[CPEO-BIF] "Enforcement First" applies to institutional controls

[Lenny Siegel <lsiegel@cpeo.org>]

United States Environmental Protection Agency
Washington, DC 20460

March 17, 2006

OSWER Directive No. 9208.2

MEMORANDUM

SUBJECT: "Enforcement First" to Ensure Effective Institutional Controls 
at Superfund Sites

FROM:

Susan E. Bromm, Director
Office of Site Remediation Enforcement
Office of Enforcement and Compliance Assurance (OECA)

Michael B. Cook, Director
Office of Superfund Remediation and Technology Innovation
Office of Solid Waste and Emergency Response

TO:
Superfund National Policy Managers, Regions I-X
Director, Office of Environmental Stewardship, Region I
Director, Environmental Accountability Division, Region IV
Regional Counsel Regions 11,111, V, VI, VII, IX, and X
Assistant Regional Administrator, Office of Enforcement, Compliance, and 
Environmental Justice, Region VIII

Purpose

On September 20, 2002, OSWER and OECA jointly issued a memorandum 
requesting Regions to redouble their attention to EPA's "enforcement 
first" policy.^1 While that memorandum focused largely on Remedial 
Action construction activities, it also noted that the "enforcement 
first" policy applies throughout the Superfund cleanup process. The 
purpose of today's memorandum is to state explicitly that the 
"enforcement first" policy also applies to any actions needed to ensure 
the implementation and effectiveness of institutional controls.

The Agency is committed to pursuing "enforcement first" for all phases 
of response actions at Superfund sites. This policy promotes the 
"polluter pays" principle and helps conserve the resources of the 
Hazardous Substance Response Trust Fund (Fund) for sites where no viable 
responsible parties exist. By applying this policy to institutional 
controls, EPA can further advance its program goals.^2

Background

In September 2004, EPA launched the implementation of its national 
five-year Strategy to Ensure Institutional Control Implementation at 
Superfund Sites (Strategy).^3 Institutional controls are administrative 
and legal instruments that help minimize the potential for human 
exposure to contamination and protect the integrity of the remedy. 
Institutional controls work by limiting land or resource use and by 
providing information that helps modify or guide behavior at properties 
where hazardous substances at a site prevent unlimited use and 
unrestricted exposure. Institutional controls are a critical component 
of the cleanup process, used to ensure both short- and long-term 
protection of human health and the environment, and as such they should 
be identified and analyzed early in the cleanup process as part of the 
Remedial Investigation/Feasibility Study.

The Agency has made significant progress in its efforts to address the 
complexities and challenges associated with institutional controls. For 
example, EPA is actively implementing the Strategy to identify, review 
and resolve any problems with institutional controls at Superfund sites, 
with an emphasis on evaluating institutional controls at sites where the 
construction of all remedies is complete (construction complete sites). 
EPA recognizes that the implementation of this Strategy will require 
significant coordination and communication with stakeholders, in 
particular, potentially responsible parties (PRPs) and current owners of 
these sites. PRPs play a significant role in supporting a robust 
analysis of the effectiveness of institutional controls and in 
implementing necessary controls at Superfund sites. Institutional 
control activities at sites may include, for example:

 * conducting studies and evaluations to evaluate the design, 
monitoring, implementation and enforcement of institutional controls at 
sites, including evaluations of current and potential future land uses, 
and whether different, additional or layered institutional controls are 
needed;

 * analyzing real property title information to ensure that proprietary 
controls are properly implemented, and resolving any issues that may 
impact the effectiveness of the institutional control, including 
acquisition of subordination agreements as necessary;

 * utilizing current state-of-the-art institutional control tools such 
as "One-Call" systems, new monitoring and mapping technologies, or 
environmental covenants under state adopted versions of the Uniform 
Environmental Covenants Act; and

 * improving site-specific plans and procedures by addressing the 
long-term stewardship of institutional controls. This may include 
updating site Operation and Maintenance Plans, developing Institutional 
Control Implementation and Assurance Plans, and ensuring the adequacy of 
periodic status reporting and financial assurance mechanisms.

EPA Headquarters continues to conduct outreach to the PRP community to 
talk about their expected role as partners in implementing this Strategy 
and supports the efforts of EPA Regions to encourage PRP cooperation at 
these sites. We believe we share a common goal with the PRP community in 
maintaining the effective long-term stewardship of cleaned up sites to 
ensure the continued protection of human health and the environment.

Implementation

EPA maximizes PRP participation in the design and implementation of 
Superfund site cleanups by using a variety of negotiation and 
enforcement tools including, as appropriate, issuing unilateral 
administrative orders. See Negotiation and Enforcement Strategies to 
Achieve Timely Settlement and Implementation of Remedial Design and 
Remedial Action at Superfund Sites, OSRE, June 17, 1999 (Negotiation and 
Enforcement Strategies Memorandum).^4  For remedies that rely in whole 
or in part on institutional controls, EPA strives to ensure that the 
PRPs remain responsible for the implementation of the institutional 
controls, including the identification and resolution of any issues 
impacting the continued effectiveness of the institutional controls.

As noted earlier in this memorandum EPA recognizes that PRPs play a 
significant role in supporting a robust analysis of the effectiveness of 
institutional controls and in implementing necessary controls at 
Superfund sites. Ensuring that institutional controls are properly 
implemented and remain protective is important to both EPA and the PRPs. 
Therefore case teams should first pursue a cooperative approach when 
working with PRPs, and use the agreements already entered into by the 
PRPs at the site. But as appropriate, case teams may use the approach 
outlined in the Negotiation and Enforcement Strategies Memorandum. For 
example, in the institutional controls context, a case team might first 
determine whether the PRPs at a site have already entered into a consent 
decree for Remedial Design/Remedial Action that requires them to conduct 
studies and investigations requested by EPA to assist in periodic 
reviews. Based on this obligation, the PRPs could be required to 
investigate the status or effectiveness of the institutional controls at 
a site. If the case team determines that additional institutional 
control work is needed beyond further study or investigation, the case 
team should consider whether the agreements already entered into by the 
PRPs require them to implement the additional institutional control work 
or whether a modification to the Statement of Work (SOW) or related work 
plans is needed. Modifications to the SOW and/or work plans may be 
appropriate when the additional work is (1) necessary to achieve and 
maintain performance standards or to carry out and maintain the 
effectiveness of the remedy set forth in the Record of Decision (ROD) 
and (2) consistent with the scope of the remedy selected in the ROD.^5

If the PRPs cannot be required to implement the additional institutional 
controls pursuant to the consent decree provisions discussed above, the 
case team should consider whether the decree has a reopener provision 
for new information or unknown conditions or a separate reservation of 
rights that will allow EPA to bring an action seeking to require the 
implementation of institutional controls. If the decree has a reopener 
provision and the need for the additional institutional controls is 
based on new information or unknown conditions, the case team will 
likely be able to require the PRPs to implement the additional 
institutional controls under the decree itself if the PRPs have agreed, 
in the decree, to implement any additional work needed to protect human 
health or the environment that falls within the scope of the reopener.^6 
Alternatively, if the PRPs have not so agreed, the decree usually will 
exclude any such matters from the covenant not to sue^7 thereby allowing 
EPA to bring an enforcement action against the PRPs. The case team 
should also review the agreements entered into by PRPs at the site for 
any separate reservation of rights^8 that will allow EPA to seek 
institutional controls. If present, the case team may be able to bring 
an enforcement action against the PRPs seeking the implementation of the 
additional institutional control work without having to establish the 
criteria necessary for the reopener for new information or unknown 
conditions.

Appropriate enforcement actions may include the issuance of a unilateral 
administrative order (UAO) seeking to have the PRPs implement the 
additional institutional controls. In recent years, EPA has issued a 
number of orders for Remedial Action that explicitly include 
institutional controls as well as several orders for institutional 
controls alone. A UAO for institutional controls must meet all statutory 
requirements of CERCLA §106(a) and other applicable requirements.


Case teams should consider using Fund monies in those cases where the 
enforcement approach outlined above is not feasible, such as where the 
PRPs are incapable of conducting or paying for the work necessary to 
ensure that institutional controls are effectively implemented. Regions 
will generally use monies from the allocation for ongoing projects. In 
limited situations, however, the Agency's national risk-based priority 
panel may need to review the funding for institutional controls (e.g., 
if the panel had not previously reviewed this project, or if the panel's 
prior review of the remedial action was narrow in scope). In these 
situations, the usual procedures for enforcement screening and 
consultation with the Office of Site Remediation Enforcement's Regional 
Support Division would apply.

Conclusion

If you have any questions about this document, please contact Gregory 
Sullivan at (202) 564-1298, sullivan.greg@epa.gov. If you have any 
questions about EPA's "enforcement first" policy or would like 
assistance in evaluating the appropriate enforcement strategy at a 
particular site, please contact Mike Northridge at (202) 564-4263, 
northridge.michael@epa.gov. Questions about institutional controls 
should be directed to the regional or Headquarters institutional control 
coordinators.

This memorandum is intended solely for the guidance of employees of EPA 
and creates no substantive rights for any persons. It is not a 
regulation and does not impose legal obligations. EPA will apply this 
guidance only to the extent appropriate based on the facts.


1. Available on the EPA Web site at 
http://www.epa.gov/compliance/resources/superfund/enffirst-mem.pdf


2. The enforcement principles and processes outlined in this memorandum 
may also apply implementation of the National Strategy to Manage Post 
Construction Completion Activities at Superfund OSWER 9355.0-10, October 
2005, http://www.epa.gov/superfund/action/postconstruction/pcc_strategy_

3. Available on the EPA Web site at 
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/ic-strategy-04-mem.pdf.


4. Available on the EPA Web site at 
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/ 
neg-enfst-mem.pdf.


5. See, Paragraph 14, "Modification of the SOW or Related Work Plans," 
of the Model RD/RA Consent Decree.

6. See, Paragraph 20, "Settling Defendants' Obligation to Perform 
Further Response Actions," of the Model RD/RA Consent Decree.

7. See, Paragraph 91, "United States' Pre-certification Reservations," 
and Paragraph 92, "United States' Post-certification Reservations," of 
the Model RD/RA Consent Decree.

8. See, e.g., Subparagraphs 94(g) and (i), "General Reservations of 
Rights," and Paragraph 30 of the Model RD/RA Consent Decree.

--

For the original memorandum, go to
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/enf-first-ics.pdf
--


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org


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