Understanding the Role of Institutional Controls at Brownfields Sites: Major Concepts and Issues

A Quick Look
Institutional controls are administrative and legal mechanisms that are intended to reduce exposure to residual contamination and protect the integrity of a remedy at a former industrial facility or waste disposal sites.
The role of institutional controls is an important consideration during the cleanup of a brownfields site.
Examples of institutional controls include covenants, recorded deed notices, restrictions, and advisories.

Institutional controls (ICs) are administrative and legal restrictions or limitations placed on the use of a site to minimize potential exposure to chemicals of concern or to prevent activities that might interfere with the effectiveness of a response action. Institutional controls are vital elements of response alternatives because they influence and supplement the physical component of the remedy to be implemented. On one hand, the right combination of ICs is necessary to ensure the protectiveness of the remedy and may be critical for obtaining the liability protections under the Brownfields Law; on the other hand, the wrong combination of institutional controls can be a real or perceived impediment to reuse of a site. ICs provide an added measure of protectiveness at contaminated sites and are not a substitute for thorough investigation and cleanup. The use of ICs must be carefully considered when weighing remedial options as their use may entail a long-term financial and administrative burden to ensure effectiveness and may be a disincentive to prospective purchasers and developers.

The Small Business Liability Relief and Brownfields Revitalization Act addresses ICs at brownfields sites in two sections. First, in Section 104, Subtitle A, local governments are permitted to use up to 10 percent of a grant to enforce institutional controls or monitor population health effects. Thus, local governments can now use EPA funds to enforce ICs. The Act also makes compliance with ICs and land use restrictions a prerequisite for landowner liability protection. Subtitle B of the Act establishes three landowner liability defenses: the bona fide prospective purchaser defense, the contiguous landowner liability defense, and the innocent landowner defense. To qualify for any of these defenses, the landowner must demonstrate its compliance with land use restrictions that were part of or connected with a response action. A landowner must also show that it has not impeded the effectiveness or integrity of ICs established in connection with a response action to qualify for liability protection.

The term “institutional control” can be applied to a wide spectrum of legal and administrative measures. In general, mechanisms for creating ICs can be divided into four categories:

• Proprietary controls
• Governmental controls
• Enforcement and permit mechanisms with IC components
• Informational tools

Proprietary controls are unique because they are based on real property law. Examples of proprietary controls include covenants, which are written contracts that can prohibit specific types of development or construction on the land, and easements, which can grant property access or restrict the owner to land uses that are compatible with the intended use.

Governmental controls involve restrictions that generally fall within the traditional police powers of state and local governments. Examples of governmental controls include zoning, by which restrictions can be imposed through the local zoning or land use planning authority that limit property access and prohibit disturbance of the response action; well drilling prohibitions; and ordinances for building permit processes and master planning activities.

Another common type of IC is enforcement mechanisms. Such ICs include administrative orders, consent decrees, and RCRA permits that require a landowner, usually a potentially responsible party (PRP), to limit certain activities at a site. These ICs are used most frequently for CERCLA and RCRA cleanups.

The final category of ICs is informational tools. Informational tools provide information about residual or capped contamination or provide notification that such contamination may remain on site or that a remedy has been undertaken. Typical examples of these tools include state registries of contaminated properties, deed notices, and advisories. Informational tools are used most frequently as a secondary measure to help ensure the overall reliability of other institutional controls.

ICs are designed to ensure that the postremediation use of a property is compatible with the level of cleanup. ICs, however, have several limitations. For example, deed notices are informational, not enforceable. An easement cannot be established unless a party is willing to hold the easement. Some state governments cannot hold easements, and other parties may be unwilling to do so. Zoning laws may not be fully effective unless they are monitored and enforced over the long term, and local governments may not have the resources for such oversight. Furthermore, zoning ordinances are not necessarily permanent; they can be repealed, or local governments can grant exceptions after public hearings.

Concern has been expressed about the long-term viability of ICs as a remediation tool. For example, they may be forgotten, enforcement agencies may not effectively review properties or land users’ actions, or land users simply may ignore the controls and take their chances. To ensure successful implementation, monitoring, and enforcement of ICs, EPA is developing and issuing policies and guidance. In February 2003, EPA issued the draft guidance Institutional Controls: A Guide to Implementing, Monitoring, and Enforcing Institutional Controls at Superfund, Brownfields, Federal Facility, UST and RCRA Corrective Action Cleanups. The purpose of this guidance is to (1) provide Superfund, brownfields, federal facility, UST, and RCRA corrective action site managers and site attorneys with an overview of their responsibilities for implementation, monitoring, and enforcement of institutional controls at their sites and (2) discuss some of the common issues that site managers and site attorneys may encounter when carrying out these responsibilities. This guidance is the second in a series of guidance documents on the use of ICs. The first guidance, Institutional Controls: A Site Manager’s Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups (OSWER 9355.0-74FS-P, EPA 540-F-00-005) (September 2000), provides direction for identifying, evaluating, and selecting ICs. This guidance is available on the Internet at www.epa.gov/superfund/action/ic/index.htm.

In September 2004, EPA issued OSWER Directive 9355.0-106 to set forth its Strategy to Ensure Institutional Control Implementation at Superfund Sites. The strategy will assist EPA regional and Headquarters personnel in preparing region-specific action plans and in conducting the work necessary to ensure the proper implementation of ICs at Superfund sites. This work includes gathering information and entering it in the Institutional Controls Tracking System (ICTS), evaluating the data generated by the ICTS, prioritizing and conducting site-specific follow-up activities, building the capacity to better manage and review institutional control information, and coordinating with other interested parties.

Because land use remains the principal domain of local governments, those governments play a significant role in the management and oversight of ICs. However, it is not always clear what that role will be. Many local governments do not yet have the capacity and resources necessary to meet the challenges of long-term stewardship. With an improved understanding of the terms and issues related to ICs, local governments and brownfields stakeholders will be in a better position to respond effectively to the long-term challenges of using ICs to promote site reuse while ensuring that public health and the environment are protected.

An indication of the significance of IC issues to local governments is the establishment of LUCs.org through cooperative agreements between the International City/County Management Association (ICMA) and EPA. LUCs.org is part of ICMA’s continuing effort to enhance the effectiveness of local government through professional management practices. ICMA and its partner agencies and organizations have come to understand the importance of providing a clearinghouse of information on the subject for the use of all stakeholder groups.

In addition to their designated implementing role in regulatory programs, states may also have broader authorities affecting their ability to implement ICs. A number of states are establishing specific requirements as part of VCPs that address the use of ICs.

ICs are a mechanism for providing a certain degree of safety in the absence of technology that could clean up contaminated sites thoroughly. Decision-makers should weigh the full costs of such options, including capital costs, costs of long-term sampling and analysis, and costs of replacing equipment, as well as concerns about potential long-term risks associated with contaminants left in place against the costs of options that would remove the contaminants permanently.

For more information see the following resources:

Institutional Controls: A Site Manager's Guide to Identifying, Evaluating, and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups EPA 540-F-00-005

Saturday, February 4, 2012