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Environmental Quality Service Council Institutional Controls Registry October 6, 2009 - PowerPoint PPT Presentation

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Environmental Quality Service Council Institutional Controls Registry October 6, 2009 Peggy Dorsey Deputy Assistant Commissioner. Indiana Department of Environmental Management Office of Land Quality. Institutional Controls (ICs). Legal or administrative tool (paper)

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Environmental Quality Service Council Institutional Controls Registry October 6, 2009

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Environmental Quality Service Council

Institutional Controls Registry October 6, 2009

Peggy Dorsey

Deputy Assistant Commissioner

Indiana Department of Environmental Management

Office of Land Quality

Institutional Controls (ICs)

  • Legal or administrative tool (paper)

  • Used to cut off exposure to unacceptable risk posed by contamination left in place

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

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


IC Types

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

Remediation Program Responsibilities

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.

Prior to 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

Post HEA 1162

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

Purpose of Institutional Controls

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

Long Term Stewardship

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

Reason For IC Registry

ERC Numbers by Program

  • Indiana Brownfields Program

    • 76 ERCs


    • 207 ERCs

  • VRP

    • 31 ERCs

  • SCU

    • 31 ERCs

  • Superfund/DERP

    • 41 ERCs

  • RCRA – Corrective Action

    • 7 ERCs



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


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

IDEM IC Registry

IC Registry Summary Report

Available on-line at


IC Summary Report Contents


Address and City

Site Name

Program ID

OLQ Program

Date Recorded

IC Type

Affected Media

Contaminant Class

Restriction or

Engineering Control


Click ‘View’ to open document in VFC

Specific Restriction Language

(no residential use, etc).

Click ‘Map’ to open aerial photo in IndianaMap

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

IC Challenges

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

IC Failures

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

Indiana – IC Concerns

Sites in IDEM Remediation Programs

  • Leaking USTs

  • Voluntary Remediation

  • RCRA Corrective Action

  • Superfund

  • Brownfields

  • State Cleanup

Future Institutional Controls

  • ~3850 Current Active Sites

  • ~400 Existing ERCs

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

There are long-term costs associated with maintaining controls


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

After Site Closure


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


Periodically self-reports to government and pays for engineering inspection costs – not tracking or enforcement


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

Mechanisms for Long Term Stewardship


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

Institutional Controls Trust

Peggy Dorsey

Deputy Assistant Commissioner

Office of Land Quality


(317) 234-0337

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