The USEPA released on September 13, 2011 new guidance titled “Recommended Evaluation of Institutional Controls: Supplement to the Comprehensive Five Year Review Guidance” providing recommendations for the monitoring and inspection of ICs.  The new USEPA guidance recommends that “ICs be mentioned specifically in the overall protectiveness statement when long-term protectiveness hinges on compliance with ICs.”  The EPA guidance directly addresses the five year review process on Superfund sites, but in doing so it also adds a new ingredient in defining best practice for maintaining the integrity and effectiveness and assuring compliance with ICs.  EPA’s transmittal letter explains:

 

"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."

 

The guidance solves a problem in the five-year review process when Superfund remedies are evaluated for their protectiveness.  Prior to the guidance, there were no developed methods to evaluate how institutional controls performed.  The new guidance ratchets the effectiveness of ICs at Superfund sites, and likely will inform state and private practice. The guidance will also become procedurally important in Continuing Obligations.  All in all institutional compliance is ratcheting up.  

 

I hope as you review, you find like I did that this is a step forward in increasing the ability to rely upon ICs in remedies.

 

See link at: http://shortlinks.terradex.com/IC_Policy