January 2007

ARTICLES  
     

  Application of Institutional Controls for Contaminated Site Redevelopment
  Andrew Lawn

      

Institutional Controls (ICs) may be applied to environmentally-impaired properties as a means of moving forward with plans for site redevelopment and land re-use. ICs are restrictions on the use of, or access to, a site to eliminate or minimize exposure to contaminants. Such restrictions may include, but are not limited to deed restrictions, restrictive covenants (RCs), or conservation easements.

The use of ICs to eliminate or control potential exposure to contamination is specifically authorized in Sections 376.30701, .3071, .3078, and .81, Florida Statutes, and cited as site assessment and cleanup closure options in Chapters 62-770, -780, -782, and -785, Florida Administrative code (FAC). Depending on site conditions, engineering controls (ECs) may be required in tandem with site-specific ICs. ECs are modifications to a site to reduce or eliminate the potential for exposure to contaminants. Modifications may include, but are not limited to physical or hydraulic control measures, capping, point of use treatments, or slurry walls.

In determining what ICs are appropriate, consideration should be given to: the medium that is contaminated; current and projected use of affected groundwater, surface water, and soil; use of the contaminated property and surrounding land; the nature of contamination; probability of contamination spreading; location of receptors; and availability of public water supply systems.
The most common application of ICs include land use restrictions for properties with soil contamination at concentrations that exceed residential soil cleanup target levels (SCTLs) and prohibitions on groundwater withdrawals due to groundwater contamination that exceeds groundwater cleanup target levels (GCTLs). Cleanup target levels are defined in Chapter 62-770, FAC. Application of ICs typically follow removal of contaminant sources (e.g., fuel or solvent storage tanks, pesticide mix/load structures, waste piles) and discontinuation of practices that have the potential to negatively impact site soils and groundwater.

Site assessment and cleanup strategy evaluations must be completed prior to planning ICs. Site assessment tasks typically include: use of risk assessment and statistical methods (e.g. calculation of 95% upper confidence limits considering contaminant additivity and apportionment); development of site-specific background levels or alternate cleanup target levels; speciation of carbon chains; soil analyses using the synthetic precipitation leaching procedure; and calculation of threshold equivalency values for some contaminants. De minimis or interim source removal actions may be required to justify application of ICs regarding remaining impacts.

The Florida Department of Environmental Protection (FDEP) is responsible for determining if technical and rule requirements will allow a site to be closed using ICs. The FDEP site/project manager determines what restrictions must be in place to protect human health and the environment. During negotiations, the property owner, the person responsible for site rehabilitation (PRSR) or their attorney, and the FDEP manager must discuss the appropriate ICs, review guidance regarding the planned control(s), and plan a draft of the IC document. A copy of FDEP’s “Institutional Control Procedures Guidance Document”, which is available on FDEP’s website, should be used as a guide for preparing the IC documents.

Information on existing sites with ICs can be reviewed using the FDEP’s IC Registry. The Registry is an internet mapping service that serves as the public’s and local government’s mechanism for monitoring ICs. The website uses ArcIMS software to locate and identify IC sites in the State, with tools for searching by county, zip code or section, township and range. The Registry – which is updated periodically – can be found at http://www.dep.state.fl.us/waste/default.htm, and also includes sites from designated Brownfields, petroleum cleanup, drycleaning solvent cleanup, Superfund, RCRA/HSWA and non-program sites (State enforcements and voluntary cleanups).

The FDEP project manager is responsible for ensuring that all appropriate documentation, including an unsigned draft of the IC, technical and legal documents and supporting documentation, is provided to the FDEP’s Office of General Counsel (OGC) in Tallahassee for review, approval and signature. The OGC should only receive the request for legal review of ICs directly from FDEP staff and not from the property owner or his/her representative.

ICs must be approved by the FDEP following a 30-day public notice period, and after verified notice is provided to local governments with jurisdiction over the property where the site is located. If the ICs are established for a groundwater use prohibition, one year of groundwater monitoring is required before a Site Rehabilitation Completion Order (SRCO), also known as a No Further Action Order, with conditions is provided.

Original RCs must be filed by the property owner and the appropriate County land records office. The property owner is responsible for all filing fees. A copy is kept with Master ICs in Tallahassee. FDEP enters the site information in the Registry after the PRSR presents proof of recording. Because the ICR is used as a critical tracking database for RC enforcement, audits, etc., the PRSR should be certain that the site information is correct. Because ICs are typically tied to the property and are generally a part of the title to the property, all original documents referenced must be kept on file with the FDEP and not destroyed pursuant to any other record keeping guidelines.

In order to remove an IC, the current property owner must submit a written request to the appropriate program and District office of FDEP. Acceptable reasons to remove an IC include: contamination no longer exceeds SCTLs or GCTLs based on recent sampling data, or the site remains contaminated but the property owner has committed to cleaning up contamination.


Andrew Lawn is a Florida-registered Professional Geologist with a Master of Science degree from the University of South Florida. He is a Senior Hydrogeologist and Office Manager of HSW Engineering, Inc. (HSW) in Orlando with 20 years of experience with complex hydrogeologic projects, specializing in environmental site assessments and restoration, emergency response, regulatory compliance, and permitting. He can be reached at 407-872-6893 or ALawn@HSWEng.com.
 

 

Copyright 2008, The Environmental and Land Use Law Section of The Florida Bar