The U.S. Environmental Protection Agency (EPA) defines institutional controls (ICs) as non-engineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination, protect the integrity of the environmental cleanup remedy, or both.
Maintaining effective ICs is a priority at any site where these have been established as part of a remedy to protect human health and the environment. Over time, institutional knowledge can be lost when individuals from regulatory agencies and other entities leave or as property ownership changes. As a result, ICs can be forgotten, which increases the potential for violations. The U.S. Department of Energy (DOE) Office of Legacy Management (LM), in partnership with EPA, Ohio EPA, Ohio Department of Health and the City of Miamisburg, has made a concerted effort at Mound to prevent this from occurring.
The DOE remediated the Mound site property to the EPA's risk-based standards for industrial or commercial use, posturing the site to transition into a privately-owned business park. The City of Miamisburg created Mound Development Corporation (MDC) (originally known as the Miamisburg Mound Community Improvement Corporation), a nonprofit arm of the city that would manage, market, and redevelop the site as the Mound Business Park.
Because the site was not approved for unlimited use, ICs were imposed as part of the remedy defined in each Record of Decision, per the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Mound ICs were developed with input from the regulators, the public, the city of Miamisburg, regulators, and MDC. Some remedies were limited to a set of sitewide ICs; other areas of the Mound site also included remedies for contaminated groundwater or building-specific ICs. The Mound site ICs run with the land in the form of restrictions and covenants in quitclaim deeds or activity and use limitations in an environmental covenant.
The quitclaim deeds and the environmental covenant are recorded with Montgomery County, Ohio, so that all future property owners will know about the deed restrictions.
In addition to the ICs, the quitclaim deeds and environmental covenant allow rights of access to the site for federal and state agencies for sampling, monitoring, or remedial actions.
What We Learned
Maintaining long-term awareness of these ICs is a high priority for the Mound site as individuals with historical knowledge of the site (e.g., DOE, regulators, contractors who perform work at business park) move on or property ownership changes. We continually seek the most effective ways to maintain awareness of the ICs to avoid potential violations. It is important to educate and inform property owners and others of the IC restrictions.
IC awareness is especially important because 94% of the Mound property has transferred from DOE to MDC, and the MDC has leased or sold all buildings, constructed new buildings for lease, and continues to actively market remaining property for lease or sale.
In addition to the annual assessment of ICs required by a Federal Facilities Agreement between DOE, EPA and Ohio EPA, LM reaches out to each new property owner and has implemented or supported the following very important measures that provide additional layers of protection to ensure IC awareness and compliance in years to come:
- Annual face-to-face meeting with property owners. As part of the Mound site annual assessment of the effectiveness of ICs, LM contacts all property owners to schedule a property owner meeting and provide copies/discuss of the Mound Site Landowners – Institutional Controls Compliance Form. The form explains the ICs to help reinforce property owners’ understanding of each IC. The meeting with property owners provides an opportunity to respond to questions on the ICs or the Mound CERCLA site as a whole. Property owners are asked to sign and return the form, which is included in the annual IC assessment report. This meeting, where participation by property owners is entirely voluntary, encourages two-way communication; LM shares activity updates and property owners share information among themselves.
- Supplemental IC information for city construction/roadwork permit applications. To assure that Mound Business Park property owners and their contractors are informed about Mound CERCLA ICs, LM developed a simple handout describing the ICs, providing links to the LM Mound website and identifying points of contact. This will facilitate three-way communication between the permit applicant, the city, and LM about any limitations on work scheduled to be performed within Mound Business Park (e.g., excavated soil cannot be removed from the original DOE Mound site footprint).
- IC guidance for property owners. The Mound Core Team, consisting of DOE, EPA and Ohio EPA, issued two guidance papers to assist future property owners with IC compliance. The first guidance was specific to the former Technical (T) building, which has ICs that apply to certain areas of concrete flooring. This guidance provides guidelines to the building owner, so they can determine which future activities may be acceptable to the Core Team in the rooms having ICs. When MDC sold the former T building in 2018, LM provided this document to the new building owner. The second guidance provides a review of all the sitewide ICs and the best management practices to maintain compliance with the ICs when conducting future site activities. Both IC guidance documents are included in each annual IC effectiveness assessment report and provided to any new property owners.
- Request for Regulatory approval of a new site activity. The Mound Core Team developed this request form to give property owners a more formal way to submit their request regarding a new site activity that is not generally covered by the ICs. The Core Team reviews and makes a determination on the request, documenting in a signed Core Team memorandum. LM as the lead agency, would provide a response to the requestor based on the Core Team memorandum. Submitted requests, regardless of whether they are approved or disapproved, will be included in LM’s annual report on IC effectiveness. The form is available in the Site Operations and Maintenance Plan, which is available on the LM website and can also be sent directly to a property owner who poses question to LM or one of the Mound regulators.
- Special zoning district. The city of Miamisburg implemented a special zoning district for the Mound Business Park. The city sought LM’s input to review the draft zoning language and agreed to include the Mound CERCLA ICs in the zoning language. This special district imposes more restrictive land uses than allowed under the prior “I-2 General Industry” zoning and imposes building material, landscaping, and lighting requirements to ensure the Mound Business Park retains current aesthetics the local community has grown accustomed to. Although LM continues to be responsible for enforcing the ICs, the new special zoning district provides an additional protectiveness measure. The best practices discussed above can be applied to any site that requires ICs as part of its long-term stewardship program. It is vital to clearly identify the federal, state, tribal, local, and individual stakeholders who may be impacted by land use and other restrictions and work with those parties directly to ensure that they clearly understand the ICs and are able to comply with the restrictions.
For more information about the Mound CERCLA site, please visit our website.