schools, or playgrounds, or if the property is frequented by the public,

the potential for exposure and adverse consequences is increased and therefore a higher level of access

control would be necessary. Examples of engineering controls that have historically been effective in

limiting access are fences, signs, and soil caps. Appendix C provides information on the strengths and

limitations of these types of engineering controls.

c. Engineering controls protect against inadvertent access or exposure to the hazards associated

with a site. They have the advantage of being passive, i.e., once they are in place they do not require

human interaction to provide notice or protection (other than to maintain the integrity of the control).

Another advantage of engineering controls is that they provide a direct deterrent to those who are the

most likely to come into contact with a contaminated area by either limiting access or providing a

warning as to the nature of the dangers posed by a contaminated site. Engineering controls are an

important part of institutional control programs in areas where it is particularly important to protect

against inadvertent access, such as in areas where it can be expected that children will be in the vicinity.

Engineering controls require routine inspection and maintenance in order to remain effective.

2-4. Educational Controls.

a. The use of educational controls is usually a good strategy to manage and reduce residual risk

from public exposure to OE. An education program may take on many forms and may be easily

tailored to meet the specific needs of a site and the surrounding community. Examples of education

programs include formal education seminars and public notices.

b. Educating the local community is an extremely important part of any institutional control

program. Generally, if people are aware of and understand the hazards associated with an OEcontaminated site, they will take the necessary precautions to avoid exposure. Education programs can

be tailored to meet the specific needs of a particular audience (e.g., local homeowners, school children,

regulators, developers, etc.) and can be performed as often as necessary to educate those that are at

greatest risk for exposure to OE. Educational efforts constitute a stand-along institutional control, but
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can also improve the effectiveness of other controls that are part of the overall program. Appendix C

provides additional information on the strengths and limitations of education controls.
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CHAPTER 3

ESTABLISHING AN INSTITUTIONAL CONTROL PROGRAM

3-1. Introduction. The establishment of an institutional control program is an important component of a

comprehensive risk management strategy for an OE contaminated property. This chapter will discuss

how institutional controls fit into the risk management approach and thereby, provide a level of

protection for the local community from OE hazards. This chapter will also discuss how local

stakeholder involvement is crucial to the establishment of a successful institutional control program.

3-2. Risk Management. Risk management is used by the government when OE risk remains at a site.

The risk management approach is designed to encourage meaningful stakeholder participation, foster

long-term community commitment to the institutional control program, and provide government support

for community needs. Risk Management consists of:

a. Risk Minimization Consistent with Community Needs. This component of risk management

focuses on minimizing the physical OE threat by removing as much of the ordnance as is practical

considering the needs of the community. This process occurs during the EE/CA and removal action

phases of the OE response process. Consideration should also be given to the possibility of engineering

controls, such as caps or other barrier-like structures to directly minimize the existing hazards.

Frequently, maintenance is required to ensure effectiveness of any risk minimization strategy that is

selected.

b. Residual Risk Management. Managing the residual risk by encouraging local initiatives is the

essence of institutional control planning. The local community is encouraged to become actively

involved in developing local initiatives to implement institutional controls. Local initiatives are institutional

controls for which the local authorities agree to support and provide long-term enforcement. The

federal government does not have the authority to enforce local initiatives; however, it can encourage the

local community and pledge its support to provide leadership, expertise, resources and a continuing

long-term review of the implemented institutional control program.

c. Recurring Review. Monitoring the effectiveness of all elements of the implemented project is

the basic nature of recurring review. At a minimum all projects must be reviewed every five years. The

frequency of review must be a design element that is site-specific. The recurring review elements are a

clear indication that the federal government provides a long-term commitment to managing residual risk

at sites contaminated by OE. Recurring review provides the opportunity to respond to problems that

develop over time, renew the communities understanding of the ordnance problem, refresh commitments

necessary to effectively protect the communities from ordnance hazards, re-evaluate the effectiveness of

the institutional control program, and to ensure productive use of the land resources.
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3-3. Developing Site-Specific Objectives. To effectively manage long-term residual risk at an OE site,

the government needs to encourage meaningful stakeholder involvement. Coordination with local

officials and other stakeholders is essential to identifying site-specific objectives for the institutional

control program. This coordination involves listening to community officials about their form of

government, discovering what local programs exist, and uncovering the community’s needs for

addressing the ordnance problem. This section discusses the steps required to establish site-specific

objectives. Table 3.1 summarizes these steps.

Table 3.1

Steps Required to Establish Site-Specific Objectives

• Determine the problems requiring change.

- Site history

- Types of activities

- Types and quantities of munitions

- Current and future land use

• Identify types of reuse allowed.

• Determine the type of activities to be restricted.

• Determine site-specific restrictions.

3-4. Determine the Problems Requiring Change. The first step in establishing site-specific objectives is

to identify the specific problems associated with OE at the site. To do this, both the historical use of the

site and current/future land uses should be evaluated.

a. The history of the site should be reviewed to evaluate the type(s) of activities that occurred at

the site, as well as the type(s) and quantity(ies) of munitions used.

(1) Type of activities. Activities that may result in the presence of OE include: ammunition plants;

storage, test, impact, and training areas; and bombing or target ranges. These different uses will result in

differing distributions of OE, both horizontally and vertically.

(2) Type and quantity of munitions. The type and quantity of munitions used at a site may have

varied over the life of the site, depending on changing missions and technology. One site may therefore

include numerous types of munitions. OE may include bombs, artillery, mortar, aircraft cannon or tankfired projectiles, dispensed munitions, submunitions, rockets, guided missiles, grenades, general

demolition materials, bulk explosives, pyrotechnics, torpedoes, mines, small arms ammunition, and

chemical/biological munitions. In addition to the differing types of munitions, it must also be determined
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whether chemical agents were used at a site. In the case of chemical rounds, the propellants, explosives

and pyrotechnics (PEP) as well as the chemical agent fillers included in munitions may pose a hazard.

Just as with the types of activities, the horizontal and vertical distribution of OE will vary for differing

types of munitions.

b. Current and Future Land Use. The current land use and reasonably anticipated future land

use of the property and surrounding area should be considered when developing the specific objectives

for a site. This information will aid in identifying the particular risks of exposure to OE at the site. For

example, the risk to be controlled will vary depending on whether the site is currently developed or

undeveloped and whether it is located in a sparsely populated or densely populated area. Consultation

with local government agencies and the local citizenry will help reveal reasonably anticipated future use.

The following information and resources may be helpful in evaluating the current and future land use:

(1) Zoning laws;

(2) Zoning maps;

(3) Comprehensive community master plans;

(4) Population growth patterns and projections (e.g., Bureau of Census projections);

(5) Accessibility of site to existing infrastructure (e.g., transportation and public utilities);

(6) Institutional controls currently in place;

(7) Site location in relation to urban, residential, commercial, industrial, agricultural and

recreational areas;

(8) Federal/state land use designation (e.g., national parks, state recreational areas, governmental

facilities providing extensive site access restrictions, such as DOD facilities);

(9) Historical or recent development patterns;

(10) Cultural factors (e.g., historical sites, Native American religious sites);

(11) Natural resources information;

(12) Environmental justice issues;

(13) Location of on-site or nearby wetlands;
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(14) Proximity of site to a floodplain;

(15) Proximity of site to critical habitats of endangered or threatened species; and

(16) Geographic and geologic information.

3-5. Identify the Type(s) of Reuse Planned. The types of reuse planned at a site may be stated in

broad categories such as residential, commercial, industrial, recreational, agricultural, etc. Depending on

site-specific characteristics, it may be more effective to be more specific than these broad categories.

The historical use of the site and the clearance depth used for any previous cleanup activities should be

considered when identifying the types of reuse planned.

3-6. Determine the Type(s) of Activities to be Restricted. In addition to addressing the types of

appropriate reuse of an OE-contaminated site, it may be necessary to also address specific activities

that are not planned. This may include prohibitions or restrictions on excavation, drilling, or disturbance

of soil. A restriction on excavation or drilling, for example, may require an OE clearance prior to any

field activities.

3-7. Determine Site-Specific Requirements. Site-specific restrictions may be developed based on the

nature and extent of the OE contamination, the current and proposed future land use, and the nature of

activities performed in the area. Site-specific restrictions may also be developed based on special

characteristics of the surrounding area. For example, several other programs exist that use institutional

controls to address site-specific characteristics requiring special restrictions. Appendix D includes a

description of several programs that, in addition to being examples of institutional control programs, may

also provide additional avenues to restrict future use at OE-contaminated sites. For example,

development of an OE site that encompasses wetland areas may be restricted by wetlands regulations

as well as by an institutional control program designed specifically to address the OE contamination.

3-8. Checklist for Establishing Site-Specific Objectives. Appendix E contains a checklist addressing

issues related to establishing site-specific objectives in an institutional control program. The district’s

real estate division is another resource for additional examples of site-specific objectives that may be

applicable to a site.
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CHAPTER 4

DEVELOPMENT OF AN INSTITUTIONAL CONTROL PROGRAM

4-1. Introduction. Once site-specific objectives have been identified, the government and local

community may use a variety of tools to aid in the development of an institutional control program. The

first tool, institutional analysis, should be conducted at any site where an institutional control program is

being considered. The other tools, a land use matrix and a land use classification scheme, can be helpful

but their use is not required.

4-2. Institutional Analysis.

a. Overview.

(1) The institutional analysis is conducted during the EE/CA process. The institutional analysis

process provides the opportunity to collect basic data to support an institutional control program. The

objectives of the institutional analysis are to illustrate the opportunities that exist to implement an

institutional control program at a specific site; identify government agencies having jurisdiction over OE

contaminated lands; and assess the appropriateness, capability and willingness of government agencies

to assert their control over OE contaminated lands.

(2) An institutional control program may consist of a single institutional control or a combination of

strategies. The local community and stakeholders drive the development of the appropriate institutional

control alternatives. The alternatives for the site should reflect the framework of the local institutions and

the needs of the community. Therefore, the product of the institutional controls analysis should be the

selection of the institutional control that is supported by the community and reflects the site-specific

objects identified at the beginning of the project.

b. Assessment of Institutions.

(1) Local and state government agencies and other organizations can assist in the development,

implementation and/or maintenance of the institutional control program. There are five elements to

consider when assessing the ability of a local, state, Federal, or private agency to assist in the

implementation or monitoring of a proposed institutional control program. The five elements are listed in

Table 4.1 and discussed in the following paragraphs.
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Table 4.1

Five Elements of an Institutional Analysis

• Jurisdiction of the Agency

• Authority Exercised by the Agency within its Jurisdiction

• Mission of the Agency

• Capability of the Agency

• Desire of the Agency to Participate in the Institutional Control

Program

(a) Jurisdiction of the Agency. Federal, state, and/or local government agencies may have

jurisdiction within the area of a project site. The laws governing the existence of the specific agency will

convey this jurisdiction. Tribal governments and commissions may also have jurisdiction within certain

areas. Determining which agency within the various levels of government has the appropriate

jurisdiction for a specific site may prove challenging. In some areas, several agencies may be involved,

depending on the type of institutional control or what specific aspect of an institutional control is being

contemplated. Private agencies do not usually have any jurisdictional authority.

(b) Authority Exercised by a Government Agency within its Jurisdiction. Key questions that must

be asked regarding the authority exercised by a government agency are listed below. Private agencies

usually do not have any enforcement authority other than those provided by normal trespass laws.

• What are the limits of the agency’s authority?

• What is the origin of the agency’s authority?

• How much control is exercised by the agency?

• Does the agency have enforcement authority?

(c) Mission of the Agency. The specific mission of the agency is critical to its ability to implement,

enforce, or maintain an institutional control program. Two critical missions for the USACE in OE

response are public safety and land use control. If USACE can find a similar mission at another

government or private agency, there is reasonable potential that a cooperative institutional control

program can be implemented.
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(d) Capability of the Agency. Even if an agency has the jurisdiction, authority, and mission to be

involved in an institutional control program, if it does not have the capability, it cannot be an effective

partner. In the case of local government agencies, the capabilities may be unique and are often a

reflection of the desires of the local community. The capabilities of a government or private agency can

be augmented, however, with additional funding in order to implement the additional requirements of the

proposed institutional control program.

(e) Desire of the Agency to Participate in the Institutional Control Program. The desire of a

particular government or private agency to participate in an institutional control program is absolutely

critical to its success. The Federal Government must encourage the participation of a local agency in the

implementation of an institutional control program. If local officials are convinced that participation in an

institutional control program is in their best interests, USACE will have little difficulty in persuading them

that they should participate. Resources in the form of funding for the agency’s implementation costs

may overcome the initial hesitancy to become involved.

(2) The basic data necessary to determine the jurisdiction, authority, mission, capabilities and

desire of government or private agencies to assist in the implementation or maintenance of an institutional

control program may be collected through a series of interviews with key personnel within the identified

agencies. The interviews should be conducted through personal contacts. The data can be collected

and collated to ensure complete coverage of all of the potential agencies. Appendix F includes a sample

institutional analysis summary format. This information can then be summarized to determine which

agencies can best assist in the institutional control program and to develop basic plans of action.

Sensitivity to local concerns and some creativity will be required in developing a complete institutional

control program for a site.

c. Determination of Any Land Restrictions. While performing the institutional analysis, it is

necessary to determine the existence of any current deed restrictions or other type of institutional control

that may have been placed on the property in the past as a result of some other activity. If such

restrictions are found to already exist at a site, it may be easier to modify the existing restriction to

address the OE risk than to implement an entirely new institutional control. A complete and thorough

records search of the property must be performed in order to determine if any current restrictions exist.

Local title search firms may be used to perform this function, as they are often the most knowledgeable

about the best repositories of local property records.

d. Institutional Analysis Report. Upon completion of the data collection, the results of the study

must be documented in an Institutional Analysis Report. The report may either be prepared as a standalone document or as an appendix to the overall site characterization report (e.g., EE/CA Report). The

Institutional Analysis Report should include the following sections:
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(1) Purpose of the Study;

(2) Methodology;

(3) Scope of Effort;

(4) Selection Criteria (Jurisdiction, Authority, Mission);

(5) Acceptance of Joint Responsibility (desire to participate in the institutional control program);

(6) Technical Capability;

(7) Intergovernmental Relationships;

(8) Stability;

(9) Funding Sources; and

(10) Recommendations.

4-3. Other Tools to Aid in the Development of an Institutional Control Program.

a. Land Use Matrix. The Future Land Use Working Group has developed a land use matrix

tool to aid in identifying and resolving complex issues related to restoration and reuse of contaminated

sites. This tool has been developed to aid in building consensus among various stakeholders regarding

the need for and level of institutional controls at a contaminated site. While the land use matrix was

developed specifically for BRAC sites, it can also be used at any site where institutional controls are

being proposed. By laying out the potential alternatives in matrix form, all parties can see the cost,

benefit, and potential results of combinations of various remedial and institutional control alternatives.

Table 4.2 lists the six elements of the basic matrix, which may be adapted to address site-specific

conditions.

b. Land Use Classification Schemes. Another tool that is available to help define the level and

extent of institutional controls is a land use classification scheme. A land use classification scheme

identifies areas that are contaminated with OE and places use restrictions on those areas in accordance

with the level of OE contamination. In addition to being a tool in the development of an institutional

control plan, once a land use classification scheme has been developed it may also become a part of the

program.
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Table 4.2

Basic Elements of the Land Use Matrix

Element 1:

Remedy Alternatives

All potential methods for cleanup being considered at a site are

referred to as remedy alternatives. All alternatives included in the

matrix should meet both engineering and legal requirements.

Element 2:

Cost

The cost of each remedy alternative should be estimated. The cost

should include all aspects of the alternative, including construction,

short and long-term monitoring, and operation and maintenance.

Element 3:

Time until available for reuse.

The time available for reuse accounts for the time it will take to

prepare the property for reuse, including the time required for

preparation to lease or transfer by deed.

Element 4:

Restrictions on Use

Any restrictions on use of the property after meeting the remedial

action objectives should be listed and a description of the

proposed institutional controls included.

Element 5:

Alternatives for Reuse

Reuse alternatives may be general or specific. General categories

include residential, educational, commercial, office, industrial,

recreational, aviation, or open space. More specific reuse

alternatives may be necessary depending on the nature of the risk

posed by OE at the site.

Element 6:

Potential for reuse at

completion of the remedy

The matrix uses three codes to differentiate among the potential for

reuse. These codes include:

ò Indicates that the site or a portion of the site is not feasible

for a particular reuse because of the identified remedy.

y Indicates that there are some restrictions on a particular

reuse of the site or a portion of the site for the identified

remedy.

ô Indicates that there are no restrictions on a particular reuse

of the site or portion of the site for the identified remedy.
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CHAPTER 5

PRINCIPLES OF AN INSTITUTIONAL CONTROL PROGRAM

5-1. Introduction.

a. This chapter discusses the principles to consider when developing an institutional control

program. These items are described as principles because they apply uniformly to the development of

all institutional control programs. These principles are featured in Table 5.1 and discussed in the

following paragraphs.

Table 5.1

Principles for Developing an Institutional Control Program

• An institutional control program is always appropriate on any site

contaminated with OE.

• All parties with interest in the property must be involved in the process.

• Notice in various forms is useful in protecting communities from the

harmful effects of misuse of OE contaminated lands.

• Every institutional control program must have an assurance strategy that is

developed along with the basic plan.

• Multiple levels of control and layers are desirable for any institutional

control program.

• Records are necessary to evaluate the continued effectiveness of the

institutional control program during recurring review.

• The federal government should pay for separable costs of Institutional

Controls if they are an expansion of normal responsibilities of local

agencies.

5-2. An Institutional Control Program Is Always Appropriate On Any Site Contaminated With OE.

When physical OE removal is conducted, the use of best technology, professional oversight and the

epitome of quality assurance does not provide for the detection of all ordnance on the site. Therefore,

the application of institutional controls is an appropriate mechanism to keep the public safe from OE

hazards. The success of the institutional control program is based on the attitudes of the local institutions

and community. Trust, commitment and responsibility must be communicated and accepted by all

stakeholders and the Federal Government.
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5-3. All Parties With Interest In The Property Must Be Involved In The Process. The foundation of an

institutional control program is meaningful stakeholder involvement. Active involvement of the local

officials and community is paramount to the development of local initiatives that will be supported and

successfully implemented.

5-4. Notice In Various Forms Is Useful In Protecting Communities. The local institutions should make

the decision regarding the type and extent of public notification. While notice is always beneficial for

safety consideration, global community notice may alarm the pubic and have detrimental impacts. For

example, property values may be adversely affected. Therefore, it is important for local officials to

target only those groups impacted by OE decisions. For example, notice may be provided during the

issuance of building permits to inform those individuals most likely to be effected (i.e., those engaged in

excavation activities).

5-5. Every Institutional Control Program Must Have An Assurance Strategy. Because of safety issues

inherent on an OE site, an assurance strategy is an important consideration during institutional controls

planning. Forms of assurance include recognition of responsibilities at all levels of government and

private citizens, state oversight, frequent communication, recurring review, elements of the maintenance

requirements and a fastidious attitude toward keeping commitments at the Federal level. Only

community action in the largest sense can determine adequate assurance.

5-6. Multiple Levels Of Control And Layers Are Desirable For Any Institutional Control Program.

Designing layering or redundancy into an institutional control program will maximize the strengths of the

individual controls while minimizing their limitations. Multiple levels of institutional controls help target

different “at risk populations” and add to the stability of the system. For example, children that go to

school near ordnance contaminated lands should be approached differently than construction workers

who excavate for utilities. School programs and informing parents are essential in the former group and

it may be more effective to issue a construction permit subject to elements of a safety plan based on the

site-specific ordnance contamination to the construction company. Violation of the excavation safety

plan developed during the removal project may result in voiding the construction permit. Delays, fines

and penalties may provide sufficient incentive for compliance under those conditions. In general, we

should avoid redundant regulations. Oversight, quality assurance and recurring review may add safety

benefits.

5-7. Records Are Necessary To Evaluate The Continuing Effectiveness Of The Institutional Control

Program During Recurring Review. Records must be maintained so the recurring review may assess the

continuing commitment at all levels within the community. Any opportunity for enforcement must include

records of implementation of the controls agreed upon during the project planning.
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5-8. The Federal Government Should Pay Separable Costs Of Institutional Controls If They Are An

Expansion Of Normal Responsibilities Of Local Agencies. Much of the proposed efforts under

institutional controls is mandated by state and local law. If services required in the institutional control

program are provided for under state or local funding, then the Federal Government is usually not

obligated to fund these services.
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CHAPTER 6

THE ESTABLISHMENT, IMPLEMENTATION AND TERMINATION

OF INSTITUTIONAL CONTROLS

6-1. Introduction. This chapter discusses the requirements for establishing, implementing and

terminating an institutional control program at an OE site.

6-2. Establishing Institutional Controls.

a. The following issues should be considered when establishing an institutional control program:

preparation of an institutional control plan; preparation of support agreements; establishment of funding

for the implementation and maintenance of the institutional control program; and provision of an

appropriate level of public notice regarding the establishment of the institutional control program.

b. Preparing an Institutional Control Plan.

(1) An institutional control plan should be prepared when an institutional control program is being

formulated for a site. The institutional control plan is normally prepared during the EE/CA process. The

plan should be a brief summary of the major issues and objectives that the institutional controls have

been designed to address. Issues covered in the plan should include:

(a) General description of site boundaries;

(b) Specific institutional controls that will be used on the site;

(c) How the proposed institutional controls will reduce the risk of OE exposure;

(d) What local, state, Federal Government, or private agencies, or individuals are involved in the

implementation, administration, enforcement, and/or maintenance of the institutional controls;

(e) Identification of short-term and long-term costs and funding sources;

(f) Schedule for implementation and inspection of the institutional controls;

(g) How long the institutional controls will have to remain in place; and

(h) Procedures for modification or termination of the institutional controls.

(2) The institutional control plan should be reviewed by all parties that will be involved in

implementing or maintaining the institutional controls. It is important that all parties with approval
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authority be included in the review process. In addition, local community groups and outside state

agencies that may not be directly involved in the institutional control program, but may have an interest in

the program, should also be copied on the final plan.

c. Preparing Support Agreements.

(1) Detailed support agreements are an essential part of an effective institutional control program.

Upon completion of the institutional control plan, specific support agreements should be prepared

between USACE and the respective supporting agencies that will be involved in the implementation or

maintenance of the institutional controls. The support agreement must detail the specific responsibilities

for items including administration, inspection, maintenance, funding, and enforcement that will be

required from each supporting agency. The appropriate vehicle and the specific format and

requirements for the preparation of a support agreement will depend on site specific characteristics and

the nature of the agency that is providing the assistance.

(2) If DOD is to retain title to a piece of OE-contaminated property as part of an active military

installation (e.g., Aberdeen Proving Ground), the institutional control program may also be recorded in

the Base Master Plan (BMP). The BMP establishes land uses similar to a municipal zoning plan and is

utilized in the evaluation of land use decisions and for project planning. Prior to using the BMP as a

means to establish an institutional control program at a base, it should be confirmed that the specific

installation BMP can be used for this purpose and that the BMP system is adequate to ensure

adherence to the proposed institutional control program.

(3) A Memorandum of Agreement (MOA) or Memorandum of Understanding (MOU) between

the DOD installation, USACE, and the appropriate regulatory agencies may also be used to record the

details of an institutional control program.

(4) An institutional control program shall be recorded as a response action in a Remedial Action

Plan (RAP) or Record of Decision (ROD). For example, at Aberdeen Proving Ground, Maryland, the

institutional control plan was included in the ROD for the site; thereby, making the institutional control

legally enforceable. In addition, by recording the institutional control in the ROD, the Army becomes

legally responsible for complying with, funding, and implementing the plan.

(5) Regardless of which instrument is used to implement an institutional control program, the

institutional control plan should include a description of each institutional control, the purpose for the

control, specific conduct and activities that are prohibited, requirements for implementation of the

control, and procedures to take if the land use plans change. References to applicable site

characterization documents (e.g., Remedial Investigation/Feasibility Study, EE/CA, ROD, Action

Memorandum, etc.) should also be included. The institutional control plan should include a land survey
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of the site boundaries, and in the case of sites at active installations, the boundaries should be added to

appropriate base maps.

d. Funding the Implementation and Maintenance of the Institutional Control Program. As with

any remedial alternative, funding is a key issue in the implementation of an institutional control program.

USACE must commit to programming funding for both the implementation year and the out-years to

ensure that funds are available to implement and maintain the proposed institutional control program.

(1) Determination of Funding Requirements. In evaluating the implementation of an institutional

control program at a site, the funding requirements for all aspects of the program must be considered

upfront. The relative costs of different combinations of institutional controls and their applicability to

site-specific conditions should be evaluated. The land use matrix and other tools introduced in Chapter

5 for use in the assessment and comparison of remedial alternatives may be helpful.

(2) Alternative Solutions for Fund Site Management. Appendix D contains a listing of programs

that might be used as part of an institutional control program at an OE-contaminated site. Additional

sources of funding may be available through these programs, as was the case when the Sikes Act was

used at Aberdeen Proving Ground in Maryland.

e. Providing Public Notice of the Proposed Institutional Control Program.

(1) The USACE Real Estate Handbook (ER 405-1-12) requires that when land contaminated

with OE or toxic agents is released or transferred, the general public must be notified regarding the

possible presence of and inherent danger of handling such contaminants. This notice may take various

forms such as newspaper articles or advertisements, television or radio announcements, or posting

notice at the site. The notice should include not only the risks posed by the site, but also instructions on

how to report the discovery of an OE object or any injuries suffered as a result of an explosion or

exposure to toxic agents. The notice should also include the name and telephone number of the

responsible agency and a warning that any incidents should be reported immediately. Local government

agencies, such as local law enforcement, whose cooperation should be secured in the development of

the institutional control program, can provide assistance in the timely reporting of such a discovery or

accident.

(2) In addition to the general public notice described above, an effort should also be made to

notify and inform local scrap dealers about the potential presence and the dangers of OE objects. This

is due to the fact that many OE accidents are the result of explosive objects being removed from a

property and sold to the local scrap dealer. Scrap dealers should be asked to refuse to buy military

scrap from private parties unless it has been processed in accordance with OE MCX policy in order to

avoid such accidents.
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6-3. Implementing an Institutional Control Program.

a. Legal Framework and Regulatory Programs.

(1) Federal, state, and local governments play a key role in the implementation of institutional

control programs at OE-contaminated sites. These agencies may use existing programs that they

already administer to implement an institutional control program. By using such programs, the Federal,

state, and/or local agency can show the legal authority and jurisdiction necessary to implement the

proposed institutional control.

(2) In general, Federal and state regulatory agencies have direct legal authority to protect human

health and the environment, prevent releases of contaminants, and control activities at contaminated sites

through the statutory authority provided under CERCLA and RCRA. In a similar manner, state and

local government agencies typically have authority and jurisdiction in the implementation of land use

zoning and land use plans, the issuance of building permits, the enforcement of public health programs,

and the enforcement of statewide environmental programs.

b. Deed Language for Proprietary Controls and Other Commitments.

(1) Ensuring that the correct deed language is used to implement a legal mechanism, such as a

deed restriction, is critical to the success of the restriction. The specific language necessary to make the

restriction enforceable within the jurisdiction often varies depending on the state in which the site is

located. An example of deed language to establish a reversionary interest is included in Appendix G.

This example is provided for illustrative purposes only and should not be used without appropriate legal

review. The appropriate legal language will vary depending on site specific conditions and state and

local law.

(2) The American Society of Testing and Materials Risk Based Cleanup and Assessment

Guidelines outline four general conditions that must be met to make a deed restriction binding and

enforceable. They include:

(a) The restriction must be in writing.

(b) The duration of the restriction must be specified. For the restriction to be held in perpetuity

the phrase “runs with the land” is commonly used.

(c) For enforcement purposes, parties must have privity of estate (i.e., a real relationship to the

land). Therefore, the state or other government entity must be the buyer or seller in order to enforce the
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deed restriction. An entity that is not privy to the land may have the power to enforce a deed restriction

if, at the time of the purchase, the buyer was made aware of this and it is written in the deed.

(d) The restriction must “touch and concern the land”. This means that the land or the use of the

land must be the focus of the restriction. Generally, these types of restrictions devalue the owners legal

interest in the land in some way. Promises that are personal in nature and only concern human activities

on the land are least likely to be enforceable.

(3) More specifically, land transfer documents for sites that may contain OE should address the

following issues:

(a) A stipulation of the permissible end uses consistent with the clearance depth and a statement

that any future use that is inconsistent with these use restrictions will present explosive hazards. If the

clearance depth was less than the DDESB default for commercial/residential/ utility construction activity

(see Table 3.2), the land transfer documents must include a requirement to notify USACE before any

commercial/residential/utility construction activity. Transfer documents should also require that no

excavation be accomplished until USACE has either granted permission to excavate or has come to the

site to perform nonintrusive geophysical surveys and/or remediate the property prior to or in conjunction

with excavation.

(b) If an OE clearance depth was determined using site specific information or penetration data,

the deed should prohibit soil disturbance below the OE clearance depth.

(c) If the clearance depth was based on DDESB defaults, the future land use will be restricted to

that depth commensurate with the chosen default depth (see paragraph 3-5).

(d) The transfer documents will detail the amount and type of known or suspected OE, describe

the OE response actions taken during the investigatory and remedial stages of the project, and, if

applicable, provide an estimate of the type and amount of OE remaining on the site.

(e) If OE is believed to be located above the frost line, but below the removal depth, the land

transfer documents will provide the USACE the right of access to the property in order to conduct

periodic surveys. The length of time that this right of access will be necessary will be determined by

USACE based on site specific information.
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c. Records and Community Involvement.

(1) Army policy requires that properties slated to become inactive or closed are to have all

records relating to OE contamination of the property maintained in perpetuity. When accountability and

control of Army real property that contains OE is transferred to another DOD component or Federal

agency, that action will be accompanied by a transfer of all records relating to the OE contamination of

the property. These records will be permanently maintained by the receiving agency.

(2) The information listed in Paragraph 6-3(b)(3) above must be included with the AR 405-90,

Disposal of Real Estate, report of excess to ensure entry in the permanent land records of the civil

jurisdiction in which the property is located.

(3) In addition, when an OE-contaminated property is transferred between government agencies,

a MOA will be negotiated between the USACE and the receiving Federal agency. The MOA will

define the area of concern, identify any specific land use restrictions of the property, and outline any

legal or engineering controls that have been established on the property.

(4) The release of OE-contaminated properties currently owned by DOD to owners outside of

DOD is generally unacceptable. If, however, such a transfer is considered, an explosives safety

submission must be prepared and submitted to the Department of Defense Explosives Safety Board

(DDESB). The explosives safety submission will refer to sufficient supporting documentation (e.g.,

administrative record, risk assessment, site investigations, and other site-specific documentation) in

order for the DDESB to make an informed decision on the viability of the proposed institutional controls

for a subject site.

(5) The importance of providing public notice of an institutional control program and including the

community in the development of the plan has been stressed throughout this report. An organized

community involvement program that is used throughout the development and implementation of

institutional controls will keep local government representatives and the citizenry informed. By keeping

these groups informed, feedback may be obtained which may be helpful in developing an effective

institutional control program. Such feedback also serves to foster goodwill between DOD and the

community. A complete record must be maintained of all community involvement activities performed

during the development and implementation of an institutional control program. These records will be

maintained along with the other OE site investigation and remediation records prepared for the property.

d. Appendix H contains a checklist addressing issues related to implementing institutional

controls.
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6-4. Maintenance of an Institutional Control Program. This section provides a general discussion of

some generic operations and maintenance considerations for an institutional control program.

a. Maintaining the Effectiveness of Institutional Controls.

(1) Setting up evaluation criteria. The institutional control plan should include the development of

site specific criteria that will be used to ascertain whether the program is achieving the specified goals.

The criteria may include:

(a) Is the current land use appropriate or in compliance with the institutional control program?

(b) Are engineering controls performing as intended? For example, if fences are used as a barrier

to access, an evaluation may include review of trespassing occurrences and how they were handled, as

well as evaluation of the physical condition of the fence (e.g., are there any holes or gaps in the fencing).

If signs are used, an evaluation should include a review of whether the signs are generally heeded or

ignored, and whether the signs are easy to understand and visible.

(c) Is the public notice and education component of the institutional control program reaching

those at risk? This may be evaluated by reviewing attendance at public education meetings, gauging

public response to the controls, conducting random interviews throughout the community, etc.

(2) Developing procedures to coordinate the activities of the responsible parties. The institutional

control plan should address the responsibilities of the various parties involved for maintaining the

effectiveness of the institutional control plan. These procedures should include the frequency and types

of inspections; reporting requirements for any inspections made; reporting of any noted violations; and,

enforcement responsibilities.

b. Resources. The resources available for maintenance activities should be considered when

comparing different institutional controls that may be implemented at a site. Resources may be available

at the Federal, state, and/or local level. The available resources will vary from site to site. For example,

one locality may have a strong, well developed and administered local planning agency or building

permitting agency, making zoning and permitting restrictions more attractive and feasible as institutional

controls in that location. On the other hand, some areas may have very little in the way of local

government resources that can be drawn upon to help maintain an institutional control program. The

level of interest and cooperation from any potential agencies must be considered before obligating these

agencies to assist in the maintenance of institutional controls.

c. Enforcement Authorities. The enforcement authority will depend on the type(s) of institutional

control implemented at a site as well as the legal authority held by the prospective enforcement agency.
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(1) Zoning. Depending on the site location, the state and/or the local government may have the

authority to develop, modify, and enforce existing zoning ordinances. However, zoning ordinances have

mixed legal authority, depending on the jurisdiction, and are often modified over time. This should be

considered, therefore, before using zoning ordinances as an institutional control.

(2) Property Laws. The effectiveness of property laws as part of an institutional control program

also varies greatly between states. Depending on the location and on the type of agreements pertaining

to a site, Federal, state and local governments, as well as private citizens, may have the right to enforce

or seek enforcement of an institutional control through common property laws. For example, in the case

of restrictive covenants and easements, the parties to the agreement have the right to seek enforcement

if one party violates the conditions of the agreement. The parties to these agreements may include

Federal, state and local government agencies, private organizations, or private citizens.

(3) Permitting. Establishing an institutional control through a permitting program can be an

effective component of an overall institutional control program. Enforcement of permitting programs lies

with the administering agency. For example, building permits are generally administered by the local

government and agencies of the local government that have been established to administer and enforce

such programs.

(4) Other Laws or Ordinances. Depending on the site, other agencies may have enforcement

authority. For example, the United States Fish and Wildlife Service has authority at Aberdeen Proving

Ground, Maryland where OE-contaminated areas were designated as Natural Resource Management

Areas as part of an institutional control program.

d. Coordination of Long-Term Responsibilities. The support agreement developed for the site

should include a discussion and assignment of long-term administration, maintenance, funding, and

enforcement authority.

e. Funding. The operation and maintenance activities necessary as part of an institutional control

program will require on-going funding. The amount of funding required will vary on a site-by-site basis

and will depend on many factors including the type(s) of institutional control selected, the location of the

site, and the associated level of cooperation and support from local agencies. Negotiations with the

local administering agency will be necessary to determine the exact level of funding. The specific funding

to be given to an agency should be included in the institutional control plan. USACE districts will be

responsible for planning and programming the necessary funding for the operation and maintenance of

the institutional control program.

f. Monitoring/Inspection Requirements.
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(1) In order for an institutional control to be effective in protecting the public from residual

contamination at a site, periodic monitoring and inspection activities must be a part of the institutional

control program. The institutional control plan should address the need to maintain access to a property

for monitoring and inspection requirements. This may be accomplished through the use of an easement.

Appendix G contains sample language for such an easement. Access to a site could also be

accomplished under a right-of-entry agreement, however such an agreement is binding only on the

current landowner and may be voided if the property is sold. In contrast, a properly executed easement

will run with the land, ensuring access to the property for the extent of long-term monitoring required by

institutional controls.

(2) Type of Inspections. Legal mechanisms such as deed restrictions, permitting programs,

zoning ordinances, and siting restrictions will require periodic site visits to ensure that the controls are

being obeyed. The exact content of these site visits will vary depending on site specific characteristics

and restrictions, but may entail visual observation of land use and interviews with property owners,

neighbors, and users. Such interviews should ascertain whether the current use(s) are appropriate for

the site’s conditions relative to the residual contamination and whether the land use is in compliance with

the institutional control program. Engineering controls such as signs, fences, and soil caps will require

similar site visits which, in addition to an assessment of land use and site activities, will also include

inspection of the integrity of the physical control.

(3) Areas to be Inspected. Any areas containing residual contamination which is being controlled

by an institutional control should be included in a site inspection. It may also be appropriate to observe

surrounding land use during the inspection to evaluate whether the assumptions made at the time the

institutional control plan was developed are valid and whether the chosen control is still protective of

human health.

(4) Frequency of Inspections. When contamination is left in place and an institutional control

program has been used to limit the risk, the Federal Government is required to review the remedy at

least every five years. More frequent inspections may be necessary in the case of land use controls, for

example, when the site is located in an area of rapid or continual development. More frequent

inspections may also be required by certain statutes that may have been used as part of an institutional

control program. For example, the Sikes Act which was used at Aberdeen Proving Ground, Maryland

to designate two OE-contaminated sites for use as Natural Resource Management Areas, requires

regular review (not less often than every five years) of the operation and effectiveness of the plan in

terms of natural resource management and yearly reports on related activities. USACE districts are

responsible for coordinating these inspections and reviews.

h. Appendix I contains a checklist addressing operations and maintenance issues for institutional

controls.
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6-5. Procedures for Modification or Termination of an Institutional Control Program.

a. Introduction. Over time, it may become necessary to modify or terminate an institutional

control program. The institutional control plan should address the procedures for performing periodic

reviews of the institutional control to determine the effectiveness of the institutional control program, and

for making any changes that are deemed necessary.

b. Conditions for Modification of the Institutional Control.

(1) An institutional control may require modification due to changes in land use or improvements

in OE detection or removal technology. Advances in detection, removal, and destruction technologies

may make additional site cleanup economical and safe at some point in the future. Current technologies

are limited in the extent of removal that can be achieved at a reasonable cost. Many times, the cost of

ordnance removal actions exceeds the value of the real estate. With the current state of ordnance

removal technologies, removal actions do not guarantee complete clearance of a site. There are

currently several programs underway to identify technological improvements in OE detection and

removal technologies. An example of one such program is the UXO Advanced Technology

Demonstration Program established by the U.S. Army Environmental Center to evaluate and identify

innovative, cost-effective, commercially available systems for the detection, identification, and removal

of UXO that may improve the efficiency of removal actions in the future.

(2) Advances in OE detection and removal technology may make it possible to further

characterize the distribution of OE and/or remove these items, thereby decreasing the risk of OE

exposure at a site and perhaps decreasing the need for the current level of restrictions. The need for

and the effectiveness of the institutional control program should then be reviewed based on the new site

condition or technology.

(3) An institutional control plan may also require modification due to changes in local land use to

ensure that the controls that are in place are still protective of human health and the environment.

c. Conditions for Termination of the Institutional Control. The risk from OE is long-term and

OE items are expected to remain hazardous for an indefinite period of time. Although munitions

components may deteriorate through weathering and corrosion to a point that the munition will not

function as intended, there is no easy way to know how long this process may take, and deterioration

does not necessarily mean that the munition is not hazardous. The nature of OE seems to preclude the

possibility that institutional controls implemented to prevent exposure to these items can be completely

eliminated, unless advances in OE detection and clearance technology make detection and removal of

these items more economical, complete, and safe.
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d. Legal Requirements. If an institutional control requires modification or termination, legal

counsel should be consulted to determine the specific steps required (e.g., the legal steps required to

remove a deed restriction).

e. Coordination among authorities, land owners, and other organizations. In considering

modification or termination of an institutional control, all parties involved in the development,

implementation, maintenance, etc. of the institutional control program should be consulted.

f. Funding. A source of funding should be identified in the institutional control plan to support

evaluation of modification or termination. The responsibility for funding additional cleanup should also

be addressed in the institutional control plan.

g. Advances in Technology. As discussed above, advances in OE detection, removal, or

destruction technologies may make cleanup of OE-contaminated sites more economical, efficient, and

safe. The institutional control plan should address responsibility for determining when additional cleanup

activities would be conducted and who would be responsible for funding and conducting such activities.

h. Appendix J contains a checklist addressing issues related to modification and termination of

institutional controls.
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APPENDIX A

REFERENCES

A-1. Section I

Required Publications

Base Realignment and Closure Act of 1988, Public Law (PL) 100-526, 102 Stat. 2632.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, PL

96-510, 94 Stat 2767, 42 USC 9601.

Defense Base Realignment and Closure Act of 1990, PL 101-510, 104 Stat. 1808.

Defense Environmental Restoration Program, PL 99-499, Section 211, 100 Stat 1719, 10 USC 2701

et seq.

Resource Conservation and Recovery Act (RCRA) of 1976, PL 94-580, 90 Stat 2796, 42 USC

6901, et seq., as amended.

Superfund Amendment and Reauthorization Act (SARA) of 1986, PL 99-499, 100 Stat 1613,

amending CERCLA, 42 USC 9601 et seq., and miscellaneous other sections.

40 CFR Part 260, et al

U.S. Environmental Protection Agency (EPA) Military Munitions Rule

DOD 6055.9-STD

Ammunition and Explosives Safety Standards

AR 385-61

Army Toxic Chemical Agent Safety Program

AR 385-64

Ammunition and Explosives Safety Standards

AR 405-90

Disposal of Real Estate

DA Pam 385-61

Toxic Chemical Agent Safety Standards
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ER 5-1-11

Program and Project Management

ER 385-1-95

Safety and Health Requirements for Ordnance and Explosives Response Actions

ER 405-1-12

Real Estate Handbook

ER 1110-1-12

Quality Management

ER 1110-1-8153

Ordnance and Explosives Response

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Ordnance and Explosives Response

HQDA 385-98-1, DACS-SF

Explosives Safety Policy for Real Property Containing Conventional Ordnance and Explosives

“Linking Land Use and Superfund Cleanups: Uncharted Territory”, 14 July 1997, Resources for the

Future, 1616 P Street, NW, Washington, D.C. 20036.

“Institutional Controls in Use”, September 1995, Environmental Law Institute Research Report, 1616 P

Street, NW, Suite 200, Washington, D.C. 20036-1493.

Pendergrass, John. “Use of Institutional Controls as Part of a Superfund Remedy: Lessons from Other

Programs”. Environmental Law Reporter, March 1996.

“DoD Policy on Responsibility for Additional Environmental Cleanup after Transfer of Real Property”,

Internet Edition, Policy Memorandum from the Acting Under Secretary of Defense (Acquisition and

Technology), Washington, D.C.

“BRAC Environmental Program Fact Sheet, Institutional Controls, What They Are and How they are

Used”, Spring 1997, Office of the Assistant Deputy Under Secretary of Defense (Environmental

Cleanup), 3400 Defense Pentagon, Washington, D.C. 20301-3400.

“Fact Sheet -- Field Guide to FOSL”; Fall 1996, Office of the Assistant Deputy Under Secretary of

Defense (Environmental Cleanup), 3400 Defense Pentagon, Washington, D.C. 20301-3400.
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“Fast Track to FOST: A Guide to Determining if Property is Environmentally Suitable for Transfer”;

Fall 1996, Office of the Assistant Deputy Under Secretary of Defense (Environmental Cleanup), 3400

Defense Pentagon, Washington, D.C. 20301-3400.

“A Guide to Assessing Reuse and Remedy Alternatives at Closing Military Installations”, February

1996, Office of the Assistant Deputy Under Secretary of Defense (Environmental Cleanup), 3400

Defense Pentagon, Washington, D.C. 20301-3400.

“A Guide to Establishing Institutional Controls at Closing Military Installations”, Fall 1997, Office of the

Assistant Deputy Under Secretary of Defense (Environmental Cleanup), 3400 Defense Pentagon,

Washington, D.C. 20301-3400.

A.2 Section II

Related Publications

A related publication is merely a source of additional information. The user does not have to read it to

understand this regulation.

AR 25-30

The Army Integrated Publishing and Printing Program

EP 1110-3-8

Public Participation in the Defense Environmental Restoration Program

“Implementation of Authority to Transfer Property before Completing 

Assistant Deputy Under Secretary of Defense (Environmental Cleanup), 3400 Defense Pentagon,

Washington, D.C. 20301-3400.

“Expediting BRAC Cleanups Using CERCLA Removal Authority”, Internet Edition, Office of the

Assistant Deputy Under Secretary of Defense (Environmental Cleanup), 3400 Defense Pentagon,

Washington, D.C. 20301-3400.

“Overview of the Fast-Track Cleanup Program”, Internet Edition, BRAC Environmental Program Fact

Sheet.

Environmental Base Realignment and Base Closure (BRAC) Program, Meeting Minutes, January 1995

Task Force Meeting, Internet Edition.

Environmental Base Realignment and Base Closure (BRAC) Program, Meeting Minutes, May 1995

Task Force Meeting, Internet Edition.
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Environmental Base Realignment and Base Closure (BRAC) Program, Meeting Minutes, September

1995 Task Force Meeting, Internet Edition.

Environmental Base Realignment and Base Closure (BRAC) Program, Meeting Minutes, May 1996

Task Force Meeting, Internet Edition.

Environmental Base Realignment and Base Closure (BRAC) Program, Meeting Minutes, September

1996 Task Force Meeting, Internet Edition.

“Making Institutional Controls Effective”, Internet Edition, Report of the Future Land Use Working

Group to the Defense Environmental Response Task Force.

“Types of Institutional Controls”, Internet Edition, Report of the Future Land Use Working Group to

the Defense Environmental Response Task Force.

ASTM Risk Based Cleanup and Assessment.

“Institutional Controls”, Internet Edition, International City/County Management Association.

Green, D.J. “Use of Institutional Controls as a Remedial Alternative at a Chemical Warfare

Material/UXO Contaminated Site”, UXO Forum ‘97 Conference Proceedings.

Kratina, Kevin. “Institutional Controls in Risk-Based Corrective Actions”, Internet Edition.

Neff, B. “Getting Our Money’s Worth: Removal Actions”, Ordnance and Explosives Environment,

April-June 1996.

Wilcox, R.G. “Institutional Controls for Ordnance Response”, UXO Forum ‘97 Conference

Proceedings.
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APPENDIX B

OVERVIEW OF THE BRAC PROGRAM

B-1. General.

a. The Base Closure and Realignment Act of 1988 (Public Law 100-526, 102 Stat. 2623) and

the Defense Base Closure and Realignment Act of 1990 (Public Law 101-510, 104 Stat. 1808)

provide for a recurring, systematic review and evaluation of all installations operated by the U.S. Armed

Forces. The purpose of the process is to create operational, economic, and strategic efficiency by

recommending closure and/or realignment of installations to best serve the defense needs of the United

States. When the decision is made to close an installation, a Community Reuse Plan is prepared. The

Community Reuse Plan identifies the proposed future use of the property that will be transferred to the

private sector.

b. In 1993, the Community Reinvestment Program was introduced to speed the economic

recovery of communities affected by BRAC decisions. As part of this program, DOD developed the

Fast-Track Cleanup Program. The objectives of the Fast-Track Cleanup Program are to protect

human health and the environment, to make property available for reuse and transfer as soon as

possible, and to provide for effective community involvement. Under the Fast-Track Cleanup Program,

DOD has developed guidance on the environmental review process that is to be used to reach a Finding

of Suitability to Transfer (FOST) or Finding of Suitability to Lease (FOSL) for real property made

available under the BRAC process. This guidance provides a framework for documenting the

conclusion that a property is environmentally suitable for transfer by deed or by lease under Section

120(h) of CERCLA and the National Environmental Policy Act (NEPA).

c. Under the Fast-Track cleanup process, the DOD will indemnify lessees or owners of

transferred property for claims arising from contamination resulting from past DOD operations. The

FOST and FOSL processes used by DOD are similar. Figure B-1 and Figure B-2 illustrate the steps in

the FOST and FOSL processes, respectively.
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STEP 1

Notify state and federal regulatory agencies of the intent to initiate the FOST process.

STEP 2

Evaluate the property for transfer.

Relevant environmental information is reviewed, including the Environmental Baseline

Survey, regarding the potential presence of hazardous substances. Data gaps are

identified and closed. The intended use of the property and any site-specific land use

. restrictions or other institutional controls are evaluated

STEP 3

Determine the suitability of the property for transfer and prepare a draft FOST.

The potential effect of residual contamination on DoD liability is considered and

institutional control alternatives are evaluated.

STEP 4

Provide notification of the intent to sign a FOST.

A notice is provided to the appropriate regulatory agencies and the public.

Copies of the draft FOST are made available for a 30 day comment period.

STEP 5

Complete and sign the final FOST.

Relevant comments are addressed and copies of the final FOST are provided to

appropriate regulatory agencies. Depending on site-specific characteristics,

additional notification may be required.

STEP 6

Notify the public of the signature of the FOST.

Copies are made available to the public at a central location, such as the public library.

Figure B-1. BRAC Fast-Track Process: Finding of Suitability to Transfer (FOST)
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STEP 1

Notify state and federal regulatory agencies of the intent to initiate FOSL process.

STEP 2

Evaluate the property for lease.

Relevant environmental information is reviewed, including the Environmental

Baseline Survey. Existing information is used to the maximum extent; sampling

conducted only as a last resort.

STEP 3

Determine the suitability of the property for the intended use under the lease.

Prepare draft FOSL.

The compatibility of residual contamination with the intended use is considered;

institutional control alternatives evaluated.

STEP 4

Coordinate with regulatory agencies and the public. Sign the final FOSL.

Address regulatory agency comments on the draft FOSL. Formal public notification

is not required, although at a minimum, the Restoration Advisory Board (RAB)

should be kept informed.

STEP 5

Notify state regulatory agency before entering into a lease that extends

beyond termination of DoD’s operations.

This notice is required by CERCLA 120(h)(5) and must describe the land uses

allowed under the lease. USEPA must also be notified if the site is on the

National Priorities List.

STEP 6

Notify the public of the signature of FOSL and provide public copies upon request.

STEP 7

Provide environmental reports and FOSL to each lessee prior to execution of lease.

Figure B-2. BRAC Fast-Track Process: Finding of Suitability to Lease (FOSL)
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APPENDIX C

EXAMPLES OF INSTITUTIONAL CONTROLS

C-1. Introduction. Institutional controls are mechanisms that protect property owners and the

local community from residual risk on a property contaminated by OE. As discussed in Chapter

2, institutional controls include legal mechanisms, engineering controls and educational controls.

This appendix provides more detailed information on these types of institutional controls. In

particular, the strengths and limitations for each type of institutional control are discussed.

C-2. Legal Mechanisms. Legal mechanisms are categorized into two broad areas: proprietary

controls and local government controls. The types of legal mechanisms are outlined in Table C.1

and are discussed below.

a. Proprietary Controls. Proprietary controls are those institutional controls that are

associated with ownership of the land and therefore, often included in the deed for the land.

Proprietary controls are classified as either nonpossessory or possessory controls.

Table C.1

Legal Mechanisms

Proprietary Controls Nonpossessory Controls

• Easements

− Appurtenant Easement

− Gross Easement

− Affirmative Easement

− Negative Easement

− Statutory Easement

• Restrictive Covenants

• Reversionary Interests

Possessory Controls

• Property Ownership

• Limited Partnerships

Local Government Controls Zoning Restrictions

Permit Programs

Siting Restrictions

Overlay Zoning
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(1) Nonpossessory Proprietary Controls. Nonpossessory proprietary controls means the

holder of these interests has a right to use or restrict use of a piece of land, but does not have the

right to actually possess it. Examples of this type of control include easements, restrictive

covenants, and reversionary interests.

(a) Easements. The most common nonpossessory proprietary control is known as an

easement. An easement is an interest in a piece of land that entitles its holder to use the land or

restrict the use of the land owned by another. Easements may be categorized as appurtenant or

gross; affirmative or negative; or statuatory.

• Appurtenant Easement. An easement is considered appurtenant if the holder is the

owner of nearby land which benefits from the easement. For example, this occurs when

a neighbor is allowed to walk across another person’s property to access the beach.

• Gross Easement. A gross easement is one in which the holder, usually a company or

public entity, does not own the land, but has the ability to use it. For example, this

occurs when a gas company is allowed to lay a gas line on another person’s property.

• An affirmative easement allows the holder of the easement to use the land in a way that

otherwise they could not. This is the most common type of easement. An example of

an affirmative easement is, again, the gas company that has the ability to lay a gas line

on another person’s property.

• A negative easement prohibits the use of the land in a manner that would otherwise be

legal. An example of a negative easement is the owner of a hazardous waste landfill

who is prohibited from developing the property for another use because of the current

use of the site.

• Some states have developed statutory easements, including conservation easements,

which restrict the property use to one that is compatible with conservation of the

environment or scenery. In the particular case of sites contaminated with OE, an

easement may be enacted that would restrict the new property owner to land uses that

are compatible with the level of OE clearance performed during the removal action.

Easements have been used under CERCLA Section 120(h) to ensure that the federal

government has access to a site to conduct additional response actions or to perform any

necessary operations and maintenance (O&M) at a site that is undergoing active

remediation of residual contamination.

(b) Strengths and Limitations of Easements

• As with all proprietary controls, the effectiveness of an easement to control appropriate

use of a property containing residual contamination is dependent on the compliance of
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the property owner with the easement. Generally, only the holder of an easement has

the power to enforce compliance with the terms of the easement. This requires that the

holder remain aware of activities at the property and is kept informed of any proposed

changes in use of the property. If the holder of the easement (e.g., DOD) does not act

on a land use violation once it has been identified, third parties (such as local or county

governments) do not have the authority to enforce the easement.

• In the case of OE-contaminated sites where DOD may be the holder of an easement,

but may not have a continuing local presence, periodic site visits would be required to

assure that the property owner complies with the easement. If the holder of the

easement does act, but the courts conclude that the action was not timely, it may be

deemed that the holder of the easement forfeited its rights under the easement.

Generally, however, equitable defenses such as laches, waiver and estoppel (which limit

the timeframe within which enforcement must occur) typically do not apply to the

federal government as they would to private entities. Even so, site visits should be

conducted at predetermined intervals (e.g., annually, semi-annually, every three years,

etc.) so that any violations can be addressed in a timely manner to ensure public safety.

(c) Restrictive Covenants. A restrictive covenant, which is also known as a deed

restriction, is commonly used by the federal government to prohibit certain types of

development, use, or construction on a piece of land where residual contamination does not

allow unrestricted use of the property. Under a restrictive covenant, the government can usually

take legal action to enforce the restriction if the new property owner does not abide with the

development restrictions imposed at the time of sale or lease. A restrictive covenant may be

either affirmative or negative. An example of an affirmative restrictive covenant is the

landowner is required to do something that he/she would otherwise not be required to do. An

example of a negative restrictive covenant is landowner may not do something that he/she is

otherwise normally free to do.

(d) Strengths and Limitations of Restrictive Covenants. One advantage of restrictive

covenants over easements is the flexibility to apply restrictions not only to an individual plot of

land, but also to an entire area. Restrictive covenants tend to be a less desirable method of

control than easements. Restrictive covenants have been controversial in the past because many

were intended to maintain elite neighborhoods and viewed to be racist in their intent. For this

reason, many restrictive covenants have been removed by judicial order. In addition, the

variability of state property laws tends to be greater for restrictive covenants than for easements,

making them more difficult to administer. In general, a covenant does not give the holder the

right to enter and inspect the property to ensure that the owner is complying with the covenant.

Therefore, an easement or some other agreement should also be agreed upon at the time a

covenant is implemented as an institutional control.
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(e) Reversionary Interests. This type of proprietary control is also known as “future

estates”. The deed establishes certain conditions that would cause the property to revert back to

the original owner if the conditions cited in the reversionary interest are violated. As such, this

type of institutional control is like an easement, but with the added provision that if the terms of

the institutional control are violated, the property will revert back to the original owner (the

holder of the reversionary interest). The existence of a reversionary interest does not, in itself,

prevent incompatible land uses, but it does provide the means for stopping the incompatible

activities by reverting ownership rights to the original owner if a violation were to occur.

Reversionary interests have been effectively used in the past to control future land use on sites

that contain environmental contamination.

(f) Strengths and Limitations of Reversionary Interests. Reversionary interests have been

used effectively in the environmental context to control land uses. Reversionary interests held

by the government can last a very long time because equitable defenses such as laches, waiver

and estoppel typically do not apply to the Federal Government as they would to private entities

or individuals. Thus, although a reversionary interest does not prevent inappropriate use of a

property, it can serve to halt such activities by reacquisition of the land by the holder of the

reversionary interest.

(2) Possessory Proprietary Controls. A possessory proprietary control means that the

holder of the control retains either a full or partial interest in the future use of the land. Such

controls can be achieved either by retaining ownership or by retaining a major share in a joint

ownership of a property through a limited partnership with others. Such programs have been

used both in the private sector, as well as by the government, where the holder of the possessory

proprietary control wishes to retain some say in the future use of a property without having the

responsibility of complete and total ownership. Limited partnerships are an example of a

possessory proprietary control that has been used in the past to limit future land use.

(3) Strengths and Limitations of Proprietary Controls. The administrative structure and

support staff is usually already in place to enforce the control (although additional funding may

be required). A potential limitation of proprietary controls is that their enforceability is

governed by state property laws. This presents a difficulty common to all proprietary controls in

that property laws vary widely from state to state. Therefore, the specific laws of the state in

which the site is located must be carefully reviewed when using these mechanisms as an

institutional control. Particular attention should be paid to the state’s requirements for creating a

restriction that is enforceable and binding on both present and future owners and users.

Currently only 16 states require that deed records used in proving title include information

regarding certain conditions involving hazardous wastes or substances on a site (e.g., sites that

had hazardous waste permits or are on the state hazardous waste site inventory). However, since

most transfers of land are accompanied by a due diligence title search by an attorney or lending

institution, a deed restriction may provide an effective notice to a potential buyer. Even if a

potential owner chooses to ignore this notice and decides to proceed with the purchase of the
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property, with the intention to develop it inappropriately, the lending institution approached for

financing the project may have a greater incentive to ensure that the planned use is compatible.

(4) Proprietary controls require periodic site visits to assess whether the land use

restrictions are being obeyed. To increase the effectiveness of proprietary controls at OE sites, it

is necessary to agree at the time that the restriction is placed in the deed what third party, such as

a local government or state agency, is responsible for performing the site visits and enforcing the

institutional control. Again, the institutional control must be implemented in accordance with

the specific property laws of the state in which the site is located. Additionally, government

agencies and third parties must have an interest in and have the capability to monitor compliance

with the restriction. Finally, it should be ensured when implementing the institutional control

that all parties - USACE, local government, property owner, and property user - share the same

interpretation of the restrictions at the time the legal mechanism is imposed so that there are no

misunderstandings as to the development restrictions placed on the property.

b. Local Government Controls. Other types of legal institutional controls have evolved in

the U.S. legal system to be reserved for use strictly by local government authorities. Local

government controls provide potential avenues for the implementation of institutional controls at

sites that are contaminated with OE. In the context of environmentally-contaminated sites, this

group of land use controls is typically developed, implemented, and enforced through

cooperative agreements negotiated between Potentially Responsible Parties (PRPs) and local and

state government officials. The Federal Government (e.g., USEPA) has not historically asserted

its authority under CERCLA to enforce such land use controls once they have been established.

Controls on land use which local governments have the power to impose and enforce include

zoning restrictions, permitting programs, siting restrictions, and overlay zoning.

(1) Zoning Restrictions. The primary method of locally controlling land use is through the

development of zoning ordinances and community master plans. A typical zoning program

geographically divides an area into zones with different regulations written to apply to each

zone. The regulations vary between zones but apply equally to all properties within a zone.

Generic zoning categories include residential, commercial, and industrial. The zoning

restrictions that have been developed by the local zoning board are often posted in a master plan

which lays out the type of use that is allowed in a particular area. Unfortunately, in most states

master plans are not enforceable by law. Historically, the granting of variances to a local

government’s master plan has sometimes resulted in inappropriate land uses with regards to

residual contamination on a site.

(2) Strengths and Limitations of Zoning Restrictions.

(a) Local zoning ordinances have the authority, based on state and local law, to restrict

land use. However, no other area of U.S. law experiences the exceptional frequency of requests

for amendments (e.g., rezoning) or revisions (e.g., variances and special exemptions) that is
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common in the area of zoning ordinances. Although the rezoning process may be long,

involving public notice, planning commission hearings, staff reports, governing body hearings,

and public comment periods, it is the most common land use action taken by local government.

This fact emphasizes the importance of buy-in on the part of the local government when using

zoning as part of an institutional control program.

(b) One limitation with the use of zoning as an institutional control is the fact that local

planning decisions are often driven by economic and political forces and often do not reflect the

vision of a community. The local planning commission may be comprised of building

contractors, real estate agents, and developers whose interests tend to be focused on deriving the

highest economic value from a property with less attention given to the impact on human health

and the environment.

(c) The Standard Act which has been used by many jurisdictions as the basis for local

zoning programs was not designed to address many of today’s land use issues. Many

comprehensive plans were originally created as a reflection of existing land use patterns, not as a

tool for planning future land use. Many local government bodies are therefore moving towards

broad land use plans, describing land use objectives in words rather than maps. Whether a

community continues to use master plans or develops general land use objectives, it must be

recognized that they are most often advisory and do not carry the force of law.

(3) Permit Programs. Permit programs are another means that local governments have to

limit land use. In establishing a permit program, the permitting agency determines specific

conditions which must be met before a certain use or action is allowed on a property. Existing

permit programs include building permits, water/sewer connection permits, and state well

drilling permitting systems which have been developed to protect the quality and use of ground

water. Permit programs have also been developed to help ensure that site developers are aware

of and comply with special procedures that are required in the development of a parcel (for

example, requiring a builder to replace the existing soil on a parcel because of its poor structural

characteristics). Historically, permit programs have been developed in areas where special

requirements are necessary to protect human health and the environment because of residual

contamination that remains on a property. In the particular case of an OE-contaminated site, a

permit program can be established that would require a developer to contact a UXO contractor

approved by USAESCH to clear an area of OE prior to excavation for footings or foundations.

Permitting programs provide an avenue by which both local authorities and USAESCH may

become aware of land use activities that may not be compatible with the presence of OE. In

order to maintain a successful permit program, a system to verify compliance with the permit

program and the authority to bring violators back into compliance is required.

(4) Strengths and Limitations of Permit Programs. Permit programs are probably one of

the easiest of the local governmental controls to implement. Permit programs are generally

administered by a single local government entity and thus avoid regulatory confusion over
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responsibility. A permitting system can effectively alert local officials to proposed land use

changes that may be incompatible with site conditions or which may require special

consideration to ensure safety. An effective system of administration is necessary in order to

verify compliance with permitting conditions and to provide for enforcement to bring violators

into compliance. Most localities, however, have a permitting system already in place that could

be used to administer any specific restrictions at OE-contaminated sites.

(5) Siting Restrictions. Siting restrictions have historically been used to limit land use in

areas subject to natural hazards such as earthquakes and floods. This type of control has also

been used to protect natural resources from development (such as with the existing wetlands

program). Existing programs which use siting restrictions include floodplain development laws

administered by the USACE and the Federal Emergency Management Agency (FEMA). The

floodplain management program involves insurance requirements in areas prone to flooding. In

order for a community to be eligible for FEMA flood insurance, the local community must

restrict floodplain development. As an incentive to limit development in flood prone areas,

insurance premiums are tied to the probability of flooding. In addition, if development occurs

within a restricted area, the entire community can lose its eligibility for insurance. This provides

an incentive for those not living in the floodplain to take efforts to oppose floodplain

development. Several states and local governments, also have substantial siting restrictions in

place that limit the future development of properties within their jurisdiction.

(6) Strengths and Limitations of Siting Restrictions. Siting restrictions are useful in

addressing large areas with similar hazards under one program. Generic siting restrictions could

be developed to address the hazards common to all OE-contaminated sites, although site specific

characteristics must also be considered on a case by case basis. The limitations of siting

restrictions to control inappropriate development of sites are illustrated by the floodplain

management program. FEMA’s floodplain management restrictions have not succeeded in

preventing flood damage for several reasons. First, development had already occurred in areas

subject to flooding prior to the enactment of the restrictions. Secondly, local and federal

interpretations of the restrictions are often different, resulting in development within restricted

areas. The use of siting restrictions as an institutional control is also characterized by

weaknesses similar to zoning. That is, the local planning commission may experience political

or economic pressure from the community and local developers (who may be on the planning

commission themselves) to allow development in restricted areas by granting variances.

(7) Overlay Zoning. Siting restrictions may be combined with local zoning ordinances or

master plans to establish an effective institutional control. This practice is known as “overlay

zoning”. When using overlay zoning, the specific siting restriction is used as an overlay on the

local government’s master plan, thereby highlighting any discrepancies between the two. In the

case of sites contaminated with OE, the location of the site may be identified on an overlay of the

local zoning map or master plan. The overlay would serve to notify those involved in land use

planning of the hazards and land use restrictions associated with the site.
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(8) Strengths and Limitations of Overlay Zoning. Overlay zoning is a combination of local

zoning ordinances and siting restrictions and therefore, it is characterized by a combination of

the strengths and limitations discussed above for these two local governmental controls.

(9) Strengths and Limitations of Local Governmental Controls. One advantage of using

local governmental controls such as zoning, building permits, siting restrictions, and overlay

zoning in an institutional control program is that the administrative structure and support staff is

usually already in place to enforce the control. In order to use local governmental controls as

part of an institutional control program, the local authorities responsible for administering and

enforcing the programs must be willing and knowledgeable participants in the development of

the institutional control program. Achieving buy-in by local authorities is discussed in greater

detail in other sections of this pamphlet. A potential limitation common to these types of

controls is the need to balance the desire to derive the greatest economic value of a property with

the need to protect the public from residual contamination. It is often difficult for local

governments to limit land use due to some potential risk in the face of development that will

create jobs and generate tax revenue, although the two are not necessarily mutually exclusive.

C-3. Engineering controls. Engineering controls are physical controls and include fences,

posted signs, and soil caps.

a. Fences. Fences are probably the most obvious type of engineering control that has

historically been used to limit the public’s access to a site. Fences are used to restrict inadvertent

public entry to a site that poses a threat to public health or safety. By providing access only at

certain points, appropriate notice can be given to all users and uses incompatible with the

existing site conditions may be avoided.

(1) Strengths and Limitations of Fences. Fences provide the most direct means of limiting

incidental exposure to a contaminated site. They do not require a search of local land use records

or permitting agencies to determine whether a site is safe to use. Another benefit to fencing is

that local trespass laws allow for violators to be prosecuted. Fences and other physical barriers

to access require routine inspection and maintenance in order to remain effective. The property

owner’s desires, funding for inspection and maintenance, existing use of the site and surrounding

properties, and enforcement responsibilities should be considered before including a fence as

part of an institutional control program.

b. Signs. Warning signs may also be used to give notice regarding the presence of

hazards on a site. Signs can provide information regarding the nature of the hazard, how to

avoid the hazard, and also provide a contact for additional information. Signs may be used to

deter access to a site or to give notice so that inappropriate uses of the site are avoided. While

signs may not provide the physical barrier that a fence does, a sign has the added benefit of

providing information to the public on the nature of the hazard found at a site.
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(1) Strengths and Limitations of Signs. As with fences, signs can provide a direct warning

to the general public of the hazards associated with a site and are an effective means to warn

anyone who comes to a contaminated site of the hazards associated with an area. Signs may

provide sufficient public notice so that violators can be prosecuted under existing trespass laws.

As with fences, signs require routine inspection and maintenance in order to remain effective.

While not requiring as much maintenance as fences, signs do deteriorate over time and require

upgrade and/or replacement. The positioning of signs is always a critical matter to ensure that

they may be seen by a maximum number of people. A drawback of signs is that they do not stop

anyone from entering a site, they only inform. The property owner’s desires, existing use of the

site and surrounding properties, funding for inspection and maintenance, and enforcement

responsibilities should also be considered before being including signs as part of an institutional

control program.

c. Soil Caps. Placing a cap on a contaminated site by covering it with concrete, asphalt,

or clay has been proven to be an effective physical barrier to public exposure to certain types of

residual contamination. Such an engineering control would have definite application for certain

OE-contaminated sites, if the cap is combined with a restriction on any future excavation at the

site. By combining the engineering control of the cap with the legal restriction of limiting future

use, the risk of the public coming into contact with OE is virtually eliminated.

(1) Strengths and Limitations of Soil Caps. Soil caps can be a very effective measure to

minimize exposure to OE. Soil caps can take on many forms and their presence does not

necessarily mean that a site cannot have some beneficial use. For instance, installing a parking

lot in an OE-contaminated area can provide a benefit to the local area as well as protect the local

population from exposure to OE items. The integrity of the cap must be maintained through

routine inspection and maintenance as well as through controls that restrict future excavation at

the site. Maintenance of the cap could be the owner’s responsibility, particularly if the presence

of the cap enhances the development potential of a site.

C-4. Educational Controls. Educational controls include formal seminars and public notices.

a. Formal Education Programs. Educating the local community about the potential

exposure risks associated with an OE-contaminated site may be done through a variety of

methods. Formal education seminars may include periodic public education classes. The classes

may be given to a number of different audiences including open public forums, local government

and/or regulatory personnel, emergency response personnel, property owners, private developers

and real estate agents, or even school children at the local schools. The training seminars would

have to be tailored to meet the specific interests/concerns of the audience, but can be an effective

method to “spread the word” as to the nature and extent of the hazards associated with OE and

the precautions to be taken in the event that a person comes across an OE item. The training

classes may either be provided by personnel knowledgeable in the specific conditions of the site

or through the distribution of training videos to local civic organizations. In order to be
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C-10

effective, educational efforts need to be continual so that people do not forget or become

complacent about the hazards associated with OE, as well as to inform newcomers.

(1) Strengths and Limitations of Formal Education Programs. Seminars and training

programs may be given to educate various segments of the local community. This may include

informational seminars for schools, parent-teacher associations, local clubs, etc. and more formal

training for local government and regulatory personnel, public safety personnel such as the local

police and fire departments, emergency response teams, and local construction and development

companies. These programs require time and money to prepare as well as cooperation from local

groups to schedule the sessions. Formal educational programs should be repeated on a regular

basis so that people do not forget or become complacent about the hazards associated with OE,

as well as to reach newcomers to the area. Although these programs can be very effective at

informing the public about potential dangers and how to avoid them, not all members of a

community will attend these meetings. Therefore, additional institutional controls may be

necessary at a site in order to provide sufficient risk reduction.

b. Public Notices. The local community can also be educated through the implementation

of a wide-ranging public notice campaign that may include mass mailings of brochures, public

service announcements on local radio or television stations, or periodic notices in local

newspapers. This type of educational control will also serve to educate newcomers and visitors

to the area. One method that has been used at sites with a high public turn-over is to notify any

new people to the area once they have contacted the local utility to start a new service. Once the

request for the new service has been received by the utility company, they may include in their

initial mailing to the new customer a brochure outlining the site specific hazards and what should

be done in the event of an emergency. Such programs have been successfully used by power

companies that have nuclear power plants in areas that are highly developed.

(1) Strengths and Limitations of Public Notices. Public notices have the advantage of

reaching a wide audience without requiring much effort on the part of the public (i.e., they do not

have to take the initiative to attend a meeting to receive the information). Public notices may

take the form of mass mailings, public service announcements on radio and television, and/or

periodic notices in local newspapers. Recurring notices have the advantage of reaching

newcomers or visitors to an area in addition to reminding long-time residents. A public notice

campaign would require both initial and ongoing funding and administration. Using an existing

system that is already in place can minimize the required funding and administration. An

example of this would be providing recurring information in local utility bills.
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APPENDIX D

EXAMPLES OF REGULATIONS RELATED TO LAND USE CONTROL *

Regulation/Authority Summary

American Indian Religious

Freedom Act, 42 U.S.C. § 1996

Protects and preserves religious freedoms of Native Americans,

including access to religious sites and consultation with tribal

leadership concerning human burial sites that Federal projects

might disturb.

Antiquities Act of 1906, 16 U.S.C.

§ 431-433

Protects historic and prehistoric ruins and objects of antiquity on

Federal lands. Authorizes scientific investigation of antiquities

on Federal lands, subject to permits and other regulatory

requirements, including paleontological resources.

Archeological and Historic

Preservation Act, 16 U.S.C. §

469-469c

Directs Federal agencies to notify the Secretary of the Interior

when they find that any Federal construction project or federally

licensed activity or program may cause irreparable loss or

destruction of significant scientific, prehistoric, historical, or

archeological data. Also funds historical and archeological

protection in such projects.

Bald and Golden Eagle Protection

Act, 16 U.S.C. § 668

Governs activities and facilities that may threaten protected

birds.

Coastal Barrier Resources Act, 16

U.S.C. § 3501 et seq.

Restricts Federal expenditures and financial assistance

encouraging development of coastal barriers and habitats.

Coastal Zone Management Act, 16

U.S.C. § 1451-1464; 15 CFR

921-933

Encourages states along oceans and Great Lakes to adopt

Coastal Zone Management Plans (CZMP) which require any

applicant for a Federal permit to certify that its project is

consistent with the state CZMP.

Endangered Species Act, 16

U.S.C. § 1531-1544; 50 CFR 17,

401-424, 450-453

Requires protection of threatened or endangered species by

prohibiting activities and facilities that would have an adverse

effect on them.

Estuary Protection Act, 16 U.S.C

§§ 1221-1226

Requires consideration by states and Federal agencies of the

need to protect, conserve, and restore estuaries.

* From DERP-FUDS Program Manual, July 1996.
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EXAMPLES OF REGULATIONS RELATED TO LAND USE CONTROL * (cont.)

Regulation/Authority Summary

Farmland Protection Act, 7 U.S.C.

§ 4201 et seq.

Requires Federal agencies to consider the effects of programs

on farmland and to prevent conversion of farmland to

nonagricultural uses.

Federal Land Policy and

Management Act, 43 U.S.C. §

1701 et seq.

Governs retention, management, land-use planning, disposal,

and acquisition of public lands; requires regulation of use and

occupancy of public lands.

Fish and Wildlife Conservation Act,

16 U.S.C. § 2901 et seq.

Provides financial and technical assistance to states for creation

and implementation of conservation programs for nongame fish

and wildlife and encourages Federal agencies to conserve

nongame fish and wildlife.

Fish and Wildlife Coordination Act

(FWCA), 16 U.S.C. § 661-666c

Requires persons to consult with Federal and state agencies

when modifying, controlling, or impounding a surface water

body over 4 hectares in size.

Forest and Rangeland Resources,

16 U.S.C. §§ 1600-1614, 1641-

1647, 1671-1676, 1681-1687

Four acts that govern the management, conservation, and

utilization of national forest and rangeland renewable resources.

Historic Sites Act, 16 U.S.C. §§

461-467

Authorizes designation of national historic sites and landmarks

and interagency efforts to preserve historic resources.

Marine Protection, Research, and

Sanctuaries Act, 33 U.S.C. §§

1401-1445

Declares that it is national policy to regulate dumping of all types

of materials into ocean waters, and to prevent or strictly limit

ocean dumping of any material that would adversely affect

human health or the marine environment.

Migratory Bird Conservation Act,

16 U.S.C. § 715 et seq.

Establishes Migratory Bird Conservation Commission to

recommend for purchase, rental, or acquisition by the

Department of the Interior land or water suitable for use for

migratory bird conservation.

Migratory Bird Treaty Act, 16

U.S.C. § 703-712

Governs activities that may affect or threaten migratory birds or

their habitats.

* From DERP-FUDS Program Manual, July 1996.
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EXAMPLES OF REGULATIONS RELATED TO LAND USE CONTROL * (cont.)

Regulation/Authority Summary

National Historic Preservation Act,

16 U.S.C. § 470-470w-6; 36

CFR 60, 63, 68, 800; Executive

Order 11593

Establishes historic preservation as a national priority; protects,

rehabilitates, restores, and reconstructs districts, sites, buildings,

structures, and objects significant in American history,

architecture, archeology, or engineering. Section 106 of the

NHPA establishes a process to identify conflicts between

historic preservation concerns (e.g., properties included on or

eligible for the National Register of Historic Places) and Federal

undertakings.

Native American Graves Protection

and Repatriation Act, 25 U.S.C. §

3001-3013

Prohibits the intentional removal of Native American cultural

items from Federal or tribal lands except under an

Archeological Resource Protection Act permit and in

consultation with the appropriate Native American groups.

Requires returning burial remains, associated funerary objects,

and objects of cultural patrimony to the appropriate Indian or

Native Hawaiian organizations and tribes. Establishes Native

American ownership of human remains and associated funerary

objects discovered on Federal lands.

Public Buildings Cooperative Use

Act, 40 U.S.C. §§ 490, 601a,

606, 611, 612a

Encourages adaptive reuse of historic buildings as administrative

facilities for Federal agencies or activities.

Sikes Act, 16 U.S.C. § 670a-670o Authorizes the Secretary of Defense to carry out a program of

planning, development, maintenance, and coordination of

wildlife, fish, and game conservation and rehabilitation on

military reservations. Also requires the Departments of the

Interior and Agriculture to establish conservation programs on

public lands.

Soil and Water Resources

Conservation Act

Creates coordinated soil and water conservation program to

identify and address long-term national needs.

* From DERP-FUDS Program Manual, July 1996.
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EXAMPLES OF REGULATIONS RELATED TO LAND USE CONTROL * (cont.)

Regulation/Authority Summary

Transportation Equity Act for the

21st Century, 49 U.S.C. §§ 6101

et seq.

Reduces the incidence of damage to underground facilities

during excavation through the voluntary adoption and efficient

implementation by all States of State one-call notification

programs that meet the minimum standards set forth under

section 6103.

Watershed Protection and Flood

Prevention Act (WPFPA), 16

U.S.C. § 1001 et seq.; 33 U.S.C.

§ 701-1; Executive Order 11988

Governs reservoir development and stream modification

projects including specific wildlife habitat improvements.

Wild and Scenic Rivers Act

(WSRA), 16 U.S.C. § 1271 et

seq.

Preserves and protects the free-flowing condition of selected

rivers. Established a national Wild and Scenic Rivers System.

Wilderness Act, 16 U.S.C. §§

1131-1136

Establishes a National Wilderness Preservation System and

restricts uses of designated wilderness areas.

Wild Free-Roaming Horses and

Burros Act, 16 U.S.C. §§ 1331-

1340

Protects from capture, harassment, and death free-roaming

horses and burros, and considers them part of the natural

system of public lands.

* From DERP-FUDS Program Manual, July 1996.
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D-5

EXAMPLES OF REGULATIONS RELATED TO LAND USE CONTROL * (cont.)

Directive/

Regulation

Title Contents/Requirement(s)

DOD Directive 4700.4 Natural Resource

Management Program

Sets DOD policy for management and

protection of natural resources.

DOD Directive 4710.1 Archeological and

Historical Resources

Management Program

Establishes DOD policies and procedures for

protection and management of archeological

and historical resources.

DOD Directive

5100.50

Protection and

Enhancement of

Environmental Quality

Assigns responsibilities and establishes

policies and procedures for protection and

enhancement of environmental quality in

consonance with Federal policy and other

DOD issuances.

DOD Directive 6050.1 Environmental Effects in the

United States of DOD

Actions

Implements Council on Environmental Quality

regulations and provides policy and

procedures to enable DOD officials to take

into account environmental considerations

when considering the authorization or

approval of major DOD actions in the United

States.

Army Regulation (AR)

200-1

Environmental Protection

and Enhancement

Prescribes Army policies, responsibilities, and

procedures to protect and preserve the

quality of the environment. AR 200-1 is

currently being revised.

AR 200-2 Environmental Protection

and Enhancement

Contains Army procedures for implementing

NEPA.

* From DERP-FUDS Program Manual, July 1996.
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E-1

APPENDIX E

CHECKLIST FOR ESTABLISHING SITE-SPECIFIC OBJECTIVES

Identify the goals of the institutional controls.

 

Review the following checklist items to identify possible types of reuse. Place a check mark beside

those types of reuse applicable to your installation.

n Type(s) of Reuse Allowed (please be specific, if possible)

 

o Recreation o Residential o Hospital

o Commercial o Housing o Schools

o Industrial o Daycare

n What are the activities that must be restricted?

 

 

n Specific Restrictions

o Restrictions to maintain the integrity of a soil cap

 
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E-2

o Other

 

o Use of soils

o Prohibitions against excavation, construction, drilling, or disturbance of the soil

 

 

o Restrictions governing depth of excavation

 

o Other

 

o Other ICs not directly related to the environmental response

o Restrictions preserving historic or cultural areas

 

o Restrictions protecting wildlife or wetlands

 

o Restrictions governing access to the property, (e.g., utility maintenance)

 

 

Comments:

 

 

 

From “A Guide to Establishing Institutional Controls at Closing Military Installations,” DoD, Fall 1997.
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F-1

APPENDIX F

SUMMARY OF INFORMATION REQUIRED FOR INSTITUTIONAL ANALYSIS

Date: ______________________

Completed by: ______________________

NAME OF AGENCY:

ORIGIN OF INSTITUTION:

BASIS OF AUTHORITY:

What are the limits of the agency’s authority?

How much control is exercised by the agency?

Does the agency have enforcement authority?

SUNSET PROVISIONS:

GEOGRAPHIC JURISDICTION:

MISSION OF THE AGENCY:

 Public Safety Function:

 Land Use Control Function:

FINANCIAL CAPABILITY:

DESIRE TO PARTICIPATE IN INSTITUTIONAL CONTROL PROGRAM:

CONSTRAINTS TO INSTITUTIONAL EFFECTIVENESS:

Sources of Information:__________________________________________________
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G-1

APPENDIX G

SAMPLE DEED LANGUAGE

Reversionary Interest:

From ER 405-1-12, Change 12, 27 Oct 80

PROVIDED, HOWEVER, that if any portion of the above described tracts is used for any purpose

other than the purpose designated above then all right, title and interest in and to the portion of the tract

so used shall revert to and become the property of the United States at its option and it shall have the

immediate right of entry upon said premises, subject to the conditions hereafter set forth.

In the event of a breach of the above condition pertaining to ___________________ use, the

Grantor shall, before claiming any forfeiture, give notice in writing of said breach, and of its intention to

exercise said option, to the then occupant of the premises. Said occupant shall have a period of sixty

(60) days after receipt of said notice to correct and cure said breach. The right of entry of the Grantor

shall arise and become exerciseable only after the termination of said sixty (60) day period and failure of

the then occupant to correct or cure said breach.

In the event of the failure or refusal of the then occupant of said premises to correct or cure said

breach within the time limited, and after exercise by the Grantor of its right of entry, said occupant shall

have a reasonable time, not to exceed 120 days, to remove any improvements that have theretofore

been placed upon said premises. Such right of removal shall under no circumstances permit such

occupant to cause damage to the land involved. In the event that said occupant fails to remove said

improvements within the time limited, they shall become the property of the United States.

Failure of the United States to exercise its right of entry upon breach of the above condition

pertaining to ___________________ use shall not be construed as a waiver or relinquishment of said

right.
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G-2

Temporary Environmental Response Easement Language

From DERP-FUDS Manual, July 1996

An assignable easement and right-of-way in, on, over, and across the land described in

Schedule A, for a period not to exceed (years) years, beginning with the date of the signing of this

instrument, and terminating with the earlier of the completion of the remediation or the filing of a notice

of termination in the local land records by the representative of the United States in charge of the

(Project Name), for use by the United States, its representatives, agents, contractors, and assigns, as a

work area for environmental investigation and response; including the right to store, move, and remove

equipment; and supplies; erect and remove temporary structures on the land; investigate and collect

samples; (evacuate and remove ordnance and explosive waste, pollutants, hazardous substances,

contaminated soils, containerized waste, and replace with uncontaminated soil); (additional description

of work); and perform any other such work which may be necessary and incident to the Government’s

use for the environmental investigation and response on said lands under the Project; subject to existing

easements for public roads and highways, public utilities, railroads and pipelines; reserving, however; to

the landowner(s), their heirs, executors, administrators, successors, and assigns, all such right, title,

interest, and privilege as may be used and enjoyed without interfering with or abridging the rights and

easement hereby acquired.
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H-1

APPENDIX H

CHECKLIST FOR IMPLEMENTING INSTITUTIONAL CONTROLS

Review the following checklist items to identify the types of tools that can be used to implement the

techniques.

n Tools: Specific actions that can be used to implement these two techniques

o Deed language

 

o Records and Community Involvement

o Posted notice o Zoning plans

o State registries o Fences

o Public announcements o Other

 

o Federal, state, and local laws and regulations

o Statutory authority to enforce RCRA/CERCLA

o State and local, general or site specific authorities that can be applied

o Property Laws o Permitting Programs

o Zoning o Other laws or ordinances

o Other

 

From “A Guide to Establishing Institutional Controls at Closing Military Installations,” DOD, Fall 1997.
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APPENDIX I

CHECKLIST FOR OPERATION AND MAINTENANCE

OF INSTITUTIONAL CONTROLS

Review the following checklist items to identify responsibilities for maintaining and ensuring the

effectiveness of Institutional Controls.

o Statutory authority to enforce under RCRA/CERCLA

o State and local, general or site-specific enforcement authorities that can be applied

o Property laws o Permitting Programs

o Zoning o Other laws or ordinances

o Funding maintenance of the Institutional Controls

o Long term coordination issues

o Inspections

 

o Remedy-specific environmental inspections (generally part of operation and

maintenance of a remedy--for example:)

o Inspections to ensure integrity of soil cap

o Other inspections required for operation and maintenance

o Other Federal, state, and local inspections not directly related to the environmental

response

o Restrictions concerning health

o Restrictions concerning building standards

o Restrictions preserving wildlife or wetlands

o Restrictions governing access to the property (e.g., utility maintenance)

o Restrictions preserving historic or cultural areas

o Other

 
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I-2

Comments:

 

 

 

From “A Guide to Establishing Institutional Controls at Closing Military Installations,” DOD, Fall 1997.
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J-1

APPENDIX J

CHECKLIST FOR MODIFYING OR TERMINATING INSTITUTIONAL CONTROLS

Review the following checklist items to identify how to modify or terminate an Institutional Control.

o Length of time institutional control is needed

 

o Legal steps required to remove or modify each Institutional Control

o Organizations which may be involved with modification or termination:

o Federal government o Local court

o State government o Landowner

o State court o Adjacent landowner

o Local government o Previous landowner

Comments:

 

 

From “A Guide to Establishing Institutional Controls at Closing Military Installations,” DOD, Fall 1997.
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Glossary-1

GLOSSARY

Section I

Abbreviations

AR..............................Army Regulation

BMP ...........................Base Master Plan

BRAC.........................Base Realignment and Closure

CERCLA ....................Comprehensive Environmental Response, Compensation and Liability Act

CFR............................Code of Federal Regulations

DA..............................Department of the Army

DA Pam......................Department of the Army Pamphlet

DDESB.......................Department of Defense Explosives Safety Board

DERP..........................Defense Environmental Restoration Program

DOD...........................Department of Defense

EE/CA.........................Engineering Evaluation/Cost Analysis

EP...............................Engineer Pamphlet

EPA............................Environmental Protection Agency

EPCRA.......................Emergency Planning and Community Right-to-Know Act

ER...............................Engineer Regulation

FOSL..........................Finding of Suitability to Lease

FOST..........................Finding of Suitability to Transfer

FUDS..........................Formerly Used Defense Site

HQDA ........................Headquarters, Department of the Army

HQUSACE.................Headquarters, United States Army Corps of Engineers

IR................................Installation Restoration

MACOM....................Major Command

MCX...........................Mandatory Center of Expertise

MOA..........................Memorandum of Agreement

MOU..........................Memorandum of Understanding

MSC...........................Major Subordinate Command

NCP............................National Oil and Hazardous Substance Contingency Plan

OE..............................Ordnance and Explosives

OE MCX....................Ordnance and Explosives Mandatory Center of Expertise

PM..............................Project Manager

RAP ............................Remedial Action Plan

RCRA.........................Resource Conservation and Recovery Act

ROD...........................Record of Decision
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Glossary-2

USACE.......................United States Army Corps of Engineers

USAESCH..................U.S. Army Engineering and Support Center, Huntsville

UXO ...........................Unexploded Ordnance

Section II

Terms

Active Installations

Installations under the custody and control of DOD. Includes operating installations, installations in a

standby or layaway status, and installations awaiting closure under the Base Realignment and Closure

(BRAC) legislation.

Active Range

A military range that is currently in service and is being regularly used for range activities. (40 CFR

266.201)

Administrative Record

The body of documents that “forms the basis” for the selection of a particular response at a site.

Documents that are included are relevant documents that were relied upon in selecting the response

action as well as relevant documents that were considered but were ultimately rejected. (ER 1110-1-

8153)

Applicable or Relevant, and Appropriate Requirements (ARARs)

Applicable requirements are cleanup standards, standards of control, and other substantive

environmental protection requirements promulgated under federal or state environmental law that

specifically address a hazardous substance, pollutant, contaminant, remedial action, location or other

circumstance found at a CERCLA site. Relevant and appropriate requirements are cleanup standards

that while not “applicable”, address situations sufficiently similar to those encountered at a CERCLA

site that their use is well-suited to the particular site.

Base Realignment and Closure (BRAC)

Program governing the scheduled closing of Department of Defense sites. (Base Closure and

Realignment Act of 1988, Public Law 100-526, 102 Stat. 2623, and the Defense Base Closure and

Realignment Act of 1990, Public Law 101-510, 104 Stat. 1808)
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Glossary-3

Comprehensive Environmental Response, Compensation, and Liability Act of 1980

(CERCLA)

CERCLA authorizes federal action to respond to the release or threatened release of hazardous

substances into the environment or a release or threat of release of a pollutant or contaminant into the

environment that may present an imminent or substantial danger to public health or welfare.

Conventional Ordnance and Explosives

The term “conventional OE” refers to ordnance and explosives (see definition) other than CWM,

BWM and nuclear ordnance. (ER 1110-1-8153)

Covenant

A covenant is a promise that certain actions have been taken, will be taken, or may not be taken.

Covenants can bind subsequent owners of the land. There are special legal requirements needed to

bind subsequent owners. An affirmative covenant is a promise that the owner will do something that the

owner might not be obligated to do, such as maintaining a fence on the property that surrounds a landfill.

A negative easement is a promise that the owner will not do something that the owner is otherwise free

to do, such as restricting the use of groundwater on the land.

Defense Environmental Restoration Program (DERP)

Established in 1984, DERP promotes and coordinates efforts for the evaluation and cleanup of

contamination at Department of Defense installations. (10 U.S.C. 2701)

Design Center

A specified USACE field office assigned a singular technical mission that is permanent and USACEwide in scope. The designated office is to be considered the “lead activity” in a specialized area where

capability needs to be concentrated for maximum effectiveness, economy, and efficiency. The OE

Design Center (in coordination with the PM) will execute all phases of the OE response project after the

approval of the INPR unless the removal action is transferred to an approved district. Only the

USAESCH OE Design Center is authorized to execute any phase of a Non-Stockpile CWM response.

(ER 1110-1-8153)

Districts Approved to Execute OE Removal Actions

These districts are selected and approved by the MSC Commander with concurrence from the OE

MCX, trained, and assigned the mission of conducting OE removal actions. The districts are

responsible for final removal action execution. (ER 1110-1-8153)

Easement

An easement allows the holder to use the land of another or to restrict the uses of the land. An

easement “appurtenant” provides a specific benefit to a particular piece of land. For example, allowing
EP 1110-1-24

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Glossary-4

a neighbor to walk across your land to get to the beach. The neighbor’s land, the holder of the

easement, benefits by having beach access through your land. An easement “in gross” benefits an

individual or company. For example, allowing the utility company to come on your land to lay a gas

line. The utility company, the holder of the easement, benefits by having use of the land to lay the gas

line. An affirmative easement allows the holder to use another person’s land in a way that, without the

easement, would be unlawful - for example, allowing a use that would otherwise be a trespass. A

negative easement prohibits a lawful use of land - for example, creating a restriction on the type and

amount of development of land.

Engineering Evaluation/Cost Analysis (EE/CA)

An EE/CA is prepared for all non-time-critical removal actions as required by Section 300.415(b)(4)(i)

of the NCP. The goals of the EE/CA are to identify the extent of a hazard, to identify the objectives of

the removal action, and to analyze the various alternatives that may be used to satisfy these objectives

for cost, effectiveness, and implementability.

Formerly Used Defense Sites (FUDS)

FUDS includes those properties previously owned, leased, or otherwise possessed by the U.S. and

under the jurisdiction of the Secretary of Defense; or manufacturing facilities for which real property

accountability rested with DOD but were operated by contractors (Government owned - contractor

operated) and which were later legally disposed of. FUDS is a subprogram of the DERP. Restoration

of military land was extended to formerly used sites in 1983 under Public Law 98-212 (DOD

Appropriations Act of FY84).

Government Control

Government controls are restrictions that are within the traditional police powers of state and local

governments to impose and enforce. Permit programs and planning and zoning limits on land use are

examples of government controls.

Institutional Controls

Institutional controls consist of legal, physical, or educational mechanisms that limit the access or use of

a property, or warn of the hazard in order to protect property users and the public from existing site

contamination that continues to be present at a site during use.

Information Repository

A repository, generally located at libraries or other publicly accessible locations, which contains

documents reflecting the on-going environmental restoration activities. This may include the EE/CA,

CRP, RAB meeting minutes, public notices, public comments and responses to those comments, etc.
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Glossary-5

Intrusive activity

An activity which involves or results in the penetration of the ground surface at an area known or

suspected to contain OE. Intrusive activities can be of an investigative or removal action nature.

Mandatory Center of Expertise (MCX)

An MCX is a USACE organization that has been approved by HQUSACE as having a unique or

exceptional technical capability in a specialized subject area that is critical to other USACE commands.

Specific mandatory services to be rendered by an MCX are identified on the MCX’s homepage.

These services may be reimbursable or centrally funded. The USAESCH is the OE MCX for the

USACE. (ER 1110-1-8153)

Military Munitions

All ammunition products and components produced or used by or for the U.S. DOD or the U.S.

Armed Services for national defense and security, including military munitions under the control of the

DOD, the US Coast Guard, the US DOE, and National Guard personnel. The term military munitions

includes: confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical and riot

control agents, smokes, and incendiaries used by DOD components, including bulk explosives and

chemical warfare agents, chemical munitions, rockets, guided and ballistic missiles, bombs, warheads,

mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges,

cluster munitions and dispensers, demolition charges, and devices and components thereof. Military

munitions do not include wholly inert items, improvised explosive devices, and nuclear weapons, nuclear

devices, and nuclear components there-of. However, the term does include non-nuclear components of

nuclear devices, managed under DOE’s nuclear weapons program after all required sanitization

operations under the Atomic Energy Act of 1954, as amended, have been completed. (40 CFR

260.10)

National Oil and Hazardous Substance Pollution Contingency Plan (NCP)

Revised in 1990, the NCP provides the regulatory framework for responses under CERCLA. The

NCP designates the Department of Defense as the removal response authority for ordnance and

explosives hazards.

Non-Time Critical Removal Action (NTCRA)

NTCRAs are actions initiated in response to a release or threat of a release that poses a risk to human

health, its welfare, or the environment. Initiation of removal cleanup actions may be delayed for six

months or more.

Ordnance and Explosives (OE)

OE consists of either (1) or (2) below:

(1) Ammunition, ammunition components, chemical or biological warfare materiel or explosives that
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Glossary-6

have been abandoned, expelled from demolition pits or burning pads, lost, discarded, buried, or fired.

Such ammunition, ammunition components, and explosives are no longer under accountable record

control of any DOD organization or activity. (HQDA Policy Memorandum “Explosives Safety Policy

for Real Property Containing Conventional OE”)

(2) Explosive Soil. See definition under “Explosive Soil.” (ER 1110-1-8153)

Partnering

A formal process in which two or more organizations come together to work as a team toward a shared

goal.

Proprietary Control

A proprietary control is a private contractual mechanism contained in the deed or other document

transferring the property. Proprietary controls involve the placement of restrictions on land through the

use of easements, covenants, and reversionary interests. Easements, covenants, and reversionary

interests are nonpossessory interests. Nonpossessory interests give their holders the right to use or

restrict the use of the land, but not to possess it. This is in contrast to possessory controls interests in

which the holder may have the right to possess the land. State laws vary on the application and

enforcement of such restrictions.

Real Property

Real property consists of land, improvements, structures, and fixtures, and includes bodies of water.

Removal Action

The cleanup or removal of OE from the environment to include the disposal of removed materiel. The

term includes, in addition, without being limited to, security fencing or other measures to prevent,

minimize, or mitigate damage to the public health or welfare or to the environment. (ER 1110-1-8153)

Resource Conservation and Recovery Act (RCRA)

Enacted in 1976, RCRA promotes the protection of health and the environment. It regulates waste

generation, treatment, storage, transportation, and disposal for facilities currently in operation. The OE

removal process is affected by RCRA if OE must be disposed off-site.

Response Action

Action taken instead of or in addition to a removal action to prevent or minimize the release of OE so

that it does not cause substantial danger to present or future public health or welfare or the environment.

(ER 1110-1-8153)
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Restoration Advisory Board (RAB)

A forum for discussion and exchange of information between agencies and the affected communities.

RABs provide an opportunity for stakeholders to have a voice and actively participate in the review of

technical documents, to review restoration progress, and to provide individual advice to decision

makers regarding restoration activities. (ER 1110-1-8153)

Reversionary Interest

A reversionary interest places a condition on the transferee’s right to own and occupy the land. If the

condition is violated, the property is returned to the original owner or the owner’s successors. Each

owner in the chain of title must comply with the conditions placed on the property. If the condition is

violated the property can revert to the original owner, even if there have been several transfers in the

chain of title.

Siting Restrictions

Siting restrictions control land use in areas subject to natural hazards, such as earthquakes, fires, or

floods. Such restrictions are created through statutory authority to require that states implement and

enforce certain land use controls as well as through local ordinances.

Stakeholder

Stakeholders include federal, state, and local officials, community organizations, property owners, and

others having a personal interest or involvement, or having a monetary or commercial involvement in the

real property which is to undergo an OE response action.

Superfund Amendments and Reauthorization (SARA)

Enacted in 1986, this legislation establishes standards for cleanup activities, requires federal facility

compliance with CERCLA, and clarifies public involvement requirements.

Unexploded Ordnance (UXO)

Military munitions that have been primed, fuzed, armed, or otherwise prepared for action, and have

been fired, dropped, launched, projected or placed in such a manner as to constitute a hazard to

operations, installation, personnel, or material and remain unexploded either by malfunction, design, or

any other cause. (40 CFR 266.201)

Zoning

Zoning is a use restriction imposed through the local zoning or land use planning authority. Such

restrictions can limit the access and prohibit disturbance of the remedy. Zoning authority does not exist

in every jurisdiction.