When institutional controls are assumed in determining target concentrations,
the owner and operator shall file institutional control requirements in the
county deed records of the county or counties in which the property affected
by the institutional control is located. Institutional controls shall be required
when such action is needed to demonstrate control or elimination of exposure
pathways in a manner consistent with §334.203(1) or (2) of this title
(relating to Risk-Based Criteria for Establishing Target Concentrations).
Institutional controls may also be required to provide notice to future land
owners that residual regulated substances are present at the site when the
site is considered protective so long as there is no substantial change in
site conditions or use of the property which would change the exposure conditions.
All institutional control information filed in the county deed records must
be written such that a layperson can easily understand it.
(1) Institutional controls may be required as part of the corrective
action plan when:
(A) the residential cumulative carcinogenic risk level exceeds
1 X 10-5 for Class A and B carcinogens for residential
use properties (child or adult);
(B) the commercial/industrial cumulative carcinogenic risk
level exceeds 1 X 10-5 level for Class A and
B carcinogens for commercial/industrial use properties;
(C) an engineering or legal control is needed to eliminate
an otherwise viable exposure pathway;
(D) sites not zoned commercial/industrial that are to close
under commercial/industrial land use assumption and adjoin residential property
when the same site under a residential land use assumption would exceed a
cumulative carcinogenic risk of 1 x 10-4 or a
hazard index of unity (one); and
(E) when requested by the agency.
(2) The owner and operator, or the agency, may recommend the
specific conditions of the institutional control. In the event the agency
and the owner and operator are unable to agree upon a suitable institutional
control, then the agency will require target concentrations to be established
so as to eliminate a need for an institutional control.
(3) Institutional controls may only be employed on sites when
the owner(s) of the affected property(ies) is/are in agreement with the placement
and the conditions of the institutional control. A written statement signed
by the owner, or their designated agent, of each property directly affected
by the placement of the institutional control must be provided to the agency
by the owner and operator which indicates that the owner of the affected property
understands the requirements set forth in §334.206 of this title (relating
to Criteria for Institutional Control Use) and agrees with the placement and
terms of the institutional control.
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