Institutional Controls

Pamela Elkow and Richard Fil

Institutional Controls

• Introduction– Types– Purposes– Stakeholders– Procedures

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

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

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

Sources of Guidance

• ASTM Standard E 2091-00

• EPA Site Manager’s Guide to Using ICs

• State environmental agencies

Types of ICs

• Informational devices

•Governmental controls

• Enforcement tools

• Proprietary controls

Informational Devices

•Weakest

•Merely put public “on notice”

• No property interest conveyed

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

Enforcement Tools

• Includes orders and permits

• Binding only on respondent / signatory

• Not transferable

• Enforced by governmental agency

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

Layering of ICs

• Concurrent use of different ICs

• Redundant, but varying, ICs may prevent breakdown

• Ideally, different ICs are managed by different entities

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

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

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

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

Planning for ICs

• Coordinate efforts with:– All appropriate levels of

government– Adjacent property owners– Public

• Identify entities responsible for O&M• Identify funding sources

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

Potential Sources of Protection

• Contractual provisions• Environmental insurance• Layer ICs• Covenants not to sue• Comfort / “No Further Action”

letters•Other site specific

considerations

Example: Connecticut ELUR

• “Environmental Land Use Restriction”

• Regulations provide boilerplate language

• Allows selection of various restrictions

Technical Requirements for ELUR

• Complete investigation of affected area

•Meet appropriate standards under remediation regulations

• A-2 survey of affected area

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

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

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