The Institutional Control Umbrella

By Sowinski, Michael | Public Management, September 2004 | Go to article overview

The Institutional Control Umbrella


Sowinski, Michael, Public Management


As brownfields cleanup and revitalization continues to grow as an important component of community redevelopment, brownfields properties increasingly involve the use of legal restrictions on future land uses. These restrictions seek to protect human health and the environment, while allowing some residual contamination to remain on brownfields properties even after they have been redeveloped. And, they often allow the properties to be put back into productive reuse faster and cheaper. While this practice allows some contamination to remain on the property, the legal restrictions on future land use, if properly managed into the future, protect public health.

But these restrictions known as institutional controls (ICs) or land use controls (LUCs) have proved complex to manage. While IC management plans at all levels of government continue to evolve, local governments play an important, if not a crucial, role in this. Indeed, many practitioners have expressed their views that local governments should play a central role in IC monitoring, enforcement, and generally, in IC management.

BROWNFIELDS REDEVELOPMENT RELIES ON INSTITUTIONAL CONTROLS

ICs generally mean legal measures designed to limit exposure to environmental contamination or to so-called residual contamination, which remains in the soil or groundwater even after brownfields cleanup has occurred.

Most state voluntary cleanup programs (VCPs), which provide the laws and regulations under which most brownfields cleanups operate, expressly allow for the use of ICs. The policy underlying such IC provisions, even if not directly stated, reasons that without allowing the use of ICs, full cleanup would either be technically impractical or economically prohibitive.

In turn, brownfields reuse might not occur, hindering community revitalization at the local level. As evidenced by the IC language in state VCPs and even in the federal brownfields law, it seems certain that brownfields cleanups will routinely rely on ICs as part of the cleanup remedy.

Environmental cleanup programs probably first recognized the phrase "institutional controls" in 1990, when EPA's National Contingency Plan expressed its expectation that ICs would be used at cleanup sites. Since then, U.S. Environmental Protection Agency (EPA) guidance and state VCP laws have offered varying definitions for institutional controls.

Generally, they define them as including a broad range of measures that might be used to restrict or to deter land uses and activities and to prevent persons from damaging the engineered components of a remedy or from coming into contact with residual contamination.

ICs generally divide into government controls and private controls. Government controls include the wide array of preexisting government ordinances and regulations that restrict or otherwise affect land uses or activities. Government controls, for example, include groundwater use regulations, zoning ordinances, well installation restrictions, and others.

Private controls include individually negotiated prohibitions or notices, placed in the property records, that pertain exclusively to the real estate parcel for which they are recorded. Such private restrictions rely on the longstanding local-government property recording institutions, the property recording laws, the body of state "common law" concerning enforcement of private land restrictions, and other, related laws. IC writings often refer to private controls as "deed restrictions" because they essentially work to limit the property rights that normally transfer with a property deed.

The choice to use ICs typically occurs within either state or federal environmental agencies because these agencies govern cleanup. In the case of brownfields cleanups, state VCPs typically provide the governing rules. The overwhelming majority of VCPs authorize the state environmental agency to allow the use of ICs. …

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