ASTM E2091-00
(Guide)Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls
Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls
SCOPE
1.1 This guide covers information for incorporating activity and use limitations that are protective of human health and the environment into federal, state, tribal or local remediation programs using a risk-based approach to corrective action. Activity and use limitations should be considered early in the site assessment and remedial action selection process, and should be considered an integral part of remedial action selection. In the event that an appropriate activity and use limitation cannot be found, the user may need to revisit the initial remedial action selection decision.
1.2 This guide does not mandate any one particular type of activity and use limitation but merely serves to help users identify, implement and maintain the types of activity and use limitations that may be appropriate in programs using a risk-based decision-making approach.
1.3 This guide identifies screening and balancing criteria that should be applied in determining whether any particular activity and use limitation may be appropriate. This guide identifies the need to develop long-term monitoring and stewardship plans to ensure the long-term reliability and enforceability of activity and use limitations. This guide explains the purpose of activity and use limitations in the remedial action process and the types of activity and use limitations that are most commonly available.
1.4 This guide describes the process for evaluating potentially applicable activity and use limitations and using screening and balancing criteria to select one or more activity and use limitations for a specific site. The guide also describes some "best practices" from a transactional, stakeholder involvement, and long-term stewardship perspective. The guide also emphasizes the importance of considering the need for, and potential applicability of, activity and use limitations EARLY in the remedial action process.
1.5 All references to specific Federal or state programs are current as of the date of publication. The user is cautioned not to rely on this guide alone but to consult directly with the appropriate program.
1.6 This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use.
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Designation:E2091–00
Standard Guide for
Use of Activity and Use Limitations, Including Institutional
and Engineering Controls
This standard is issued under the fixed designation E 2091; 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 (e) 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,andlenders.Inresponse,manystateshaveadoptedvoluntarycorrectiveaction
or brownfields programs that utilize risk-based corrective action principles. One element of these
programsmaybeactivityanduselimitationstoachieveeitheran“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
limitationsaspartofafederal,state,tribalorlocalremediationprogramrequirescarefulconsideration
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 limitations that may be appropriate in programs using a
risk-based decision-making approach.
1.1 This guide covers information for incorporating activity
1.3 This guide identifies screening and balancing criteria
and use limitations that are protective of human health and the
that should be applied in determining whether any particular
environment into federal, state, tribal or local remediation
activity and use limitation may be appropriate. This guide
programs using a risk-based approach to corrective action.
identifies the need to develop long-term monitoring and
Activity and use limitations should be considered early in the
stewardship plans to ensure the long-term reliability and
site assessment and remedial action selection process, and
enforceability of activity and use limitations. This guide
should be considered an integral part of remedial action
explains the purpose of activity and use limitations in the
selection. In the event that an appropriate activity and use
remedial action process and the types of activity and use
limitation cannot be found, the user may need to revisit the
limitations that are most commonly available.
initial remedial action selection decision.
1.4 This guide describes the process for evaluating poten-
1.2 This guide does not mandate any one particular type of
tially applicable activity and use limitations and using screen-
activity and use limitation but merely serves to help users
ingandbalancingcriteriatoselectoneormoreactivityanduse
identify, implement and maintain the types of activity and use
limitations for a specific site. The guide also describes some
“best practices” from a transactional, stakeholder involvement,
ThisguideisunderthejurisdictionofASTMCommitteeE50onEnvironmental and long-term stewardship perspective. The guide also empha-
Assessment and is the direct responsibility of Subcommittee E50.02 on Commercial
sizes the importance of considering the need for, and potential
Real Estate Transactions.
Current edition approved May 10, 2000. Published July 2000.
Copyright © ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959, United States.
E2091–00
applicability of, activity and use limitations EARLY in the physical restrictions are intended to prevent adverse impacts to
remedial action process. individuals or populations that may be exposed to chemicals of
1.5 All references to specific Federal or state programs are concern.
current as of the date of publication. The user is cautioned not
3.1.3 affırmative easement—one where the servient estate
to rely on this guide alone but to consult directly with the
must permit something to be done thereon, as to pass over it,
appropriate program.
or to discharge water on it.
1.6 This standard does not purport to address all of the
3.1.4 appurtenant easement—an easement that benefits a
safety concerns, if any, associated with its use. It is the
particular tract of land. An incorporeal right which is attached
responsibility of the user of this standard to establish appro-
to a superior right and inheres in land to which it is attached
priate safety and health practices and determine the applica-
and is in the nature of a covenant running with the land. There
bility of regulatory limitations prior to use.
must be a dominant estate and a servient estate.
3.1.5 chemical release—any spill or leak or detection of
2. Referenced Documents
concentrations of chemical(s) of concern in environmental
media.
2.1 ASTM Standards:
E 1527 Practice for Environmental SiteAssessments: Phase 3.1.6 chemical(s) of concern—the specific compounds and
I Environmental Site Assessment Process their breakdown products that are identified for evaluation in
E 1599 Guide for Corrective Action for Petroleum Re- the risk-based corrective action process. Identification can be
leases based on their historical and current use at a site, detected
E 1739 Guide for Risk-Based Corrective Action Applied at concentrations in environmental media, and their mobility,
Petroleum Release Sites toxicityandpersistenceintheenvironment.Becausechemicals
E 1912 Guide for Accelerated Site Characterization for of concern may be identified at many points in the risk-based
Confirmed or Suspected Petroleum Releases corrective action process, the term should not be automatically
E 1943 Guide for Remediation of Ground Water by Natural construed to be associated with increased or unacceptable risk.
Attenuation at Petroleum Release Sites
3.1.7 corrective action—the sequence of remedial actions
E 2081 Guide for Risk-Based Corrective Action
that include site assessment and investigation, risk assessment,
2.2 USEPA Documents:
response actions, interim remedial action, remedial action,
EPA/540/4-96/018 Soil Screening Guidance
operation and maintenance of equipment, monitoring of
Land Use in the CERCLA Remedy Selection Process, OS-
progress, making no further action determinations, and termi-
WER Directive No. 9355.7-04, May 25, 1995
nation of the remedial action.
Institutional Controls: A Reference Manual (March 1998)
3.1.8 corrective action goals—concentration or other nu-
meric values, physical condition or remedial action perfor-
3. Terminology
mance criteria that demonstrate that no further action is
necessary to protect human health and the environment. For
3.1 Definitions of Terms Specific to This Standard: The
example, these goals may include one or a combination of
reader should review the definitions presented herein prior to
RBSL, SSTL, RESC, SSEC and ORMC chosen for source
reviewing this guide, as many of the items included in this
area(s),point(s)ofdemonstrationandpoint(s)ofexposure.The
guide may have specific regulatory definitions within existing
corrective action goals are specific to each Tier in the evalua-
federal,state,tribal,orlocalprograms.Thefollowingtermsare
tion.
being defined to reflect their specific use in this guide. Many of
these definitions are taken directly from Guide E 2081. The 3.1.9 deed restriction—a restriction or limitation on an
user should not assume that these definitions replace existing interest in real property, created by a conveyance from one
person to another.
regulatory definitions. Where the definition or use of a term in
this standard differs from an existing regulatory definition or
3.1.10 direct exposure pathway—an exposure pathway
use, the user should address these differences prior to proceed- where the point of exposure is at the source, without a release
ing with the corrective action process.
to any other medium and without an intermediate biological
3.1.1 acceptable risk—risk which is deemed to be below a transfer step.
level of regulatory concern.
3.1.11 easement in gross—an easement in gross is not
3.1.2 activity and use limitations, or AULs—legal or physi-
appurtenant to any estate in land or does not belong to any
cal restrictions or limitations on the use of, or access to, a site
person by virtue of ownership of an estate in other land but is
or facility to eliminate or minimize potential exposures to
merely a personal interest in or right to use the land of another.
chemicals of concern, or to prevent activities that could
Easements that do not benefit a particular tract of land (e.g.,
interfere with the effectiveness of a response action, to ensure
utility easements).
maintenance of a condition of “acceptable risk” or “no signifi-
3.1.12 easement of access—right of ingress and egress to
cant risk” to human health and the environment.These legal or
and from the premises of a lot owner to a street appurtenant to
the land of the lot owner.
3.1.13 easements—a right of use over the property of
another.Traditionally,thepermittedkindsofuseswerelimited,
Annual Book of ASTM Standards, Vol 11.04.
the most important being rights of way and rights concerning
Available from Superintendent of Documents, US Government Printing Office,
Washington, DC 20402. flowing waters. The easement was normally for the benefit of
E2091–00
adjoining lands, no matter who the owner was (an easement address or other descriptive location. GIS technology inte-
appurtenant), rather than for the benefit of a specific individual grates common database operations such as query and statis-
(easement in gross). The land having the right of use as an
tical analysis with the visualization and geographic analysis
appurtenance is known as the dominant tenement and the land
benefits offered by maps.
which is subject to the easement is known as the servient
3.1.24 highest and best use—the reasonably probable and
tenement.
legal use of vacant land or an improved property, which is
3.1.14 ecological evaluation—a process for organizing and
physically possible, appropriately supported, financially fea-
analyzing data, information, assumptions and uncertainties to
sible, and that results in the highest value.The four criteria that
evaluate the likelihood that adverse effects to relevant ecologi-
the highest and best use must meet are legal permissibility,
cal receptors or habitats may occur or are occurring as a result
physical possibility, financial feasibility, and maximum profit-
of exposure to chemical(s) of concern.
ability.
3.1.15 engineering controls—physical modifications to a
3.1.25 indirect exposure pathways—an exposure pathway
site or facility to reduce or eliminate the potential for exposure
with at least one intermediate release to any media, or an
to chemicals of concern (for example, slurry walls, capping,
intermediate biological transfer step, between the source and
hydraulic controls for ground water, or point of use water
the point(s) of exposure (for example, chemicals of concern
treatment).
from soil through ground water to the point(s) of exposure).
3.1.16 equitable servitudes—building restrictions and re-
3.1.26 interim remedial action—the course of action to
strictions on the use of land which may be enforced in equity.
reduce migration of chemical(s) of concern in its vapor,
If there is a scheme in their creation, a subsequent owner may
dissolved, or liquid phase, or to reduce the concentrations of a
enforce them by injunctive relief against another subsequent
chemical of concern at a source area.
owner. Such servitudes are broader than covenants running
with the land because they are interests in land. 3.1.27 institutional control—a legal or administrative re-
striction on the use of, or access to a site or facility to eliminate
3.1.17 exposure—contact of an organism with chemicals of
or minimize potential exposures to a chemical(s) of concern
concern at the exchange boundaries (for example, skin, lungs,
(for example, deed restrictions, restrictive zoning).
and liver) when the chemicals of concern are available for
absorption or adsorption.
3.1.28 natural attenuation—the reduction in the mass or
3.1.18 exposure assessment—the determination or estima-
concentration(s) of chemicals of concern in environmental
tion (qualitative or quantitative) of the magnitude, frequency,
media due to naturally occurring physical, chemical and
duration and route of exposure between a source area and a
biological process (for example, diffusion, dispersion, adsorp-
receptor.
tion, chemical degradation and biodegradation).
3.1.19 exposure pathway—the course a chemical(s) of con-
3.1.29 negative easement—an easement where the owner of
cern takes from the source area(s) to a receptor or relevant
the servient estate is prohibited from doing something other-
ecological receptor and habitat. An exposure pathway de-
wise lawful upon his estate, because it will affect the dominant
scribes the mechanism by which an individual or population is
estate (for example, a prohibition on excavation deeper than 10
exposed to a chemical(s) of concern originating from a site.
ft).
Each exposure pathway includes a source or release from a
3.1.30 no significant risk—risk which is deemed to be
source of a chemical concern, a point of exposure, an exposure
below a level of regulatory concern. This level may vary
route, and the potential receptors or relevant ecological recep-
among states and federal agencies, among regulatory pro-
tors and habitats. If the exposure point is not at the source, a
grams, among media and pathways of concern, and among
transport or exposure medium or both (for example, air or
receptors. The terminology may also vary from jurisdiction to
water) are also included.
jurisdiction, and from regulatory program to regulatory pr
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