Environmental Quality Service CouncilInstitutional Controls Registry

October 6, 2009

Peggy DorseyDeputy Assistant Commissioner

Indiana Department of Environmental ManagementOffice of Land Quality

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Institutional Controls (ICs)

• Legal or administrative tool (paper)• Used to cut off exposure to unacceptable risk

posed by contamination left in place

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IC Types• Environmental Restrictive Covenants (ERCs)

• Legal document that stipulates restrictions and conditions that must be met and complied with by the property owner (current and future) in lieu of removal of contamination.

• Signed by IDEM and property owner and owner has it recorded as part of deed record and runs with the land

• Restrictions selected based on the site conditions (ex. do not use groundwater, no residential use)

• Currently most common IC used in Indiana

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IC Types• Groundwater ordinances (per HEA 1162)

• Municipality can pass ordinance to restrict groundwater use• Municipalities must provide copy to IDEM (per HEA 1162)

• Better definition of what needs to be sent would be beneficial to all• Area of coverage variable• Longevity of ordinance variable• Municipalities enforce them

• Information devices (deed notices or signs)• Zoning ordinances• Easements

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Remediation Program Responsibilities

• The Remediation Program prevents, stops, or minimizes: – contamination that has been released into our water and soil– exposure to people– degradation to our natural resources

• Allows for economic development and advancement

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Prior to HEA 1162• IDEM addressed contamination and tried to find a sensible approach to

cleanup and risk

• Unnecessary to remove every molecule of contamination in certain situations

• However, it was necessary to manage contamination by allowing acceptable levels of risk while protecting human health and the environment.

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Post HEA 1162

• IDEM’s approach to addressing contamination post P.L. 78-2009 (HEA 1162)

• Approach to addressing contamination determined by site – May go directly to risk management of contamination and utilize

Institutional Controls or Engineering Controls to prevent human exposure to contamination left in place ranging from free product to minimal amounts of contamination

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Purpose of Institutional Controls• Institutional Controls

– A component of site-specific approach to address contamination and risk, or

– Sole means of closure – designed to cut off exposure to the contamination left in place

• Will be many more of them to keep track of

• IC’s now play a more important role in risk management than before so to continue to protect people’s health it is critical to keep track of:– where contamination still remains in soil and water– what people can and cannot do with the soil or water on site– how the property can and cannot be used

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Long Term Stewardship

• The restrictions and conditions placed on the property and its use will remain in effect until new data provided to IDEM proves the risk has been mitigated and the Institutional Control is no longer necessary

• Long Term Stewardship: Can’t walk away from them, they outline obligations to which the current property owner and all future property owners must adhere to be protective. (Part of the deal.)

• Components of Long Term Stewardship:– Implement the IC– Track the information – Interim IC Registry created by IDEM– Monitor – are conditions and restrictions still in place and in effect– Enforce – if they aren’t, some action needs to be taken

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Reason For IC Registry• To track when and where ICs established

– Prior to 2008 IDEM had no comprehensive list of IC sites– The more contamination left in place, the higher the long term risk of exposure if

ICs not monitored

• Recommended by EPA – Study found lack of easily available information on ICs– Study found significant number of ICs not in place

• IDEM research found less than 50% in deed record search– Majority of states now have registries

• EPA Brownfield grant stipulates public record of IC sites; IC registries also eligible for EPA funding

• No comprehensive federal registry • Provides notice to public and local government units

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LUST

BF

SCU

VRP

RCRASF

ERC Numbers by Program• Indiana Brownfields Program

– 76 ERCs

• LUST/ELTF– 207 ERCs

• VRP– 31 ERCs

• SCU– 31 ERCs

• Superfund/DERP– 41 ERCs

• RCRA – Corrective Action– 7 ERCs

APPROXIMATELY 400 ERCs TO DATE

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IDEM IC Registry• Interim: Access Database

– Rolled-out late 2008– Information tracked includes county, city, address, types of restrictions,

engineering controls, county recorder information– Linked to electronic filing cabinet (VFC) and Indiana Map – Summary report compiled from database and updated on IDEM website

monthly– Limitations

• No way to search (query) – sort function only• ERC boundaries not required so maps limited• Change in ownership not required

• Long-term: TEMPO Software– IC module funded by EPA Brownfields grant– Development ~2010 12

IC Registry Summary Report

Available on-line at

www.in.gov/idem/5959.htm

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County

Site Name Address and City

IC Summary Report Contents

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OLQ Program

IC Type

Date Recorded

Program ID

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Restriction orEngineering Control

Affected Media

Contaminant Class

Comments

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Click ‘View’ to open document in VFC

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Specific Restriction Language (no residential use, etc).

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Click ‘Map’ to open aerial photo in IndianaMap

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IC Challenges

• Institutional Controls not effective if no one knows about them– New owners/tenants may be unaware of ICs– Administrative records may be lost (not recorded properly, property

subdivided, etc.)– Local government units and decision makers (planning, zoning,

building permits, etc.) may be unaware of contaminated sites– Environmental regulators typically not involved with local

redevelopment projects

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IC Failures • Puget Sound Naval Shipyard, “Do Not Dig” - contaminated soil

excavated within 3 weeks of property transfer• State audits

– Rhode Island audit results ~19% of IC sites out of compliance for technical reasons

– Kansas audit• Some owners unaware of ICs• 12% improperly filed• 68% met all IC conditions

– Records lost, not tied to property, not carried over when property subdivided

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Indiana – IC Concerns• No comprehensive IC audit conducted to date; extent of

compliance issues unknown• IC site numbers growing with higher levels of contamination

remaining• Known Issues

– SF sites: some ICs not yet in place– IDEM notified by property owner that ERC not found during title

search/property transfer– Misc. recorder offices statements: cannot locate some ERCs in county

records

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Sites in IDEM Remediation Programs

•Leaking USTs

•Voluntary Remediation

•RCRA Corrective Action

•Superfund

•Brownfields

•State Cleanup

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Future Institutional Controls

•~3850 Current Active Sites

•~400 Existing ERCs

•Est. 70% current sites will close with some type of ICs = 3100

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After Site Closure• There are long-term costs associated with maintaining

controls – Inspections– Records management– Operation/maintenance of engineered controls– Replacement of engineered controls at end of life– Property transactions (subdivision, redevelopment, etc) may require

re-evaluation of ICs – Site construction (contaminated soil & water management) – Public/private party notification

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Mechanisms for Long Term Stewardship

• Government – Fees (flat or annual) paid to government entity to administer tracking,

compliance and enforcement - not failure of EC• Private Company

– Fees (flat or annual) paid to private entity to administer tracking and compliance – no enforcement or failure of EC

• Owner– Periodically self-reports to government and pays for engineering inspection

costs – not tracking or enforcement• Trusts• Financial assurance

– Used by property owner to show adequate economic solvency should they need to cover all the costs associated with the maintenance and possible failure of Engineering Controls

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Institutional Controls Trust• Trust

– Owner pays a 1 time flat fee and the trustee (IDEM?) then is responsible to deal with the obligations of the IC and failures of ECs as well as tracking, compliance and enforcement

– Proposed in 2009 - HEA 1162– If established, IDEM and IFA agree that it should be administered by

IDEM – Trusts not new to IDEM – currently manages several

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Contact Information

Peggy DorseyDeputy Assistant Commissioner

Office of Land Qualitypdorsey@idem.in.gov

(317) 234-0337

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