EP 1110-1-24
15 Dec 00
6-3. Implementing an Institutional Control Program.
a. Legal Framework and Regulatory Programs.
(1) Federal, state, and local governments play a key role in the implementation of institutional
control programs at OE-contaminated sites. These agencies may use existing programs that they
already administer to implement an institutional control program. By using such programs, the Federal,
state, and/or local agency can show the legal authority and jurisdiction necessary to implement the
proposed institutional control.
(2) In general, Federal and state regulatory agencies have direct legal authority to protect human
health and the environment, prevent releases of contaminants, and control activities at contaminated sites
through the statutory authority provided under CERCLA and RCRA. In a similar manner, state and
local government agencies typically have authority and jurisdiction in the implementation of land use
zoning and land use plans, the issuance of building permits, the enforcement of public health programs,
and the enforcement of statewide environmental programs.
b. Deed Language for Proprietary Controls and Other Commitments.
(1) Ensuring that the correct deed language is used to implement a legal mechanism, such as a
deed restriction, is critical to the success of the restriction. The specific language necessary to make the
restriction enforceable within the jurisdiction often varies depending on the state in which the site is
located. An example of deed language to establish a reversionary interest is included in Appendix G.
This example is provided for illustrative purposes only and should not be used without appropriate legal
review. The appropriate legal language will vary depending on site specific conditions and state and
local law.
(2) The American Society of Testing and Materials Risk Based Cleanup and Assessment
Guidelines outline four general conditions that must be met to make a deed restriction binding and
enforceable. They include:
(a) The restriction must be in writing.
(b) The duration of the restriction must be specified. For the restriction to be held in perpetuity
the phrase "runs with the land" is commonly used.
(c) For enforcement purposes, parties must have privity of estate (i.e., a real relationship to the
land). Therefore, the state or other government entity must be the buyer or seller in order to enforce the
6-4
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