United States Environmental office of Solid Waste and OSWER 9355.0 74FSP ProtectionAgency Emergency Response EPA 540F 00405 September, 2000 Institutional Controls: A Site Manager s  Guide to Identifling, Evaluating and\ IEm Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups ORCe of Solid Waste and Emergency Respoose Purpose Table of Contents This fact sheet provides Superfund and RCRA Coqective Action site 0 Purpose.. ............................ 1 I managers and decision makerswith an overview of the types of InstitutionalControls ( ICs) that are commonly used or implemented, and 0 Definition and Importance of ICs ............ 1 outlines the factorsthat shouldgenerallybe consideredwhen evaluating 0 Common Misnomers ..................... 2 and selectingICs as part of the remedy. For more detailed informationon 0 Layering and Implementing ICs in Series ...... 2 the different types of instrumentsavailable, site managers and attorneys 0 A Look at ICs in CERCLA, the NCP and RCRA . . 3 should consult the document,   Institutional Controls: A Reference Manual TypesofICs .......................... 3 ( WorkgroupDraft  March 1998).  EPA site managers should also work Legal Mechanisms for Imposing ICs Under closely with Regional attorneysand Headquarters staff in the Office of CERCLA RCRA ..................... 5 Emergency and Remedial Response ( OERR), the Office of Site Remediation Enforcement ( OSRE), the Federal Facihes Restorationand ICsand FutureLandUse ................. 5 Reuse Office ( FFRRO), the Federal FacilitiesEnforcementOffice ( FFEO) Screening ICs .......................... 5 and/ or the Office of Solid Waste ( OSW) on any site specificissues that Determiningthe State Role ................ 6 may arise while evaluating, implementing, enforcing, or monitoringICs. 2 Determining the Role of Local Governments .... 7 EvaluatingICs ......................... 7 Definition and Importance of ICs 0 ICs in CERCLA Removal Actions ........... 8 0 Site Manager ResponsibilitiesAfter ICs are Generally, EPA begins the remedy evaluation process with the expectation Selected.. ............................ 10 that treatment or engineeringcontrolswill be used to address principal 0 Conclusion.. .......................... 10 threat wastes and that groundwaterwill be returned to its beneficial use. 0 Key Concepts .......................... 10 The National Oil and Hazardous SubstancesPollution ContingencyPlan Checklist for Implementing ICs ............. 11 ( NCP) emphasizes that ICs, such as water use restrictions, are meant to 0 ICMatrix ......................... 12 25 supplementengineeringcontrolsduring all phases of cleanup and may be a necessary componentof the completed remedy. The NCP also cautions against the use of ICs as the sole remedy unless active response measures are determined to be impracticable. At the same time, ICs play an importantrole in site remedies. Often, ICs are a critical componentof the cleanup process and are used by the site manager to ensure both the short and long term protection of human health and the environment. For this reason it is important to understand what constitutes an IC. Specifically for EPA, ICs:

  Site Manager, as used in this fact sheet, refers to both CERCLA sites and RCRA facilities. In RCRA, project managers are the equivalent to site managersin CERCLA.

* Thisdocumentprovides guidance to EPA Regions and states involved in Superfund and RCRA correctiveaction cleanups. It also provides guidanceto the public and the regulated communityon how EPA intendsto evaluate and implement. institutiona1controlsas part of a cleanup decision. The guidanceis designedto implement national policy on these issues. The document does not, however, substitutefor CERCLA, RCRA or EPA sregulations, nor is it a regulation itself. Thus, it does not impose legally bindingrequirementson EPA, States, or the regulated community, and may not apply to a particular situation based upon the circumstances. EPA and State decision makers retain the discretion to adopt approacheson a case by casebasis that differ from this guidancewhere appropriate. Any decisionsregarding a particularfacility will be made based on the applicable statutes and regulations. Therefore, interestedparties are free to raise questions and objections about the appropriatenessof the applicationof this guidance to a particularsituation, and EPA will consider whether or not the recommendationsor interpretationsin the guidance are appropriatein that situation. EPA may changethis guidancein the future.

1 are non engineeredinstrumentssuch as administrativeand/ or legal controlsthat minimize the potential for human exposureto contaminationby limitingland or resourceuse; are generallyto be used in conjunctionwith, rather than in lieu of, engineeringmeasuressuch as waste treatmentor containment; can be used duringall stages of the cleanupprocess to accomplishvarious cleanup relatedobjectives; and, should be   layered  ( i. e., use multiple ICs) or implemented in a series to provide overlappingassurancesof protection from contamination. These conceptsare discussedin the text box below.

Some examplesof ICs include easements, covenants, well drillingprohibitions, zoning restrictions, and specialbuildingpermit requirements. Deed restriction is a phrase often used in remedy decision documentsto describe easementsor other forms of ICs; however, this is not a traditional property law term and should be avoided. Fences that restrict access to sites are often termed ICs; however, because fences are physicalbarriers instead of administrative or legal measures, EPA does not consider them to be ICs. ICs are among the tools allowable under the ComprehensiveEnvironmentalResponse, Compensation, and Liability Act ( CERCLA) [ as amended by the SuperfundAmendments and ReauthorizationAct ( SARA)], the NCP, and the ResourceConservationand RecoveryAct ( RCRA). To read more about the regulatory framework for ICs, refer to the box on page 3 entitled,   A Look at ICs in CERCLA, the NCP and RCRA.  Finally, where protectivenessdepends on reducing exposure, ICs are a responseaction under CERCLA or a correctiveaction under RCRA. Accordingly, even in the unusual case where a CERCLA Record of Decision ( ROD) only requiresthe implementationof ICs, it is consideredto be a   limited action,  not a   no action  ROD. Likewise, when a corrective action under RCRA includes an IC, whether it is part of an interim measure or occursat the end of the cleanupas part of the final correctivemeasure, the IC is considered a part of the remedy.

ICs are vital elementsof responsealternativesbecausethey simultaneouslyinfluenceand Common Misnomers   Deed restriction  is not a traditional property law term, but rather is a generic term used in the NCP and elsewhereas a shorthand way to refer to types of ICs. To avoid confusion, site managers should avoid the term and instead be specific about the types of ICs under considerationand their objectives. In addition, EPA does not considerphysical barriers as ICs. Fences that restrict access to sites are often termed as ICs. However, fences are not considered by EPA to be ICs .

supplementthe physical component of the remedy to be implemented. On the one hand, the right mix of ICs can help ensure the protectivenessof the remedy; on the other, limitationsin ICs may lead to reevaluationand adjustment of the remedy components, includingthe proposed ICs. At some sites, remedy contingenciesmay protect againstuncertainties in the ability of the ICs to provide the required long term protectiveness. These points illustrate how important it is for site managers to evaluate ICs as thoroughly as the other remedy componentsin the FeasibilityStudy ( FS) or CorrectiveMeasures Study ( CMS), when looking for the best ICs for addressingsite specificcircumstances. Adding ICs on as an afterthought without carefullythinking about their objectives, how the ICs fit into the overall remedy, and whetherthe ICs can be realisticallyimplemented in a reliableand enforceablemanner, couldjeopardize the effectivenessof the entireremedy.

Often ICs are more effectiveif they are layered or implementedin series. Layering means using different types of ICs at the same time to enhance the protectiveness of the remedy. For example, to restrictland use, the site managermay issue an enforcementtool [ e. g., Unilateral AdministrativeOrder ( IJAO)]; obtain an easement; initiate discussionswith local governments about a potential zoning change; and enhance future awarenessof the restrictionsby recording them in a deed notice and in a state registry of contaminated sites. Also, the effectivenessof a remedy may be enhancedwhen ICs are used in conjunctionwith physical barriers, such as fences, to limit access to contaminatedareas.

ICs may also be applied in series to ensureboth the short and long term effectiveness of the remedy. For example, the site manager may use an enforcementtool to require the land owner to obtain an easement from an adjacent property owner in order to conduct ground water sampling or implement a portion of the active remedy. This easement may not be needed for the long term effectivenessof the remedy and is terminatedwhen the constructionis complete. At another site, the site manager may use an AdministrativeOrder on Consent ( AOC) or permit conditionto prohibit the land owner from developingthe site during the investigation. Later, the site manager may add a provision to the ConsentDecree ( CD) or the permit requiringthe land owner to notify EPA if the property is to be sold and to work with the local government to implement zoning restrictions on the property. Layer1n. g and Implementing ICs in Series ICs are more effectiveif they are layered or implemented in series.

LayeringICs means using differenttypes of ICs at the same time to enhance the protectiveness of the remedy.

Using ICs in series is the use of ICs at differentpoints in the investigationand remediationprocess to ensure the short and long term protection of human health and the environment.

2 Types of ICs implementingICs during the cleanupprocess and a matrix summarizingexamplesof ICs are includedat the end of the fact sheet.

A Look at ICs in CERCLA, the NCP, and RCRA CERCLA as amended by SARA, the NCP and RCRA support the use of ICs in remediation of a site:

CERCLA Section 121( d)( 2)( B)( ii)( III) refers to the use of enforceablemeasures ( e. g., ICs) as part of the remedial alternativeat sites. EPA can enforcethe implementationof ICs, but not necessarilytheir long term maintenance. For example, the local governmentwith zoning jurisdiction may agree to change the zoningof the site to prohibit residentialland uses as part of the remedy, but the local governmentretains the authorityto change the zoningdesignationin the future. EPA is authorized, under CERCLA section l04( i), to acquire ( by purchase, lease or otherwise) real property interests, such as easements, needed to conduct a remedial action provided that the state in which the interest is to be acquired is willing to accept transfer of the interest followingthe remedial action. Transfersof contaminatedFederal property are subject to specialdeed requirementsunder CERCLA sections 12O( h)( 3)( A)( iii) and120( h)( 3)( C)( ii>( I) and( II).

NCP the NCP provides EPA's expectationsfor developingappropriateremedial alternatives, includingICs under CERCLA. In particular, it states that EPA expects to use treatment to address the principal threats posed by sites; engineeringcontrols for wastes that pose relatively low risk or where treatmentis impracticable; and a combinationof the two to protect human health and the environment[ 40 CFR 300.430( a)( l)( iii)( A),( B), and ( C)}. In appropriatesituations, a combination of treatment, containment, and ICs may be necessary. The NCP also emphasizesthe use of ICs to supplement engineeringcontrols during all phases of cleanup and as a componentof the completedremedy, but chutionsagainst their use as the sole remedy unless active responsemeasures are determinedto be impracticable[ 40 CFR 300.430( a)( l)( iii)( D)]. In the case where ICs are the entire remedy, the responseto comments section of the preamble to the NCP states that special precautionsmust be made to ensurethe controlsare reliable ( 55 Federal Register, March 8, 1990, page 8706). Recognizingthat EPA may bot have the authority to implement such controls, the NCP requires that ( for fund financed sites) the state assure that the ICs implementedas part of the remedial action are in place, reliable, and will remain in place after the initiationof operationand maintenance [ 40 CFR 300.5 IO( c)( I)]. Lastly, for Superfund financed and private sites, the NCP also requires the state to hold any interest in property that is acquired ( once the site goes into O& M) to ensure the reliabilityof ICs 140 CFR 300.510( f)].

RCRA RCRA requirementsare imposed through legal mechanisms different from those used under CERCLA. In RCRA, authorized states are the prjmary decisionmakers, this results in a wide variety of state specificmechanismsbeing available. This fact sheet does not attempt to list all of the state and local IC mechanisms, but, toidentify key principles for the use of ICs. If the IC is being imposed through a RCRA permit, steps should be taken to ensure that long term enforcement is not lost through property transfer or permit expiration. Cleanups under RCRA are conducted in connectionwith the c10, sureof regulated units and facility wide corrective action either under a permit [ RCRA sections 3004( u) and ( v)], interim status order [ RCW section 3008( h)] or imminenthazard order [ RCRA section 70031 or other authorities. It shouldalso be noted that landfill closurerequirementsunder40 CFR 264.1 19require deed notices that the land has been used to manage hazardouswaste,, althoughthe notice itself does not restrict future use. EPA expects to use a combinationof methods ( e. g., treatment, engineering, and institutionalcontrols) under RCRA, as appropriate, to achieve protection of human health and the environment. EPA also expects to use ICs, such as water and land use restrictions, primarilyto supplementengineeringcontrols, as appropriate, for short and long term management to prevent or limit exposureto hazardouswastes and constituents. ICs are not generally expected to be the sole remedial action.

GovernmentalControls Governmental controlsare usually imulementedand enforced bv a state or local eovemment and can Y General Categories include zoning restrictions, ordinances, statutes, buildingpermits, or There are four categoriesof institutionalcontrols: governmental other provisionsthat restrict land or resourceuse at a site. Local controls; proprietary controls; enforcement and permit tools with IC governmentshave a variety of land use control measures availablefrom components; and informationaldevices. Each of these categoriesis simpleuse restrictionsto more sophisticatedmeasures such as describedbelow. In addition, a checklistthat highlightssteps in planned unit development zoning districts and overlay zones.

3 Developmentzoning districtsallow for more flexible site planningand overlay zones imposeadditionalrequirementsto those of the underlyingzoning district. Regardlessof which measuresare relied on, the land use control should be carefullyevaluatedto make certainthat there are no exceptionswhich could allow for improperuse of the site ( e. g., allowinga day care center use within an industrialdistrict). Once implemented, local and state entities often use traditionalpolice powers to regulate and enforce the controls. Since this categoryof ICs is put in place under local jurisdiction, they may be changed or terminated with little notice to EPA, and EPA generallyhas no authorityto enforce such controls.

For active militarybases, the local authorityfor regulatingand enforcing ICs is the CommandingOfficer. Therefore, EPA and the state should work with the installationpersonnel to incorporaterestrictions into the base master plans, instructions, and orders used by the Commanding Officer to govern conduct, actions and activitieson the base ( in some cases these restrictionsmay be imposed as permit conditions if the base is subject to RCRA permit requirements).

Proprietary Controls These controls, such as easements and covenants, have their basis in real property law and are unique in that they generally create legal property interests. In other words, proprietary controlsinvolve legal instrumentsplaced in the chain of title of the site or property. The instrument may include the conveyance of a property interest from the owner ( grantor) to a second party ( grantee) for the purpose of restricting land or resource use. An example of this type of control is an easement that provides access rights to a property so the Potentially Responsible Party ( PRP), facility owner/ operator, or regulatoryagency may inspect and monitor a groundwater pump and treat system or cover system. The benefit of these types of controls is that they can be binding on subsequent purchasers of the property ( successorsin title) and transferable, which may make them more reliable in the long termthan other types of ICs.

However, proprietary controls also have their drawbacks. Property law can be complicatedbecause a property owner has many individual rights with respect to his or her property. To illustrate this point, property rights can be thought of as a bundle of sticks, with each stick representinga singleright ( e. g., the right to collect rents). The terminology, enforceability, andeffect of each of these rights is largely dependent upon real property common law and the state where the site is located. A property owner can convey certain rights to other entities ( eithervoluntarilyor involuntarilythrough condemnation) and keep otherrights. For example, if it is determinedthat a long termeasement is required to ensureremedy protectiveness, this   right  would need to be transferred by the property owner to another entity. For the easement to bind subsequentpurchasers, some states require that the entity be an adjacent property owner. This may complicate long term monitoringand enforcement sincethe party receivingthe right ( the grantee) is often not an adjacent property owner. To eliminatethis problem, a proprietary controlmay be established   in gross.  This means that the holder of the control ( the grantee) does not need to be the owner of the adjacent property. However, it should be noted that easementsin gross may not be enforceableunder the laws of some states. State property laws governing easements shouldthereforebe researched before this type of IC is selected in order to determineits enforceabilityin that jurisdiction.

A distinctionat Federal sitesbeing transferred to the private sector is that CERCLA sections 120( h)( 3)( A)( iii) and120( h)( 3)( c)( ii) and( iii) require that property interests be retained by the Federal government. At active Federal sites, proprietary controls may not be an option .

because a deed does not exist or the landholdingFederalagency lacks the authority to encumber the property. However, the landholding Agency may be willingto enter a Memorandum of Understanding ( MOU) with EPA andor state regulatorsproviding for specific IC implementationplans, periodic inspectionsand other activitieswhich it will undertake ( in lieu of deed restrictions) to assure that ICs for the active site will remain effective.

Enforcement and Permit Tools with IC Components Under sections 104 and 106( a) of CERCLA, UAOs and AOCs can be issued or negotiatedto compel the land owner ( usually a PRP) to limit certain site activitiesat both Federal and private sites; CDS can also be negotiatedat private sitesunder 122( d). Similarly, EPA can enforce permits, conditionsandor issue ordersunder RCRA sections 3004( a), 3004( u) and ( v), 3008( h), or 7003. These tools are frequentlyused by site managers, but may also have significantshortcomingsthat should be thoroughlyevaluated. For example, most enforcementagreements are only binding on the signatories, and the property restrictionsare not transferred through a property transaction. For example, if a PRP under CERCLA signs a CD or receives a UAO and then sells his or her property, many types of ICs would not be enforceable against the next owner. This couldjeopardize the protectivenessof the remedy. One possible solution to this problem is to ensure that the enforcement tool contains provisionsrequiring EPA or state notification andor approval prior to a property transfer. In this instance, EPA could negotiatean agreementwith the new owner. Another solutionis to requiresignatoriesof an enforcementdocument to implement additionallong term institutionalcontrols such as informationdevices or proprietarycontrols ( i. e., layering).

InSormationalDevices Informational tools provide informationor notificationthat residual or capped contaminationmay remain on site. Common examples include state registries of contaminatedproperties, deed notices, and advisories. Due to the nature of some informational devices( e. g., deed or hazard notices) and their potential nonenforceability it is importantto carefullyconsider the objectiveof this categoryor  ICs. Informationaldevices are most likely to be used as a secondary   layer  to help ensure the overall reliability of other ICs.

ICs at Federal Facilities Because of Federal ownership, there are significantdifferencesin the way ICs are applied at Federal facilities. Some proprietary or governmentalcontrolscannot be applied on active Federal facilities. However, for propertiesbeing transferred as part of a base closure, the Department of Defense does have the authority to restrict property by retaininga property interest ( i. e., an easement intended to assure the protectivenessof the remedy). For active bases, ICs are commonlyaddressed throughremedy selectiondocuments, base master plans, and separate MOUs. More detailed information on ICs and Federal facilitiesis contained in   InstitutionalControls: A 4 Reference Manual ( WorkgroupDraft  March 1998)" and in the FFRRO IC guidance(" InstitutionalControls and Transferof Real Property under CERCLA Section 120( h)( 3)( A), ( B), or ( C)," January, 2000).

Legal Mechanisms for Imposing ICs Under CERCLA and RCRA CERCLA and RCRA employ the same types of ICs to reduce exposure to residual contamination. However, as explainedbelow, EPA's legal authorityto establish, monitor and enforce ICs varies significantly between the two programs. As a result, officials involvedin cleanups need to appreciatethe range of optionsavailableunder each program before determiningwhether, and to what extent, ICs shouldbe incorporatedinto a remedial decision.

At CERCLA sites, EPA often imposes ICs via enforcement tools ( e. g., UAOs,' AOCs, and, CDs). Since these enforcement tools only bind the parties named in the enforcement document, it may be necessaryto require the parties to implement ICs that " run with the land"( Le., applied to the property itself) in order to bind subsequent land owners. For Fund; lead CERCLA sites, the lead agency has the responsibilityfor ensuring ICs are implemented. Legal mechanisms such as UAOs, AOCs and CDS should alsofequire reportingto EPA andor the state of any sale of the property.

I,

Under RCRA, 1, Csare typically imposed through permit conditions or by orders issued under section 3008( h). In certain circumstances cleanup may also be, required under the imminent hazard order authority of sectipn 7003. In the case where an IC is meant to continuebeyond the expirationof a, peimit, an order may be required to ensure the IC remains in effect for the long term RCRA permit writers should incorporateICs as specific permit conditions, where appropriate. By doing so, such conditionswouldbe; Tforceable through the permit. At the same time, peTii writers should considerwhether additionalICs are available( e. g., , governmentaland/ orproprietarycontrols) to ensure that subsequent'propertyowners will be aware, of, and bound by, the same types of restrictions. Similar factors should be considered when preparingRCRA corrective action orders to ensure that both the current facilityowner/ operator and any subsequentproperty owners are subjectfo effectiveand enforceable ICs that will minimize exposureto any residual contamination.

One significantdifferencebetween RCRA and CERCLA is that RCRA generally does not authorize EPA to acquire any interests in property. Therefore, many proprietary controls ( such as easements) will require the involvementof third parties ( e. g., states or local govemments) under RCRA.

ICs and Future Land Use Land use and ICs are usually linked. As a site moves through the SuperfundRemedial Investigation/ Feasibility Study ( FWFS) or RCRA Facility InvestigationKorrective Measures Study ( RFKMS), site managers should develop assumptionsabout reasonably anticipated future landuses and considerwhether ICs will be needed to maintain these uses over time. EPA's land use guidance( Land Use in CERCLA Remedy Selection Process, OSWER DirectiveNo. 9355.7 04, May 25, 1995) states that the site manager should discuss reasonably anticipatedfuture uses of the site withlocal land use planning authorities, local officials, and the public, as appropriate, as early as possible during the scopingphase of the FWFS or RFI/ CMS. Where there is a possibilitythat the land will not be cleaned up to a level that supportsunlimiteduse and unrestricted exposure, the site manager should also discuss potential ICs that may be appropriate, including legal implementationissues, jurisdictionalquestions, the impactof layeringICs and reliabilityand enforceabilityconcerns. It is also important for the site managerto recognizethat, in addition to land uses, ICs can be used to affect specific activitiesat sites ( e. g., fishing prohibitions).

Screening ICs The need for ICs can be driven by both the need to guard against potential exposure and to protect a remedy. If any remedial options being evaluatedin the FS or CMS leave waste in place that would not result in unrestricteduse and unlimited exposure, ICs shouldbe consideredto ensurethat unacceptableexposurefTom residual contamination does not occur. However, ICs may not be necessary if the waste that is left at the site allows for unrestricteduse and unlimited exposure. Remedy options that typicallyleave residual wastes on site and necessitate ICs include cappingwaste in place, constructionof containmentfacilities, natural attenuationand long term pumping and treatmentof groundwater.

ICs shouldbe evaluatedin the same level of detail as otherremedy components. ICs are considered response actionsunder CERCLA and RCRA. ICs must meet all statutoryrequirements, and are subject to the nine evaluationcriteria outlinedin the NCP ( 40 CFR 300.430 ( e)( 9)( i)) for CERCLA cleanups. The balancing criteriarecommended for correctiveactionsshould generallybe used in evaluatingICs under RCRA. However, before applyingthese criteria, the site manager should first make several determinations:

Objective Clearly state what will be accomplishedthroughthe '

use of ICs.

Example: Restrictthe use of groundwateras a drinkingwater sourceuntil the Maximum ContaminantLevels are met.

Mechanism Determine the specific types of ICs that can be used to meet the variousremedial objectives.

Example: Work with the localjurisdictionto develop ordinances to restrictwell drilling or prohibit groundwater access until cleanupgoals are met; record the groundwater contaminationin the land record to provide notice of the issue to the public; and record contaminated aquifers on state registry to maintain institutionaltracking.

Timing Investigatewhen the IC needs to be implementedandor secured and how long it must be in place. SinceICs are often 5 , implemented by parties other than EPA, the time required to secure an IC should be taken into consideration.

Example: A deed notice may be required in the short term, and a formal petition for a zoning changemay be necessaryin the long term, both of which need to be in place prior to site deletionfrom the NPL.

Responsibility Resech, discuss, and documentany agreement with the proper entities on exactly who will be responsiblefor securing, maintainingand enforcingthe control. It might be useful to secure a written statement of the appropriate entities  willingness to implement, monitor, and enforcethe IC prior to the signatureof the remedy decision document.

Example: Work with the State to determinewhether it is willingand able to hold an enforceableeasementto ensure appropriateland use; in addition, determinewhether the local governmentis willingand able to change and enforce the applicablezoningrequirements. If assurancescannot be obtained, then ICs may not be a viable componentof the remedy.

Typically, the sitemanager is faced with balancingthe relative strengths of ICs in terms of enforceability, permanence, etc., with achieving remedial objectives. As discussed previously, one option is to    layer   differentcontrolsto ensure long termreliability. For example, layered ICs may involveconcurrentuse of enforceableagreements, deed notices, and adoption of land use controlsby a local government. ICs may also be used in series. For example, an enforcementorder may prohibitthe land owner from disturbingthe cap on hisher property ( i. e., a short term control), until the local governmentgoes through the process of restrictingthe futureuse of the land ( i. e., the long termcontrol).

Determiningthe State Role Where EPA is implementinga remedy, states often play a major role in implementingand enforcingICs. As stated previously, some governmental controlsmay be establishedunder statejurisdiction: the state may use its enforcement tools to compel the PRP or facility land owner to limit site activities; the state may provide the notification or informationon the contaminationthat remains On site; or the state may assume ownership of a property in order to implement, maintain, and enforce proprietary controls. Under RCRA, the state will typically be imposingand overseeingthe remedialaction.

When to Begin Coordinating with the State No matter what role the state assumes with ICs, the EPA site manager shouldbegin coordinatingwith the state early in the RIFS ( for CERCLA) or RFIKMS ( for RCRA) process or after samplinghas been completed and the extent of the risk is known. Even if ICs are not required for the long termmaintenanceof the selectedremedy, they may be necessary during the response activities. In evaluatingthe need for and the type of ICs that may be implemented at a site, the site manager shouldconsultwith their Regional attorney to determinewho has the proper legal authorityto implement and enforce the proposed controls. Certain states have enacted statutes that provide the state with the legal authority to restrict land use at contaminatedproperties. In addition, several states have adopted statutesproviding for conservationeasements. These easements . ovemde common law bamers to the enforcementof easementsby parties who do not own adjacent property. For example, at many sites, the state, in cooperationwith the PWs or facility owner/ operator, may use its own enforcementtools to restrict the use of the land and ensure that the selected remedy, includingICs, is implemented and maintained. At other sites, a property interest may be conveyed ( either directly or, if necessary, through EPA at Superfund sites) from the owner of the land to the state which becomes the holder and enforcer of a proprietarycontrol. Finally, the state is often responsiblefor issuing advisoriesor warnings of potentialrisks ( e. g., fishing or swimmingprohibitions), andproviding registriesof hazardous waste sites ( i, e., informationalcontrols).

If it appears that the state & I1 be relied upon to establish the ICs, the site manager should immediatelytalk to state agency personnel to gauge their willingnessto establish, maintain and enforce the control, if necessary. This discussionis encouraged regardlessof the type of IC@) that will be implemented. The site manager should work with his or her state counterpart to identify and contact the appropriate state agency and personnel for each proposed IC. In addition, if a property interest is conveyedby the land owner to EPA to perform a remedial action ( e. g., to ensure the reliability of the ICs restrictingthe use of the land), CERCLA requires the state to accept transfer of the title from EPA followingcompletionof the CERCLA remedialaction. If the state does not agree to accept title to the property, the site manager must find another party to assume ownership ( e. g., a local government, communitygroup or trust) or anothertype of IC ( e. g., local government ~ ontrol)~ must be selected. State assurancesfor O& M or for transfer of property interest are formalized in a SuperfundState Contract ( SSC), cooperativeagreement, or MOU that is negotiatedbetween the state and EPA.

State Role at Fund Financed CERCLA Cleanups The state assumes other responsibilitiesfor ICs if the remedial action, includingthe ICs, will be Fund financedunderCERCLA. CERCLA specificallyrequires that the state provide assurancethat it will assume responsibility for operationand maintenance ( O& M) of the selectedremedy before a Fund financedremedial action is implemented. The NCP requires the state to ensure that any ICs implemented as part of the remedial action at the site are in place, reliable, and will remain in place after the initiationof O& M. These assurancesare also documentedin a cooperativeagreement, SSC or MOU.

State Role at RCRA Sites Factors to Consider in State Coordination 3Likewise, either the state or a third party must be willing to accept property interests at PRP led sites.

6 Under RCRA, states will typicallybe the implementingand overseeing agency. Thereforethe state, when authorizedand overseeingcorrective action, will be responsiblefor identifying appropriateinstitutional controls. Where EPA is overseeingthe remedy there are no state assurancerequirementsin RCRA CorrectiveAction. However, because there is no Federal mechanism in RCRA allowingEPA to acquire interest in property, EPA may be forced to rely on third parties ( typicallystate or local government) to establish, maintain and enforce most types of ICs.

State Role at Federal Facilities At Federal facilities, the landholdingagency is ultimatelyresponsible for all response activities. The state is not required to provide assurancethat it will assume responsibilityfor O& M. However, states may enter into an agreementwith the landholdingFederal agency to monitor and enforceICs at Federal sites.

Determining the Role of Local Governments CERCLA, RCRA, and the NCP do not specify a role for local governmentsin implementingthe selectedremedy. However, a local government is often the only entity that has the legal authority to implement, monitor and enforce certain types of ICs ( e. g., zoning changes). While EPA and the states take the lead on CERCLA and RCRA response activities, local governmentshave an importantrole to play in at least three areas: ( 1) determiningfuture land use; ( 2) helping engagethe public and assistingin public involvementactivities; and ( 3) implementationand long term monitoringand enforcement of ICs. Therefore, it is critical that the site manager and his or her state counterpart involve the appropriatelocal governmentagency in discussionson the types of controls that are being considered. The capability and willingnessof the local governmentto implement and ensure the short or long term effectivenessof the proposed ICs should be consideredduringthe RI/ FS or RFUCMS. In certain cases, cooperativeagreementsmay be consideredto assist local governments in the implementation, monitoringand enforcement of required ICs.

Evaluating ICs Once the site managerhas consideredthe objectives, mechanism, timing, and entityresponsiblefor implementing, monitoringand enforcingthe ICs, the next phase is selectingthe ICs., The followingsections contain a discussionof the CERCLA and RCRA factorsthat site managers should generallyconsider when evaluatingICs during the FS or CMS. If the site manager proposesto layer or use the 1Cs in series, he or she should tils0 characterizethe likelihoodthat this approach can actually be achieyed. It is important to note that at CERCLA sites, the statute requiresmthe site manager to evaluateICs, just like other remedy components, against the nine NCP criteria. The site manager must ensure tiat remedies are protectiveof human health and the environment. ICs may be an important element in this determination. RCRA shes mmagers have the latitudeto use balancingcriteria, but unlike CkRCLA, RCRA regulationsdo not require this balancingstep. The CERCLA and RCRA criteria are categorizedbelow in three groups: threshol?, balancing, and modifying. ICs in CERCLA Removal Actions ICs will rarely be a component of true emergencieswhere a time critical action serves as the onlyresponse at a site. It is more likely that a site manager will choose ICs as a componentof a non time criticalremoval action or duringa follow upremedialaction. A post removalsite controlagreement must be completedbefore commencinga fund financedremovalaction where ICs are included in post removal site control ( OSWER DirectiveNo. 9360.22 02). As in the remedial process, begin consideringICs when conducting an analysisofland use assumptionsduringthe removal decisionmakingprocess Where a final, site wide, non time criticalremoval remedy decisionwill be made, ICs should be thoroughlyand rigorouslyevaluatedwith all other responseactions in the EngineeringEvaluatiodCost Analysis( EWCA). In short, because ICs are consideredto be actions, apply the full criteriarequired by the NCP for EE/ CA evaluations. It is anticipatedthat ICs would not be chosenas the sole action for a removal.

It is fundamentalthat a remedy under RCRA or CERCLA that includesICs meet the followingthresholdcriteria:

 protect human health and the environment; and 7 for CERCLA sites, comply with Applicableor Relevant and AppropriateRequirements ( ARMS).

The site manager for RCRA facilitiesshouldalso considerwhether remedies that includeICs:

attain media cleanup standards or complywith applicablestandards for waste management; and controIthe source( s) of releases so as to reduce or eliminate, to the extent practicable, further releases of hazardouswaste that might cause threats to human health and the environment.

Balancing Criteria The sitemanager evaluates the individual, layered or series of ICs to determine their respectivestrengthsand weaknesses. ICs are also evaluated in combinationwith engineeredcontrolsto identifythe key tradeoffs that shouldbe balanced for the site. Followingare balancing m teriarequiredby CERCLA and the NCP and recommendedby the RCRA program in guidance.

Long term effectiveness andpermanence ( CERCLA) or reliability( RCMhUnder both CERCLA and RCRA, this factor assesses the permanenceireliabilityand effectivenessof ICs that may be used to manage treatment residuals or untreatedwastes that remain at the site over time. When evaluatingwhether an IC will be effectiveover the long term, the site manager should considerfactorssuch as: whether the property is a government owned site or a privately owned site that is likely to change hands; the appiicabilityof ICs to multiple property owners; the size of the area to be managed; the number of parcels; the contaminatedmedia to be addressed; the persistenceof the contamination; whether site contaminationis well defined; and whether local governmentsorother governingbodiesare willing and able to monitorand enforce long term ICs. The site manager shouldalso considerthe contaminatedmedia to be addressed by the ICs. Different ICs may be required for differentmedia.

Where ICs must be effective for a long period, either proprietaryor governmentalcontrolsshould be consideredbecause they generallyrun with the land and are enforceable. However, both proprietaryand governmentalcontrolshave weaknessesin terms of long term reliability. For example, with proprietary controls, common law doctrinesmay restrict enforcementby parties who do not own adjoiningland. This can render proprietarycontrols ineffective if EPA or another party capable of enforcingthe control is not the owner of the adjacent property. To eliminate this problem, proprietary controls may be established " in gross," signifyingthat the holder of the control does not need to be the owner of the adjacent property. However, some courts do not recognize in gross proprietarycontrols.

At some sites, governmental controlsmay be preferableto proprietary controls. For example, the site manager might work with a local governmentto pass an ordinance to restrict constructionor invasive digging that might disturbor cause exposureto coveredresidual lead contaminationin a largeresidential area. The implementationof governmentcontrols might be considereda beneficial addition to informationtools that may be forgotten over the long term or an enforcementaction that would be binding only on certain parties. Proprietarycontrols would likely be deemed impracticalat such a site due to the complex and uncertain task of obtainingeasementsfrom multiple property owners.

Like proprietarycontrols, the use of governmentatcontrols may not be effectiveover the long term. Of primary concern are the political and fiscal constraintsthat may affect the ability of a state or local governmentto enforcethe controls. Similarly, governmentalcontrols may be problematicwhen the local or state government is or may become the site owner or operatorbecause of the appearance of a conflict of interest. Regardless of the control selected, its viability over the long term needs to be closely evaluated.

Reductionof toxicity, mobili@, or volume through treatment This CERCLA and RCRA criterion does not apply since ICs are not treatment measures.

Short termEffectiveness Short tern effectivenessof ICs at CERCLA and RCRA sites shouldbe evaluated with respect to potential effects on human health and the environmentduring constructionand implementation of the remedy. In order to satisfy this criterion, the remedy might entail the use of an IC through an enforcementorder to compel the PRP to restrict certain uses of the groundwaterat or down gradient from the site duringremediation. After remediation is complete, other ICs might be implementedif residual contaminationremains on site ( ix., implementingICs in series).

Implementability This CERCLA and RCRA criterionevaluatesthe administrativefeasibilityof an action and/ or the activitiesthat need to be coordinatedwith other officesand agencies. Implementation factorsthat generallyshould be consideredfor ICs includewhether the entity responsible for implementation possesses the jurisdiction, authority, willingness and capabilityto establish, monitor and enforce ICs. A proper analysisof implementabilitycan be complex, consideringsuch diversefactorsas the extent to which land being restricted is owned by liable parties and the willingnessand capability of the local government or other. authorityresponsiblefor establishing codtrolsfor land or resourceuse.

CosGThisCERCLA and RCRA criterion includes estimated capital and O& M costs. InCERCLA, estimatedcosts for implementing, monitoring, and enforcingICs should be developed. For example, cost estimates for ICs might includelegal fees associatedwith obtaining easementsrestricting land use, the costs of purchasingproperty rights ( e. g.., groundwaterrights, easements), or the wages of the state or local governmentpersonnel that will regularly monitor the IC to ensure that it has not been violated. It is interesting to note that once the total life cyclecosts of implementing, monitoringand enforcing an IC

which may. exceed 30 years  are fully calculated, it may actually be less costly in the long term to implement a remedy that requires treatment of the waste. For more informationon estimatingresponse costs, see " A Guide to Developingand Documenting Cost Estimates Duringthe FeasibilityStudy," EPA 540 R 00 002, OSWER 9355.0 075. In RCRA, costs historicallyhave played a less prominent role in remediation selection. Typically cost estimates are expectedto be developed at the discretion of the ownerioperator, although 8 implementorsshouldtake into account sites where ICs are inappropriately costly.

Modifying Criteria Typically the site manager presents the proposed remedy, including ICs to the state, local government, and community for comment prior to implementation. The issues and concernsof these stakeholdersmay result in modificationsto the remedy and are addressed by the site manager in the remedy decisiondocument. Followingis a discussionof these modifyingcriteria ( note: these criteria are on& recommendedin RCRA guidance).

StateAcceptance The site manager should make the appropriate state authorities aware of the basis and scope of the ICs to be implemented under CERCLA or RCRA, and what role, if any, the state is expected to play to make ICs an effectivepart of the remedy. The state can formallyexpress its concernsabout the use of ICs, in general, and its role, in particular, or indicateits willingnessto take on the responsibilityfor implementingand enforcingthe proposed ICs.

If the state s position is uncertain at the time the remedy is selected ( e. g., for CERCLA sites, when the ROD is signedor, for RCRA facilities, when the permidorder is issued or modified), it may be necessary to outline contingentremedial approachesin the decision documents. Specifically, remedies that require long termICs to remain protectivemay require alternativeactions( e. g., additionalsoil removal) if the ICs are later determinedto be unenforceableor cannot meet the remedial objectives. Alternatively, at a RCRA site, it may be necessary to leave a facility under a permit or othermechanism enforceableby the regulatingagency. If the state s willingnessor ability to implement or enforce an IC changes after remedy selection, the protectivenessof the remedy should generallybe re evaluated and, when necessary, remedial decisionsrevised. Under CERCLA, this may require an Explanationof SignificantDifferences( ESD), or even a ROD amendment. Under RCRA, a permit modificationor changeto a correctiveaction order may be necessary. It is important to note that under no circumstances can a Fund financedCERCLA remedial action be initiatedwithout receiving state assurances on ICs and property transfer.

Local Governmentand CommunityAcceptance Involving the communityand local government early duringthe remedy decision process will enable the site manager to more fully evaluateIC options. Discussionswith the local governmentand community give the site manager the opportunity to:

gather local governmentand community input on the proposed ICs; identifywhether a particular stakeholdergroup may be harmed as a result of a proposed IC ( for example, will a ban on fishing cause an economic hardshipin the community); receive comment on the impacts of the potential ICs on religiousor cultural customsand beliefs( e. g., preventing access to property which grows the plants that are used in a rn bal ceremony); and determine if the communityhas special needs in regardsto the IC ( for example, will it be necessary to publish informational devices in multiple languages).

9 In addition, the local government and community s response to certain types of ICs and the willingnessand capabilityof the local government to monitor ICs will help the site manager determine whether the ICs will be effectiveoverall. This is especially important if nearby property owners will need to agree to implement proprietary controlsor if other governmentalICs ( e. g., zoning changes) will have an impact on the community. Early involvementwill also enable the communityto work with the local governmentto developinnovative approachesto using ICs, especially in light of any future land use plans.

As with other aspects of the proposed remedy, the community should have the opportunity to comment on the proposed IC component of the remedy during the public comment period. It may be necessary to educate the community about ICs so that its members understandhow the different ICs may impact their property and activities. Under CERCLA, it may also be possible, as long as all appropriate requirementsare met, to provide a Technical AssistanceGrant to the communityso they can hire a technical expert to assist them in evaluatingICs and the overallremedy.

In some cases, it may be appropriatenot to identify the exact IC required at the time of the remedy decision. In these instancesthe critical evaluationof the availableICs should still be conductedand the specific objective( s) of the ICs shouldbe clearly stated in the ROD or other decision document. Examples ofwhen this flexibilitymay be appropriateare contingentremedies based on pilot studiesor if a remedy would not be implemented for severalyears and the state is developingenabling language for ConservationEasements authority.

Site Manager ResponsibilitiesAfter ICs are Selected The site manager s responsibilitiesfor ICs does not end once the ICs are selected. Site managers also should ensurethat the ICs are actuallyimplemented, are reliable, are enforced, and remain effective. It shouldbe noted that NPL sites cannotbe deleted until the entire remedy, includingICs, have been implemented. This may involvethe following: workingwith state and local governmental entitiesto obtain commitmentsand resources for implementingand enforcingICs, includingnegotiatinga CERCLA SSC with the stateto obtain assurancesthat the ICs will be put in place, are reliable and will remain in place after initiation of O& M activities; ensuring that the PRP or facility owner complies with the provisions in the enforcement tools to implement the ICs and provides notice of the ICs to potential future usedowners of the property; workingwith other Federal agencies to implementand enforce ICs; acquiringproperty for implementation of the CERCLA remedy; and checkingthe statusof ICs during the CERCLA five yearreview. Conclusion The ICs outlined in this fact sheet can be important elements of environmentalcleanups. ICs play an important role in limitingrisk and are often needed to ensurethat engineeredremedies are not affected by future site activities. When selectingICs, the site manager needs to evaluate the situationat the site, define the needs that ICs are intended to address, identifythe kinds of legal and other tools available to meet these needs, and ensure the ICs are implementedeffectively. All of this requiresup front planningand workingcloselywith the Regional office attorneys, the state, community, and PRps or facility owner/ operators. Key conceptsto keep in mind when implementingICs are provided in the text box below.

If you have questionsregardingthe material coveredin this fact sheet, consult the draft document,   InstitutionalControls: A Reference Manual  or contact your Regional Coordinatorin the OERR Technical RegionalResponse Center. For informationon model languagefor enforcementor legal documents used to implement ICs, consultyour RegionalCounsel, OSRE or the Office of GeneralCounsel.

Key Concepts Under the NCP, the use of ICs should not substitutefor active response measures ( unless activemeasures are not practicable).

If the site cannot accommodateunrestricteduse and unlimited exposure, an IC will generallybe required.

Make sure the objective( s) of the IC are clear in the decision document.

Coordinateearly with state and local governments.

Layer ICs andor place them in series dependingupon site circumstances.

EvaluateICs as rigorouslyas other remedial alternatives.

Understand the life cycle strengths, weaknesses and costs for the implementation, monitoringand enforcementof ICs.

Get assurances, in writing, from entities that will implement, monitor, and enforceICs.

Remember that since all ICs have weaknesses, the role of the RCWCERCLA decision makers is to select the best ICs to protect human health and the environment.

10 Checklist for Implementing ICs During the initial phase of cleanup ( Le., RI/ FS or RFIKMS), the site manager should:  establish clear objectives ( what are you trying to accomplish through the use of ICs?) discuss future land use plans with the community and local government to help in analyzing the appropriate ICs and other remedial alternatives evaluate ICs using the appropriate threshold, balancing, and modifying criteria coordinate with regional attorneys on legal matters and the State as appropriate be innovative/ creative but realistic I I

During remedy selection, the site manager should: present information that helps the public understandthe impacts of the specific ICs and their relationship with the overall remedy clearly describe the objectives to be attained by ICs specify performance standards ( e. g., prevent exposure to contaminated ground water by prohibiting well drilling) consider layering ICs to enhance their overall effectiveness discussions with entities ( e. g., local/ state governments) involved in implementing ICs discuss the kinds of controls envisioned and include enough information to show that effective implementation of the ICs can reasonably be expected discuss plans for monitoring land use and other aspects of the remedy that depend on ICs discuss the enforcement mechanisms that are anticipated to ensure the long term reliability of the ICs

continue coordination with attorneys I ~~

During remedy implementation ( i. e., RD/ RA and CMI), the site manager should: ensure that appropriate measures are taken to implementthe ICs ( e. g., arrange discussions between PRPs, other property owners, and local government or state officials) be aware that ICs need to be fully implemented to obtain a RCRA permit termination, or for CERCLA sites, fully implementedto obtain RA completion, a site completion, and partial or full deletion prepare an ESD or ROD amendment for CERCLA sites or a permit modification or order revision for RCRA sites if the ICs will not result in the remedy being protective of human health and the environment; if this becomes necessary, also ensure that the public is provided an opportunity to comment on the proposed replacement ICs I I During Post Remediation activities ( e. g., a CERCLA five year review), the site manager should: Evaluate both the administrative/ legal components as well as the physical evidence to ensure that ICs are both implemented and fully effective  Document these results inthe Five Year Review Report ( for CERCLA sites) I 0 03 M E: . c 0 N .^

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a L 0 N Y mm m c  0 0 Y . c f 9) Y c 0 0 u GLOSSARY OF TERMS Administrative Orders on Consent ( AOC)  A legal agreement signed by EPA and the potentially responsible parties ( PRPs) through which the PRP agrees to pay for or take the required corrective or cleanup actions, or refrain from an activity. It describes the actions to be taken, may be subject to a comment period, applies to civil actions, and can be enforced in court.

Advisories  Warnings, usually issued by public health agencies, either at the federal, state or local level, that provide notice to potential users of land, surface water, or ground water of some existing or impending risk associated with their use.

Appurtenant  A traditional property law term used to describe an easement that is created to benefit an adjacent parcel of land ( and it is held by the owner of that land). For example, an easement allowing the owner of one parcel the right to cross an adjoining parcel would be appurtenant. ( See also   In Gross )

Chain of Title  A history of conveyances and encumbrances affecting a title from the time that the original patent was granted, or as far back as records are available.

Common Law  The body of law developed primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the legal system in all of the U. S. except Louisiana.

Condemnat, ion of Property  When a local government, exercising eminent domain, condemns a property in order to take over title.

Consent Decree ( CD)  A legal document, approved by a judge, that formalizes an agreement reached between EPA and PRPs through which PRPs will conduct all or part of a cleanup action at a Superfund site, cease or correct actions or processes that are polluting the environment, or otherwise comply with EPA initiated regulatory enforcement action. The consent decree describes the actions PRPs will take and is subject to a public comment period.

Conservation Easements  Statutes adopted by some states that establish easements to conserve and protect property adnatural resources.

Conveyance  The transfer of title to property or a right of that property ( i. e. easement) from one person to another.

Cooperative Agreement  An assistance agreement whereby EPA transfers money, property, services or anything else of value to a state, university, or non profit or not for profit organization for the accomplishment of authorized activities or tasks.

Covenants  A promise by one landowner to another made in connection with a conveyance of property. Generally, a covenant is a promise by the holder of a possessory interest in property to use or refrain from using the property in a certain manner. Covenants are similar to easements but have been traditionally subject to somewhat different formal requirements.

Deed  A signed and usually sealed instrument containing some legal transfer, bargain, or contract.

Deed Notice  Commonly refers to a non enforceable, purely informational document filed in public land records that alerts anyone searching the records to important information about the property.

Deed Restriction  Not a traditional property law term, but rather is used in the NCP as a shorthand way to refer to types of institutional controls.

28 I Easements  A property right conveyed by a landowner to another party which gives the second party rights with regard to the first party s land. An   affirmative  easement allows the holder to enter upon or use another s property for a particular purpose. A   negative  easement imposes limits on how the landowner can use his or her own property. 3 Enforcement Tools  Tools, such as administrative orders or consent decrees, available to EPA under CERCLA and RCRA that can be used to restrict the use of land. Enforcement authority can be used to either ( 1) prohibit a party from using land in certain ways or from carrying out certain activities at a specified property, or ( 2) require a settling party to put in place some other form of control, such as a proprietary control.

Equitable Servitude  A real estate interest, similar to a covenant, that arose when courts of equity enforced agreements that did not meet all of the formal requirements for a covenant.

Government Controls  Controls using the regulatory authority of a governmental entity to impose restrictions on citizens or sites under itsjurisdiction. Generally, EPA must turn to state or local governments to establish controls of this type.

In Gross  A traditional property law term used to describe easements that provide a benefit not related to any property owned by the holder of the easement. Easements used under CERCLA and RCRA will generally be   in gross  because the restrictions are generally not for the benefit of any particular neighboring parcel owned by the holder of the easement.

Informational Devices  Informational tools that provide information or notification that residual or capped contamination may remain on site. Common examples include state registries of contaminated properties, deed notices, and advisories.

Institutional Controls  Non engineering measures intended to affect human activities in such a way as to prevent or reduce exposure to hazardous substances. They are almost always used in conjunction with, or as a supplement to, other measures such as waste treatment or containment. There are four categories of institutional controls: governmental controls; proprietary controls; enforcement tools; and informational devices.

Local Permits  Special permits outlining specific requirements before an activity can be authorized.

Memorandum of Understanding  A document which outlines an agreement in principle between its signatories.

Proprietary Controls  Tools based on private property law used to restrict or affect the use of property.

Reversionary Interest  A real estate interest created when a landowner deeds property to another, but the deed specifies that the property will revert to the original owner under specified conditions.

  run with the land  An expression indicating a right or restriction that affects all current and future owners of a property.

State Use Restrictions  Statutes enacted by some states providing authority to establish use restrictfons specifically for contaminated property.

State Registries of Hazardous Waste Sites  Registries established by state legislatures that contain information about properties. Types of registries include a list of hazardous waste sites in the state; annual reports submitted to the legislature summarizing the . status of each site on the registry; and notice with the deed for sites on the registry that the site is contaminated.

29 Superfund State Contract ( SSC)  An agreement between EPA and the state before remedial action begins ( at Superfund sites where EPA is leading the response activities) that documents the state s assurances under the law and outlines the roles and responsibilities of both parties.

Tailored Ordinances  Ordinances put in place by local governments with broad land use authority to control access to or the use of certain areas. For example, ordinances that require fences or buffers around or that ban fishing or swimming in contaminated areas.

Technical Assistance Grant  A EPA grant awarded to eligible community groups for the purpose of hiring an independent technical advisor, enabling community members to participate more effectively in the decision making process at Superfund sites.

Unilateral Administrative Order ( UAO)  A legal document signed by EPA directing the PRPs to take corrective action or refrain from an activity. It describes the violations and actions to be taken, and can be enforced in court.

Zoning Restriction  Zoning authority exercised by local governments to specify land use for certain areas. For example, a local government could prohibit residential development in an area of contamination or limit gardening in certain areas.

30


[Federal Register Volume 80, Number 170 (Wednesday, September 2, 2015)]
[Rules and Regulations]
[Pages 52946-52948]
[FR Doc No: 2015-21444]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2015-3656; Directorate Identifier 2015-CE-027-AD;
Amendment 39-18259; AD 2015-18-01]
RIN 2120-AA64

Airworthiness Directives; Vulcanair S.p.A. Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: We are adopting a new airworthiness directive (AD) for
Vulcanair S.p.A. Model P.68R airplanes. This AD results from mandatory
continuing airworthiness information (MCAI) issued by the aviation
authority of another country to identify and correct an unsafe
condition on an aviation product. The MCAI describes the unsafe
condition as a discrepancy in the climb performance reported in the
airplane flight manual and in the actual performance of the airplane.
We are issuing this AD to require actions to address the unsafe
condition on these products.

DATES: This AD is effective September 22, 2015.
    The Director of the Federal Register approved the incorporation by
reference of certain publications listed in the AD as of September 22,
2015.
    We must receive comments on this AD by October 19, 2015.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
    For service information identified in this AD, contact Vulcanair
S.p.A., Via Giovanni Pascoli 80026 Casoria NA Italy; telephone: +39 081
5918111; fax: +39<PHONE_NUMBER>; Internet: http://www.vulcanair.com/technical-support; email<EMAIL_ADDRESS>You
may view this referenced service information at the FAA, Small Airplane
Directorate, 901 Locust, Kansas City, Missouri 64106. For information
on the availability of this material at the FAA, call<PHONE_NUMBER>.
It is also available on the Internet at http://www.regulations.gov by
searching for Docket No. FAA-2015-3656.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-
3656; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this AD, the regulatory evaluation, any comments received, and
other information. The street address for

the Docket Office (telephone<PHONE_NUMBER>) is in the ADDRESSES
section. Comments will be available in the AD docket shortly after
receipt.

FOR FURTHER INFORMATION CONTACT: Mike Kiesov, Aerospace Engineer, FAA,
Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri
64106; telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Discussion

    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Community, has issued AD
No.: 2015-0145, dated July 21, 2015 (referred to after this as ``the
MCAI''), to correct an unsafe condition for the specified products. The
MCAI states:

    During a recent flight test campaign to evaluate the performance
and handling characteristics of a P.68R aeroplane in support of an
STC application, differences were noticed between the climb
performance reported in the applicable Aircraft Flight Manual (AFM)
and the performance demonstrated during those tests.
    Prompted by these findings, further flight tests performed by
Vulcanair confirmed that the All Engines Operative (AEO) rate of
climb (ROC) performance, as published in the current revision of the
applicable AFMs, is incorrect.
    This condition, if not corrected, could lead to over-estimation
of AEO ROC, possibly resulting in impact with terrain or obstacle
due to erroneous evaluation of aeroplane climb performance.
    To address this potential unsafe condition, Vulcanair S.p.A.
revised the applicable AFMs, informing operators with Service
Bulletin (SB) No. 244.

    For the reason described above, this AD requires revising
applicable AFM.
    You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-
3656.

Relevant Service Information Under 1 CFR Part 51

    Vulcanair S.p.A. has issued Vulcanair Aircraft P.68 Variants
Mandatory Service Bulletin No. 244, dated April 24, 2015. The actions
described in this service information are intended to correct the
unsafe condition identified in the MCAI. The service information
describes procedures for replacing the applicable airplane flight
manual with its latest revision including the changes related to the
airplane's rate of climb performance.
    Pages 5-1 through 5-34, in Section 5, Revision 27, dated April 23,
2015, of the Vulcanair Aircraft P.68R POH/AFM, NOR10.707-30C, Revision
17, dated July 22, 2013 and pages 1 through 42, in Supplement F, in
Section 8, Revision 27, dated April 23, 2015, of the Vulcanair Aircraft
P.68R POH/AFM, NOR10.707-30C, Revision 17, dated July 22, 2013,
detailing changes related to the airplane's rate of climb performance,
are the applicable airplane flight manual latest revision replacement
pages required by Vulcanair Aircraft P.68 Variants Mandatory Service
Bulletin No. 244, dated April 24, 2015.
    This service information is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section of this
AD.

FAA's Determination and Requirements of the AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with this State of Design Authority, they
have notified us of the unsafe condition described in the MCAI and
service information referenced above. We are issuing this AD because we
evaluated all information provided by the State of Design Authority and
determined the unsafe condition exists and is likely to exist or
develop on other products of the same type design.

FAA's Determination of the Effective Date

    An unsafe condition exists that requires the immediate adoption of
this AD. The FAA has found that the risk to the flying public justifies
waiving notice and comment prior to adoption of this rule because
differences have been found between the climb performance reported in
the applicable aircraft flight manual (AFM) and the performance
demonstrated during test flights. This condition, if not corrected,
could result in over-estimation of the airplane's rate of climb,
resulting in impact with obstructions or terrain. Therefore, we
determined that notice and opportunity for public comment before
issuing this AD are impracticable and that good cause exists for making
this amendment effective in fewer than 30 days.

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety, and we did not precede it by notice and opportunity for public
comment. We invite you to send any written relevant data, views, or
arguments about this AD. Send your comments to an address listed under
the ADDRESSES section. Include ``Docket No. FAA-2015-3656; Directorate
Identifier 2015-CE-027-AD'' at the beginning of your comments. We
specifically invite comments on the overall regulatory, economic,
environmental, and energy aspects of this AD. We will consider all
comments received by the closing date and may amend this AD because of
those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this AD.

Costs of Compliance

    We estimate that this AD will affect 1 product of U.S. registry. We
also estimate that it would take about 1 work-hour per product to
comply with the basic requirements of this AD. The average labor rate
is $85 per work-hour.
    Based on these figures, we estimate the cost of the AD on U.S.
operators to be $85, or $85 per product.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under the DOT Regulatory Policies
and

Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska, and
    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

     Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new AD:

2015-18-01 Vulcanair S.p.A.: Amendment 39-18259; Docket No. FAA-
2015-3656; Directorate Identifier 2015-CE-027-AD.

(a) Effective Date

    This airworthiness directive (AD) becomes effective September
22, 2015.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Vulcanair S.p.A. Models P.68R airplanes,
serial numbers 458/R and subsequent, certificated in any category.

(d) Subject

    Air Transport Association of America (ATA) Code 34: Navigation.

(e) Reason

    This AD was prompted by mandatory continuing airworthiness
information (MCAI) issued by the aviation authority of another
country to identify and correct an unsafe condition on an aviation
product. The MCAI describes the unsafe condition as a discrepancy in
the climb performance reported in the airplane flight manual (AFM)
and/or pilots operating handbook (POH) in the actual performance of
the airplane. We are issuing this AD to correct the AFM by inserting
the proper climb performance data into the manual, which if not
corrected could result in over-estimation of the airplane's rate of
climb, resulting in impact with obstructions or terrain.

(f) Actions and Compliance

    Unless already done, within 30 days after the effective date of
this AD, insert pages 5-1 through 5-34, into Section 5, Revision 27,
dated April 23, 2015, of the Vulcanair Aircraft P.68R POH/AFM,
NOR10.707-30C, Revision 17, dated July 22, 2013; and pages 1 through
42, into Supplement F, in Section 8, Revision 27; dated April 23,
2015, of the Vulcanair Aircraft P.68R POH/AFM, NOR10.707-30C,
Revision 17, dated July 22, 2013, following the instructions in
Vulcanair Aircraft P.68 Variants Mandatory Service Bulletin No. 244,
dated April 24, 2015.

(g) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
Standards Office, FAA, has the authority to approve AMOCs for this
AD, if requested using the procedures found in 14 CFR 39.19. Send
information to ATTN: Mike Kiesov, Aerospace Engineer, FAA, Small
Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri
64106; telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>Before using any approved AMOC on any airplane
to which the AMOC applies, notify your appropriate principal
inspector (PI) in the FAA Flight Standards District Office (FSDO),
or lacking a PI, your local FSDO.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.

(h) Related Information

    Refer to MCAI European Aviation Safety Agency (EASA) AD No.:
2015-0145, dated July 21, 2015, for related information. You may
examine the MCAI on the Internet at http://www.regulations.gov by
searching for and locating Docket No. FAA-2015-3656.

(i) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless the AD specifies otherwise.
    (i) Vulcanair Aircraft P.68 Variants Mandatory Service Bulletin
No. 244, dated April 24, 2015.
    (ii) Pages 5-1 through 5-34, in Section 5, Revision 27, dated
April 23, 2015, of the Vulcanair Aircraft P.68R POH/AFM, NOR10.707-
30C, Revision 17, dated July 22, 2013.
    (iii) Pages 1 through 42, in Supplement F, in Section 8,
Revision 27; dated April 23, 2015; of the Vulcanair Aircraft P.68R
POH/AFM, NOR10.707-30C, Revision 17, dated July 22, 2013.
    (3) For Vulcanair service information identified in this AD,
contact Vulcanair S.p.A., Via Giovanni Pascoli 80026 Casoria NA
Italy; telephone: +39<PHONE_NUMBER>; fax: +39<PHONE_NUMBER>; Internet:
http://www.vulcanair.com/technical-support; email:
<EMAIL_ADDRESS>    (4) You may view this service information at the FAA, Small
Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For
information on the availability of this material at the FAA, call
(816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for locating Docket No. FAA-2015-
3656.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Kansas City, Missouri on August 21, 2015.
Earl Lawrence,
Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-21444 Filed 9-1-15; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: November 10, 2005 (Volume 70, Number 217)]
[Notices]
[Page 68415]
[DOCID:fr10no05-58]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP99-301-135]

ANR Pipeline Company; Notice of Negotiated Rate Filing

November 4, 2005.
    Take notice that on October 31, 2005, ANR Pipeline Company (ANR)
tendered for filing and approval a point amendment to an existing
negotiated rate service agreement between ANR and Wisconsin Electric
Power Company.
    ANR requests that the Commission accept and approve the subject
point amendment to be effective November 1, 2005.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
[FR Doc. E5-6239 Filed 11-9-05; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 85, Number 231 (Tuesday, December 1, 2020)]
[Notices]
[Pages 77208-77209]
[FR Doc No: 2020-26476]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2013-0333; FRL--10017-61-OMS]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; Air Emission Standards for Tanks, Surface
Impoundment and Containers (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) has submitted an
information collection request (ICR), Air Emission Standards for Tanks,
Surface Impoundment and Containers (EPA ICR Number 1593.11, OMB Control
Number 2060-0318), to the Office of Management and Budget (OMB) for
review and approval in accordance with the Paperwork Reduction Act.
This is a proposed extension of the ICR, which is currently approved
through January 31, 2021. Public comments were previously requested,
via the Federal Register on May 12, 2020 during a 60-day comment
period. This notice allows for an additional 30 days for public
comments. A fuller description of the ICR is given below, including its
estimated burden and cost to the public. An agency may neither conduct
nor sponsor, and a person is not required to respond to, a collection
of information unless it displays a currently valid OMB control number.

DATES: Additional comments may be submitted on or before December 31,
2020.

ADDRESSES: Submit your comments to EPA, referencing Docket ID No. EPA-
HQ-OECA-2013-0333, online using www.regulations.gov (our preferred
method), by email to<EMAIL_ADDRESS>or by mail to: EPA Docket
Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460. EPA's policy is that all
comments received will be included in the public docket without change
including any personal information provided, unless the comment
includes profanity, threats, information claimed to be Confidential
Business Information (CBI), or other information whose disclosure is
restricted by statute.
    Submit written comments and recommendations to OMB for the proposed
information collection within 30 days of publication of this notice to
www.reginfo.gov/public/do/PRAMain. Find this particular information

collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function.

FOR FURTHER INFORMATION CONTACT: Patrick Yellin, Monitoring,
Assistance, and Media Programs Division, Office of Compliance, Mail
Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax number:
(202) 564-0050; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Supporting documents, which explain in
detail the information that the EPA will be collecting, are available
in the public docket for this ICR. The docket can be viewed online at
www.regulations.gov, or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit: http://www.epa.gov/dockets.
    Abstract: Owners and operators of affected facilities are required
to comply with reporting and record keeping requirements for the
General Provisions (40 CFR part 264, subpart A and 40 CFR 265, Subpart
A), as well as for the specific requirements at 40 CFR part 264,
Subpart CC and 40 CFR part 265, Subpart CC. This includes submitting
initial notifications, performance tests and periodic reports and
results, and maintaining records of the occurrence and duration of any
startup, shutdown, or malfunction in the operation of an affected
facility, or any period during which the monitoring system is
inoperative. These reports are used by EPA to determine compliance with
these standards.
    Form Numbers: None.
    Respondents/affected entities: Facilities that treat, store, or
dispose of hazardous wastes in tanks, surface impoundments, and
containers.
    Respondent's obligation to respond: Mandatory (40 CFR part 264,
subpart CC and 40 CFR part 265, subpart CC).
    Estimated number of respondents: 6,760 (total).
    Frequency of response: Occasionally and semiannually.
    Total estimated burden: 775,000 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $105,000,000 (per year), which includes
$13,500,000 in annualized capital and/or operation & maintenance costs.
    Changes in the Estimates: There is an adjustment increase in the
total estimated burden as currently identified in the OMB Inventory of
Approved Burdens. This increase is not due to any program changes; the
regulations have not changed over the past three years and are not
anticipated to change over the next three years. The Agency estimate of
the number of respondents has increased and there is an attendant
increase in the cost of monitoring, recordkeeping, and reporting. The
increase in the estimated number of respondents is due to a re-
examination of the Agency's ECHO database of sources subject to
hazardous waste and Resource Conservation and Recovery Act
requirements.

Courtney Kerwin,
Director, Regulatory Support Division.
[FR Doc. 2020-26476 Filed 11-30-20; 8:45 am]
BILLING CODE 6560-50-P