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Superfund

Superfund Institutional Controls: Guidance and Policy

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The implementation of ICs in Indian Country presents unique circumstances that can be distinguished from the EPA's current ICs practice and guidance that is derived from traditional English and American real property law and government legal theory. This cross-program handbook is designed to recognize these unique circumstances, to reinforce the EPA's policy to engage tribes early in thecleanup process and to ensure that tribes receive the same level of protectiveness as states during and after cleanups.

This guidance identifies and addresses many of the common issues that may be encountered when using ICs pursuant to several of the Agency's cleanup programs (Superfund remedial and removal, federal facilities, Brownfields, underground storage tanks, and Resource Conservation and Recovery Act sites). It also provides an overview of the Agency's policy regarding the roles and responsibilities of stakeholders involved in various aspects of the IC life cycle, namely the planning, implementing, maintaining, and enforcing of ICs.

This guidance provides EPA Regions with a template for developing IC plans (i.e., ICIAPs) at contaminated sites where the response action includes ICs. An ICIAP is a document designed to systematically: (a) establish and document the activities associated with implementing and ensuring the long-term stewardship of ICs: and (b) specify the persons and/or entities that will be responsible for conducting these activities.

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This guidance supplements OSWER's 2001 Comprehensive Five-Year Review Guidance and provides recommendations for conducting five-year reviews for the IC component of remedies in a manner similar to the review of engineering or other remedy components.

On September 20,2002, OSWER and OECA jointly issued a memorandum requesting Regions to redouble their attention to EPA's "enforcement first" policy.' 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 purpose of this document is to serve as a reference for policy guidelines concerning the use of ICs. The IC Bibliography covers 40 guidance and policy documents and provides citations and brief synopses of the IC use and policy information contained in each.

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The purpose of this guide is to provide community members with general information about the role of ICs in Superfund, Brownfields, Federal Facilities, Underground Storage Tanks (UST) and Resource Conservation and Recovery Act (RCRA) cleanups occurring in their neighborhoods. This guide will also discuss the community's role in providing input for the selection of ICs and helping to monitor them to ensure that human health and the environment remain protected in the future.

The purpose of this memorandum is to distribute the attached document entitled, "Institutional Controls: Third-Party Beneficiary Rights in Proprietary Controls." This document was drafted with assistance from the EPA Regions and cleanup program offices through the National Institutional Controls Enforcement Policy Workgroup. The document provides information, primarily for EPA attorneys, on designating third-party beneficiaries in proprietary institutional controls to ensure more effective controls by affording an additional means of enforcement.

This guidance is intended to provide Superfund and RCRA site managers and other decision makers with an overview of the types of ICs that are commonly available, including their relative strengths and weaknesses, and to provide a discussion of the key factors to consider when evaluating and selecting ICs in Superfund and RCRA Corrective Action cleanups.

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