Institutional Controls Pamela Elkow and Richard Fil Institutional

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