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Institutional Controls at BRAC Sites

Institutional Controls at BRAC Sites. July 19, 2011. Session Panelists. Kristie Reimer – Associate Vice President – ARCADIS/Malcolm Pirnie - Moderator Gordon Hart – Partner, Paul Hastings LLP David Drozd – Director, Navy BRAC Program Management Office Northeast

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Institutional Controls at BRAC Sites

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  1. Institutional Controls at BRAC Sites July 19, 2011

  2. Session Panelists • Kristie Reimer – Associate Vice President – ARCADIS/Malcolm Pirnie - Moderator • Gordon Hart – Partner, Paul Hastings LLP • David Drozd – Director, Navy BRAC Program Management Office Northeast • Michael Houlemard – Executive Officer – Fort Ord Reuse Authority

  3. Session Overview • Introductions / Session Overview • Institutional Control Basics / Legal Issues • Implementation and LRA Perspective • DoD Perspective • Q&A / Discussion

  4. IC Basics: EPA’s Overview • ICs are legal and administrative tools used to maintain protection of human health and the environment at sites. • ICs are often an important part of the overall cleanup at a site. • ICs can be used for many reasons and come in different types. These include restricting site use, modifying behavior, and providing information to people.

  5. IC Basics: A Lawyer’s Overview • A remedy or component of a remedy • Can replace physical remedial action • Can supplement physical remedial action to ensure long-term effectiveness • Imposes restrictions or requirements • Binding on current and future property owners • Designed to prevent exposure to contamination remaining in place • Enforced by legal or administrative mechanisms

  6. IC Basics: Types of Restrictions and Requirements • Types of Restrictions(Prohibitions) • Land Use Restrictions (no residential, child care, etc.) • Activity Restrictions (no digging, use of groundwater, etc.) • Types of Requirements (Mandates) • Notices • Operation and Maintenance/Inspection and Reporting • Payment of Oversight Costs/Financial Assurance • Hybrid Approach: Risk Management Plans

  7. IC Basics: Types of Mechanisms • Government Controls- include local laws or permits (e.g., county zoning, building permits, and Base Master Plans at military facilities); permits (e.g., county zoning, building permits, and Base Master Plans at military facilities) • Proprietary Controls- include property use restrictions based on private property law (e.g., easements and covenants in deeds or separate instruments) • Enforcement Tools- include documents that require individuals or companies to conduct or prohibit specific actions (e.g., environmental cleanup consent decrees, unilateral orders, or permits • Informational Devices-include deed notices or public advisories that alert and educate people about a site.

  8. IC Basics: Legal (ish) Tips • Never “Default” into an IC • Radical concept: Site conditions should dictate the restrictions, not intended use. • Thoroughly and realistically weigh the costs and benefits • It is never too early to think about ICs • Make sure RI/FS analyzes what is necessary to allow unrestricted use if cleanup allows • Be willing to live with what the ROD says • Plan for your own demise • Once property is subdivided, who will implement?

  9. Local Reuse (LRA) Perspective • Risk Issues and Report Requirements • IC - Match Reuse with Covenant • LUC/IC Implementation - Monitoring • Timing and Regulator Coordination • Public Information/Community Outreach • Economic and Long Term Stewardship

  10. LRA Perspective“Risk” & Reports • Property Ownership – Cost/Exposure • Controlling the Reuse Timing • “You Don’t Know What You Don’t Know” • Report Timing and Regulator Coordination • Collecting Information and Preparation

  11. LRA PerspectiveStewardship & Economics • Impact on Land Values • Annual Reports, Ordinance Compliance, Fence Maintenance, Use Monitoring • Educational Programs (Schools, etc.) • Regulator Visits/Inspections/Costs • Long-Term Stewardship and Obligations

  12. LRA Perspective - PublicInformation/Community Outreach • Regular Education Programs • Connecting with Social, Print, and Electronic Media • Engage Groups and Stakeholders • Jurisdictional Impacts

  13. IC/LUCs - Definitions • 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, the use of groundwater, or how soils are managed).

  14. IC/LUCs - Definitions • 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. • Part 360 Permit - Refers here to a solid waste management facility permit issued by the Department (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. • .

  15. IC/LUCs - Definitions • Local Permit - Special permits outlining specific requirements that must be met before an activity can be authorized (e.g., groundwater use, building, etc.). • Consent Order/Consent Decree - A consent order is a legal document signed by the Department (or the 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.

  16. IC/LUCs - Definitions • 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. • 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.

  17. IC/LUCs - Definitions • 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. • 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.

  18. IC/LUCs - Definitions • Condemnation of Property - When the State or local government, exercising eminent domain, condemns a property in order to take over title. • 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.

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