PDF version

U.S. Department of Energy                             POLICY     
                DOE P 454.1    Washington, D.C.
                                
                                  
                                                                 


SUBJECT:  USE OF INSTITUTIONAL CONTROLS 


PURPOSE AND SCOPE:  

This Policy delineates how the Department of Energy (DOE), including the National Nuclear
Security Administration, will use institutional controls in the management of resources, facilities
and properties under its control and to implement its programmatic responsibilities.  The Policy
will guide site-specific and programmatic decisions on DOE's own planning, maintenance and
implementation of institutional controls, and address responsibilities related to DOE's role as a
steward of Federal lands and properties, and identify activities that DOE needs to accomplish. 

DOE uses a wide range of institutional controls as part of efforts to:
     appropriately limit access to, or uses of, land, facilities and other real and personal
     properties; 
     protect the environment (including cultural and natural resources); 
     maintain the physical safety and security of DOE facilities; and 
     prevent or limit inadvertent human and environmental exposure to residual contaminants
     and other hazards.

The purpose of this Policy is to ensure that DOE programs:
     reaffirm a DOE-wide commitment to use institutional controls effectively;
     establish a consistent approach to the implementation, delegation, documentation,
     maintenance and reevaluation of institutional controls as an integral part of missions and
     operational activities;
     integrate the use of well-designed, effective, and reliable institutional controls with other
     tools to manage, monitor, and transfer lands and real and personal property under DOE
     control; and
     apply institutional controls in a cost-effective way and maximize the use of low-
     maintenance institutional controls to the extent possible.

The Office of Environment, Safety and Health is responsible for developing guidance for the
implementation of this Policy, and will coordinate this effort with Headquarters and field offices. 
DOE line management including operations office managers, field office managers, the service
center director and lead program secretarial offices have primary responsibility for implementing
this Policy for properties under their control, for properties released or transferred from their
control or for properties they accept for control or oversight.  DOE line management is
responsible for ensuring that institutional control needs are addressed as part of relevant
integrated safety management and environmental management systems.  DOE functional offices
such as budget, chief information officer, legal, safety, and personal and real property
management have staff responsibility for assisting line management with implementation of this
policy, and related directives.

This Policy is only intended to improve the internal management of the Department, and is not
intended to create any right or benefit, substantive or procedural, enforceable at law by a party
against the Department of Energy.  This policy does not alter or amend any institutional control
under applicable law or enforceable agreement, and any terms, definitions, or implementation of
this policy do not expand or modify the scope of requirements or authorities of existing laws and
regulations.

BACKGROUND:

DOE is a responsible Federal land manager and steward of natural and cultural resources at DOE
sites.  DOE uses institutional controls to manage lands, facilities, materials and resources under
its jurisdiction.  In certain circumstances these institutional controls may be authorized by, or
required as part of the decision process established by, various laws such as the Nuclear Waste
Policy Act; the Atomic Energy Act; the Resource Conservation and Recovery Act; the
Comprehensive Environmental Response, Compensation and Liability Act, or cultural resource
management statutes.  In other cases there are no specific statutory requirements, but DOE has
decided to use institutional controls to supplement active remediation, pollution control, public
and resource protection, physical security, or to bolster the integrity of engineered remedies.  

Institutional controls may include administrative or legal controls, physical barriers or markers,
and methods to preserve information and data and inform current and future generations of
hazards and risks.  Because of the different needs and objectives for institutional controls and the
different types used throughout DOE, the term "institutional controls" is used in a broader
context in this Policy than it may be used in internal and external regulatory requirements or
policies established under individual statutes.  This broader application of the term is necessary
to encompass the diverse institutional controls used throughout DOE in a consistent yet flexible,
policy framework.  Additionally, differences among the various types of DOE facilities often
lead to systematic tailoring of institutional controls.

DOE uses institutional controls as components in   
     protection of waste disposal operations, 
     conduct of normal operations and site security,
     maintenance of storage facilities,
     conduct of restoration and cleanup programs, and 
     management of natural and cultural resources. 

POLICY: 

In situations where unrestricted use or unrestricted release of property is not desirable, practical,
or possible, institutional controls are necessary and important to DOE efforts to fulfill its
programmatic responsibilities to protect human health and the environment (including natural
and cultural resources).  It is DOE policy to use institutional controls as essential components of
a defense-in-depth strategy that uses multiple, relatively independent layers of safety to protect
human health and the environment (including natural and cultural resources).  This strategy uses
a graded approach to attain a level of protection appropriate to the risks involved.  DOE will use
a graded approach to determine what types and levels of protective measures (e.g., physical,
administrative, etc.) should be used.

The Department will implement institutional controls, along with other mitigating or preventive
measures as necessary, to provide a reasonable expectation that if one control temporarily fails,
other controls will be in place, or actions will be taken, to mitigate significant consequences of
the failure.  Institutional controls are not to be used to circumvent or substitute for permanent
solutions when such solutions are reasonably achievable.  Institutional controls will not be
applied, or will be terminated, when DOE determines that such controls are not necessary or
required.

Implementation Goals:

DOE will apply and implement institutional controls in an integrated manner to ensure that:
     the purpose for controls is identified clearly, need for the controls is well established and
     has been considered early in planning processes consistent with integrated safety
     management, and both purpose and need are documented and made available to the
     public as appropriate and allowed by law; 
     mechanisms are in place to ensure controls are effective, implemented as planned,
     properly maintained, inventoried, periodically reevaluated, and modified as necessary to
     reflect changes in conditions, needs or technological advancements;
     where multiple institutional control needs or goals exist at the same site, the institutional
     controls address relevant requirements or goals in an integrated cost effective and
     protective manner;
     actions are taken to maintain long-term site stability, minimize reliance on institutional
     controls, and keep maintenance requirements for such controls as low as practicable; and
     decisions to terminate or reduce controls (e.g., because of mitigating actions, scientific
     advances, natural attenuation, or changes in policy or programmatic needs) are
     documented and publicly available, as appropriate.

DOE will maintain the institutional controls as long as necessary to perform their intended
protective purposes and seek sufficient funds.

Property Issues:

The need for institutional controls on real and personal property may be related directly to the
property that requires control (e.g., the presence of residual contamination, waste or cultural
resources) or may be an indirect result of a requirement associated with neighboring activities
(e.g., land is required to be under DOE control because of conditions specified in a DOE
disposal authorization or because the land is used as a buffer in a safety analysis).  Institutional
controls may be necessary for property that DOE will retain indefinitely, for property under
consideration for transfer, and for property that has actually been transferred.

Before DOE authorizes transfer of property, there will be a reasonable expectation that:
     all necessary institutional controls can be maintained after the transfer, and 
     the new owner (whether a DOE or non-DOE entity) understands and is capable of
     meeting its institutional control responsibilities.

DOE will determine whether responsibility for required institutional controls on transferred
property can be maintained by subsequent owners consistent with applicable law.   If this
implementation responsibility cannot be reliably assured, then DOE will retain necessary
responsibility and authority for the institutional controls, including continued ownership of the
property if necessary.  The respective responsibilities of DOE and the new owner for any
required institutional controls will be documented and communicated to all directly involved
parties at the time of transfer.  Before accepting property from non-DOE entities, DOE will
determine whether it can accept continuing responsibility for previously or newly established
institutional controls.

For properties that it does not own or directly control (e.g., uranium mill tailings remedial action
properties needing controls to restrict access to ground water), DOE will arrange for appropriate
institutional controls, to the extent that DOE is required to take such actions.  Actions to ensure
that these institutional controls are durable may involve coordination with State, local, or tribal
governments and other entities having jurisdiction over the properties, or where appropriate, the
use of DOE authorities for the protection of public health and safety, the environment, and
national security.

BY ORDER OF THE SECRETARY OF ENERGY:


          
    KYLE E. McSLARROW
    Deputy Secretary