Combined Research Forward

8/7/2019 Combined Research Forward

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A MULTI-STATE ANALYSIS OF INFORMATIONAL SYSTEMS USED

TO MANAGE AND TRACK INSTITUTIONAL CONTROLS

Trent Morton and Corbin Fowler

Students, Indiana University Maurer School of Law

Prepared for the

ENVIRONMENTAL QUALITY SERVICE COUNCILof the

INDIANA GENERAL ASSEMBLY2010


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EXECUTIVE SUMMARY

State and federal environmental agencies are increasingly turning to a risk-basedapproach when cleaning up brownfields and other sites with environmental contamination.Unlike a complete site cleanup, a risk-based remediation leaves some residual contamination at

the site, but limits the risk those chemicals pose to human health and the environment by limitingthe range of activities that can take place on the property.These institutional controls (IC), for the purposes of this report and in the context of

brownfields and other contaminated sites, consist of several possible, different legal restrictions(on activity or contamination levels, for example) attached to parcels of land that limit their usefor the assurance of environmental safety and public health. In Indiana, the main types of ICsthat fall under the administration of the Indiana Department of Environmental Management(IDEM) are environmental restrictive covenants (ERCs) and environmental restrictiveordinances (EROs). Indiana currently relies upon these legal controls in roughly 426 propertiesacross the state where a risk-based remediation has occurred.

The Environmental Quality Service Council (EQSC)- an interim study committee of the

Indiana General Assembly- requested the Maurer School of Law at Indiana University toassist EQSC by performing research on what other states are doing to track the existence of andcompliance with ICs.

Accordingly, the overall aim of this report was to conduct research on other statesmethods: 1) to track properties with use limitations in place, 2) ensure that prohibited activitiesare not taking place on the properties, and 3) fund these monitoring and compliance efforts.Based on the research and opinion of the authors, the methods presented are the ones that best fillthe gaps and needs of the current Indiana IC scheme.


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TABLE OF CONTENTS

EXECUTIVE SUMMARY .................................................................................................................... 2

INTRODUCTION ................................................................................................................................ 4

I. INFORMATIONAL SYSTEMS AND THEIR RELATIONSHIP TO ENFORCEABLE

INSTITUTIONAL CONTROLS .......................................................................................................... 5Proprietary Controls ................................................................................................................................... 5

Governmental Controls .............................................................................................................................. 6

Enforcement Tools ....................................................................................................................................... 6

Informational Systems ................................................................................................................................ 7

II. INSTITUTIONAL CONTROLS IN INDIANAS ENVIROMENTAL REMEDIATION

PROGRAMS......................................................................................................................................... 7RISC Programs ............................................................................................................................................ 8

Non-RISC Programs ................................................................................................................................... 8

Indianas Statutory ICs............................................................................................................................... 9

III. INDIANAS CURRENT INFORMATIONAL SYSTEM........................................................... 10

Form and Available Data ......................................................................................................................... 10

Compliance and Monitoring .................................................................................................................... 12

Local Government Notification ............................................................................................................... 12

Public Awareness ....................................................................................................................................... 13

Funding........................................................................................................................................................ 13

IV. DIFFERING STATE APPROACHES TO INFORMATIONAL SYSTEMS ......................... .... 13Software and Available Data ................................................................................................................... 13

Proprietary State Software ................................................................................................................................................ 13

Commercially Available Software .................................................................................................................................. 18

Compliance and Monitoring of the Remedy.......................................................................................... 19

State Environmental Agency Auditing .......................................................................................................................... 19

Property Owner Self-Reporting ....................................................................................................................................... 20Combination State Auditing and Property Owner Self-Reporting.................................................................... 23

Local Government Notification ............................................................................................................... 24

Building Permit Notification............................................................................................................................................. 24

Public Awareness ....................................................................................................................................... 26

UECAs Section 5 Language Bindingthe Entire Chain of Title ........................................................................ 26

Californias use of Public Hearings and Participation......................................................................................... 27

Colorados Requirement of Advanced Notice for any Ownership Changes ................................................. 28

Floridas Required use of Standard Forms ................................................................................................................ 28

Funding........................................................................................................................................................ 29

EPA Grants .............................................................................................................................................................................. 29

General Solid and Hazardous Waste Funds .............................................................................................................. 30

Program Entrance Fees ...................................................................................................................................................... 30

Insurance, Trusts, and Other Financial Guarantees.............................................................................................. 31

Appendix 1 ....................................................................................................................................... 35

Appendix 2 ....................................................................................................................................... 35


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INTRODUCTION

The cleanup of a site with released hazardous substances has traditionally involved theremoval of nearly all of the contaminants present at the site, returning the affected media to anear-native, or background state. This approach to remediation assures that the site will be

safe for residential use, but is often technologically challenging and expensive. These inherentdifficulties of cleaning a site to unrestricted use often serve as a barrier to redevelopment,especially when the anticipated post-remediation land use is not residential. For example, theowner of a contaminated site who hopes to redevelop the land for use as an industrial warehousewill be reluctant to enter into a remediation program that requires cleanup to residential levels,precisely because the property owner has no intention of ever using the site for family homes.

Risk-based corrective action (RBCA) provides an alternative to these complete cleanupsby instead allowing some contamination to remain onsite, with exposure to the remainingcontamination controlled by activity and use limitations (AUL). AULs are legal or physicalrestrictions or limitations on the use of, or access to, a site or facility to eliminate or minimizepotential exposures to chemicals of concern or to prevent activities that could interfere with the

effectiveness of a response action.

1

The physical restrictions are known as engineering controls(EC), and may be as complex as an engineered soil cap or as simple as a chain link fence. Thelegal restrictions are known as institutional controls (IC), and they provide a legally enforceablebasis for prohibiting certain activities on the property. Perhaps the most common IC is acovenant prohibiting anyone from using the site for residential purposes. By employing acombination of these engineering and institutional controls, environmental agencies are able toprotect human health and the environment at the same time they encourage redevelopment byallowing non-residential sites to be cleaned up to less stringent industrial levels.

The focus of this report is ICs, and specifically one type of IC known as an informationalsystem. In contrast to the three other types of ICs- proprietary controls, government controls,and enforcement tools-informational systems are not legally enforceable. Rather, informationalsystems are databases that perform two main functions. First, they allow whomever isresponsible for implementing the RBCA (normally the state environmental agency) to centrallycompile and track ECs and the enforceable ICs and ensure that they remain in place and are incompliance. Second, they provide notice of the existence of restrictions to any parties with aninterest in the land and notify the public of the danger posed by the residual contaminants.

Section I of this report will discuss the three types of enforceable ICs and theirrelationship to informational systems, and how the needs of an informational system will varydepending on the type of enforceable IC that it tracks. Section II discusses the scheme ofenforceable ICs that Indiana currently employs to maintain RCBAs. Section III provides anintroduction to Indianas current informational system. Finally, Section IV analyzes the differentapproaches that states have taken in constructing their informational systems, and discusses thevaried tactics used in compliance monitoring and funding.

1ASTM,Standard Guide for the Use of Activity and Use Limitations, Including Institutional and EngineeringControls (E 2091-00).


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I. INFORMATIONAL SYSTEMS AND THEIR RELATIONSHIP TO ENFORCEABLE

INSTITUTIONAL CONTROLS

There are four different types of ICs available, and these are almost always used incombination. EPA as well as many commentators recommend this layering to provide

redundancy in the event of failure of one of the ICs.

2

Indiana employs each of these types of ICsin one form or another, with the statutorily created environmental restrictive covenant (ERC) fastbecoming the most numerous and preferred enforceable IC.

While the informational system is itself an IC, it differs from the other ICs in that it is notenforceable at law. Rather, informational systems allow agencies to keep a record of, and enforceif necessary, the three other ICs that have teeth in the form of injunctions, damages, or possibleliability.

Since the needs of an informational system will vary depending on which enforceable ICthe system is tracking, a quick discussion of the three enforceable ICs and their uniqueinformational needs is in order.

Proprietary Controls

These are tools available under traditional property law doctrine and serve as the basis ofmany states schemes. Covenants (including those created under the Uniform EnvironmentalCovenants Act), equitable servitudes, easements, and the deed notice are all examples ofproprietary controls. These mechanisms have been used for hundreds of years by privatelandowners to control the use of property, but have only recently been employed by the state inenvironmental remediation schemes.

The largest obstacle to implementing proprietary controls is ensuring that they arebinding upon successors in interest to the property- or, that they run with the land. If aproprietary control fails to run with the land the RCBA will be compromised upon the transfer ofthe property to another party, for the state will no longer have a legal basis to enforce the RCBA.There are many legal formalities required to make a proprietary control run with the land, but themost important is notice. Notice informs the grantee of the land to the existence of therestrictions. This is typically done through a notice placed in the deed at the county recordersoffice, although some states require recordation with the responsible state environmental agencyas well.

Informational systems tracking proprietary controls should thus include informationabout the specific property that is subject to the restriction, how long the restriction is to run withthe land, the identity of the party that can enforce the restriction, and where to locate the originaldocument creating the restriction.

Indiana overwhelmingly uses the environmental restrictive covenant, or ERC, to controlpost-remediation land use. The ERC is a creature of statute encompassing any deed restriction,restrictive covenant, environmental covenant, environmental notice, or other restriction orobligation that limits the use of the land.3 ERCs grant the department access to the affected landand require the transferor of the land to provide notice of the restrictions to the transferee, among

2For example, EPA recommends that ICs should be layered . . . or implemented in a series to provide overlappingassurances of protection from contamination. EPA, Institutional Controls: A Site Managers Guide to Identifying,Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups (2000).3 IND.CODE ANN. 13-11-2-193.5 (West 2010).


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other requirements.4 By codifying these and other aspects of the ERC, the state is able toovercome many of the common law defenses to property restrictions. Indiana also uses deednotices to much the same effect, although these are usually the result of completed federalSuperfund or Hazardous Waste/RCRA actions.

Governmental Controls

These are powers reserved mainly to local governments to control land use andimplement development plans. These include zoning, ordinances, building permits, coderestrictions, and well drilling prohibitions. Also included are One Call systems used to alertexcavators to underground utilities. While these may be effective at providing another layer ofprotection, these controls are less reliable than other more permanent methods and should not besolely relied upon to maintain a RCBA. This is due to the ease with which these controls can beamended or repealed. For example, zoning variances may be freely granted without anyoneremembering why the controls were implemented in the first place. Moreover, it is oftendifficult to target only one property with these controls.

The most important factor to consider when relying upon these controls iscommunication between the local government implementing the control and the stateenvironmental agency. Local governments are primarily responsible for ensuring thatlandowners are in compliance with their codes, and their compliance or noncompliance (or therepeal of existing controls) must be communicated to the state environmental agency. To thisend, informational systems tracking governmental controls should include information about thelocal governmental contact responsible for the control, the location of the document creating thecontrol, and ideally should provide notice to the state agency if the control has beencompromised, is set to expire, or if a construction permit is requested.

Indiana currently relies upon city and county ordinances prohibiting the drilling of wellsto prevent groundwater use, but these comprise a very small portion of Indianas IC scheme.

Enforcement Tools

These are essentially contracts formed between the owner, operator, or responsible partyof a contaminated site and the federal or state environmental agency conducting theenvironmental remediation. Orders, consent decrees, and permits are all enforcement tools.Since these contracts are binding only on signatories, they do not run with the land and willexpire upon the transfer of the property. Nevertheless, these are valuable for the duration of thecleanup as a bridge to a longer-term solution. They are also effective when the currentlandowner is likely to own the property for as long as controls are needed.

Informational systems tracking enforcement tools should note the specific location of theproperty subject to the restrictions, the individuals or entities that are a party to the contract, theduration of the contract term, and the federal or state agency contact responsible for overseeingthe tool.

Indiana may use enforcement tools in a few situations. Post-closure permits are used tomanage land use at sites in Indianas Hazardous Waste management program pursuant to federalRCRA guidelines, and the State Cleanup Program may employ orders to further a response

4Id.


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action. Additionally, federal Superfund site managers may work with the state to ensure long-term ICs are in place.

Informational Systems

These non-enforceable databases allow environmental agencies to keep a record of, andenforce if necessary, the three other ICs that are legally enforceable. They do so by at minimumproviding: a legally sufficient description of the real property subject to limitations; thechemical(s) of concern the IC is designed to address; the affected exposure pathways the IC isdesigned to address; the location, if any, of engineering controls; the entity responsible forenforcing the IC; the means and frequency of monitoring the IC; and the duration of the IC.Many states also use a geographical information system (GIS) to allow the public and regulatedcommunity to view the affected site on an aerial map. The following is a summary of theelements that an effective informational system will contain:

publicly accessible and up-to-date data lists and/or descriptions of site-specific ICs GIS capabilities searchable database contact information for state agency and/or for person responsible for the IC nature and extent of contamination specific to media (i.e., soils, air, sediment, surface water,

and/or groundwater) ownership history and/or notification of property transfers notification to project managers when inspections or certifications are required downloadable site-specific documents (surveys, ERCs, comfort letters, etc.) compliance tracking definitions of agency terminology and acronyms field-ready site location information (e.g., street address, latitude/longitude, lot/block/parcel) record of IC inspections links to other pertinent information easily accessible/user friendly format for information identification of changes in land use notifications and/or alerts of potential threats to controls provisions for emergencies5II. INSTITUTIONAL CONTROLS IN INDIANAS ENVIROMENTAL REMEDIATION

PROGRAMS

Indiana currently has eight environmental remediation programs in which the use of ICsneeds to be tracked. IDEM becomes, in some capacity, the point of contact for all of theseprograms. Indianas Risk Integrated System of Closure (RISC) manual governs theimplementation of ICs for five of the eight programs.6

5 Interstate Technology & Regulatory Council Brownfields Team, An Overview of Land Use Control ManagementSystems (2008).6Ind. Dept. of Envtl. Mgmt., RISC Technical Resource Guidance Document (2009).


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RISC Programs

Leaking Underground Storage Tank (LUST). Regulates the operation, maintenance,corrective action, and closure of underground storage tanks. Owners of underground tanksare assessed yearly registration fees that are allocated to the Excess Liability Trust Fund, the

Petroleum Trust Fund, and if the tank contains regulated substances other than petroleum,the Hazardous Substances Response Trust Fund.

Brownfields (BF). Facilitates the redevelopment of brownfields through educational,technical, legal, and financial assistance. Offers awards and low-interest loans throughIndianas Revolving Loan Program. Administered by the Indiana Finance Authority.

Voluntary Remediation Program (VRP). Provides government oversight of privatelyconducted remediation projects, and protection from environmental liability uponcompletion of the remediation. Participants must pay a $1,000 application fee that isallocated to the Voluntary Remediation Fund.

State Cleanup Program (SCU). Investigates, remediates and removes contaminants at highpriority sites that are not included in EPAs National Priorities List. Cleanups are financed

through the Hazardous Substances Response Trust Fund. Hazardous Waste/RCRA (HW). Regulates hazardous substances from creation to disposal

in accordance with rules promulgated under the Federal Resource Conservation andRecovery Act. Also includes corrective action taken to remediate the release of ahazardous substance at a treatment, storage, or disposal facility. A state tax is levied on thedisposal of hazardous wastes in disposal facilities, seventy-five percent of which is allocatedto the Hazardous Substances Response Trust Fund.7

Non-RISC Programs

CERCLA/Superfund (SF). Grants EPA the authority to conduct removal actions andenforce against potentially responsible parties. Although federally administered and funded,EPA may transfer responsibility for long-term maintenance of the IC to the stateenvironmental agency.

Defense Environmental Restoration Program (DERP). Remediates current and formerlyused Department of Defense sites. Although federally administered and funded, states mayenter into a voluntary agreement with the landholding federal agency to monitor and enforceICs at the site.

Municipal Solid Waste (MSW). Regulates non-hazardous solid wastes and landfills. Feesassociated with the processing of solid waste are allocated to the Solid Waste ManagementFund, Indiana Recycling Promotion and Assistance Fund, and the Hazardous SubstancesResponse Trust Fund.8

Number and Type of ICs per Program*9

7Id.8Id.9 Ind. Dept. Envtl. Mgmt., Office of Land Quality, Institutional Controls Registry (2010).


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Source: Indiana Department of Environmental Management Office of Land Quality, Institutional Controls Registry(2010).*426 properties total; some properties have more than one IC in place**Includes municipal ordinances, site status letters, comfort letters, and other miscellaneous controls or informationconcerning the site

Includes one site (p.100) listed without a program area, IC type, or supporting document

Indianas Statutory ICs

Environmental Restrictive Covenants (ERC)

The Indiana Code divides ERC requirements based on the date of their execution. If theERC was executed before June 30, 2009, it

(A) limits the use of the land or the activities that may beperformed on or at the land or requires the maintenance of any

engineering control on the land designed to protect human healthor the environment;(B) by its terms is intended to run with the land and be binding onsuccessors;(C) is recorded with the county recorder's office in the county inwhich the land is located; and(D) explains how it can be modified or terminated.10

If it was executed after June 30, 2009, the ERC features the same requirements but adds furtherthat the ERC

(E) grants the department access to the land;(F) requires notice to a transferee of:(i) the land; or(ii) an interest in the land; of the existence of the restrictivecovenant; and

1013-11-2-193.5(1)(A-D).

ERC Post ClosurePermit

Deed Notice Other** Total

HW 24 12 12 48LUST 210 3 1 214VRP 43 1 44

SCU 21 21BF 71 15 86MSWDERP

SF 29 11 2 42

Other 1 1

Total 398 12 26 20 456


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(G) identifies the means by which the environmental files at thedepartment that apply to the land can be located.11

IDEM has the authority to approve or disapprove of the conditions of any ERC andensure that the terms of the ERC are statutorily satisfactory.12 If the parcel of land is on a

Resource Conservation and Recovery Act (RCRA) or Comprehensive Environmental Response,Compensation, and Liability Information System (CERCLIS) list, then the IDEM has additionalhelpful authority over parties responsible for maintaining standards set out in ERCs. It mayrequire ERCs on such sites, include in the ERC the types and amounts of contaminants found onthe site, and require maintenance of engineering controls that may be already on the sites.13

While the IDEM provides ERC templates as a matter of convenience, no responsibleparty is required to use the templates.14

Environmental Restrictive Ordinances (EROs)

The Indiana Code defines EROs briefly as an IC that is

(1) is adopted by a municipal corporation (as defined inIC 36-1-2-10); and(2) limits, regulates, or prohibits any of the following with respectto groundwater:(A) Withdrawal.(B) Human consumption.(C) Any other use. . . .15

IDEM acknowledges the limitations of EROs in its own documentation. Since theenforcement lies with local governmental units, fiscal constraints limit the robustness of theenforcement and monitoring measures.16 Indiana has no statewide requirement for well permitsso EROs rely on public awareness to prevent unintentional well construction.17 Further problemsoccur when landowners may continue use of existing wells or the ERO might only prohibitinstallation of new wells without mentioning the use of existing wells.18

III. INDIANAS CURRENT INFORMATIONAL SYSTEM

Form and Available Data

1113-11-2-193.5(2)(E-G).

12 Ind. Dept. Envtl. Mgmt., House Enrolled Act 1162 Interim Implementation Document 25 (2009),http://www.btlaw.com/files/HEA%201162%20Interim%20IDEM%20guidance.pdf.13Id.14Idat 26.15 13-11-2-71.2 (1-2).16 Ind. Dept. Envtl. Mgmt., House Enrolled Act 1162 Interim Implementation Document 27.17Id.18Id.
http://www.lexis.com/research/buttonTFLink?_m=6f9fad819edaa25a45b6b9d0df2337cf&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bBurns%20Ind.%20Code%20Ann.%20%a7%2013-11-2-71.2%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=INCODE%2036-1-2-10&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAl&_md5=5f9f488ecbda8aa8e8f77542bf52c2d6http://www.lexis.com/research/buttonTFLink?_m=6f9fad819edaa25a45b6b9d0df2337cf&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bBurns%20Ind.%20Code%20Ann.%20%a7%2013-11-2-71.2%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=INCODE%2036-1-2-10&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAl&_md5=5f9f488ecbda8aa8e8f77542bf52c2d6http://www.lexis.com/research/buttonTFLink?_m=6f9fad819edaa25a45b6b9d0df2337cf&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bBurns%20Ind.%20Code%20Ann.%20%a7%2013-11-2-71.2%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=INCODE%2036-1-2-10&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAl&_md5=5f9f488ecbda8aa8e8f77542bf52c2d6http://www.lexis.com/research/buttonTFLink?_m=6f9fad819edaa25a45b6b9d0df2337cf&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bBurns%20Ind.%20Code%20Ann.%20%a7%2013-11-2-71.2%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=INCODE%2036-1-2-10&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAl&_md5=5f9f488ecbda8aa8e8f77542bf52c2d6http://www.lexis.com/research/buttonTFLink?_m=6f9fad819edaa25a45b6b9d0df2337cf&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bBurns%20Ind.%20Code%20Ann.%20%a7%2013-11-2-71.2%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=INCODE%2036-1-2-10&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAl&_md5=5f9f488ecbda8aa8e8f77542bf52c2d6http://www.lexis.com/research/buttonTFLink?_m=6f9fad819edaa25a45b6b9d0df2337cf&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bBurns%20Ind.%20Code%20Ann.%20%a7%2013-11-2-71.2%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=INCODE%2036-1-2-10&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAl&_md5=5f9f488ecbda8aa8e8f77542bf52c2d6


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Indianas informational system is called the Institutional Controls Registry and can beaccessed from three separate webpages located within the State of Indianas website. The easiestway to access the registry (using either a search engine or by navigating the website) is throughIDEMs Institutional Controls webpage, which links directly to the registry.19 The registry canalso be accessed on IDEMs RISC webpage and the Indiana Finance Authoritys Brownfields

page, although users must navigate through multiple layers of these sites to access the registry.The registry is only accessible in this electronic form.The registry itself is in PDF format and must be opened with a PDF viewer before it can

be viewed. There is no way to electronically search the registry and users cannot narrow the listof ICs they will view, as the whole registry must be downloaded. Users looking for a specificsite must search alphabetically by county, city, program area, and then program ID number. Thismethod is relatively straightforward given the total number of ICs listed in the registry; however,this may become burdensome as more ICs are added.

For each site, the registry includes: the county, city, address, site name (if applicable),and program ID number; the program area, IC type, affected media, date the IC was recorded,and description of the IC; the control method, coverage (either the whole property or a portion

thereof), chemicals of concern, and any comments on the control method. See Figure 1.

Figure 1: Indianas Institutional Controls Registry20

Additional information may be accessed through links adjacent to the site data. TheOpen Map link directs users to an aerial view of the site on IndianaMap, which is Indianasstate GIS system. See Figure 2. It is managed, financed, and has data contributed to it bymultiple public donors. While convenient, users unfamiliar with IndianaMap may find itcomplex to navigate, and not every site with ICs is linked into IndianaMap. The other link

19Ind. Dept. of Envtl. Mgmt., Institutional Controls, http://www.in.gov/idem/5959.htm (last visited Sept. 14, 2010).20Id.


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labeled View Document directs users to viewable copies of many documents relating to the ICincluding comfort letters, property surveys, site environmental maps, and ERCs. Thesedocuments are provided by IDEMs Virtual File Cabinet document storage program and requirea PDF viewer and Java Run-Time Environment to be installed on the computer.

Figure 2: IndianaMap shown with the Institutional Controls Layer

21

Compliance and Monitoring

Indiana does not have any mechanism in place for monitoring ICs or assuring that theyare in compliance. Despite the lack of any established compliance program, the statute creatingERCs specifically grants the department access to the land that is subject to the ERC,22 and theOffice of Land Quality has periodically sent employees to the field to check on the status ofICs.23

Local Government Notification

Indiana does not have any formal mechanism in place for communication between IDEMand local governments when a local government tool (ordinance, well drilling prohibition) is

21 IndianaMap (October 8, 2010), http://inmap.indiana.edu/viewer.htm.22IND.CODE ANN. 13-11-2-193.5 (West 2010).23Tel. Interview with Pat Colcord, Senior Envtl. Manager, Ind. Dept. of Envtl. Management (July 28, 2010).


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relied upon as part of a RBCA. Indiana does have an underground utilities notification systemknown as Indiana 811, but this has not been integrated with the IC registry.

Public Awareness

Besides the IC registry, Indiana does not have any comprehensive program for alertingmembers of the public to the existence of residual contamination at IC sites. Indiana Code doesprovide that [t]he department shall develop and implement a program of public awareness andparticipation to assure maximum citizen involvement in the evolution and continuation of theenvironmental programs of the state.24

Funding

Funding refers to the cost of administering a compliance assurance program as well as thecost of maintaining the electronic database. Since Indiana does not have a mechanism forassuring the compliance of ICs, there is no dedicated funding source for that objective. Fundingfor maintaining the IC registry and entering data into it comes from IDEMs general funds.When an IC is created the site manager fills out a form containing information about the IC,which is then submitted to the Office of Land Quality. Staff at the Office of Land Quality arethen responsible for entering the data into the registry.25

IV. DIFFERING STATE APPROACHES TO INFORMATIONAL SYSTEMS

The following represents a sampling of the different approaches that the states have takenin creating their informational systems, with an emphasis on four core elements: the form of thesoftware; the manner in which compliance and monitoring is conducted; how local governmentsare notified; and funding. States were chosen based on the unique characteristics of their

informational system and/or the established success of their overall IC programs.

Software and Available Data

Proprietary State Software

Minnesota

The Minnesota Pollution Control Agencys (MPCA) informational system is called theWhats in My Neighborhood? program and it allows users and staff to locate any of the statesenvironmental remediation sites using either text or map-based searching.26 Users wishing to do

a text search enter data into a search field or select from a drop down menu and search by sitename, owner name, ID number, city, zip code, county, legislative district, watershed, activity

24Ind. Code Ann. 13-14-1-5 (2010).25Id.26Minn. Pollution Control Agency, Whats in My Neighborhood?,http://www.pca.state.mn.us/index.php/topics/environmental-data/wimn-whats-in-my-neighborhood/whats-in-my-neighborhood.html?menuid=&missing=0 (last visited Sept. 14, 2010).


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type, or status. Users are not required to fill out every data box to conduct a search, which makesthe process simpler.

Map-based searching is also convenient. Users simply open the map, zoom into thegeographic region they are interested in, view the sites with environmental data as denoted by themap legend, and then click on the site to view its name, address, city, county, ID number, and

activity. Although the interface has too many features to list, one interesting feature is radiussearching, which allows users to search for any sites within a defined radius of any given pointon the map. See Figure 3.

Figure 3: Minnesotas Whats in My Neighborhood? program shown with radius search

tool27

The beauty of Minnesotas program is that both of these search methods ultimately directthe user to the same information on any given site at its Site Report webpage. See Figure 4.Each environmentally regulated site in Minnesota has its own Site Report page, and users can be

directed to that page through either map or text-based searching. This page will include a bevyof information including an activity overview, compliance and enforcement details, additionalsite data, agency contacts, and alternative names for the site. Users are also able to print thereport or download it in PDF format, and get driving directions to the site using Google Maps.Another highlight of this program is the ease with which it is updated. Staff at MPCA enter data

27Minn. Pollution Control Agency, (October 8, 2010), http://pca-gis02.pca.state.mn.us/wimn2/index.html.


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into their server and the information is then automatically integrated into the programs map anddatabase every night.28

The program currently does not link to copies of pertinent documents such as covenantsor comfort letters, but this feature will be added by staff in the future. Id. Nor does the programprovide any sort of scheduling or alert system for compliance monitoring. Nevertheless, due to

its ease of use, comprehensiveness, and breadth of features, Minnesotas Whats in MyNeighborhood? program is an excellent information system.

Figure 4: Minnesotas Site Report Page29

Massachusetts

28Tel. Interview with Sara Mueller, Envtl. Program Analyst, Minn. Pollution Control Agency (July 19, 2010).29Minn. Pollution Control Agency, (October 8, 2010), http://pca-gis02.pca.state.mn.us/wimn2/index.html.


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The Massachusetts Department of Environmental Protection (MDEP) also allows users tolocate sites with ICs through text and map-based searching.30 To locate a site using textsearching, users enter the town, address, program ID number, site name, status, or chemical typeinto the field, or simply select their desired criteria from the drop-down menu. Users are notrequired to fill out every data box to conduct a search. One useful feature of the text searching is

the ability to narrow the search to only sites with AULs, as the database contains information onevery environmental site in the state. Users may also download all of the information in theonline database for viewing with spreadsheet or database software.

The search results are then displayed in list format beneath an interactive Google mapshowing the location of all the sites. If users want more information on a certain site, theysimply click on the program ID link on the left-hand side of the listing. Users are then directedto the sites Site Information page. See Figure 4. This page lists more specific and technicaldata as well as a record of any activity occurring at the site. This page can be printed or the dataexported to Microsoft Excel.

Figure 4: Massachusetts Site Information Page31

30Mass. Dept. of Envtl. Prot., Waste Site/Reportable Releases Look Up,http://db.state.ma.us/dep/cleanup/sites/search.asp (last visited Sept. 14, 2010).31

Id.


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Massachusetts map-based searching function also ultimately directs users to the selectedsites comprehensive Site Information page. However, Massachusetts does not employ its ownGIS system. The MDEP instead relies on a map datalayer developed by staff at the agency. Thislayer is downloaded from the departments website and then viewed using commerciallyavailable GIS systems. The datalayer can be viewed using professional GIS programs such as

Arcmap, Arcglobe, or Arcreader, or with free software such as Google Earth or NASAs WorldWind Viewer that are oriented towards non-professionals. Upon opening the datalayer in one ofthese programs an aerial view of all the AUL sites in Massachusetts is provided, and clicking onany given site will direct users to its aforementioned Site Information page. See Figure 5.

The MDEPs reliance on Google Maps and insertable datalayers results in map databeing inexact, as the exact location of a release or the extent of contamination is unable to beviewed. Despite this limitation, the method MDEP employs is user friendly and likely easier andcheaper to maintain than an agency-developed GIS system.

Figure 5: Google Earth shown with MDEPs AUL Layer32

California

The California Department of Toxic Substances Control (DTSC) has developedEnviroStor, a multi-purpose database that tracks all of the cleanup sites and hazardous waste

32Service Center, Mass. Dept. Env. Protection, (October 8, 2010),http://www.mass.gov/dep/service/compliance/maps.htm.


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facilities in the state.33 While users must initially search for a site using text searching, they canchoose to view the search results in either map or list form. The search result page then listsbasic information on the site, including its address and cleanup status, and users can choose toview its unique Site Report page. See Figure 6. Like the databases in Minnesota andMassachusetts, each environmental site in California has a dedicated, comprehensive page where

any information relating to the site is contained.The Site Report page also has tabs which one can click on for more specific informationincluding a schedule of activities at the site, a record of community involvement, and Google-powered interactive maps. Furthermore, within each tab users can link to documents that can bedownloaded and printed. Another useful feature of this system is the inclusion of contactinformation for DTSC staff responsible for the environmental site. If users are unclear about anyof the data on the Site Report page, they could easily contact the site manager for moreinformation.

While California is unique in that it does not have a GIS search method for locating ICs,this doesnt hamper the effectiveness of their information system because the text searching is soeasy. The database is easily navigated, the information is well organized, and all the data is

located in one place, making Californias EnviroStor another excellent information system.

Figure 6: Envirostors Site Report Page34

Commercially Available Software

Private developers and quasi-governmental organizations have responded to theincreasing need for IC stewardship by developing and offering programs of their own. These

33 Cal. Dept. of Toxic Substances Control, EnviroStor, http://www.envirostor.dtsc.ca.gov/public/ (last visited Sept.14, 2010).34

Id.


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programs track when and where ICs are located, notify monitoring agencies when the remedy iscompromised, or notify the public to the existence of the contamination. Some programs canaccomplish more than one of these objectives.

Each program differs in the amount of responsibility that the state agency relinquishes tothe corporation or organization. This range of privatization is evident in two of the following

programs that have been the focus of EPA pilot studies: the Guardian Trust and Terradex. TheGuardian Trust acts as nearly a complete privatization of the IC stewardship process with thestate shifting responsibility and liability for s ite inspection, monitoring, and financial assuranceto the Trust. On the other hand, Terradex acts as more of a subcontractor responsible for alertingthe environmental agency whenever an activity that may conflict with an IC is planned. Contactinformation for each of these programs is available in the appendix.

Tracking

Accela Automation DRPA, Inc. Environmental Control Land Use WebRing Guardian Trust Parasec NETR Online Sentinel Trust Terradex

Notification

Guardian Trust Parasec Sentinel Trust Terradex

Community Outreach

Accela Automation Guardian Trust Google Earth Sentinel Trust Terradex

Compliance and Monitoring of the Remedy

State Environmental Agency Auditing

Tennessee

The Tennessee Department of Environment & Conservations Division of Remediationchose to rely solely on an auditing approach to monitor AULs. This approach was favored over


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a landowner self-reporting scheme because the Department feared such a requirement mightdiscourage developers from voluntarily entering into cleanup agreements.35 Another concernwas that subsequent landowners would forget a reporting requirement or be discouraged frompurchasing the property due to the reporting burden.36

The Division of Remediation sends staff from its six regional field offices to check on

properties with ICs. These visits are currently done annually, although the frequency of visitsmight be reduced as more ICs are added within the state. Staff members conducting the visitvisually inspect any ECs in place and check for any prohibited land uses, and then record theirinspection on an IC inspection compliance form. These reports are then sent to the manager ofTennessees Enforcement program, who tracks these compliance reports on an Excel document.

Illinois

The Illinois Environmental Protection Agency (IEPA) also takes an auditing approach tomonitor ICs. Unlike Tennessee, however, IEPAs auditing approach uses computer technologyin lieu of physically sending staff to the site. Monitoring is thus performed in one of three ways.

First, in Cook County (where roughly 80% of Illinoiss ICs are located) IEPA staff check GoogleEarth to visually assess the condition of the remedy.37 If an EC appears to be in disrepair a staffmember will be sent to the site. This approach is only relied upon for sites in Cook Countybecause only there is the satellite imagery updated as frequently as the monitoring is performed-every five years.

The second monitoring approach applies to sites with only a deed restriction in place.Since many Illinois counties have converted their land records to electronic databases, IEPA staffsimply check these electronic records to assure that the deed restriction is still in place and thatownership of the property has not changed.38 Again, these checks are performed every five yearsand a staff member will physically visit the site only if something appears amiss.

Third, for all other sites in Illinois the IEPA will send a staff member out to check on theremedy. These combined approaches have resulted in a total IC compliance rate of about 99% ofthe states 2,000 IC sites. Id. IEPA reports that the rare cases of noncompliance mostly consistof minor physical defects in ECs, and that the strongest incentive for landowners to report is thethreat of the removal of a No Further Remediation letter.39

Property Owner Self-Reporting

Maryland

Marylands Department of the Environment relies solely upon landowner self-reportingto ensure that ICs and ECs are in compliance. In the past, the Department sent staff to conductsite visits, but this practice was ended due to a lack of funding.40 The current self-reporting

program is informal and requirements will vary based on the complexity of the remedy. More

35Tel. Interview with Andy Shivas, Brownfields Coordinator and VOAP Manager, Tenn. Dept. of Envt. &Conservation (Aug. 27, 2010).36

Id.37Tel. Interview with Joyce Munie, Remedial Project Mgmt. Director, Ill. Envtl. Prot. Agency (Aug. 30, 2010).38Id.39Id.40Tel. Interview with Barbara Brown, Geologist with VCP City/Brownfields, Md. Dept. of the Env. (Aug. 25, 2010).


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complex sites may require biannual reporting with photographs of ECs, while simpler remediesmay require only an annual letter to the site manager stating that the EC is undisturbed.Interestingly, there is no stock reporting form that the Department has developed, making thereporting format at each site unique.

Site managers are individually responsible for assuring that property owners comply with

their reporting schedule and are authorized to withdraw certificates of completion if necessary.

41

Additionally, landowners are required to notify site managers whenever the property istransferred, and subsequent landowners inherit reporting requirements. Marylands self-reporting scheme has not suffered any significant failures yet, a fact one staff member hasattributed to the states small geographic area.42

Michigan

While monitoring plans in Michigan are only implemented if needed to judge theeffectiveness of response activity, the self-imposed requirements require Michigan Departmentof Environmental Quality (MDEQ) approval and cover a broad range of site requirements.43 The

monitoring plans feature the following requirements:

(2) A monitoring plan or report submitted shall address all of thefollowing, as appropriate to the facility:(a) The effectiveness of the response activities in protecting thepublic health, safety, and welfare and the environment. A responseactivity that includes measures to limit or control migration ofhazardous substances shall include a plan and schedule fordetermining whether that objective is achieved.(b) The effectiveness of the response activities in minimizing,mitigating, treating, or removing environmental contamination at afacility.(c) Location of monitoring points for collection of environmentaldata.(d) Environmental media to be monitored, such as soil, air, water,sediment, or biota.(e) Monitoring schedule.(f) Monitoring methodology, including sample collectionprocedures.(g) Substances and conditions to be monitored.(h) Laboratory methodology, including the name of the laboratoryresponsible for analysis of monitoring samples, and whether targetdetection limits were achieved for the monitoring samples. Qualityassurance and quality control samples that document the accuracyand precision of the monitoring samples shall be made available tothe department on request.(i) Quality assurance and quality control plan.

41Id.

42Id.43 MICH.ADMIN.CODE r.299.5540(1) (2010)


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(j) Data presentation and evaluation plan.(k) Contingency plan to address ineffective monitoring.(l) Operation and maintenance plan for monitoring equipment.(m) An explanation of the way in which monitoring data will beused to demonstrate effectiveness of the response activities.

(n) Other elements required to determine the adequacy of themonitoring plan. Department requests for information under thissubdivision shall be limited to factors not adequately addressed byinformation required by other subdivisions of this rule and shall beaccompanied by an explanation of the need for the additionalinformation.44

Indiana could examine the requirements of Michigans periodic monitoring to assign responsibleparties monitoring roles.

New Jersey

The New Jersey Department of Environmental Protection (NJDEP) employs a self-monitoring method of maintaining institutional controls. The people assigned the responsibilityof monitoring sites on the required biennial basis include but are not limited to any personresponsible for the discharge of the hazardous substance on the site, the owner of the site at thetime of the discharge, the owner of the site at the time that the remediation program wasinitiated, and any holder of a security interest on the site who either negligently caused furtherdischarge or who actively managed the site during the remedial action.45

Besides the organizational and identifying information46 inherent in all sites, responsibleparties must provide the following information:

3. A description of:i. The physical characteristics of the site; andii. The current site operations;4. A description of each remedial action for the site that includedthe deed notice or declaration of environmental restrictions;5. The results of the comparison of applicable laws and regulationspursuant to (a)3 above;6. The maintenance and evaluation log for each engineeringcontrol pursuant to (a)4 above;7. The dates and results of inspections and maintenance, includingall test and sampling results, of each engineering and/or control;8. A description of any changes in applicable laws, regulations orremediation standards and a proposal for all changes in theremedial action to comply with those changes;9. A description of any additional action taken to ensure theprotectiveness of the remedial action; and

44 r.299.5540(2)45N.J. STAT.ANN. 7:26E-8.4(a)(1) (2010)46 7:26E-8.5(b)(2)


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10. A conclusion as to whether each remedial action that includesan engineering and/or institutional control remains protective ofthe public health and safety and the environment.47

Having the responsible parties collect and compile information from their respective sites lifts a

burden from the NJDEP and places a large portion of the responsibility of IC compliance on theparties bound by the ICs.

New York

The New York State Department of Environmental Conservation (NYDEC) has arguablythe most rigorous self-reporting requirements of all the states. Near the completion of remedialaction, the landowner and NYDEC agree upon a site management plan based upon the defaultsite management guidelines promulgated in the Departments technical guidance document.48

This integration of post-closure guidelines into the guidance document is itself a helpful step thatmany states have not taken. These guidelines call for the landowner or responsible party to

submit a periodic review report 18 months after the closure or certificate of completion is issued,and annually thereafter unless the parties agree to a different schedule.49The contents of the report will vary with the complexity of the remedy and in some

instances the landowner or responsible party may need to hire an environmental engineer toreport the results of tests. For example, groundwater trend monitoring or soil toxicity testing isbeyond the capacity of most individuals. Nevertheless NYDEC notes that such significanttesting is not required in most instances and that most participants are able to complete theirperiodic review without the assistance of environmental professionals.50

To facilitate the return of the periodic reviews the NYDEC mails a packet with all of therequired forms to the site 45 days before the report is due. A staff-only computer database,Unified Information System, automatically inserts the site-specific data into the form.51 Likemany other states, New York has the authority to withdraw site closure letters if the compliancereport is not received.

Combination State Auditing and Property Owner Self-Reporting

Rhode Island

The Rhode Island Department of Environmental Management (RIDEP) combineslandowner self-reporting with agency auditing to ensure ICs are in compliance. Each landownerwith an IC on his or her property is required to submit an annual report that lets RIDEP know: 1)the current land use, 2) the condition of ECs, if applicable, and 3) whether any emergencies

47 7:26E-8.5(b)(3-10)48N.Y. State Dept. of Envtl. Conservation, DER-10/ Technical Guidance for Site Investigation and Remediation(2010).49

Id.50Tel. Interview with James Candiloro, Project Manager for the Division of Envtl. Remediation, N.Y. State Dept. ofEnvtl. Conservation (Aug. 30, 2010).51Id.


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relating to the IC have occurred.52 No stock reporting form is used so the format of the reportvaries, but photos of the properties are often included. Staff report that around 75% of thelandowners report annually without issue.53 Those who fail to report first receive anoncompliance letter from the Department, followed by fines and enforcement action if no reportis received.

The Department annually audits anywhere from 75% to 90% of the properties with ICs inplace.54 The number of properties audited varies based on the number of summer interns hiredfor the job. Those who fail to self-report are always audited first, while the rest of the propertiesare randomly selected. The audits themselves consist simply of a visual inspection of theproperty memorialized in a written report that is later stored in RIDEPs access database. Thisdatabase is accessible only to RIDEP staff and serves as a record of any activity occurring at thesite.

Kansas

While the Kansas Department of Health and Environment (KDHE) has the authority to

conduct site visits and to require landowners to submit compliance reports, it does notautomatically assign both methods to every remediation site. Rather, KDHE first makes adetermination of what category the site belongs in, and then the compliance assurance plan isbased on that category. Category 3 sites are those with large physical borders and complexcontamination, while Category 1 and 2 sites are those with comparatively smaller size and lesscomplexity of contamination.55

For the less-complex Category 1 and 2 sites, KDHE only requires the landowner to fillout and return the Departments inspection form every five years. KDHE may then, at itsdiscretion, choose to visit the site to confirm the accuracy of the report, or if the landowner failsentirely to submit the report.

For the most complex Category 3 sites, KDHE will be required per the Long Term CareAgreement to conduct site visits and ensure that the site is in compliance. Properties are usuallyinspected for compliance once every five years, although the frequency may be altered in theagreement depending on site conditions. KDHE regional staff complete these inspections usingthe same form that landowners must submit. In a 2005 study of its compliance program, KDHEfound that none of the 37 sites in the study had significant compliance problems.56

Local Government Notification

Building Permit Notification

52

Tel. Interview with Kelly Owens, Supervisor of the Site Remediation Program, R.I. Dept. of Envtl. Mgmt. (Aug.27, 2010).53Id.54Id.55Tel. Interview with Stuart Aller, Envtl. Scientist in the Remedial Section, Kan. Dept. of Health and Env. (Aug. 24,2010).56Kan. Dept. of Health and Env., Evaluation of Existing Institutional Controls: A Report on Inspections and RecordsReview of Historical Contaminated Sites With InstitutionalControls Placed Prior to Enactment of Kansas Environmental Use Controls Statute in July 2003 (2005).


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New York

State law in New York requires any local government that receives a building permit orany other application affecting land use on a property subject to an environmental covenant tonotify the NYDEQ.57 The NYDEQ is then supposed to evaluate whether the application is

consistent with the environmental easement.

58

The unit of local government, in turn, shall notapprove the application until NYDEQ approves it.59 While well intentioned, this law has notbeen complied with by building inspectors nor enforced by NYDEQ. One staff membercommented that the program places too heavy a burden on already busy building inspectors, andthat it would be more effective if the inspector was automatically notified of the easementthrough some sort of automated program.60

The city of Rochester, New York, has a simpler and more effective process. Red flagsare placed on the records of any properties subject to an environmental easement, thus notifyingbuilding inspectors to the contamination whenever an application pertaining to that property isreviewed.61

One Call Systems

While underground utility notifications systems have been used for decades to preventdamage to buried utilities lines, they have only recently been used to notify excavators ofenvironmental contamination. The merging of IC databases within One Call systems is temptinggiven that many RCBAs require the soil to be undisturbed, and state law in many places(including Indiana) already mandates a call to these systems before excavation begins.62

The EPA has experimented with the use of One Call systems in pilot studies, andMaryland law requires landowners to submit documents to their Miss Utility system beforesite closure.63 Additionally, the Terradex software often links into these systems as part of itsconflict notification program (see Commercially Available Software above). However,integration of these two systems has not been perfected by any state. New York is currentlyconducting a pilot involving its One Call system, the results of which are forthcoming.

Wisconsin

The Wisconsin Department of Natural Resources (WDNR) became part of the statesDiggers Hotline in 2002 as part of an EPA pilot study aimed at assessing the viability ofincluding sites with institutional controls in state One Call systems.64 The WDNR placed siteswith ICs listed in the Wisconsin GIS registry into the Diggers Hotline database with theintention that WDNR would be notified whenever someone intended to drill a well at a site withICs. The WDNR would then contact the driller with instructions on how to proceed.

57N.Y.ENVTL.CONSERVATION LAW 71-3607 (McKinney 2010).58Id.59Id.60Tel. Interview with Bill Ottoway, Project Manager in the Division of Envtl. Remediation, N.Y. State Dept. ofEnvtl. Conservation (Sept. 2, 2010).61Id.62IND.CODE ANN. 8-1-26-16 (West 2010).63MD.CODE ANN., Envir. 7-514(d)(3)(i) (West 2010).64EPA, OSWER Innovations Pilot: Entering Institutional Controls into One-Call Systems (2002).


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The system was plagued by an excessive number of false tickets being issued to theWDNR for two reasons. First, due to the way the hotline was set up the WDNR was notifiedwhenever any digging was planned at a site-not simply whenever a well installation wasproposed.65 The WDNR recommended that the hotline modify its standard list of questions tomore effectively target well drilling, but this modification was not made. Second, the Diggers

Hotline relied upon a township, range and section grid database to locate sites that proved to betoo inexact for the relatively localized contamination.66 The WDNR suggested that the hotlineswitch to a spatial database to remedy this problem but this modification was not made, resultingin the WDNR withdrawing from the Diggers Hotline after two years.67

Maryland

Marylands Department of the Environment conditions the closure of a site upon, amongother things, the participants submittal of his or her No Further Requirements Determination(NFRD) letter to the states One Call system, known as Miss Utility.68 This statutoryrequirement, however, is ineffective in actually preventing harmful excavation because there is

no collaboration between the MDEP and Miss Utility, and MDEP is not a paying member ofMiss Utility.69 Thus, MDEP does not receive alerts whenever excavation is planned, and even ifthey did, the geospatial information in the NFRD that Miss Utility would base their alerts on isnot specific enough to be useful to excavators wishing to avoid interference with the remedy.70

To be effective, Marylands statutory requirement would need to be supplemented by agreater degree of collaboration and information sharing between MDEP and Miss Utility.MDEP would likely also need to pay into the system, as utilities often do. As an alternative tothis incomplete system, some local governments in Maryland have begun checking MDEPs ICregistry before issuing excavation or construction permits.71

Public Awareness

UECAs Section 5 Language Binding the Entire Chain of Title

Similar to the state criminal statutes using the Model Penal Code (MPC), groupswithin the legal community have attempted to standardize the way that states enact statutesregulating ICs. The National Conference of Commissioners on Uniform State Laws (NCCUSL)adopted the UECA Act in October 2003 that featured a proposal for uniform state laws dealingwith ICs.72 The UECA has been approved by the American Bar Association (ABA), the Councilof State Governments, and the National Institutional Controls Coalition (NICC).73

65Wis. Dept. of Natural Resources, Lessons Learned: Wisconsins Evaluation of its Institutional Controls Program

PUB-RR-869 (2010).66Id.67Id.68MD.CODE ANN.,ENVIR. 7-514(d)(3)(i) (West 2010).69Tel. Interview with Barbara Brown, Geologist with VCP City/Brownfields, Md. Dept. of the Env. (Aug. 25, 2010).70Id.71Id.72

William R. Breetz, Jr. & Roger D. Schewnke, NCCUSL, The Uniform Environmental Covenants Act AnImportant tool for Brownfields Remediation (2004),http://www.nccusl.org/nccusl/docs/ACREL updated.pdf.73 Uniform Environmental Covenants Act, at 2, http://www.epa.gov/superfund/policy/ic/pdfs/kerr_ueca.pdf.
http://www.nccusl.org/nccusl/docs/ACRELhttp://www.nccusl.org/nccusl/docs/ACRELhttp://www.nccusl.org/nccusl/docs/ACRELhttp://www.nccusl.org/nccusl/docs/ACREL


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Three of Indianas neighboring states, Illinois, Kentucky, and Ohio, have adopted theUECA as their statutory model for ICs.

In order to secure lasting ICs, the UECAs comments describe how its Section 5

makes clear that environmental covenants will be binding not only

on the persons who originally negotiate them but also onsubsequent owners of the property and others who hold an interestin the property, such as tenants, so long as those owners and othershave actual or constructive knowledge of the covenant.74

The UECA ensures that ICs bind the entire chain of title. Even though bona fidepurchasers (BFPs) are on constructive notice of the ICs potentially on the land, the UECA isslightly forgiving (unlike some modern environmental law schemes) in that it does not holdliable those who have absolutely no means of actual knowledge.75

Californias use of Public Hearings and Participation

California gives localities the choice of deciding their involvement with remedialprocedures that the California Department of Toxic Substance Control (DTSC) administers.Allowances such as these could help increase public awareness, a factor upon which compliancewith EROs in Indiana strongly rely. The DTSC

shall inform the public . . . of the existence of the site and thedepartment's or regional board's intention to conduct a responseaction at the site, and shall conduct a baseline community survey todetermine the level of public interest and desire for involvement inthe department's or regional board's activities, and to solicitconcerns and information regarding the site from the affected

community. Based on the results of the baseline survey, thedepartment or regional board shall develop a public participationplan that shall establish appropriate communication and outreachmeasures commensurate with the level of interest expressed bysurvey respondents.76

Californias state statutes also statutorily mandate several proceedings that could be examinedfor possible implementation in Indiana. Among these provisions are factsheets detailing thenontechnical aspects of the remediation, public schedules of the process, and planninginformation from responsible parties.77

In order to make the implementation process of ICs as transparent as possible, the DTSC

has broadly defined guidelines through which the public may participate. People who might beaffected by the site inspections may, with DTSC approval, may increase public involvement at

74 UNIF.ENVTL.COVENANTS ACT 5 CMT.1.75

5 CMT.2.76 CAL.HEALTH &SAFETY CODE 25358.7 (b) (2009).77 25358.7.


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key stages of the response action process, including the health risk assessment, the preliminaryassessment, the site inspection,the remedial investigation.78

Colorados Requirement of Advanced Notice for any Ownership Changes

In the event that a parcel constrained by either an ERC or ERO changes hands,Colorados statutes exhibit statutory language that helps ensure that the subsequent user complieswith a given IC. Owners are required to notify the Department of Public Health andEnvironment (DPHE) at least fifteen days in advance ofany transfer of ownership of the subjectland and when requesting a building permit or change in land use.79

For citizens who investigate the status of parcels of land at a place of recording such as anew owner or land user, notice of an IC can be easier noticed with simple print adjustments.Procedural mechanisms are also included in Colorado plan such as the inclusion of a bold-typedproclamation of the restriction on the first page of every creating instrument and required

Often, violation of EROs occurs unintentionally because land users do not even knowtheir property has a restriction before they construct a new well. Colorado requires that everynew well that diverts groundwater has a well permit.80 Well permitting is performed through the

State Engineers Office that takes into account streamflows, water supply, and historic useamong other factors.81 Colorados state statutes define require that all wells be Constructed insuch a manner as to maintain natural protection against pollution of water-bearing formationsand to exclude known sources of contamination.82

If Indiana, like Colorado, used well permits for its groundwater, enforcing municipalitieswould not have to rely so much on public awareness to ensure compliance with EROs.

Floridas Required use of Standard Forms

The procedural steps that Florida has implemented to create a comprehensively secure ICsystem are both detailed and exhausting. Among the details provided for in the procedures of

every copy of a restrictive covenant are a brief history of the sites discharge and cleanup, a listof the contaminations that remain, and an exhaustively described restriction on the use of landif necessary.83 The specific language ofevery restrictive covenant states the following and isquoted for its comprehensiveness:

It is the intention of GRANTORthat the restriction contained inthis Declaration shall touch and concern the Property, run with theland and with the title to the Property, and shall apply to and bebinding upon and inure to the benefit of the successors and assignsof GRANTOR, and to FDEP, its successors and assigns, and to anyand all parties hereafter having any right, title or interest in the

78 25358.7 (c) (5).

79 COLO.REV.STAT. 25-15-319(c)-(d) (2010).80 Guide to Colorado Well Permits, Water Rights, and Water Administration, State of CO Dept. Nat. Res., at 1,http://water.state.co.us/pubs/wellpermitguide.pdf(last visited September 23, 2010).81Id.82 COLO.REV.STAT. 37-91-110 (a) (III).83 Institutional Controls Procedural Guidance, FDEP Division of Waste Management, November 2004, at 19-23,http://www.dep.state.fl.us/waste/quick_topics/publications/wc/csf/icpg.pdf.
http://water.state.co.us/pubs/wellpermitguide.pdfhttp://water.state.co.us/pubs/wellpermitguide.pdfhttp://water.state.co.us/pubs/wellpermitguide.pdf


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Property or any part thereof. The FDEP, its successors and assignsmay enforce the terms and conditions of this Declaration byinjunctive relief and other appropriate available legal remedies.84

The covenant binds every party in the chain of title to the enforcement by the FDEP and

ensures notice by requiring the restriction in any subsequent deed of conveyance including therecording book and page of record of this Declaration.85Interestingly though, only the official template for the deed of a conservation easement

features the close scrutiny of the FDEP which is granted the power to enter upon and inspect theProperty in a reasonable manner and at reasonable times and to proceed at law or in equity toenforce the provisions.86

Indiana does not currently mandate the use of a standard template for its ICs, but theoption could streamline the application process, and ensure that common data is collectivelyorganized.

Funding

This section refers to the costs associated with maintaining and enforcing a complianceassurance program. These expenditures include transportation and fuel costs as well as anyassociated personnel costs and the cost of upgrading, replacing or maintaining ECs.Interestingly, unlike other more established aspects of state environmental programs, ICcompliance monitoring is often not supported by dedicated funding sources. Rather, most statescover these costs with general department funds or one-time program entrance fees. While suchapproaches appear adequate to monitor the relatively low number of sites in most states, itremains to be seen whether certain conditions-such as a drop in new program applicants (or asignificant drop in general funds) coupled with the possibly decades long monitoring burden ofpreexisting ICs-will necessitate another approach to funding.

EPA Grants

RhodeIsland & Tennessee

Both RIDEP and Tennessees Division of Remediation rely on federal grants to fundtheir compliance and monitoring efforts.87 Although the CERCLA Section 128(a) StateImplementation Support Grant that these agencies were awarded is no longer available, EPAfrequently has other grants available to state environmental agencies. While such federal sourcesare beyond the scope of this research, these grants remain a viable option for state environmentalagencies looking to establish a monitoring regime or capitalize a dedicated fund to support thoseefforts.

84Id. at 23.85Id. at 24.86Id. at32.87Tel. Interview with Kelly Owens, Supervisor of the Site Remediation Program, R.I. Dept. of Envtl. Mgmt. (Aug.27, 2010); Tel. Interview with Andy Shivas, Brownfields Coordinator and VOAP Manager, Tenn. Dept. of Env. &Conservation (Aug. 27, 2010).


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General Solid and Hazardous Waste Funds

Colorado

Colorados IC program is funded by its general solid and hazardous waste commission

funds which are derived from the solid waste management fund and various fees. The ColoradoGeneral Assembly allocates monies to the fund annually as part of the states budget.88Colorados approximate $19 million request for 2010-11 featured $11.4 million from state cash,$7.1 million from federal funding, as well as small amounts of other reappropriated funds.89Additionally, the state is allowed to establish reasonable fees for generators of hazardous wastesto offset the administration costs as well as filing fees to help offset the administrative costs.90

Program Entrance Fees

Maryland

Marylands Voluntary Cleanup Program assesses an additional $2,000 fee on top of itsinitial $6,000 program entrance fee whenever a site will rely upon institutional controls.91 TheDepartments issuance of a No Further Requirements Determination letter is conditioned uponthe payment of that $2,000 fee, as well as the landowners submittal (within 30 days) of the letterto the land records office and Marylands one-call system.92

Illinois

In addition to a one-time $500 entrance fee, participants in Illinoiss Site RemediationProgram agree to be billed periodically for any reasonable costs incurred and documented bythe agency in providing . . . services pursuant to the cleanup.93 These indirect (i.e., non-salary)costs are initially withdrawn from the applicants entrance fee, but once the oversight costs

exceed the entrance fee amount the Illinois EPA will send the applicant a quarterly invoice.These invoices are assessed until the No Further Remediation (NFR) letter is granted, andaverage about $8,000-$10,000 total per applicant.94

At the end of the project, the applicant will receive a separate invoice for an NFRAssessment fee, which will be equal to the actual Agency oversight cost of the project butcannot exceed $2,500.00.95 This fee is deposited into Illinoiss Hazardous Waste Fund, thepurpose of which is to clean up orphan sites in Illinois.96 While this fund is not a trust for thepurposes of IC compliance monitoring, this scheme could easily be modified for thatpurpose.88 COLO.REV.STAT 30-20-118(1) (2010).89

Colo. Dept. of Public Health and Envtl. Budget Balancing Submission,http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251611809743&ssbinary=true.90 25-15-314(A)(II),(B)(2010).91Md. Dept. of the Env., Voluntary Cleanup Program Guidance Document (2006).92Id.93ILL.ADMIN.CODE tit. 35, 740.210(c)(4) (2010).94Tel. Interview with Joyce Munie, Remedial Project Mgmt. Director, Ill. Envtl. Protection Agency (Aug. 30, 2010).95ILL.ADMIN.CODE TIT. 35, 740.615(b) (2010).96Id.
http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251611809743&ssbinary=truehttp://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251611809743&ssbinary=truehttp://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251611809743&ssbinary=truehttp://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251611809743&ssbinary=truehttp://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251611809743&ssbinary=true


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Alabama

Depending on the characteristics of the parcel upon which the IC is featured, Indianacould implement a fee requirement similar to Alabamas that features multiple categories and

amounts due. The different price tiers look like this:

Alabamas Environmental Covenants Fee97

Type of Activity Initial Issuance Modification

Processing and Review Fee

Institutional Controls $2,000 $500Engineering Controls $3,000 $750

Registry Recording Fee

For Class 1 controls* $6,400 $300



Each Class is defined further in Alabamas Administrative Code and Alabama features a widerrange of different ICs than Indiana. Alabama states that

2. Institutional controls that are legal or contractual restrictions onproperty use which remain effective after remediation is completedand are used to meet an approved remediation plan or proposal.These include, but are not limited to, deed notations, deedrestrictions, water use restrictions, restrictive covenants,

conservation easements, and limited development rights.Institutional controls are classified as:(i) Class 1, which includes any water use restriction.(ii) Class 2, which include restrictive covenants for industrial orcommercial use only or no schools or daycares, and imposition ofconservation easements or limited developmental rights.(iii) Class 3, which include restrictive covenants for noexcavations, for use as greenspace only, and no hunting or fishing.(iv) For other institutional controls not listed, ADEM shalldetermine the classification of the institutional control upon therequest of an owner or operator or other responsible person.98

These different Classes are based on the type and severity of the restriction on the land.

Insurance, Trusts, and Other Financial Guarantees

Texas

97 ALA.ADMIN.CODE r. 335-1-6, Sched. J (2010)98 r. 335-1-5.03 (2).


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The executive director of the Texas Commission on Environmental Quality helps

determine the amount of money that responsible parties have to deposit in order to fund thestates administrative duties:

(a) The licensee shall pay into the perpetual care account anamount determined by the executive director to be adequate toprovide surveillance, monitoring, any required maintenance, andother care of the disposal site on a continuing basis during theinstitutional control period. Unless otherwise specified, the amountof funding provided shall be an amount necessary to provideperpetual surveillance, monitoring, any required maintenance, andother care of the disposal site and the administration of the fund bythe state. The amount of funds necessary to provide perpetual careduring the institutional control period shall be based upon a realannual rate of interest, above inflation, of 2% (i.e., the amount

required is calculated by expressing all costs at an annual rate andmultiplying the total annual cost by 50 to calculate an amount thatwill be self-perpetuating at a real annual interest rate of 2%).99

Indiana could implement this system that allows for case by case determinations andmore accurately represented fees place on responsible parties that directly depend on thefinancial requirements for respective sites.

Washington

Washington can require responsible parties to show that they can financially sustain theirinstitutional controls:

(11) Financial assurances. The department shall, as appropriate,require financial assurance mechanisms at sites where the cleanupaction selected includes engineered and/or institutional controls. Itis presumed that financial assurance mechanisms will be requiredunless the PLP can demonstrate that sufficient financial resourcesare available and in place to provide for the long-termeffectiveness of engineered and institutional controls adopted.Financial assurances shall be of sufficient amount to cover all costsassociated with the operation and maintenance of the cleanupaction, including institutional controls, compliance monitoring, andcorrective measures.(a) Mechanisms. Financial assurance mechanisms may include oneor more of the following: A trust fund, a surety bond, a letter ofcredit, financial test, guarantee, standby trust fund, governmentbond rating test, government financial test, government guarantee,government fund, or financial assurance mechanisms required

9930TEX.ADMIN.CODE 336.737(2010).


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under another law (for example, requirements for solid wastelandfills or treatment, storage, and disposal facilities) that meetsthe requirements of this section.(b) Exemption from requirement. The department shall not requirefinancial assurances if persons conducting the cleanup can

demonstrate that requiring financial assurances will result in thePLPs for the site having insufficient funds to conduct the cleanupor being forced into bankruptcy or similar financial hardship.100

Kansas

The KDHE, with statutory authorization from the state legislature, has developed aninnovative scheme for funding inspection, maintenance, and emergency measures relating to ICsand ECs. Per the statute, the KDHE has the authority to require owners of Category 3 sites toprove that they can provide and maintain financial assurance for ICs and ECs before the site isclosed.101 The landowner can show this financial assurance via five methods enumerated in the

statute and may also demonstrate this assurance with a trust fund or other method, so long as it isapproved by the KDHE.102 Once secured, the manner in which the landowner has satisfied thefinancial assurance requirement will be recorded in the Long Term Care agreement andenvironmental covenant, and KDHE may seek compensation for the cost of routine inspection orthe remediation of releases.

Environmental InsuranceEnvironmental insurance can be used to satisfy the financial requirements, provided that

the insurance premiums are paid in advance for the entire period of the covenant and that thewording of the endorsement of insurance is identical to the stock format provided by KDHE.

KDHE also imposes certain requirements on the policy that is carried. For example, the policymust be issued for a face amount at least equal to . . . the estimated amount of funding necessaryto implement contingent remedies which are protective of public health and the environmentshould the chosen remedy fail in whole or in part.103

Performance or Financial Guarantee Bond (requires standby trust)These bonds can satisfy the assurance requirement if, under their terms, payments made

thereunder will be deposited by the surety directly into the standby trust. The standby trust mustbe supported by a surety certified by the U.S. Department of Treasury, and must be wordedidentically to KDHEs stock trust format. Other requirements attach to the bond and trust to

assure the existence of adequate funds to enforce the terms of the environmental covenant orimplement contingent remedies.

100 WASH.ADMIN.CODE 173-340-440 (2010).101KAN.STAT.ANN. 65-1, 224(b)(3) (2010).102Kan. Dept. of Health and Env., Procedure for Demonstrating Financial Assurance at Property With Envtl. UseControls (2005).103

Id.


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Irrevocable Letter of Credit (requires standby trust)Irrevocable letters of credit, like performance or financial guarantee bonds, require the

applicant to create a standby trust. In this instance all amounts paid to the credit line by theprogram participant will be deposited by the financial institution directly into the standby trust.

Other requirements pertaining to the instruments format and available amount also attach.

Qualification as a Self-InsurerApplicants can secure assurance on these grounds only if they pass a financial test

created by KDHE. This test is obviously oriented towards large businesses, as the applicantmust have a tangible net worth of a least $10 million and access to many other businessperformance indicators. In addition to an accounting of various business viability measuresendorsed by the companys CFO, the applicant must also submit the report of an independentcertified public accountant.

Corporate GuaranteeThis method is identical to Qualification as a Self-Insurer and the applicant must pass the

same financial test as in that method. However, in this case the guarantor must be the direct orhigher-tier parent corporation of the owner or operator, a firm whose parent corporation is alsothe parent corporation of the Applicant, or a firm with a substantial business relationship withthe Applicant. Thus it allows a non-covenant holding parent corporation to guarantee financialassurance for its subsidiarys site.

In addition to the above methods that are enumerated in the statute, KDHE also allowsfinancial assurance on other grounds. The most frequently used other method is the

establishment of a trust fund. The requirements of establishing an independent trust fund aresimilar to those for trust funds with bonds or letters of credit, and require the applicant to useKDHEs stock trust format.


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Appendix 1

Accela Automation: http://www.accela.com/products/accela_automation.asp

DRPA, Inc.: http://www.dpra.com/

Environmental Control

Combined Research Forward

Documents

Transcript of Combined Research Forward