Avoiding Future Shock: Long Term Solutions for Brownfields Ignacio Dayrit, City of Emeryville Brownfields 2004

“Institutional Control” “A mechanism used to limit human activities at or near a contaminated site, or to ensure effectiveness of the remediation action, over time, when contaminants remain … in levels or concentrations above the applicable remediation standard that would allow for unrestricted use…” New Jersey DEP Non-engineering mechanisms, particularly legal measures, designed to limit activities and access, and/or prevent or reduce exposure hazardous substances at a particular site. “Does not include fences” Barbara Coler, DTSC

Types of ICs Proprietary Controls –Between private parties; can also involve public –Restrictive covenants, deed notices & restrictions & easements Local Government Controls –Local government mechanism on future use –Zoning, land use, and ordinance on well restrictions Enforcement Tools –Between private party and regulatory agency –Consent decree & permits Notice Mechanism / Informational Devices –Deed notices, state registries & transfer act requirements State Statutory Controls –Between private party and state –Environmental easement or restriction by statute –sources: Amy Edwards, Holland & Knight LLP & DTSC

ICs are critical brownfields tool More being requested and granted The system is not in place to address them –State role - ? –Local government role - ? –Existing property recordation systems –Title insurance process The IC BIG Picture

Risk-based Decision Making When properties are not remediated to applicable standards, ICs should examine... –Chemicals of Concern –Sources of Exposure –Exposure Pathways –Receptors –Reasonably Foreseen Uses …to achieve no significant risk or substantial hazard. source: Amy Edwards, Holland & Knight LLP

The Five Institutional Control Uncertainties: (from a local government perspective) Cost uncertainty -- what are the initial and on-going costs?….and when are these costs incurred? Legal uncertainty – is local government liable if it is aware, if it participates in implementation, or if it assumes certain responsibilities!? Regulatory uncertainty – what will they want, and when will they want it? Financing uncertainty – will anybody finance my project? Time uncertainty – how long before I can really build?

Institutional Controls at Cal EPA-DTSC Land Use Covenant Regulation –Proprietary controls that “run with the land” and are enforceable Layering of ICs and Long-Term Stewardship Consistent with local zoning and land use plans Feasibility Study, Corrective Measures Study, and Remedy Selection documents, where applicable Enforceable Agreements/Orders to ensure O&M is ongoing where applicable Deed Restriction Registry 181 Deed Restricted sites Does not include Regional Board sites

Reliance on ICs as a substitute for cleanup IC – Use Permit to leave pollution? –Requires Public Participation –Undermines land use authority Life cycle costs – long term monitoring, reporting and, if necessary, remedy No National or State standard for tracking ICs Tracking –GIS Capability and Compatibility –Compiling old data and maintenance Confusion with inventories and lists Local liability –Local government capacity and responsibility Enforcement mechanism Some Concerns

ICs & Development Process Ministerial Approval (building permit) Remediate Site and Choose IC Record IC Document Discretionary Approval (use permit) Review & analysis Conditions of Approval Construction ? Public ?

Even with a perfect GIS, regulatory guidance will be necessary in many situations Example of site with engineering controls and residual contamination. Site to dedicate right-of-way and subdivide. Agency guidance in reflecting regulatory status and data accurately. Case Study

IC Tracking examples Oakland, CA: Permit tracking Emeryville: OSIRIS Sacramento, CA - Land use State of Arizona – Declaration of Environmental Use restriction (DEUR) Portland, OR – One-call utility notification Terradex Earth Pledge – Guardian Trust

What’s next? Wait for Federal and State guidelines Need effective GIS database (set up and maintenance) with land use, ownership and IC info Standardize data fields and format Educate other city departments Be aware of life cycle costs of tracking and enforcing ICs Coordination with regulators on establishing and recording ICs If possible, have RP’s submit reports in digital format, including geodata for sites, operable units and/or engineering controls Collect historical information whenever possible Risk-takers and risk averse

The extra mile… Data compilation OSIRIS (One-Stop Interactive Resource Information System) Ad hoc activities –Regulatory activities –Document collection Institutional Control Ordinance Different approach for commercial and residential projects

osiris features The user can choose among several background options. The user can choose among several themes, such as environmental, planning, real estate, public art, and more that are planned. OSIRIS lists pertinent ownership and planning information. Choose from several search and site selection functions.

The user can search parcels based on address, parcel number or owner name. OSIRIS will display key property information, including ICs, Risk Management Plan summaries and links to other sites, like GeoTracker and will expand environmental and planning information, and adding other data, such as Hazmat business plans. Borings and wells on the parcel are highlighted. osiris features

Sample data can be compared with U.S. EPA Region 9 Preliminary Remediation Goals and Soil Background Levels. The OSS displays sample data from soil borings and groundwater wells. OSIRIS will be a useful tool for disseminating information, but it alone is not a solution to concerns over ICs, and solutions should be developed in collaboration with Federal, State and local agencies and stakeholders. osiris features

OSIRIS highlights parcels within a certain distance with institutional controls. osiris features Parcel information will include links to PDFs, Geotracker and/or DTSC websites.

Sample PDF of an IC osiris features

OSIRIS prints out a report of parcels with ICs osiris features The report includes links to PDFs of ICs and links to DTSC and Geotracker websites