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Institutional Controls at Superfund Sites

May 1993

Citation: 23 ELR 10279

Issue: 5

Author: David F. Coursen

Institutional controls (ICs) are restrictions on the use of land. In the context of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),1 they are used to reduce the dangers to the public from releases or threatened releases of hazardous substances or dangerous pollutants or contaminants. ICs are used frequently as part of the overall strategy for cleaning up a release, instead of or in addition to active response measures, such as treatment or disposal. ICs, such as restrictive zoning, may operate broadly by preventing particular activities or classes of activities at or near a site. ICs may also be narrow, specific restrictions, such as fencing off a particular area and prohibiting entry, or restricting the use of contaminated groundwater.

While CERCLA does not expressly provide for ICs, they are consistent with CERCLA's purpose. CERCLA recognizes that a remedial action may "result] [ in … hazardous substances … remaining at [a] site."2 In addition, it states that relocation of affected persons or facilities may be an appropriate part of a remedy if "such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances."3

David F. Coursen has been an attorney for the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C., for the last five years. Previously, he was a staff attorney for the U.S. Court of Appeals for the Fifth Circuit. He graduated from the University of Oregon Law School. Mr. Coursen most recently was the author of Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law, 22 ELR 10778. The views expressed in this Article are solely the author's and do not represent the views of EPA.

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