June 01, 2013

Implementing Institutional Controls at Brownfields and Other Contaminated Sites

JoAnne L. Dunec

Implementing Institutional Constrols at Brownfields and Other Contaminated Sites

Amy L. Edwards, ed.,  ABA Section of Environment, Energy, and Resources, Second Edition, 2012.

The trend toward risk-based environmental remediation has resulted in increased use of land use restrictions, generally referred to by environmental practitioners as “institutional controls.” As noted in the Introduction to Implementing Institutional Controls at Brownfields and Other Contaminated Sites, “for these types of cleanups to succeed, all stakeholders must have confidence that institutional controls can be properly implemented, maintained, and enforced over time as long as they may be needed.”

It should be noted that the term “institutional controls” is not universally applied. As further described in the Introduction,

Different terminology is used by different groups: the Environmental Protection Agency uses the term “institutional controls,” but does not include engineering controls within its definition. The Department of Defense and other groups, such as the International County/City Management Association (ICMA), use the terminology “land use controls,” or LUCs. [American Society for Testing & Materials (ASTM)] and the Commonwealth of Massachusetts use the terminology “activity use and limitations,” or AULs, to include both the legal and engineering controls that are part of a cleanup remedy. The [Uniform Environmental Covenants Act (UECA)] has created an “environmental covenant,” a unique legal instrument which is available only in states that have adopted the UECA. Finally, there has been substantial discussion about the terminology used in the [Small Business Liability Relief and Brownfields Revitalization Act of 2002 (2002 Brownfield Amendments)]—“land use restrictions” (LURs) and “institutional controls [(ICs)]”—including how these terms may differ and what must be done to be “in compliance with LURs” and to “not impede the effectiveness or integrity of ICs” in order to establish one of the landowner liability protections (LLPs) under the 2002 Brownfield Amendments.

The second edition of Implementing Institutional Controls at Brownfields and Other Contaminated Sites examines “the substantial strides that have been made over the past decade to improve regulators’ and practitioners’ awareness and understanding of institutional control issues.” For example, since its promulgation in 2003, “nearly half of the states have now adopted the UECA.” In addition, in 2011 ASTM updated its Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls (E2091), and recently published a Standard Guide for Identifying and complying with Continuing Obligations (E2790-11), which, among other things, address institutional controls.

The book is divided into three parts followed by a concluding chapter. Part I begins with an overview of institutional controls, with ensuing chapters covering CERCLA five-year reviews as a long-term institutional control assurance tool; benefits of the UECA, identifying activity and use limitations as part of the “all appropriate inquiry” due diligence process; and institutional controls as risk management options. Subsequent chapters in Part I address activity and use limitations applied to risk-based corrective action, institutional controls related to military base closure, environmental management of contaminated school sites, institutional controls and environmental insurance, land use restrictions and institutional controls under the 2002 Brownfield Amendments, and life cycle costs of institutional controls.

Part II presents the following case studies: a model land use control implementation plan (Chapter 12); information technology for institutional control management (Chapter 13); Mississippi “One Call” and the Mississippi UECA (Chapter 14); Texas municipal setting designations (Chapter 15); lessons learned in tracking institutional controls in Emeryville, California (Chapter 16); and a local-government-initiated environmental institutional control program in Rochester, New York (Chapter 17).

Part III examines programs in selected states and Ontario, Canada. The states include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawai’i, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts (covered in two chapters), Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio (covered in two chapters, from a brownfield developer’s perspective and from a private practitioner’s perspective), Oklahoma, Oregon, Pennsylvania (covered in two chapters, from a public sector perspective and from a private practitioner’s perspective), Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

The conclusion, entitled “Institutional Controls and the Converging Worlds of Real Estate and Environmental Law,” addresses both real estate transactional and environmental enforcement issues.

Implementing Institutional Controls at Brownfields and Other Contaminated Sites is intended to be used in conjunction with two other American Bar Association publications: Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property and Environmental Aspects of Real Estate and Commercial Transactions: From Brownfields to Green Buildings.

A CD-ROM with more than 45 appendices that do not appear in Implementing Institutional Controls is included with the book.

JoAnne L. Dunec