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 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