Primer – Institutional Controls

Definition: Institutional Controls (ICs) are non-engineered instruments, such as administrative and legal controls, that help to minimize the potential for exposure to contamination and/or protect the integrity of a response action. ICs typically are designed to work by limiting land and/or resource use or by providing information that helps modify or guide human behavior at a site.

Institutional Controls are also referred to as Land Use Restrictions (LURs), Activity Use Limitations (AULs), and Land Use Controls (LUCs).

When are they Used? Institutional Controls are used when contamination is first discovered, when cleanups are ongoing, and/or when residual contamination remains on site at a level that does not allow for unlimited use and unrestricted exposure (UU/UE) after cleanup. Institutional Controls are rarely be the sole remedy at a site.

At Brownfield sites in Minnesota, ICs are typically used as part of the remedy, and they are drafted and recorded on property deeds after the cleanup portion of the remedy is completed.

Four Types of Institutional Controls:

  1. Governmental Controls
  2. Governmental controls rely on the regulatory powers of a state or local government and may include:
  3. Ordinances, such as zoning ordinances.
  4. Building rules/code.
  5. Environmental restrictions, such as groundwater use or well drilling limitations.
  6. Administered by the Minnesota Department of Health:
  7. Special Well and Boring Construction Areas (SWBCA/Well Advisories).
  8. Source Water Areas (SWAs).
  9. Source Water Protection Areas (SWPAs).
  10. Drinking Water Supply Management Areas (DWSMAs).
  11. Wellhead Protection Areas (WHPAs).
  12. Flowing Well and Boring Special Construction Areas (FLBSCAs).
  13. Administered by the Minnesota Department of Natural Resources.
  14. Groundwater Management Areas (GWMAs).
  15. Restrictions on land or resource use.
  16. Reuse of contaminated soils generated from IC areas.
  17. Land development regulations.
  18. May involve preexisting ordinances or newly drafted governmental controls.
  19. Ordinances limiting deep excavation in known areas of soil contamination.
  20. Tend to affect larger areas, such as an entire City or Region.
  21. Can be enforced by the jurisdiction that enacted the control.
  1. Proprietary Controls
  2. Proprietary controls are created under the authority of state real property law.
  3. These agreements constitute a property right.
  4. These controls “run with the land,” meaning they endure as the affected property is sold to new owners
  5. Proprietary controls are the most common type of control.
  6. Proprietary controls usually affect a single parcel of land.
  7. Proprietary controls are established by a private agreement between the landowner and an outside party.
  8. This outside party can enforce the restrictions or limitations provided in such agreements.
  9. Proprietary controls may include deed restrictions, which generally describe property rights that restrict the use of the property.
  10. Restrictive Covenants.
  11. Environmental Covenants.
  12. Easements (also known as Negative Easements).
  1. Enforcement and Permit Tools
  2. Enforcement and Permit Tools can include requirements that restrict future land use and may include:
  3. Government agency-issued permits.
  4. Administrative orders.
  5. Enforcement agreements (such as consent decrees) that are enforceable by state or federal agencies.
  6. Most enforcement and permit tools are binding on only the signatories to the agreement (or the party named in the permit or order).
  7. Property restrictions do not bind subsequent owners, so they do not “run with the land.”
  1. Informational Devices
  2. Informational devices provide information about risks from contamination.
  3. Informational devices are meant to inform and are generally not legally enforceable. Common examples include the following:
  4. Deed Notices
  5. Documents filed with the property deed.
  6. Provide information about potential health risks from contamination left on the property to the future buyers or other interested parties.
  7. No affirmative actions.
  8. Not enforceable.
  9. State Registries
  10. List of hazardous waste sites.
  11. Contain information about contaminated properties.
  12. Some state laws state that the land use of the registered property cannot be changed without state approval.
  13. Advisories
  14. Warn the public of potential risks associated with using contaminated land, surface water, or groundwater.
  15. Typically issued by public health agencies.

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