Institutional Controls

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Institutional Controls

• Pamela Elkow and Richard Fil

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Institutional Controls

• Introduction
• Types
• Purposes
• Stakeholders
• Procedures

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Institutional Controls (ICs)

• Non-engineering measures to affect human
  activities to prevent or reduce exposure
• May be legal or administrative
• Usually used in conjunction with physical
  controls and/or active remediation

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Purposes

• Eliminate or restrict exposure pathways
• Ensure integrity of engineering controls
• Limit land uses
• Prohibit use of resources
• Notify public of former activities / residual
  impacts

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Benefits

• May be used in place of technically infeasible or
  economically impracticable alternatives
• May take advantage of less stringent clean-up
  standards
• Accelerate completion of field work

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Sources of Guidance

• ASTM Standard E 2091-00
• EPA Site Managers Guide to Using ICs
• State environmental agencies

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Types of ICs

• Informational devices
• Governmental controls
• Enforcement tools
• Proprietary controls

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Informational Devices

• Weakest
• Merely put public on notice
• No property interest conveyed

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Governmental Controls

• Relatively easy to change
• Unanticipated exceptions (e.g., day care center
  at office building)
• Enforced by local / state government
• Third parties must be aggrieved to enforce or
  appeal change

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Enforcement Tools

• Includes orders and permits
• Binding only on respondent / signatory
• Not transferable
• Enforced by governmental agency

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Proprietary Controls

• Creates a property interest
• Limits site use or activity
• Runs with the land
• Binding on successors
• Can only be enforced by grantee or successors

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Layering of ICs

• Concurrent use of different ICs
• Redundant, but varying, ICs may prevent breakdown
• Ideally, different ICs are managed by different
  entities

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ICs Used in Series

• Different ICs may be utilized consecutively
• Initial enforcement action
• Completion of remedial efforts
• Implementation of engineering controls
• Recordation of activity and use limitation

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Considerations for Selecting ICs

• Costs of alternative cleanup goals
• Limitations on property use
• Effect on property value
• Uncertainty of residual impacts
• Possible impacts to value of surrounding
  properties

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Choosing the Right ICs and Making Them Work

• Conduct adequate investigation of affected area
• Secure cooperation from adjacent landowners
• Identify appropriate grantee
• Ensure integrity of engineering control
• Prevent unauthorized access

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Considerations for Lender

• Require disclosure and compliance with existing
  ICs
• Prepare for potential future ICs
• Enforcement of ICs
• Marketability of collateral
• Protection from lender liability

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Planning for ICs

• Coordinate efforts with
• All appropriate levels of government
• Adjacent property owners
• Public
• Identify entities responsible for OM
• Identify funding sources

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Remaining Sources of Liability

• CERCLA / Other statutory causes of action
• Common law causes of action
• Natural resource damages
• Public trust doctrine
• Reopener clauses in ICs / orders

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Potential Sources of Protection

• Contractual provisions
• Environmental insurance
• Layer ICs
• Covenants not to sue
• Comfort / No Further Action letters
• Other site specific considerations

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Example Connecticut ELUR

• Environmental Land Use Restriction
• Regulations provide boilerplate language
• Allows selection of various restrictions

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Technical Requirements for ELUR

• Complete investigation of affected area
• Meet appropriate standards under remediation
  regulations
• A-2 survey of affected area

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Legal Requirements for ELUR

• Provide required public notice
• Obtain subordination agreements
• Document appropriateness of ELUR in a decision
  document
• Secure approval by agency or licensed
  environmental professional, as appropriate

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Recording an ELUR

• ELUR is recorded on local land records
• Agency is grantee and enforcer of ELUR
• Notice of recorded ELUR must be provided to local
  officials and public commenters
• ELUR may be fully or partially released in the
  future

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Conclusion

• Potentially significant savings of time and money
• Make sure the ICs are right for the property
• Secure cooperation from stakeholders
• Provide for adequate maintenance of ICs
• Ensure proper enforcement mechanism