18 AAC 75.375. Institutional controls

(a) The department will, after consultation with each landowner of the site, determine that the use of an institutional control is necessary, on a site-specific basis, if the department determines that controls are required to ensure

(1) compliance with an applicable cleanup level;

(2) protection of human health, safety, or welfare, or the environment; or

(3) the integrity of site cleanup activities or improvements.

(b) Institutional controls include

(1) the requirement for and maintenance of physical measures, such as fences and signs, to limit an activity that might interfere with cleanup or result in exposure to a hazardous substance at the site;

(2) the requirement for and maintenance of engineering measures, such as liners and caps, to limit exposure to a hazardous substance;

(3) restrictive covenants, easements, deed restrictions, or other measures that would be examined during a routine title search, and that limit site use or site conditions over time or provide notice of any residual contamination; and

(4) a zoning restriction or land use plan by a local government with land use authority.

(1) appurtenant to and run with the land so that the control is binding on each future owner of the site; and

(2) maintained by each responsible person or owner of the site.

(d) If the department determines any of the following are necessary to protect human health, safety, or welfare, or the environment, the department will require that institutional controls be designed to accomplish one or more of the following:

(1) prohibit activities on the site that might interfere with the site cleanup, operation and maintenance, monitoring, or other response actions;

(2) prohibit activities that might result in the release of a hazardous substance that was contained as a part of the site cleanup activities;

(3) require written notice to the department of any proposal to use the site in a manner that is inconsistent with a restrictive covenant or other measure described in (b)(3) of this section; and

(4) grant the department and its designated representatives the right to enter the property at reasonable times to evaluate compliance with the institutional control, including the right to take samples, inspect any cleanup actions taken at the site, and inspect records relating to the operation and maintenance of the institutional control.

(e) If the department determines that financial assurance is necessary to ensure protection of human health, safety, or welfare, or of the environment, the department will require a responsible person to provide financial assurance sufficient to cover costs of operation and maintenance, including compliance monitoring and corrective measures, for any institutional control.

(f) If the concentrations of all residual hazardous substances remaining at the site are subsequently determined to be below the applicable cleanup levels, the department will approve, at the owner's request, elimination of the institutional control.

History: Eff. 1/22/99, Register 149

Authority: AS 46.03.020

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