Institutional Controls At Voluntary Cleanup Sites

Texas Commission on Environmental QualityEnvironmental Trade Fair & ConferenceMay 15, 2018

Danielle Lesikar, Technical Specialist Voluntary Cleanup Program – Corrective Action SectionRemediation Division, Office of Waste

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What is the VCP?

Program created to encourage cleanup of sites burdened by real/perceived contamination

Certificate of completion offers a release of liability to future landowners/lenders

Properties restored to economically productive use

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What is an Institutional Control? A legal document filed in the county deed

records for a property Outlines the limitations on or the conditions

governing the use of the property. Types: Permanent and non-permanent Ex: Deed notice, restrictive covenant, ordinances, and

zoning

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What is an Institutional Control (IC)? Makes the site protective of human health

and the environment Requires landowners to sign/consent References a legally defined area Certificate becomes an IC when it’s filed◦ Entire site/Partial Response Action Area (PRAA)

Used off-site as part of VCP remedy Often accompanies physical control

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History Preamble says intent of VCP is to include all

ICs filed as one document

Cleanup rule mentions permanent ICs VCP rule mentions non-permanent ICs

Majority of VCP ICs have been restrictions◦ “Change in circumstance” in statute and rule◦ Restrictive covenant more enforceable

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Certificate of Completion

Components of a VCP Certificate of Completion Exhibit A (always needed) Exhibit B (always needed) Exhibit C Exhibit D Exhibit “X”

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Examples of Institutional Controls -Certificate

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Examples of Institutional Controls -Certificate

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Examples of ICs – Exhibit A

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Examples of ICs – Exhibit A

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Examples of ICs – Exhibit B

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Examples of ICs – Exhibit B

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Examples of ICs – Exhibit C

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Examples of ICs – Exhibit C

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Examples of ICs – Exhibit C

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Examples of ICs – Exhibit D

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Examples of ICs – Exhibit D

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Examples of ICs – Exhibit E

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Examples of ICs – Exhibit E

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Examples of ICs – Exhibit “X”

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Examples of ICs – Exhibit “X”

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Permanent ICs Cleanup rules vs VCP◦ TRRP (Chapter 350)◦ PST (Chapter 334)◦ Risk Reduction Rules

(Chapter 335)◦ Municipal Solid Waste

(Chapter 330)

Deed notice vs Restrictive Covenant

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Cleanup Rules vs VCP - TRRP

Format of ICs differs from TRRP-16 Guidance example templates◦ VCP created its own templates◦ Will provide to applicant at time of affidavit

issuance.

Timing of filing of IC may contradict TRRP time frames because they can be filed with the certificate of completion.

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Cleanup Rules vs VCP - TRRP Determining which type of IC to use differs

from TRRP-16 Guidance on ICs◦ TRRP RC for innocent landowners (off-site), deed notices for

responsible parties (on-site) VCP certificates are mentioned in tandem with deed

notices in rule and guidance◦ VCP Restrictive Covenants Enforceable if not maintaining restrictions Required for innocent landowner properties

Deed Notice Limited circumstances (e.g. long-term response actions)

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Cleanup Rules vs VCP - PST

Exposure Assumptions treated as a deed notice◦ Exit Criteria Flowcharts

Deed Notices as allowed by PST rules

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Cleanup Rules vs VCP - 335

Industrial waste left in place

Remedy Standard 3 Alternate Concentration Level (ACL) approach◦ Restriction on groundwater use◦ Limited to commercial/industrial land use

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Cleanup Rules vs VCP - 330

Municipal Solid Waste Subchapter T regulations incorporated into a conditional Certificate of Completion

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Non-Permanent ICs (not MSD) Ordinances or Zoning Limited to VCP sites because allowed in

rule Still must be protective for intended use. Does not need to be in favor of the State.

Limited to conditional certificates of completion.

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MSD-Based Certificates VCP certificate may be contingent upon MSD

certification.

MSD based certificate may require a separate IC for NAPL

MSD based certificate may be Remedy Standard A if no other need for Remedy B

MSD certified area may be smaller or larger than site size

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Legal Descriptions

Legal descriptions are necessary for each area restricted or noticed

Must bear registered Texas Land Surveyors Seal

Legal descriptions of restricted/noticed areas may be larger than necessary with landowner consent, up to site boundary

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Filing of Certificates of Completion

Elements of certificates that require filing: Non-residential land use Permanent or non-permanent ICs MSDs PST Exposure assumptions

Proof of filing must be submitted within 90 days of certificate issuance

Off-site ICs or ICs submitted prior to certificate need to filed in accordance with the cleanup rule

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Contact Information

Danielle Lesikar, Technical SpecialistVCP-CA SectionRemediation Divisiondanielle.lesikar@tceq.texas.gov(512) 239-2268

Visit our booth during the Trade Fair!

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