Transcript Institutional Controls to Brownfields Redevelopment

Avoiding Future Shock:
Long Term Solutions
for Brownfields
Ignacio Dayrit, City of Emeryville
Brownfields 2004
“A mechanism used to
limit human activities at
or near a contaminated
site, or to ensure
“Institutional
effectiveness of the
Control”
remediation action, over
time, when
• Non-engineering
contaminants remain …
mechanisms, particularly
in levels or
legal measures, designed to
concentrations above
limit activities and access,
the applicable
and/or prevent or reduce
remediation standard
exposure hazardous
that would allow for
substances at a particular
unrestricted use…”
site.
New Jersey DEP
• “Does not include fences”
Barbara Coler, DTSC
• Enforcement Tools
Types of ICs
– Between private party and
regulatory agency
– Consent decree & permits
• Notice Mechanism /
• Proprietary Controls
Informational
– Between private parties; can
Devices
also involve public
– Restrictive covenants, deed
notices & restrictions &
easements
• Local Government
Controls
– Local government mechanism
on future use
– Zoning, land use, and ordinance
on well restrictions
– Deed notices, state registries &
transfer act requirements
• State Statutory
Controls
– Between private party and state
– Environmental easement or
restriction by statute
–
sources: Amy Edwards, Holland & Knight LLP & DTSC
The IC
BIG Picture
• ICs are critical brownfields tool
• More being requested and granted
• The system is not in place to address them
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State role - ?
Local government role - ?
Existing property recordation systems
Title insurance process
Risk-based
Decision Making
When properties are not remediated to
applicable standards, ICs should examine...
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Chemicals of Concern
Sources of Exposure
Exposure Pathways
Receptors
Reasonably Foreseen Uses
…to achieve no significant risk or substantial
hazard.
source: Amy Edwards, Holland & Knight LLP
The Five
Institutional Control
Uncertainties:
(from a local government
perspective)
• Cost uncertainty
-- what are the initial and on-going
costs?….and when are these costs incurred?
• Legal uncertainty – is local government liable if it is aware,
if it participates in implementation, or if it assumes certain
responsibilities!?
• Regulatory uncertainty – what will they want, and when
will they want it?
• Financing uncertainty – will anybody finance my project?
• Time uncertainty – how long before I can really build?
Institutional Controls
at Cal EPA-DTSC
• Land Use Covenant Regulation
– Proprietary controls that “run with the land” and are enforceable
• Layering of ICs and Long-Term Stewardship
• Consistent with local zoning and land use plans
• Feasibility Study, Corrective Measures Study, and Remedy
Selection documents, where applicable
• Enforceable Agreements/Orders to ensure O&M is ongoing where
applicable
• Deed Restriction Registry
• 181 Deed Restricted sites
• Does not include Regional Board sites
Some
Concerns
• Reliance on ICs as a substitute for cleanup
• IC – Use Permit to leave pollution?
– Requires Public Participation
– Undermines land use authority
• Life cycle costs – long term monitoring, reporting and, if
necessary, remedy
• No National or State standard for tracking ICs
• Tracking
– GIS Capability and Compatibility
– Compiling old data and maintenance
• Confusion with inventories and lists
• Local liability
– Local government capacity and responsibility
• Enforcement mechanism
ICs & Development
Process
Discretionary
Approval
(use permit)
Remediate
Site and
Choose IC
Ministerial
Approval
(building permit)
Review & analysis
Record
IC Document
Conditions of
Approval
?
Public
Construction
?
Construction
• Even with a perfect GIS, regulatory • Agency guidance in reflecting
guidance will be necessary in many
regulatory status and data accurately.
situations
• Example of site with engineering
controls and residual contamination.
• Site to dedicate right-of-way and
subdivide.
Case Study
IC Tracking
examples
•
•
•
•
Oakland, CA: Permit tracking
Emeryville: OSIRIS
Sacramento, CA - Land use
State of Arizona – Declaration of Environmental Use
restriction (DEUR)
• Portland, OR – One-call utility notification
• Terradex
• Earth Pledge – Guardian Trust
What’s next?
• Wait for Federal and State guidelines
• Need effective GIS database (set up and maintenance) with
land use, ownership and IC info
• Standardize data fields and format
• Educate other city departments
• Be aware of life cycle costs of tracking and enforcing ICs
• Coordination with regulators on establishing and recording ICs
• If possible, have RP’s submit reports in digital format, including
geodata for sites, operable units and/or engineering controls
• Collect historical information whenever possible
• Risk-takers and risk averse
The extra mile…
• Data compilation
• OSIRIS (One-Stop Interactive Resource Information
System)
• Ad hoc activities
– Regulatory activities
– Document collection
• Institutional Control Ordinance
• Different approach for commercial and residential
projects
osiris
features
The user can choose
among several
themes, such as
environmental,
planning, real estate,
public art, and more
that are planned.
Choose from
several search
and site selection
functions.
The user can
choose among
several
background
options.
OSIRIS lists
pertinent
ownership and
planning
information.
osiris
features
Borings and wells
on the parcel are
highlighted.
The user can
search parcels
based on address,
parcel number or
owner name.
OSIRIS will display
key property
information,
including ICs, Risk
Management Plan
summaries and
links to other sites,
like GeoTracker
and will expand
environmental and
planning
information, and
adding other data,
osiris
features
The OSS displays
sample data from soil
borings and groundwater
wells.
Sample data can
be compared with
U.S. EPA Region 9
Preliminary
Remediation Goals
and Soil
Background
Levels.
OSIRIS will be a
useful tool for
disseminating
information, but it
alone is not a
solution to
concerns over ICs,
and solutions
should be
developed in
collaboration with
osiris
features
OSIRIS highlights
parcels within a
certain distance
with institutional
controls.
Parcel information
will include links
to PDFs,
Geotracker and/or
DTSC websites.
osiris
features
Sample PDF of an
IC
osiris
features
OSIRIS prints
out a report of
parcels with ICs
The report
includes links
to PDFs of ICs
and links to
DTSC and
Geotracker
websites