By Steven M. Siros, Partner, Jenner & Block
U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") recently issued revised guidance relating to the use of institutional controls at Superfunds sites and other contaminated properties. The first guidance document, titled "Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites", is intended to provide site managers, attorneys, and other interested persons with information and recommendations concerning the use of institutional controls at CERCLA, Brownfields, underground storage tanks and RCRA site cleanups.
The guidance provides an overview on the various types and generally discusses the role of institutional controls in site cleanups. The guidance discusses the importance of evaluating institutional controls early in the site cleanup process as well as evaluating the full life-cycle of the proposed institutional control. The guidance stresses the importance of meeting with community members and local government representatives throughout the institutional control's life cycle. Finally, the guidance also addresses the need to carefully consider state law requirements when implementing institutional controls, especially in situations where there may be competing recorded interests such as mortgages, tax liens, or utility interests.
U.S. EPA's OSWER also issued revised guidance on the development of Institutional Control Implementation and Assurance Plans ("ICIAPs"). This second guidance, titled "Institutional Controls: A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites", provides a template to the Regions for developing ICIAPs at sites where institutional controls are to be utilized. Although not required, an ICIAP provides a useful framework for ensuring that all the requirements for implementation of an institutional control are followed and compiled into a single document.
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