ASTM E2091-22

This international standard was developed in accordance with internationally recognized principles on standardization established in the Decision on Principles for the
Development of International Standards, Guides and Recommendations issued by the World Trade Organization Technical Barriers to Trade (TBT) Committee.
Designation: E2091 − 22
Standard Guide for
Use of Activity and Use Limitations, Including Institutional
and Engineering Controls
This standard is issued under the fixed designation E2091; the number immediately following the designation indicates the year of
original adoption or, in the case of revision, the year of last revision. A number in parentheses indicates the year of last reapproval. A
superscript epsilon (´) indicates an editorial change since the last revision or reapproval.
INTRODUCTION
Valuable property, which is, or is perceived to be, environmentally impacted, remains idle
throughout the fifty states because fears of liability and corrective action costs deter potential
developers, purchasers, and lenders. In response, many states have adopted voluntarycorrectiveaction
or brownfields programs that utilize risk-based corrective action principles. One element of these
programs may beactivityanduselimitations to achieve either an “acceptablerisk”ora“nosignificant
risk” level. For example, an owner/operator who volunteers to remediate a site to meet an industrial
or commercial use standard may do so in exchange for a restrictive covenant that limits the use of the
site to industrial or commercial purposes only. Activity and use limitations should be considered an
integral part of the remedial action selection process. The user may determine, based upon
post-remedial action land use, or based upon the deficiencies in available activity and use limitations,
that an activity and use limitation is not feasible for the site. The most effective use of activity and use
limitations as part of a federal, state, tribal or local remediation program requires careful consideration
of many factors, including effectiveness, amenability to integration with property redevelopment
plans, implementability, technical practicability, cost prohibitiveness, long-term reliability, acceptabil-
ity to stakeholders, and cost effectiveness. While this guidance is most likely to be applied where
risk-based corrective actions are conducted, use of activity and use limitations is not restricted to
risk-based applications. Both institutional and engineering controls may be employed as elements of
a remedial action that is based on concentration level, background, or other non-risk-based
approaches.
1. Scope identify, implement and maintain the types of activity and use
limitations that may be appropriate in programs using a
1.1 This guide covers information for incorporating activity
risk-based decision-making approach.
and use limitations that are protective of human health and the
environment into federal, state, tribal or local remediation
1.3 This guide identifies screening and balancing criteria
programs using a risk-based approach to corrective action.
that should be applied in determining whether any particular
Activity and use limitations should be considered early in the
activity and use limitation may be appropriate. This guide
site assessment and remedial action selection process, and
identifies the need to develop long-term monitoring and
should be considered an integral part of remedial action
stewardship plans to ensure the long-term reliability and
selection. In the event that an appropriate activity and use
enforceability of activity and use limitations. This guide
limitation cannot be found, the user may need to revisit the
explains the purpose of activity and use limitations in the
initial remedial action selection decision.
remedial action process and the types of activity and use
limitations that are most commonly available.
1.2 This guide does not mandate any one particular type of
activity and use limitation but merely serves to help users
1.4 This guide describes the process for evaluating poten-
tially applicable activity and use limitations and using and
screening and balancing criteria to select one or more activity
This guide is under the jurisdiction of ASTM Committee E50 on Environmental
Assessment, Risk Management and Corrective Action and is the direct responsibil-
and use limitations for a specific site. The guide also describes
ity of Subcommittee E50.02 on Real Estate Assessment and Management.
some “best practices” from a transactional, stakeholder
Current edition approved Sept. 1, 2022. Published November 2022. Originally
involvement, and long-term stewardship perspective. The
approved in 2000. Last previous edition approved in 2019 as E2091 – 19. DOI:
10.1520/E2091-22. guide also emphasizes the importance of considering the need
Copyright © ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959. United States
E2091 − 22
for, and potential applicability of, activity and use limitations EPA Strategy to Ensure Institutional Control Implementation
EARLY in the remedial action process. This guide can be used at Superfund Sites, OSWER No. 9355.0-106, (September
to effectively implement risk based corrective action. 2004)
EPA, A Citizen’s Guide to Understanding Institutional
1.5 All references to specific Federal or state programs are
Controls at Superfund, Brownfields, Federal Facilities,
current as of the date of publication. The user is cautioned not
Underground Storage Tank, and Resource Conservation
to rely on this guide alone but to consult directly with the
and Recovery Act Cleanups (March 2005)
appropriate program.
EPA, Long Term Stewardship: Ensuring Environmental Site
1.6 The values stated in SI units are to be regarded as
Cleanups Remain Protective Over Time (September 2005)
standard. No other units of measurement are included in this
EPA, National Strategy to Manage Post Construction
standard.
Completion Activities at Superfund Sites (October 2005)
1.7 This standard does not purport to address all of the
EPA, “Enforcement First” to Ensure Effective Institutional
safety concerns, if any, associated with its use. It is the
Controls at Superfund Sites (March 2006)
responsibility of the user of this standard to establish appro-
EPA. Ensuring Effective and Reliable Institutional Controls
priate safety, health, and environmental practices and deter-
at RCRA Facilities, September 2007
mine the applicability of regulatory limitations prior to use.
Recommended Evaluation of Institutional Controls: Supple-
1.8 This international standard was developed in accor-
ment to the “Comprehensive Five-Year Review Guid-
dance with internationally recognized principles on standard-
ance” OSWER Directive 9355.7-18, September 2011
ization established in the Decision on Principles for the
Enforcement Discretion Guidance Regarding the Affiliation
Development of International Standards, Guides and Recom-
Language of CERCLA’s Bona Fide Prospective Purchaser
mendations issued by the World Trade Organization Technical
and Contiguous Property Owner Liability Protections,
Barriers to Trade (TBT) Committee.
September 2011
Enforcement Discretion Guidance Regarding Statutory Cri-
2. Referenced Documents
teria for Those Who May Qualify as CERCLA Bona Fide
Prospective Purchasers, Contiguous Property Owners, or
2.1 ASTM Standards:
Innocent Landowners ("Common Elements"), (July 2019)
E1527 Practice for Environmental Site Assessments: Phase I
Superfund Liability Protections for Local Government Ac-
Environmental Site Assessment Process
quisitions after the Brownfields Utilization, Investment,
E1689 Guide for Developing Conceptual Site Models for
and Local Development Act of 2018 (June 2020)
Contaminated Sites
Institutional Controls: A Guide to Planning, Implementing,
E1848 Guide for Selecting and Using Ecological Endpoints
Maintaining, and Enforcing Institutional Controls at Con-
for Contaminated Sites
taminated Sites; OSWER 9355.0-89 December 2012
E2081 Guide for Risk-Based Corrective Action
Institutional Controls: A Guide to Preparing Institutional
E2205 Guide for Risk-Based Corrective Action for Protec-
Control Implementation and Assurance Plans at Contami-
tion of Ecological Resources
nated Sites, OSWER 9200.0-77 December 2012
E2247 Practice for Environmental Site Assessments: Phase I
Implementing Institutional Controls in Indian Country ,
Environmental Site Assessment Process for Forestland or
Office of Site Remediation Enforcement, Office of En-
Rural Property
forcement and Compliance Assurance November 2013
E2435 Guide for Application of Engineering Controls to
State Brownfields and Voluntary Response Programs,EPA-
Facilitate Use or Redevelopment of Chemical-Affected
42-F-14-215, December 2014
Properties
Cleaning Up Brownfields Under State Response Programs –
E2616 Guide for Remedy Selection Integrating Risk-Based
Getting to No Further Action, EPA 560-K-16-002, August
Corrective Action and Non-Risk Considerations
E2790 Guide for Identifying and Complying With Continu-
ing Obligations
2.3 Other Documents:
E2876 Guide for Integrating Sustainable Objectives into
American Bar Association Implementing Institutional Con-
Cleanup
trols at Brownfields and Other Contaminated Sites
nd
(Edwards, 2 ed., 2012)
2.2 USEPA Documents:
NCCUSL (National Conference of Commissioners on Uni-
EPA’s Institutional Controls: A Site Manager’s Guide to
form State Laws), UECA Legislative Update
Identifying, Evaluating and Selecting Institutional Con-
ASTSWMO, State Approaches To Monitoring And Over-
trols at Superfund and RCRA Corrective Action Cleanups
sight of Land Use Controls (October 2009)
(September 29, 2000)
2 4
For referenced ASTM standards, visit the ASTM website, www.astm.org, or Available at
contact ASTM Customer Service at service@astm.org. For Annual Book of ASTM http://www.uniformlaws.org/
Standards volume information, refer to the standard’s Document Summary page on LegislativeMap.aspx?title=Environmental%20Covenants%20Act
the ASTM website. Available from Association of State and Territorial Solid Waste Management
Available from National Service Center for Environmental Publications Officials (ASTSWMO), 444 North Capitol Street, NW, Suite 315, Washington, DC
(https://.nepis.epa.gov). 20001, http://www.astswmo.org.
E2091 − 22
10 CFR 20.1402 and 20. 1403 Energy—Radiological Crite- legal or physical restrictions are intended to prevent adverse
ria for Unrestricted Use; Criteria for License Termination impacts to individuals or populations, or environmental recep-
under Restricted Conditions tors that may be exposed to chemicals of concern.
10 CFR 30.36(d), 40.42(d), 50.82(a) and (b), 70.38(d), and
3.2.3 affırmative easement—one where the servient estate
72.54 Energy—Expiration and Termination of Licenses
must permit something to be done thereon, as to pass over it,
10 CFR 830 Energy—Nuclear Safety Management
or to discharge water on it.
40 CFR 300.430(a)(1)(iii)(D) Protection of Environ-
3.2.4 all appropriate inquiries—an inquiry conducted prior
ment National Oil and Hazardous Substances Pollution
to the date of acquisition of the property constituting “all
Contingency Plan
appropriate inquiries into the previous ownership and uses of
40 CFR 761.61(a), 761.61(a)(3)(i), 761.61(a)(7), and
the property consistent with good commercial and customary
761.61(a)(8) Protection of Environment—Polychlorinated
practice” as defined in CERCLA, 42 U.S.C. 9601(35)(B), and
Biphenyls (PCBs) Manufacturing, Processing, Distribu-
tion in Commerce, and Use Prohibitions—PCB Remedia- in EPA’s regulations, 40 C.F.R. Part 312, that will qualify a
party to a commercial real estate transaction for one of the
tion Waste
40 CFR 761.75(b)(1)(ii) through (b)(1)(v) Protection of threshold requirements that an owner of commercial real estate
Environment—Polychlorinated Biphenyls (PCBs) must satisfy in order to be eligible for any of the Landowner
Manufacturing, Processing, Distribution in Commerce, Liability Protections under CERCLA (42 U.S.C. 9601(35)(B),
and Use Prohibitions—Chemical Waste Landfills 9607(b)(3), 9607(q), and 9607(r)), assuming compliance with
42 USC 9620(h)(3) Comprehensive Environmental other elements of the defense.
Response, Compensation, and Liability Act
3.2.5 appurtenant easement—an easement that benefits a
Department of Defense Defense Environmental Restoration
particular tract of land. An incorporeal right which is attached
Program (DERP) Management Department of Defense
to a superior right and inheres in land to which it is attached
MANUAL NUMBER 4715.20 March 9, 2012
and is in the nature of a covenant running with the land. There
Department of Energy Guidance for Developing and Imple-
must be a dominant estate and a servient estate.
menting Institutional Controls for Long-Term Surveil-
3.2.6 attribute—a characteristic of a geographic feature
lance and Maintenance at DOE Legacy Management
described by numbers, characters, images and CAD drawings,
Sites, January 2015
Interstate Technology and Regulatory Council , Long-Term typically stored in tabular format and linked to the feature by
a user assigned identifier (for example, the attributes of a well
Contaminant Management Using Institutional Controls,
December 2016 might include depth and gallons per minute). A column in a
database table.
Weissman & Sowinski , Revitalizing the Brownfields Revi-
talization and Restoration Act: Harmonizing the Liability
3.2.7 bona fide prospective purchaser (BFPP)—a person
Defense Language to Achieve Brownfield Restoration, 33
who meets the criteria set forth in CERCLA 101(40) (42
VA. ENVTL. L.J. 257 (2015)
U.S.C. 9601(40)) qualifies as a bona fide prospective pur-
chaser. Generally, a BFPP can be a person who purchases
3. Terminology
property knowing that it is already contaminated. Among other
3.1 The reader should review the definitions presented
requirements, BFPPs must make all appropriate inquiries into
herein prior to reviewing this guide, as many of the items
the previous ownership and uses of the property prior to
included in this guide may have specific regulatory definitions
acquiring theproperty and all disposal ofhazardoussubstances
within existing federal, state, tribal, or local programs. The
at the property must have occurred prior to acquisition. The
following terms are being defined to reflect their specific use in
property must have been acquired after January 11, 2002.
this guide. Many of these definitions are taken directly from
3.2.8 Brownfields Amendment of 2002—amendments to
Guide E2081, E2205, E2790 and Practice E1527. The user
CERCLA contained in the Small Business Liability Relief and
should not assume that these definitions replace existing
Brownfields Revitalization Act, Pub. Law No. 107–118 (2002),
regulatory definitions. Where the definition or use of a term in
42 U.S.C 9601 et seq.
this standard differs from an existing regulatory definition or
use, the user should address these differences prior to proceed-
3.2.9 chemical release—any spill or leak or detection of
ing with the corrective action process.
concentrations of chemical(s) of concern in environmental
media.
3.2 Definitions of Terms Specific to This Standard:
3.2.1 acceptable risk—risk which is deemed to be below a
3.2.10 chemical(s) of concern—the specific compounds and
level of regulatory concern.
their breakdown products that are identified for evaluation in
3.2.2 activity and use limitations, or AULs—legal or physi- the risk-based corrective action process. Identification can be
cal restrictions or limitations on the use of, or access to, a site based on their historical and current use at a site, detected
or facility to eliminate or minimize potential exposures to concentrations in environmental media, and their mobility,
chemicals of concern, or to prevent activities that could toxicity and persistence in the environment. Because chemicals
interfere with the effectiveness of a response action, to ensure of concern may be identified at many points in the risk-based
maintenance of a condition of “acceptable risk”or“no corrective action process, the term should not be automatically
significant risk” to human health and the environment. These construed to be associated with increased or unacceptable risk.
E2091 − 22
3.2.11 computer-aided design (CAD)—an automated system 3.2.19 deed restriction—a restriction or limitation on an
for the design, drafting, and display of graphically oriented interest in real property, created by a conveyance from one
person to another.
information.
3.2.20 direct exposure pathway—an exposure pathway
3.2.12 contiguous property owner (CPO)—a person who
where the point of exposure is at the source, without a release
meets the criteria set forth in CERCLA 107(q)(1)(A) (42
to any other medium and without an intermediate biological
U.S.C. 9607(q)(1)(A)) qualifies as a contiguous property
transfer step.
owner. Contiguous property owners are persons who own
3.2.21 easement in gross—an easement in gross is not
commercial real estate that is contiguous to and that is or may
appurtenant to any estate in land or does not belong to any
be contaminated by hazardous substances from other property
person by virtue of ownership of an estate in other land but is
not owned by that person.
merely a personal interest in or right to use the land of another.
3.2.13 coordinate system—a reference system used to mea-
Easements that do not benefit a particular tract of land (for
sure horizontal and vertical distances on a planimetric map.
example, utility easements).
3.2.14 continuing obligations—those obligations that a pur-
3.2.22 easement of access—right of ingress and egress to
chaser must satisfy post-closing in order to maintain one of the
and from the premises of a lot owner to a street appurtenant to
Landowner Liability Protections (LLPs) offered under the
the land of the lot owner.
Brownfields Amendments of 2002. These obligations include
3.2.23 easements—a right of use over the property of
the requirement to (1) be in compliance with any land use
another. Traditionally, the permitted kinds of uses were limited,
restrictions established or relied on in connection with the
the most important being rights of way and rights concerning
response action at the facility,(2) not impede the effectiveness
flowing waters. The easement was normally for the benefit of
or integrity of any institutional controls employed in connec-
adjoining lands, no matter who the owner was (an easement
tion with a response action,(3) take reasonable steps with
appurtenant), rather than for the benefit of a specific individual
respect to releases of hazardous substances, including stopping
(easement in gross). The land having the right of use as an
continuing releases, preventing threatened future releases, and
appurtenance is known as the dominant tenement and the land
preventing or limiting human, environmental or natural re-
which is subject to the easement is known as the servient
source exposure to prior releases of hazardous substances,(4)
tenement.
provide full cooperation, assistance and access to persons who
3.2.24 ecological evaluation—a process for organizing and
are authorized to conduct response actions or natural resource
analyzing data, information, assumptions and uncertainties to
restoration at a property, (5) comply with information requests
evaluate the likelihood that adverse effects to relevant ecologi-
and administrative subpoenas, and (6) provide legally required
cal receptors or habitats may occur or are occurring as a result
notices with respect to releases of any hazardous substances at
of exposure to chemical(s) of concern; see Guides E1848,
a property. (See Guide E2790.)
E2205, E2616.
3.2.15 corrective action—the sequence of remedial actions 3.2.25 engineering controls—physical modifications to a
site or facility to reduce or eliminate the potential for exposure
that include site assessment and investigation, risk assessment,
response actions, interim remedial action, remedial action, to chemicals of concern (for example, slurry walls, capping,
hydraulic controls for ground water, or point of use water
operation and maintenance of equipment, monitoring of
treatment).
progress, making no further action determinations, and termi-
3.2.25.1 Discussion—Some states define this term differ-
nation of the remedial action.
ently. For example, Pennsylvania includes within its definition
3.2.16 corrective action goals—concentration or other nu-
of engineering controls only those measures which control the
meric values, physical condition or remedial action perfor-
movement of chemicals of concern through the environment
mance criteria that demonstrate that no further action is
(such as slurry walls, liner systems, caps, leachate collection
necessary to protect human health and the environment. For
systems and groundwater recovery trenches; See Guide
example, these goals may include one or a combination of
E2435).
RBSL, SSTL, RESC, SSEC and ORMC chosen for source
3.2.26 environmental covenant—a covenant adopted pursu-
area(s), point(s) of demonstration and point(s) of exposure.
ant to a state’s version of the Uniform Environmental Cov-
The corrective action goals are specific to each Tier in the
enants Act.An environmental covenant has certain attributes,
evaluation.
created by statute, that make it more reliable, durable and
3.2.17 coverage—a digital version of a map that forms the
enforceable than most other types of AULs.
basis of the GIS.A coverage stores geographic features and
3.2.27 equitable servitudes—building restrictions and re-
associated feature attribute tables.
strictions on the use of land which may be enforced in equity.
If there is a scheme in their creation, a subsequent owner may
3.2.18 database—a logical collection of interrelated
enforce them by injunctive relief against another subsequent
information, managed and stored as a unit, usually on some
owner. Such servitudes are broader than covenants running
form of mass-storage system such as magnetic tape or disk. A
with the land because they are interests in land.
GISdatabase includes data about the spatial location and shape
of geographic features recorded as points, lines, areas, pixels,
3.2.28 exposure—contact of an organism with chemicals of
grid cells, or tins, as well as their attributes. concern at the exchange boundaries (for example, skin, lungs,
E2091 − 22
and liver) when the chemicals of concern are available for dissolved, or liquid phase, or to reduce the concentrations of a
absorption or adsorption. chemical of concern at a source area.
3.2.29 exposure assessment—the determination or estima-
3.2.39 institutional control—a legal or administrative
tion (qualitative or quantitative) of the magnitude, frequency,
mechanism designed to limit, prohibit, or condition the use of,
duration and route of exposure between a source area and a
or access to a site or facility (for example, restrictive covenant,
receptor.
environmental covenant, easement and zoning) to eliminate or
3.2.30 exposure pathway—the course a chemical(s) of con-
minimize potential exposure(s) to chemical(s) of concern.
cern takes from the source area(s) to a receptor or relevant
3.2.40 land use restriction (LUR)—a limitation placed on
ecological receptor and habitat. Anexposurepathway describes
the use or enjoyment of real property. This term was used, but
the mechanism by which an individual or population is
not defined, in the Brownfields Amendments of 2002 ((42
exposed to a chemical(s) of concern originating from a site.
U.S.C. 9601(35(A), 9601(40), 9607(q)(1)(A)(v)(I)) as one of
Each exposure pathway includes a source or release from a
the criteria with which a person must be in compliance in order
source of a chemical concern, a point of exposure,an exposure
to qualify for one of the LLPs. Specifically, a property owner
route, and the potential receptors or relevant ecological recep-
must be “in compliance with any land use restrictions estab-
tors and habitats.Ifthe exposure point is not at the source, a
lished or relied on in connection with the response action at the
transport or exposure medium or both (for example, air or
water) are also included. facility.”
3.2.40.1 Discussion—See, for example, Edwards, Land Use
3.2.31 exposure route—the manner in which a chemical(s)
of concern comes in contact with a receptor (for example, Restrictions and Institutional Controls under the Brownfields
ingestion, inhalation, dermal contact). Amendments of 2002, in American Bar Association, IMPLE-
MENTING INSTITUTIONAL CONTROLS AT BROWN-
3.2.32 exposure scenario—the description of the
FIELDS AND OTHER CONTAMINATED SITES, at pp.
circumstances, including site properties and chemical
119-20 (Amy L. Edwards ed.) (2d ed. 2012); Weissman &
properties, or the potential circumstances under which a
Sowinski, Revitalizing the Brownfields Revitalization and
receptor or a relevant ecological receptor or habitat could be in
Restoration Act: Harmonizing the Liability Defense Language
contact with chemical(s) of concern.
to Achieve Brownfield Restoration, 33 VA. ENVTL. L.J. 257,
3.2.33 facility—the property containing the source of the
279-307 (2015); EPA Interim Guidance Regarding Criteria
chemical(s) of concern where a release has occurred. Afacility
Landowners Must Meet in Order to Quality for Bona Fide
may include multiple sources and, therefore, multiple sites.
Prospective Purchaser, Contiguous Property Owner, or Inno-
3.2.34 geographic information system (GIS)—a geographic
cent Landowner Limitations on CERCLA Liability (Common
information system (GIS) is a computer-based tool for
Elements).
tracking, mapping and analyzing resources using either an
explicit geographic reference, such as a latitude and longitude
3.2.41 landowner liability protections (LLPs)—the land-
or national grid coordinate, either from entry of this data from
ownerliabilityprotections established or modified by Congress
geographical location devices or by geographical coding an
under the 2002 Amendments to CERCLA, which include the
address or other descriptive location.GIS technology integrates
bona fide prospective purchaser, contiguous property owner,
common database operations such as query and statistical
and innocent landowner liability protections. See §§ 42 U.S.C.
analysis with the visualization and geographic analysis benefits
9601(35)(A)-(B), 9601(40), 9607(b), 9607(q), and 9607(r).
offered by maps.
3.2.42 map query—the process of selecting information
3.2.35 global positioning system (GPS)—a system of satel-
from a GIS by asking spatial or logical questions of the
lites and receiving devices used to compute positions on the
geographic data.
Earth. GPS is used in navigation, and its precision supports
3.2.42.1 Discussion—Spatial query is the process of select-
cadastral surveying.
ing features based on location or spatial relationship (for
3.2.36 highest and best use—the reasonably probable and
example, select all monitoring wells within 300 ft of the river).
legal use of vacant land or an improved property, which is
Logical query is the process of selecting features whose
physically possible, appropriately supported, financially
attributes meet specific logical criteria (for example, select all
feasible, and that results in the highest value. The four criteria
groundwater data whose value for benzene is greater than 5
that the highest and best use must meet are legal permissibility,
ug/l or select all data whose value is “non-detect”). Once
physical possibility, financial feasibility, and maximum profit-
selected, additional operations can be performed, such as
ability.
drawing them, listing their attributes or summarizing attribute
3.2.37 indirect exposure pathways—an exposure pathway
values.
with at least one intermediate release to any media, or an
intermediate biological transfer step, between the source and
3.2.43 natural attenuation—the reduction in the mass or
the point(s) of exposure (for example, chemicals of concern
concentration(s) of chemicals of concern in environmental
from soil through ground water to the point(s) of exposure).
media due to naturally occurring physical, chemical and
biological process (for example, diffusion, dispersion,
3.2.38 interim remedial action—the course of action to
reduce migration of chemical(s) of concern in its vapor, adsorption, chemical degradation and biodegradation).
E2091 − 22
3.2.44 negative easement—an easement where the owner of 3.2.53 qualitative risk analysis—a non-numeric evaluation
the servient estate is prohibited from doing something other- of the potential risks at a site as determined by the potential
wise lawful upon his estate, because it will affect the dominant exposure pathways and receptors based on known or reason-
estate (for example, a prohibition on excavation deeper than 10 ably available information.
ft).
3.2.54 reasonably anticipated future use—future use of a
3.2.45 nosignificantrisk—risk which is deemed to be below
site or facility that can be predicted with a reasonably high
a level of regulatory concern. This level may vary among states degree of certainty given historical use, current use, local
and federal agencies, among regulatory programs, among
government planning and zoning, regional trends and commu-
media and pathways of concern, and among receptors. The nity acceptance.
terminology may also vary from jurisdiction to jurisdiction,
3.2.55 receptors—the persons that are or may be affected by
and from regulatory program to regulatory program (for
a chemical release. (See relevant ecological receptors and
example, “acceptable risk level” or some similar term indicat-
habitats, for non-human receptor.)
ing that remedial measures have reached the target level for
3.2.56 registry act requirements—requirements that are im-
protecting human health and the environment).
posed by certain state statutes requiring that a list be main-
3.2.46 other relevant measurable criteria (ORMC)—
tained identifying properties that have been the site of hazard-
parameters used to define corrective action goals for chemi-
ous waste disposal and that may have restrictions on use or
cal(s) of concern. The ORMC are concentration values, other
transfer.
numeric values, physical condition or performance criteria
3.2.57 relevant ecological receptors and habitats—the eco-
other than RBSL, RESC, SSTL or SSEC. Examples of ORMC
logical resources that are valued at the site. Because of the
are regulatory standards, consensus criteria, aesthetic criteria,
variety of ecological resources that may be present, focusing
and groundwater protection criteria (see Guides E2616 and
upon those relevant to a site is an important part of the problem
E2876). Technical policy decisions regarding ORMC may
formulation phase of ecological evaluation. Identification of
exist, or may need to be made to determine the appropriate
relevant ecological receptors and habitats is dependent upon
values, conditions or performance criteria that are used for the
site-specific factors and technical policy decisions. Examples
corrective action goals.
may include species or communities afforded special protec-
3.2.46.1 Discussion—Culturally-important tribal resources
tion by law or regulation; recreationally, commercially or
may also drive ORMC, see EPA Implementing Institutional
culturally important resources; regionally or nationally rare
Controls in Indian Country, November 2013.
communities; communities with high aesthetic quality;
3.2.47 point(s) of demonstration—a location(s) selected be-
habitats, species or communities that are important in main-
tween the source area(s) and the potential point(s) of exposure
taining the integrity and bio-diversity of the environment.
where corrective action goals are met.
3.2.58 relevant ecological screening criteria (RESC)—
3.2.48 point(s) of exposure—the point(s) at which an indi-
generic, non-site-specific ecological criteria or guidelines that
vidual or population may come in contact with a chemical(s) of
are determined to be applicable to relevant ecological recep-
concern originating from a site.
tors and habitats, exposure pathways and site conditions
3.2.49 potentially complete exposure pathway—a situation
utilized during the Tier 1 evaluation. These may include
with a reasonably likely chance of occurrence in which a
chemical concentrations, biological measures or other relevant
receptor or relevant ecological receptor or habitat may become
generic criteria consistent with the technical policy decisions.
directly or indirectly exposed to the chemical(s) of concern.
(See Guide E2205.)
3.2.50 proprietary—belonging to ownership; owned by a
3.2.59 remedial action—activities conducted to reduce or
particular person; belonging or pertaining to a proprietor;
eliminate current or future exposures to receptors or relevant
relating to a certain owner or proprietor.
ecological receptors and habitats. These activities include
3.2.51 proprietary controls—controls based on the rights monitoring, implementing activity and use limitations, and
designing and operating clean-up equipment. Remedial action
associated with private ownership, particularly ownership of a
limited interest in real property as specified in a legal includes activities that are conducted to reduce sources of
exposures to meet corrective action goals, or to sever exposure
instrument, such as an easement or a restrictive covenant.
pathways to meet corrective action goals.
3.2.52 qualitative ecological screening evaluation—a pro-
cess conducted as part of the Tier 1 evaluation whereinrelevant 3.2.60 response action—means action to respond or a
ecological receptors and habitats and exposure pathways are response, as those terms are defined in CERCLA §101(25), 42
identified. The necessary information can be collected as part U.S.C. 9601(25), to releases of hazardous substances.
of the data gathering activities during the initial site assessment Generally, response action operates as an umbrella term to
or the Tier 1 site assessment. Within Tier 1, this screening-level cover any type of hazardous substance cleanup at a property,
information, which is typically qualitative, may be used to including “removal actions” and “remedial actions” as those
evaluate potential exposure pathways to relevant ecological terms are defined in CERCLA §§101(23)-(24), 9601(23)-(24).
receptors and habitats and to identify potential chemical(s) of Response action also covers corrective action measures, in-
concern. If available, generic, non-site-specific ecological cri- cluding risk-based corrective action measures, taken to address
teria and guidelines may be used to evaluate complete and chemicals of concern in general, or under state cleanup
potentially complete exposure pathways. programs or voluntary cleanup programs.
E2091 − 22
3.2.61 response action evaluation—a qualitative evaluation 3.2.71 site conceptual model—the integrated representation
of a site based on known or readily available information to of the physical and environmental context, the complete and
identify the need for interim remedial actions and further potentially complete exposure pathways, and the potential fate
information gathering. Response action evaluation is intended and transport of chemical(s) of concern at a site. The site
to prioritize sites and identify whether there are any appropriate conceptual model should include both the current understand-
early risk reduction steps. ing of the site and the understanding of the potential future
conditions and uses for the site. It provides a method to
3.2.62 restricteduselevel—acorrectiveaction cleanup level
conduct the exposure pathway evaluation and to inventory the
where one or more activity and use limitations would be
exposure pathways evaluated and the status of the exposure
needed to eliminate or mitigate potential exposures to chemi-
pathways as incomplete, potentially complete or complete.
calsofconcern, or to prevent activities that could interfere with
This model may be developed using Guide E1689.
the effectiveness of aresponseaction, to ensure maintenance of
3.2.72 site conditions—a general description of a site’s
a level of “acceptable risk”or“no significant risk.”
chemical, physical or biological characteristics that relate to
3.2.63 restrictive covenant—provision in a deed or lease
potential exposures to receptors or relevant ecological recep-
limiting the use of the property and prohibiting certain uses. In
tors and habitats.
the context of property law, the term describes a contract
3.2.73 site specific—activities, information and data unique
between the grantor and the grantee that affects the grantee’s
to a particular site.
use and occupancy of land.
3.2.74 site-specific ecological criteria (SSEC)—risk-based
3.2.64 risk assessment—an analysis of the potential for
qualitative or quantitative criteria for relevant ecological re-
adverse effects on receptors and relevant ecological receptors
ceptors and habitats identified for a particular site under the
and habitats, caused by a chemical(s) of concern from a site.
Tier 2 or Tier 3 evaluations. These criteria may include
The risk assessment activities are the basis for the development
chemical concentrations, biological measures or other relevant
of corrective action goals and determination of where interim
generic criteria consistent with the technical policy decisions.
remedial or a combination of actions are required.
SSEC may be revised as data are obtained that better describe
3.2.65 risk reduction—the lowering or elimination of the the conditions and the relevant ecological receptors and
level of risk posed to human health or the environment through habitats.
response action, interim remedial actions, remedial action or a
3.2.75 site-specifictargetlevel(s)(SSTL)—risk-based values
combination of actions.
for chemicals of concern that are protective of human health
for specific exposure pathways developed for a particular site
3.2.66 risk-based corrective action—a consistent decision-
under the Tier 2 or Tier 3 evaluations.
making process for the assessment and response to chemical
releases based upon protection of human health and the
3.2.76 source area(s)—the source area(s) is defined as the
environment. Assessment and responses to chemical releases
location of non-aqueous phase liquid (NAPL) chemical, the
may consider the use of activity and use limitations.
locations of highest soil or ground water concentrations of the
chemical(s) of concern, or the location releasing the chemi-
3.2.67 risk-based screening level/screening levels (RBSL)—
cal(s) of concern.
non-site-specific human health risk-based values for chemicals
3.2.77 stakeholders—individuals, organizations, or other
of concern that are protective of human health for specified
entities that directly affect or may be directly affected by the
exposure pathways utilized during the Tier 1 evaluation.
corrective action. Stakeholders include, but are not limited to,
3.2.68 servient estate—an estate burdened by an easement.
owners, purchasers, developers, lenders, tenants, utilities,
3.2.69 site—the area(s) defined by the likely physical dis- insurers, government agencies, Indian tribes, community
groups, and members.
tribution of the chemical(s) of concern from a source area. A
site could be an entire property or facility, a defined area or
3.2.78 stigma—the residual loss in value above and beyond
portion of a facility or property, or multiple facilities or
the actual cost to cure or control the environmental condition of
properties. One facility may contain multiple sites. Multiple
concern if such extraordinary loss is evident in the market-
sites at one facility may be addressed individually or as a
place. Stigma generally is a result of uncertainty as to the cost,
group.
effectiveness or permanency of the methodology of cure/
control, or uncertainty concerning the environmental regula-
3.2.70 site assessment—the characterization of a site
tory agencies’ endorsement of such methodology or results.
through an evaluation of its physical and environmental
Stigma is a time-dependent phenomena and as such may be
context (for example, subsurface geology, soil properties and
only temporary in effect.
structures, hydrology and surface characteristics) to determine
if a release has occurred, the levels of the chemical(s) of 3.2.79 technical policy decisions—the choices specific to
concern in environmental media, and the likely physical the User that are necessary to implement the risk-based
distribution of the chemical(s) of concern. As an example, the corrective action framework described in Guides E2081 and
site assessment collects data on soil, ground water and surface E2205, or any replacement standards thereto, at a particular
water quality, land and resource use, and potential receptors, site. The decisions involve regulatory policies, value
and generates information to develop a site conceptual model judgments, different stakeholder decisions and using profes-
and support risk-based decision-making. sional judgment to evaluate available information; therefore,
E2091 − 22
there may be more then one scientifically supportable answer 4.1.2 Provide notice to property owners, holders of interests
for any particular technical policy decision. The choices in the property, title companies, utilities, tenants, realtors,
represent different approaches. The User should consult the lenders, developers, appraisers and others of the presence and
regulatory agency requirements to identify the appropriate location of chemicals of concern that may be present on the
technical policy decisions prior to implementing the risk-based site;
corrective action process. Examples of technical policy deci- 4.1.3 Identify the objectives and goals of each activity and
sions are: data quality objectives, target risk levels, land use,
use limitation, as an integral component of the corrective
reasonably anticipated future use, ground water use, natural action plan for site remediation plan;
resource protection, relevant ecological receptors and habitats,
4.1.4 Identify the exposure assumptions upon which each
stakeholder notification and involvement, andexposure factors.
activity and use limitation is based;
4.1.5 Identify the site uses and activities which, if they were
3.2.80 Uniform Environmental Convenant Act—a model
to occur in the future, would be appropriate and consistent with
law adopted by the National Conference of Commissioners on
maintaining a condition of “acceptable risk”or“no significant
Uniform State Laws in 2003. The model law must be enacted
risk”;
in individual states before a person can enter into an environ-
4.1.6 Identify the site uses and activities which should NOT
mental covenant in that state.
occur in the future (unless further evaluation and remedial
3.2.81 unrestricted use level—a corrective action level
action, as appropriate, are undertaken), as those activities and
where residential uses would be permissible without the need
uses may result in the exposure of persons or ecological
for any activity and use limitations.
receptors tochemicalsofconcern at or near thesite in a manner
3.2.82 user—An individual or group involved in remedia- that is inconsistent with a condition of “acceptable risk”or“no
tion involving risk-based decision-making principles, and in- significant risk”;
volving the use of activity and use limitations. Users include
4.1.7 Specify long-term stewardship objectives, and the
owners, operators, regulators, underground storage tank fund entity which has responsibility for developing stewardship
managers, attorneys, consultants, legislators and other stake-
programs and paying for achieving those objectives, including
holders. Two specific types of users are envisioned. The first is any periodic statements or certification(s) of compliance; and
the individual or group addressing a site or sites under the
4.1.8 Specify long-term performance standards, such as
circumstances where an activity and use limitation is part of the
operation and maintenance obligations, or monitoring of an
proposed or final remedial action. The second is a regulatory
engineering control, that are necessary to ensure that the
agency that is developing regulations or guidance regarding the
objectives and goals of activity and use limitations continue to
use of activity and use limitations as part of its corrective
be met.
action program, whether conducted pursuant to a voluntary
4.2 Activity and use limitations should be implemented to
corrective ac
...