2000 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: Thu, 3 Feb 2000 13:59:01 -0800 (PST)
Reply: cpeo-military
Subject: [CPEO-MEF] EPA Interim Policy on Institutional Controls ...
 
[Below, in text form, is EPA's recently signed policy on requirements
for institutional controls related to transferring federal contaminated
properties. The is an interim policy, and EPA's Federal Facilities
Restoration and Reuse Office is seeking feedback on the policy for at
least through the beginning of May, 2000.]



Institutional Controls and Transfer of Real Property under CERCLA
Section 120(h)(3)(A), (B) or (C)


CONTENTS

1.0     Background of the Guidance    
What are institutional controls?        
What is the historical basis for this guidance? 
What is the statutory basis for this guidance?  

2.0     Purpose and Scope of the Guidance       
What is the purpose of this guidance?   
What does the guidance not address?     

3.0     Applicability of the Guidance   
Under what circumstances does the guidance apply?       

4.0     General Guidelines for Institutional Controls   
Who is responsible for implementing institutional controls?     

5.0     Specific Guidelines for Institutional Controls  
What information does EPA need? 

6.0     Documentation of Institutional Controls 
What remedy selection documentation should EPA expect from the
transferring federal agency?  
What if existing documents do not provide sufficient information on
institutional controls?     

7.0     "Operating Properly and Successfully Demonstrations"    
How does this guidance apply to demonstrations that remedial actions are
"operating properly and successfully"? 
What documentation does EPA need to evaluate "operating properly and
successfully               demonstrations"?        
When should information for "operating properly and successfully"
demonstrations be             provided?       

8.0     Coordination with State, Local, and Tribal Governments  
What organizations should be involved in the development of
institutional controls?     

9.0     Conclusion      
How will EPA evaluate institutional controls?   






Institutional Controls and Transfer of Real Property under CERCLA
Section 120(h)(3)(A), (B) or (C)

        Summary
        
                This document provides guidance to the U.S.
Environmental Protection Agency (EPA) on the exercise of EPA's
discretion under CERCLA section 120(h)(3)(A),(B), or (C) when EPA is
called upon to evaluate institutional controls as part of a remedial
action.  It also informs the public and the regulated community on how
EPA intends to exercise its discretion in this context.  This guidance
is designed to implement the President's policy of promoting,
encouraging, and facilitating the redevelopment and reuse of closing
military bases while continuing to protect human health and the
environment.  EPA may change this guidance in the future, as
appropriate.
        
                EPA's evaluation of federal property transfers is
contingent on the receipt of information establishing that the
institutional controls will be effective in preventing human or
environmental exposure to hazardous substances that remain on site above
levels which allow unrestricted use.  For this reason, this guidance
requires that the transferring federal agency demonstrate prior to
transfer that certain procedures are in place, or will be put in place,
that will provide EPA with sufficient basis for determining that the
institutional controls will perform as expected in the future.  Such
procedures, which are listed in Section 5.0 below, include the means
for: 
        
*               Monitoring the institutional controls' effectiveness and
integrity.
*               Reporting the results of such monitoring, including
notice of any violation or failure of the controls.
*               Enforcing the institutional controls should such a
violation or failure occur.

1.0     Background of the Guidance

What are institutional controls?

Institutional controls are nonengineering measures designed to prevent
or limit exposure to hazardous substances left in place at a site, or
assure effectiveness of the chosen remedy.  Institutional controls are
usually, but not always, legal controls, such as easements, restrictive
covenants, and zoning ordinances.

What is the historical basis for this guidance?

The Department of  Defense's (DoD) base closure program and the
Department of Energy's reuse and reindustrialization of surplus
facilities are just two examples of programs where federal properties
with hazardous substances remaining on site are being transferred
outside of federal control.  These property transfers will often require
the implementation of institutional controls to ensure that human health
and the environment are protected.  Such property transfers highlight
the need to ensure that institutional controls are clearly defined,
oversight and monitoring roles are understood, and appropriate
enforcement mechanisms are in place to ensure that human health and the
environment are protected. 

What is the statutory basis for this guidance?

Section 120(h)(3)(A) of CERCLA requires that a federal agency
transferring real property (hereafter, transferring federal agency ^1)
to a nonfederal entity include a covenant in the deed of transfer
warranting that all remedial action necessary to protect human health
and the environment has been taken prior to the date of transfer with
respect to any hazardous substances remaining on the property.  In
addition, CERCLA section 120(h)(3)(B) requires, under certain
circumstances, that a federal agency demonstrate to the EPA
Administrator that a remedy is "operating properly and successfully"
before the federal agency can provide the "all remedial action has been
taken" covenant.  Under CERCLA section 120(h)(3)(C), the covenant can be
deferred so that property may be transferred before all necessary
remedial actions have been taken if regulators agree that the property
is suitable for the intended use and the intended use is consistent with
protection of human health and the environment.

2.0     Purpose and Scope of the Guidance

What is the purpose of this guidance?

        This guidance establishes criteria for EPA to evaluate the
effectiveness of institutional controls that are part of a remedy or are
a sole remedy for property to be transferred subject to CERCLA section
120(h)(3)(A),(B), or (C).  Accordingly, this institutional control
guidance provides guidelines applicable to property transfers in general
and, more specifically, to support "operating properly and successfully
determinations" under CERCLA section 120(h)(3)(B). 

This guidance does not substitute for EPA regulations, nor is it a
regulation itself.  Thus, it cannot impose legally binding requirements
on EPA, states, or the regulated community, and may not apply to a
particular situation based upon the circumstances.  

What does the guidance not address?

This guidance does not address the issue of whether an institutional
control is appropriate for a particular site.  That decision is made as
part of the remedy selection process.  If, however, it becomes clear
that the criteria set forth in this guidance cannot be met, the scope,
effectiveness, or even the use of an institutional control should be
reconsidered.  This guidance does not change EPA's preference for active
and permanent remedies as stated in CERCLA section 121 ^2, or any of the
requirements for selecting remedies in CERCLA or the NCP ^3.

3.0     Applicability of the Guidance

Under what circumstances does the guidance apply?

The guidance applies in the following situations:

* When EPA approves "operating properly and successfully demonstrations"
for ongoing remedies under CERCLA section 120(h)(3)(B). (See Section 7.0
for more information.)

* When EPA evaluates a federal agency's determination under 120(h)(3)(A)
that all remedial actions have been taken, such as when commenting on a
"finding of suitability of transfer," in the consultative process
established by DoD.

* When EPA approves a Covenant Deferral Request under 120 (h)(3)(C) ^4 
for an early transfer. 

4.0     General Guidelines for Institutional Controls

Who is responsible for implementing institutional controls?

The decision to clean up a site to less than unrestricted use or to
otherwise restrict the use of the site must be balanced by the assurance
that a system will be in place to monitor and enforce any required
institutional controls.  This assurance is necessary to ensure the long
term effectiveness and permanence of the remedy ^5.  In EPA's view, the
transferring federal agency is responsible for ensuring that the
institutional controls are implemented.  Even if implementation of the
institutional controls is delegated in the transfer documents, the
ultimate responsibility for monitoring, maintaining, and enforcing the
institutional controls remains with the federal agency responsible for
cleanup.

The transferring agency should clearly identify and define the
institutional controls and set forth their purpose and method of
implementation in a Record of Decision (ROD) or other decision document.
Generally referring to or identifying an institutional control in a ROD
is only one step in achieving the objective of an institutional
control.  An institutional control must be implemented in much the same
way as an engineered remedy described in a ROD is designed and
constructed.  

5.0     Specific Guidelines for Institutional Controls

What information does EPA need?

EPA's review of federal property transfers requiring institutional
controls should focus on whether the institutional controls, when in
place, will be reliable and will remain in place after initiation of
operation and maintenance. The information should document that the
transferring federal agency will ensure that appropriate actions will be
taken if a remedy is compromised. EPA should work with the transferring
agency to obtain and evaluate the information described below as a
precondition for EPA's support of federal property transfers under 120
(h)(3)(A),(B) or (C).  At a minimum, EPA should expect to obtain the
following information from the transferring federal agency:
        
1)     A legal description of the real property or other geographical
information sufficient to clearly identify the property where the
institutional controls will be implemented.

2)     A description of the anticipated future use(s) for the parcel.

3)      Identification of the residual hazard or risk present on the
parcel requiring the institutional control.  In addition, the specific
activities that are prohibited on the parcel should be identified,
including prohibitions against certain land use activities that might
affect the integrity of the remedy, such as well drilling and
construction.

4)      The specific institutional control language in substantially the
same form as it will appear in the transfer document and a description
of  the legal authority for the implementation of these controls, such
as state statutes, regulations, ordinances or other legal authority
including case law.
 
5)      A statement from the transferring federal agency that, in their
best professional judgement, the institutional controls conform or will
conform with the legal requirements of the applicable state and/or local
jurisdiction.  This statement should also explain how the institutional
controls will be enforceable against future transferees and successors. 
Compliance with the institutional control should be enforceable against
whoever might have ownership or control of the property.  For Base
Realignment and Closure properties, the majority of the transfers which
EPA reviews, this statement could be included in a memorandum
transmitting the final institutional control language for the deed of
transfer from a DoD component attorney to the Commanding Officer.  The
memorandum could state that, based upon a review of the particular
state's real estate laws, the component attorney believes that the
institutional control is binding in perpetuity and enforceable in state
court, and if it is not, he/she will revisit the institutional control
or the entire remedy decision.  This memorandum could be included in
DoD's "operating properly and successfully demonstration" letter to EPA
^6.

6)      A description of who will be responsible for monitoring the
integrity and effectiveness of the institutional controls and the
frequency of monitoring.  If this is a party other than the transferring
federal agency, the transferring federal agency should provide
documentation that the party accepts or will accept the responsibility. 
The transferring agency should also describe which specific party or
office will be responsible for overseeing the institutional controls. 
The transferring agency might, for example, provide details of the types
of assistance that other government agencies will provide in preventing
the drilling of drinking water wells as well as the frequency of
monitoring to ensure that drilling is not occurring.

7)      A description of the procedure that will be used to report
violations or failures of the institutional controls to the appropriate
EPA and/or state regulator, local or tribal government, and the
designated party or entity responsible for reporting.

8)      A description of the procedure that will be used to enforce
against violations of an institutional control, an identification of the
party or parties that will be responsible for such enforcement, and a
description of the legal authority for this enforcement procedure, such
as state statutes, regulations, ordinances, or other legal authority
including case law.
 
9)      Assurance that the transferring federal agency will verify
maintenance of the institutional control on a periodic basis unless
other arrangements have been made.  In the latter case, where another
party is performing the monitoring function, that party should provide
such assurances.  In addition, the transferring federal agency must
commit to verify the reports on a regular basis in this case. 

10)     A description of the recording requirements in the jurisdiction
where the site is located. The transferring agency also must describe
the methods it will use to provide notice of the institutional controls
at the site to subsequent owners or lessees.  

 6.0    Documentation of  Institutional Controls

What remedy selection documentation should EPA expect from the
transferring federal agency?

EPA may base its evaluation of  the institutional control on information
found in the following remedy selection, remedy design, or other
documents:

* RODs that contain sufficient information regarding institutional
controls. 

* Other post-ROD documents that are completed following the selection of
a remedy, such as a Remedial Design, Remedial Action Plan, or Operation
and Maintenance Plan.  This applies in cases where the ROD requires the
use of an institutional control but fails to provide sufficient
information regarding purpose, implementation, or enforcement (such as
in older RODs).

What if existing documents do not provide sufficient information on
institutional controls?

If none of the documents mentioned above provide sufficient detail on
the implementation of the institutional control, the transferring
federal agency should develop an "Institutional Control Implementation
Plan" (ICIP) to assist EPA in evaluating the effectiveness of the
institutional control.  The ICIP should adhere to the following
conditions:

* The ICIP should be a comprehensive strategy for the implementation of
institutional controls. 

* The ICIP should identify the parties responsible for implementing and
monitoring the institutional controls. 

* The ICIP should document that procedures adequate for effectively
implementing and monitoring the institutional control are in place or
will be put in place.  

* The level of detail in the ICIP should be commensurate with the risk
at the site.  Depending on the residual risk posed by the site, for
instance, EPA may require that the plan be agreed upon by both EPA and
state regulators and/or that the plan be structured as an agreement
among all the parties involved via a Memorandum of Agreement, amendment
of a ROD or Federal Facilities Agreement, or an operation and
maintenance plan.

7.0     "Operating Properly and Successfully Demonstrations"

How does this guidance apply to demonstrations that remedial actions are
"operating properly and successfully"?

In August 1996, EPA issued guidance to EPA's Regional Federal Facility
programs describing the approach EPA should use in evaluating a federal
agency's demonstration that a remedial action is "operating properly and
successfully" as a precondition to the deed transfer of federally-owned
property, as required in CERCLA section 120(h)(3)(B).  In that guidance,
entitled Guidance for Evaluation of Federal Agency Demonstrations that
Remedial Actions are Operating Properly and Successfully under CERCLA
Section 120(h)(3), EPA directed Regional decision-makers to consider a
number of factors in evaluating an "operating properly and successfully
demonstration" of ongoing remedial actions, including institutional
controls.  With respect to institutional controls, EPA stated generally
that:

"If the integrity of the remedial action depends on institutional
controls  (e.g., deed restrictions, well drilling prohibitions) these
controls should be clearly identified and agreed upon."

Additionally, under the more specific criteria that must be demonstrated
for groundwater remedies, the 1996 guidance included "appropriate
institutional controls are in place" as a criterion, but did not
describe how federal agencies should meet this requirement.  For ongoing
remedial actions involving institutional controls and for which EPA must
evaluate a transferring federal agency's demonstration that a remedial
action is operating properly and successfully, the information listed in
Section 5.0 of this guidance should be submitted as part of the data
requirements for the remedial action. 

What documentation does EPA need to evaluate "operating properly and
successfully demonstrations"?

The following documentation is needed for all "operating properly and
successfully demonstrations":

* The transferring federal agency should research, assemble, and analyze
the information to demonstrate to EPA that the remedy is operating
properly and successfully.  

* The cover letter forwarding the information to EPA should request
EPA's approval of the demonstration and include a statement by a
Commanding Officer or senior official similar to the following:

I certify that the information, data, and analysis provided are true and
accurate based on a thorough review.  To the best of my knowledge, the
remedy is operating properly and successfully, in accordance with CERCLA
120(h)(3)(B).

Generally, where institutional controls are a component of a remedy, EPA
should not consider "operating properly and successfully demonstrations"
that are not consistent with the requirements described above in
Sections 5.0 and 6.0.

When should information for "operating properly and successfully"
demonstrations be provided? 

EPA should encourage federal agencies preparing "operating properly and
successfully demonstrations" to work closely with EPA in planning the
scope and presentation of the documentation.  A minimum of 45 days is
needed for EPA to review all "operating properly and successfully
demonstrations."  

8.0     Coordination with State, Local, and Tribal Governments

What organizations should be involved in the development of
institutional controls?

Successful management of institutional controls is critical to
protecting the human health and environment of the communities where
federal properties are located.  For this reason, EPA encourages early
communication and cooperation among federal, state, local, and tribal
governments in the development of institutional controls and
implementation plans.  Where the viability of the institutional control
is contingent on state property law or where state institutional
control-related laws may apply (e.g., documentation of institutional
controls in a state registry), it is particularly important to
coordinate with the state.  As a matter of policy, therefore, EPA will
forward all institutional control information received for federal
property transfers to the appropriate state, local, and tribal
governments.  EPA also will solicit comments from these organizations as
appropriate.

9.0     Conclusion 

How will EPA evaluate institutional controls?

EPA prefers to work with federal agencies early in the remedy selection
process to assure full and consistent consideration of the long term
effectiveness of the institutional controls.  For this reason, it is
imperative that these discussions begin prior to remedy selection. 
Although the federal government has had less experience designing and
implementing institutional controls than engineered remedies, EPA will
use its professional judgement in evaluating institutional control
plans, as it does in evaluating other aspects of remedies and operations
and maintenance.  The basis for that judgment may vary depending on the
site characteristics.  EPA understands the importance of rapid reuse to
the surrounding communities and is committed to supporting this effort
while maintaining the Agency's primary goal of protecting human health
and the environment. 






 
^1. By "transferring federal agency" EPA means the federal agency
responsible for cleanup.
^2. See also 55 FR, page 8706 ( March 8, 1990).
^3. See CERCLA section 121 and 40 CFR 300.430.
^4. For more information, see EPA Guidance on the Transfer of Federal
Property by Deed Before All Necessary Remedial Action Has Been Taken
Pursuant to CERCLA Section 120(h)(3), June 16, 1998.
^5. For more information, see 55 FR section 300.430 (e)(9) (iii)(C)(2).
^6. This is consistent with DoD's own requirement in their guidance
Responsibility for Additional Environmental Cleanup after Transfer of
Real Property, which states "The DoD component disposal agent will also
ensure that appropriate institutional controls and other implementation
and enforcement mechanisms, appropriate to the jurisdiction where the
property is located, are either in place prior to the transfer or will
be put in place by the transferee."

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org


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