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Jenner & Block: New EPA Guidance On Institutional Controls

   By E. Lynn Grayson, Partner, Jenner & Block

EPA has released guidance on the use of institutional controls at CERCLA, RCRA and UST sites. The guidance titled Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing Institutional Controls at Contaminated Sites is the second in a series of guidance developed by the Agency. The first document was issued in September 2000 titled Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups.

The purpose of this new guidance is to provide managers of contaminated sites, site attorneys, and other interested parties with information and recommendations that should be useful for planning, implementing, maintaining, and enforcing institutional controls (ICs) for CERCLA, or Superfund; Brownfields; federal facility; UST; and RCRA site cleanups. It highlights some of the common issues that may be encountered and provides an overview of EPA's policy regarding the roles and responsibilities of the parties involved in the various life-cycle stages of ICs while recognizing that there are some differences among the cleanup programs.

EPA defines institutional controls as "non-engineered instruments, such as administrative and legal controls, that help to minimize the potential for exposure to contamination" and help "protect the integrity of a response action." The controls are typically designed to work by limiting land and resource use or by providing information that helps modify or guide human behavior at a site.

Also in December, the agency issued a guidance document for EPA regional offices to assist them in developing institutional control implementation and assurance plans. The document is titled Institutional Controls: A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites.

This guidance provides EPA regions with a template for developing an institutional control implementation and assurance plan (ICIAP) at contaminated sites where the response action includes an institutional controls component.

An ICIAP is a document designed to systematically establish and document activities associated with implementing and ensuring the long-term stewardship of institutional controls and to specify the persons and entities responsible for conducting the activities.

The guidance for regions recommends that the ICIAP be developed before, or at the same time as, the design of the engineered response-such as brownfields remedial work plans-and finalized with the design completion.

The guidance on institutional controls for managers of contaminated sites and other interested parties is available at

The guide on institutional controls for EPA regions is available at

E. Lynn Grayson is a partner in Jenner & Block's Chicago office and a member of the Firm's Environmental, Energy and Natural Resources Law, Climate and Clean Technology Law, Defense & Aerospace and Environmental Litigation Practices. Ms. Grayson is AV Peer Review Rated, Martindale-Hubbell's highest peer recognition for ethical standards and legal ability. Ms. Grayson has been recognized as one of The Best Lawyers in America, an Illinois Super Lawyer and Lawdragon magazine named Ms. Grayson to its "New Stars, New Worlds" list of 500 attorneys who are "carving the path to the new heights of the legal profession." Chambers USA and Leading Lawyers Network have recognized Ms. Grayson as one of the country's leading environmental lawyers as recommended by a peer review process.

Read more at Corporate Environmental Lawyer Blog by Jenner & Block LLP.

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