Environmental Quality Service Council Institutional Controls Registry October 6, 2009
description
Transcript of Environmental Quality Service Council Institutional Controls Registry October 6, 2009
Environmental Quality Service CouncilInstitutional Controls Registry
October 6, 2009
Peggy DorseyDeputy Assistant Commissioner
Indiana Department of Environmental ManagementOffice of Land Quality
1
Institutional Controls (ICs)
• Legal or administrative tool (paper)• Used to cut off exposure to unacceptable risk
posed by contamination left in place
2
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
3
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
4
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
5
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.
6
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
7
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
8
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
9
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
10
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
11
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
13
14
15
16
County
Site Name Address and City
IC Summary Report Contents
17
OLQ Program
IC Type
Date Recorded
Program ID
18
Restriction orEngineering Control
Affected Media
Contaminant Class
Comments
19
Click ‘View’ to open document in VFC
20
21
Specific Restriction Language (no residential use, etc).
22
23
Click ‘Map’ to open aerial photo in IndianaMap
24
25
26
27
28
29
30
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
31
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
32
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
33
Sites in IDEM Remediation Programs
•Leaking USTs
•Voluntary Remediation
•RCRA Corrective Action
•Superfund
•Brownfields
•State Cleanup
34
Future Institutional Controls
•~3850 Current Active Sites
•~400 Existing ERCs
•Est. 70% current sites will close with some type of ICs = 3100
35
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
36
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
37
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
38
Contact Information
Peggy DorseyDeputy Assistant Commissioner
Office of Land [email protected]
(317) 234-0337
39