Environmental Quality Service Council Institutional Controls Registry October 6, 2009 Peggy Dorsey Deputy Assistant Commissioner Indiana Department of Environmental Management Office of Land Quality.

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Transcript Environmental Quality Service Council Institutional Controls Registry October 6, 2009 Peggy Dorsey Deputy Assistant Commissioner Indiana Department of Environmental Management Office of Land Quality.

Environmental Quality Service Council
Institutional Controls Registry
October 6, 2009
Peggy Dorsey
Deputy Assistant Commissioner
Indiana Department of Environmental Management
Office 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. 782009 (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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ERC Numbers by Program
• Indiana Brownfields Program
– 76 ERCs
• LUST/ELTF
SF
– 207 ERCs
• VRP
– 31 ERCs
RCRA
VRP
SCU
LUST
• SCU
– 31 ERCs
• Superfund/DERP
– 41 ERCs
• RCRA – Corrective Action
– 7 ERCs
BF
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
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IC Registry Summary Report
Available on-line at
www.in.gov/idem/5959.htm
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IC Summary Report Contents
County
Site Name
Address and City
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Program ID
OLQ Program
Date Recorded
IC Type
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Affected Media
Contaminant Class
Restriction or
Engineering Control
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
Active Sites in IDEM Remediation Programs
2000
1500
1000
500
Remediation Program
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RC
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Br
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•Est. 70% current sites
will close with some
type of ICs = 3100
2500
Le
ak
ing
•~400 Existing ERCs
Number of Sites
•~3850 Current Active
Sites
3000
After Site Closure
• There are long-term costs associated with maintaining
controls
–
–
–
–
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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 Dorsey
Deputy Assistant Commissioner
Office of Land Quality
[email protected]
(317) 234-0337
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