Making the Most of Contaminated Property - The Use of Environmental Institutional Controls to Further Environmental Cleanup
Michael Keller
One of the most difficult challenges facing property owners in cleaning up and restoring the marketability of contaminated real property is determining the level of cleanup that will make the property safe for humans and the natural environment. Rarely is it economical or technologically feasible to remove all contamination from the property. Financial and technological realities usually require that some amount of residual contamination be left in place.
Environmental institutional controls can be effective tools to further environmental cleanups and restore the marketability of contaminated real property. The use of these controls in Utah requires compliance with the Environmental Institutional Control Act, Utah Code Ann. §§ 19-9-101—108, enacted in 2003.
The need for environmental institutional controls depends on the nature of each particular environmental cleanup. In some cases, it may be possible to achieve a thorough cleanup and avoid such controls by removing contaminants to the very low levels that are deemed to be either below the limits of detection in the laboratory or at or below the background concentrations of those contaminants in surrounding soils and water. It may also be possible to clean to generic cleanup standards if any have been established by the applicable regulatory authority. The difficulty with the latter approach is that no standards exist for many contaminants and those that do exist may be too low to be achieved economically under the conditions at the site.
If none of those “clean” cleanup approaches is desirable or workable, it will be necessary to establish site-specific cleanup standards for the contaminants of concern in light of the risks posed by the property and its uses. This is accomplished by engaging an environmental expert to perform a risk assessment to demonstrate that the residual contamination will not pose any unacceptable risk to human health or the environment. The expert will consider various scenarios of how the property will be used and to what degree humans and the natural environment will be exposed to the residual contaminants. For example, residential use requires more stringent protection than commercial or industrial use because it poses greater risk and longer exposures to children, as well as adults, residing on the property.
When all unacceptable risk from the residual contamination cannot be ruled out under a given use and exposure scenario, additional measures, such as engineering controls and environmental institutional controls, can be used to assure that the level of cleanup will protect human health and the environment. Engineering controls involve physical impediments constructed on the property, such as fences, caps or barriers, which reduce or eliminate the possibility humans or wildlife will be exposed to residual contaminants. By contrast, environmental institutional controls involve legal restrictions on the use of property designed to preserve the integrity of an environmental cleanup.
Environmental institutional controls may include private property restrictions, governmental controls, notice requirements, and governmental enforcement measures. Private property restrictions include restrictive covenants, easements, equitable servitudes, and deed restrictions, intended to run with the land. Governmental controls typically take the form of zoning restrictions, limitations in building and excavation permits, and prohibitions on well-drilling or use of contaminated groundwater.
The Utah Environmental Institutional Control Act allows an owner of real property, with the approval of the Executive Director of the Utah Department of Environmental Quality (“DEQ”), to restrict the use of real property by imposing appropriate environmental institutional controls on the property to mitigate the risk posed to the public health, safety, or welfare, or the environment. An “environmental institutional control” is broadly defined in the Act as any deed restriction, restrictive covenant, easement, reservation, environmental notice, engineering control, or other restriction or obligation with respect to real property, that:
Environmental institutional controls may be used to provide a useful and cost-effective mechanism to further the cleanup of contaminated property, but must be implemented in accordance with the Act and after carefully consideration of all the legal and practical ramifications of restricting the use of property in perpetuity.
Michael Keller practices environmental and natural resources law in the Salt Lake City office of VanCott, Bagley, Cornwall & McCarthy. He can be reached at (801) 237-0287and mkeller@vancott.com.
Environmental institutional controls can be effective tools to further environmental cleanups and restore the marketability of contaminated real property. The use of these controls in Utah requires compliance with the Environmental Institutional Control Act, Utah Code Ann. §§ 19-9-101—108, enacted in 2003.
The need for environmental institutional controls depends on the nature of each particular environmental cleanup. In some cases, it may be possible to achieve a thorough cleanup and avoid such controls by removing contaminants to the very low levels that are deemed to be either below the limits of detection in the laboratory or at or below the background concentrations of those contaminants in surrounding soils and water. It may also be possible to clean to generic cleanup standards if any have been established by the applicable regulatory authority. The difficulty with the latter approach is that no standards exist for many contaminants and those that do exist may be too low to be achieved economically under the conditions at the site.
If none of those “clean” cleanup approaches is desirable or workable, it will be necessary to establish site-specific cleanup standards for the contaminants of concern in light of the risks posed by the property and its uses. This is accomplished by engaging an environmental expert to perform a risk assessment to demonstrate that the residual contamination will not pose any unacceptable risk to human health or the environment. The expert will consider various scenarios of how the property will be used and to what degree humans and the natural environment will be exposed to the residual contaminants. For example, residential use requires more stringent protection than commercial or industrial use because it poses greater risk and longer exposures to children, as well as adults, residing on the property.
When all unacceptable risk from the residual contamination cannot be ruled out under a given use and exposure scenario, additional measures, such as engineering controls and environmental institutional controls, can be used to assure that the level of cleanup will protect human health and the environment. Engineering controls involve physical impediments constructed on the property, such as fences, caps or barriers, which reduce or eliminate the possibility humans or wildlife will be exposed to residual contaminants. By contrast, environmental institutional controls involve legal restrictions on the use of property designed to preserve the integrity of an environmental cleanup.
Environmental institutional controls may include private property restrictions, governmental controls, notice requirements, and governmental enforcement measures. Private property restrictions include restrictive covenants, easements, equitable servitudes, and deed restrictions, intended to run with the land. Governmental controls typically take the form of zoning restrictions, limitations in building and excavation permits, and prohibitions on well-drilling or use of contaminated groundwater.
The Utah Environmental Institutional Control Act allows an owner of real property, with the approval of the Executive Director of the Utah Department of Environmental Quality (“DEQ”), to restrict the use of real property by imposing appropriate environmental institutional controls on the property to mitigate the risk posed to the public health, safety, or welfare, or the environment. An “environmental institutional control” is broadly defined in the Act as any deed restriction, restrictive covenant, easement, reservation, environmental notice, engineering control, or other restriction or obligation with respect to real property, that:
- is designed to protect human health or the environment;
- is established in connection with a cleanup or risk assessment that is reviewed, overseen, conducted, or administered by the DEQ; and either
- limits the use of the real property, groundwater, or surface water;
- limits activities that may be performed on or at the property; or
- requires the maintenance of any engineering or other control.
- a legal description of the area of the real property subject to the institutional control;
- a statement documenting any requirements for maintenance of the institutional control;
- a statement that the institutional control runs with the land and is binding on all successors in interest unless or until the institutional control is removed;
- a statement acknowledging DEQ’s right of access to the property at all reasonable times to verify that the institutional controls are being maintained; and
- a statement explaining how the institutional control can be modified or terminated with the prior written approval of the Executive Director of DEQ in accordance with the Act.
Environmental institutional controls may be used to provide a useful and cost-effective mechanism to further the cleanup of contaminated property, but must be implemented in accordance with the Act and after carefully consideration of all the legal and practical ramifications of restricting the use of property in perpetuity.
Michael Keller practices environmental and natural resources law in the Salt Lake City office of VanCott, Bagley, Cornwall & McCarthy. He can be reached at (801) 237-0287and mkeller@vancott.com.
Copyright 2005. Published for general informational purposes only, and should not be construed as legal advice. If you need legal advice please consult with your attorney.