Institutional Controls at BRAC Sites July 19, 2011

Institutional Controls Institutional Controls at BRAC Sites at BRAC Sites

July 19, 2011

2011 ADC ANNUAL CONFERENCE| PAGE 3

3

Session Panelists

Kristie Reimer – Associate Vice President – ARCADIS/Malcolm Pirnie - Moderator

Gordon Hart – Partner, Paul Hastings LLP David Drozd – Director, Navy BRAC Program

Management Office Northeast Michael Houlemard – Executive Officer – Fort

Ord Reuse Authority


4

Session Overview Introductions / Session Overview Institutional Control Basics / Legal Issues Implementation and LRA Perspective DoD Perspective Q&A / Discussion


5

IC Basics: EPA’s Overview

ICs are legal and administrative tools used to maintain protection of human health and the environment at sites.

ICs are often an important part of the overall cleanup at a site.

ICs can be used for many reasons and come in different types. These include restricting site use, modifying behavior, and providing information to people.


6

IC Basics: A Lawyer’s Overview A remedy or component of a remedy

Can replace physical remedial action Can supplement physical remedial action to ensure

long-term effectiveness

Imposes restrictions or requirements Binding on current and future property owners Designed to prevent exposure to contamination

remaining in place Enforced by legal or administrative mechanisms


7

IC Basics: Types of Restrictions and Requirements

Types of Restrictions (Prohibitions) Land Use Restrictions (no residential, child care, etc.) Activity Restrictions (no digging, use of groundwater, etc.)

Types of Requirements (Mandates) Notices Operation and Maintenance/Inspection and Reporting Payment of Oversight Costs/Financial Assurance

Hybrid Approach: Risk Management Plans


8

IC Basics: Types of Mechanisms Government Controls- include local laws or permits (e.g., county zoning, building

permits, and Base Master Plans at military facilities); permits (e.g., county zoning, building permits, and Base Master Plans at military facilities)

Proprietary Controls- include property use restrictions based on private property law (e.g., easements and covenants in deeds or separate instruments)

Enforcement Tools- include documents that require individuals or companies to conduct or prohibit specific actions (e.g., environmental cleanup consent decrees, unilateral orders, or permits

Informational Devices-include deed notices or public advisories that alert and educate people about a site.


9

IC Basics: Legal (ish) Tips Never “Default” into an IC Radical concept: Site conditions should dictate the restrictions, not intended use. Thoroughly and realistically weigh the costs and benefits

It is never too early to think about ICs Make sure RI/FS analyzes what is necessary to allow unrestricted use if cleanup allows Be willing to live with what the ROD says

Plan for your own demise Once property is subdivided, who will implement?


10

Local Reuse (LRA) Perspective

Risk Issues and Report Requirements

IC - Match Reuse with Covenant

LUC/IC Implementation - Monitoring

Timing and Regulator Coordination

Public Information/Community Outreach

Economic and Long Term Stewardship


11

LRA Perspective“Risk” & Reports

Property Ownership – Cost/Exposure

Controlling the Reuse Timing

“You Don’t Know What You Don’t Know”

Report Timing and Regulator Coordination

Collecting Information and Preparation


12

LRA PerspectiveStewardship & Economics

Impact on Land Values

Annual Reports, Ordinance Compliance, Fence Maintenance, Use Monitoring

Educational Programs (Schools, etc.)

Regulator Visits/Inspections/Costs

Long-Term Stewardship and Obligations


13

LRA Perspective - Public Information/Community Outreach

Regular Education Programs

Connecting with Social, Print, and Electronic Media

Engage Groups and Stakeholders

Jurisdictional Impacts


14


15

IC/LUCs - Definitions Environmental Easement - This is an interest in real

property, created under and subject to the provisions of ECL Article 71, Title 36 which contains a restriction/prohibition on the use of the land that would be inconsistent with the remedy selected for the site.

Deed Restriction - Deed restrictions may impose a variety of limitations and conditions on the use of property (e.g., they may limit the future uses of the property, the use of groundwater, or how soils are managed).


16

IC/LUCs - Definitions Discharge Permit - This usually refers to a water discharge

permit issued by the Department under ECL Article 17 to regulate the discharge from a groundwater extraction system or treatment plant.

Part 360 Permit - Refers here to a solid waste management facility permit issued by the Department (e.g., to regulate a closed landfill).

Site Security (other than fencing) - Non-engineering security measures such as security guards. Note that a fence is categorized as an engineering control.

.


17

IC/LUCs - Definitions Local Permit - Special permits outlining specific

requirements that must be met before an activity can be authorized (e.g., groundwater use, building, etc.).

Consent Order/Consent Decree - A consent order is a legal document signed by the Department (or the USEPA) and a respondent that obligates the respondent to complete activities defined by the order (e.g., site remediation including the maintenance of institutional/engineering controls). A consent decree must be approved by a judge.


18

IC/LUCs - Definitions Zoning Restriction - Zoning authority exercised by

local governments to specify land use for certain areas. For example, a local government could prohibit residential development in an area of contamination.

Hazardous Waste Site Registry - The list of State Superfund Sites which is compiled pursuant to ECL Article 27, Title 13 to inform the Governor, Legislature, and public about inactive hazardous waste disposal sites.


19

IC/LUCs - Definitions Deed Notice - A deed notice is a non-enforceable, purely

informational document filed in public land records that alerts anyone searching the records to important information about the property. Note that Part 360 requires deed notices to be filed as part of landfill closure activities.

Ground Water Use Restrictions - Restriction directed at limiting or prohibiting certain uses of ground water which may include limitations or prohibitions on well drilling. This is a governmental control, generally at the local or county level.


20

IC/LUCs - Definitions Condemnation of Property - When the State or local

government, exercising eminent domain, condemns a property in order to take over title.

Public Health Advisories - Warnings, usually issued by public health agencies, either at the federal, state or local level, that provide notice to potential users of land, surface water, ground water, or other natural resources of some existing or impending risk associated with their use. This would include fishing advisories.


21


22


23


24


25


26


27


28


29


30

Documents

Institutional Controls at BRAC Sites July 19, 2011