1. Institutional Controls At Voluntary Cleanup Sites
Texas Commission on Environmental Quality
Environmental Trade Fair & Conference
May 15, 2018
Danielle Lesikar, Technical Specialist
Voluntary Cleanup Program – Corrective Action Section
Remediation Division, Office of Waste

2. What is the VCP?
Program created to encourage cleanup of sites burdened by real/perceived contamination
Certificate of completion offers a release of liability to future landowners/lenders
Properties restored to economically productive use

3. What is an Institutional Control?
A legal document filed in the county deed records for a property
Outlines the limitations on or the conditions governing the use of the property.
Types: Permanent and non-permanent
Ex: Deed notice, restrictive covenant, ordinances, and zoning

4. What is an Institutional Control (IC)?
Makes the site protective of human health and the environment
Requires landowners to sign/consent
References a legally defined area
Certificate becomes an IC when it’s filed
Entire site/Partial Response Action Area (PRAA)
Used off-site as part of VCP remedy
Often accompanies physical control

5. History
Preamble says intent of VCP is to include all ICs filed as one document
Cleanup rule mentions permanent ICs
VCP rule mentions non-permanent ICs
Majority of VCP ICs have been restrictions
“Change in circumstance” in statute and rule
Restrictive covenant more enforceable

6. Certificate of Completion
Components of a VCP Certificate of Completion
Exhibit A (always needed)
Exhibit B (always needed)
Exhibit C
Exhibit D
Exhibit “X”
Exhibit A – legal description of entire VCP site/PRAA (always needed)
Exhibit B – Affidavit of Completion of Response Actions (final certificate) or Affidavit of Implementation of Response Actions (conditional certificate) (always needed)
Exhibit C – generally Restrictive Covenant or Deed Notice
Exhibit D – generally Conditions for conditional certificate
Exhibit “X” - PST Exposure Assumptions, MSD certificate

7. Examples of Institutional Controls - Certificate

8. Examples of Institutional Controls - Certificate

9. Examples of ICs – Exhibit A

10. Examples of ICs – Exhibit A

11. Examples of ICs – Exhibit B

12. Examples of ICs – Exhibit B

13. Examples of ICs – Exhibit C

14. Examples of ICs – Exhibit C

15. Examples of ICs – Exhibit C

16. Examples of ICs – Exhibit D

17. Examples of ICs – Exhibit D

18. Examples of ICs – Exhibit E

19. Examples of ICs – Exhibit E

20. Examples of ICs – Exhibit “X”

21. Examples of ICs – Exhibit “X”

22. Permanent ICs Cleanup rules vs VCP Deed notice vs Restrictive Covenant
TRRP (Chapter 350)
PST (Chapter 334)
Risk Reduction Rules
(Chapter 335)
Municipal Solid Waste
(Chapter 330)
Deed notice vs Restrictive Covenant

23. Cleanup Rules vs VCP - TRRP
Format of ICs differs from TRRP-16 Guidance example templates
VCP created its own templates
Will provide to applicant at time of affidavit issuance.
Timing of filing of IC may contradict TRRP time frames because they can be filed with the certificate of completion.
Cleanup rules vs VCP- Trying to accommodate multiple rules in single template document.
TRRP says proof of filing of the ICs in the RAP or RACR must be submitted within 120 days or 90 days, respectively. VCP rules requires proof of filing within 90 days of certificate issuance.

24. Cleanup Rules vs VCP - TRRP
Determining which type of IC to use differs from TRRP-16 Guidance on ICs
TRRP
RC for innocent landowners (off-site), deed notices for responsible parties (on-site)
VCP certificates are mentioned in tandem with deed notices in rule and guidance
VCP
Restrictive Covenants
Enforceable if not maintaining restrictions
Required for innocent landowner properties
Deed Notice
Limited circumstances (e.g. long-term response actions)
[TRRP-16] - VCP certificate mentions land use (residential vs non-residential) in Exhibit B, but not in the format of a restriction.

25. Cleanup Rules vs VCP - PST
Exposure Assumptions treated as a deed notice
Exit Criteria Flowcharts
Deed Notices as allowed by PST rules
[Exposure Assumptions] – Use applicable exposure assumptions from the PST exit criteria flowcharts in an Exhibit “X”. References the LPST file where PST documents available.
[Deed Notices] – PST rule allows deed notices for contamination left in place. Exposure assumptions often remove the need for a deed notice.
(ex: soil above construction worker levels not removed by exposure assumptions is put into deed notice)

26. Cleanup Rules vs VCP - 335 Industrial waste left in place
Remedy Standard 3 Alternate Concentration Level (ACL) approach
Restriction on groundwater use
Limited to commercial/industrial land use
Industrial waste left in place (separable from environmental media)
Ex: Landfill or dispersed solid waste (ex: sandblast material)

27. Cleanup Rules vs VCP - 330
Municipal Solid Waste Subchapter T regulations incorporated into a conditional Certificate of Completion
VCP follows Subchapter T regulations for Municipal Solid Waste and incorporates them into the conditional certificate under Exhibit C (restrictive covenant) and D (conditions) to address cap or methane monitoring

28. Non-Permanent ICs (not MSD)
Ordinances or Zoning
Limited to VCP sites because allowed in rule
Still must be protective for intended use.
Does not need to be in favor of the State.
Limited to conditional certificates of completion.
[Second Bullet] - May not have to meet TRRP equivalency test. (ex: doesn’t list contaminants)
Ex: City ordinance preventing well installation for consumption vs TCEQ requirement for well installation to prevent exposure.
[Third Bullet] - Requires routine inspection that non-permanent IC exists and is followed.

29. MSD-Based Certificates
VCP certificate may be contingent upon MSD certification.
MSD based certificate may require a separate IC for NAPL
MSD based certificate may be Remedy Standard A if no other need for Remedy B
MSD certified area may be smaller or larger than site size
[First Bullet] - MSD certification removes the potable groundwater pathway from consideration.
Based on a city ordinance or restrictive covenant, which is an IC not in favor of the State, but it was created context of MSD certificate
If underlying ordinance or restrictive covenant is revoked, VCP certificate contingent upon it may be void.

30. Legal Descriptions
Legal descriptions are necessary for each area restricted or noticed
Must bear registered Texas Land Surveyors Seal
Legal descriptions of restricted/noticed areas may be larger than necessary with landowner consent, up to site boundary
[First Bullet]
Ex: Exhibit A – entire site boundary, no more than in VCP Application.
Site boundaries changing over life of project needs to be memorialized in VCP application amendment. May require supporting site assessment information if modified.
Exhibits related to restrictions/notice.
Ex: PMZ vs physical control.
[Second Bullet]
- Lot and block and corresponding map of the site permanently contained in the county property records.
- Metes and bounds and corresponding survey map (required for PRAAs).
- County Appraisal District maps or maps prepared by consultant not sufficient.
[Third Bullet] - Area necessary for restriction should still be made apparent.
- Too large of a restricted area could cause issues in the future with obtaining prior TCEQ consent to perform response actions that are outside the affected area.

31. Filing of Certificates of Completion
Elements of certificates that require filing:
Non-residential land use
Permanent or non-permanent ICs
MSDs
PST Exposure assumptions
Proof of filing must be submitted within 90 days of certificate issuance
Off-site ICs or ICs submitted prior to certificate need to filed in accordance with the cleanup rule

32. Contact Information
Danielle Lesikar, Technical Specialist VCP-CA Section Remediation Division (512) Visit our booth during the Trade Fair!