Institutional Controls (ICs) are administrative, non-engineering controls placed on a site to:
- Minimize the potential for human exposure to the remaining contamination at a site; and
- Protect the integrity of the site remedy after remediation is complete.
ICs are used when contamination remains at a site after site remediation is complete, at levels that do not allow for unrestricted use.
Types of Institutional Controls:
- Environmental Easement - This is an interest in real property, created under and subject to the provisions of ECL Article 71, Title 36 which contains a restriction/prohibition on the use of the land that would be inconsistent with the remedy selected for the site.
- Deed Restriction - Deed restrictions may impose a variety of limitations and conditions on the use of property (e.g., they may limit the future uses of the property, use of groundwater, or how soils are managed).
- Environmental Notices: Environmental notices are non-enforceable, purely informational documents filed in public land records, but not on the actual property deed, that alert anyone searching the records to important information about the property. Note that Part 360 requires deed notices to be filed as part of landfill closure activities.
Environmental Easements are DEC's preferred legal instruments for the implementation of Institutional Controls. Deed restrictions were the preferred instrument before easements were established in the 2003 Brownfield Law. An Environmental Notice is generally not considered until all reasonable means to obtain either an Environmental Easement or Deed Restriction have been exhausted. An Environmental Notice may be the only option if:
- The land is owned by the State, since DEC cannot have an easement on State-owned land;
- The property owner cannot be located, refuses to, or is unable to grant an easement or place a deed restriction on the subject property; and/or
- Clear ownership of the subject property could not be established through a title search.
Other controls that may restrict use of a property:
- Condemnation of Property - When the State or local government, exercising eminent domain, condemns a property in order to take over title.
- Consent Order/Consent Decree - A consent order is a legal document signed by DEC (or USEPA) and a respondent that obligates the respondent to complete activities defined by the order (e.g., site remediation including the maintenance of institutional/engineering controls). A consent decree must be approved by a judge.
- Discharge Permit - This usually refers to a water discharge permit issued by the Department under ECL Article 17 to regulate the discharge from a groundwater extraction system or treatment plant.
- Ground Water Use Restrictions - Restriction directed at limiting or prohibiting certain uses of ground water which may include limitations or prohibitions on well drilling. This is a governmental control, generally at the local or county level.
- Hazardous Waste Site Registry - The list of State Superfund Sites which is compiled pursuant to ECL Article 27, Title 13 to inform the Governor, Legislature, and public about inactive hazardous waste disposal sites.
- Local Permit - Special permits outlining specific requirements that must be met before an activity can be authorized (e.g., groundwater use, building, etc.).
- Part 360 Permit - Refers here to a solid waste management facility permit issued by DEC (e.g., to regulate a closed landfill).
- Site Security (other than fencing) - Non-engineering security measures such as security guards. Note that a fence is categorized as an engineering control.
- Local Permit - Special permits outlining specific requirements that must be met before an activity can be authorized (e.g., groundwater use, building, etc.).
- Public Health Advisories - Warnings, usually issued by public health agencies, either at the federal, state or local level, that provide notice to potential users of land, surface water, ground water, or other natural resources of some existing or impending risk associated with their use. This would include fishing advisories.
- Zoning Restriction - Zoning authority exercised by local governments to specify land use for certain areas. For example, a local government could prohibit residential development in an area of contamination.
- Deed Notice - A deed notice is a non-enforceable, purely informational document filed in public land records that alerts anyone searching the records to important information about the property. Note that Part 360 requires deed notices to be filed as part of landfill closure activities.
