Institutional Controls At Voluntary Cleanup Sites Texas Commission on Environmental Quality Environmental Trade Fair & Conference May 15, 2018 Danielle Lesikar, Technical Specialist Voluntary Cleanup Program – Corrective Action Section Remediation Division, Office of Waste

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

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

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

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

Certificate of Completion Components of a VCP Certificate of Completion Exhibit A (always needed) Exhibit B (always needed) Exhibit C Exhibit D Exhibit “X” Exhibit A – legal description of entire VCP site/PRAA (always needed) Exhibit B – Affidavit of Completion of Response Actions (final certificate) or Affidavit of Implementation of Response Actions (conditional certificate) (always needed) Exhibit C – generally Restrictive Covenant or Deed Notice Exhibit D – generally Conditions for conditional certificate Exhibit “X” - PST Exposure Assumptions, MSD certificate

Examples of Institutional Controls - Certificate

Examples of Institutional Controls - Certificate

Examples of ICs – Exhibit A

Examples of ICs – Exhibit A

Examples of ICs – Exhibit B

Examples of ICs – Exhibit B

Examples of ICs – Exhibit C

Examples of ICs – Exhibit C

Examples of ICs – Exhibit C

Examples of ICs – Exhibit D

Examples of ICs – Exhibit D

Examples of ICs – Exhibit E

Examples of ICs – Exhibit E

Examples of ICs – Exhibit “X”

Examples of ICs – Exhibit “X”

Permanent ICs Cleanup rules vs VCP Deed notice vs Restrictive Covenant TRRP (Chapter 350) PST (Chapter 334) Risk Reduction Rules (Chapter 335) Municipal Solid Waste (Chapter 330) Deed notice vs Restrictive Covenant

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. Cleanup rules vs VCP- Trying to accommodate multiple rules in single template document. TRRP says proof of filing of the ICs in the RAP or RACR must be submitted within 120 days or 90 days, respectively. VCP rules requires proof of filing within 90 days of certificate issuance.

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) [TRRP-16] - VCP certificate mentions land use (residential vs non-residential) in Exhibit B, but not in the format of a restriction.

Cleanup Rules vs VCP - PST Exposure Assumptions treated as a deed notice Exit Criteria Flowcharts Deed Notices as allowed by PST rules [Exposure Assumptions] – Use applicable exposure assumptions from the PST exit criteria flowcharts in an Exhibit “X”. References the LPST file where PST documents available. [Deed Notices] – PST rule allows deed notices for contamination left in place. Exposure assumptions often remove the need for a deed notice. (ex: soil above construction worker levels not removed by exposure assumptions is put into deed notice)

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 Industrial waste left in place (separable from environmental media) Ex: Landfill or dispersed solid waste (ex: sandblast material)

Cleanup Rules vs VCP - 330 Municipal Solid Waste Subchapter T regulations incorporated into a conditional Certificate of Completion VCP follows Subchapter T regulations for Municipal Solid Waste and incorporates them into the conditional certificate under Exhibit C (restrictive covenant) and D (conditions) to address cap or methane monitoring

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. [Second Bullet] - May not have to meet TRRP equivalency test. (ex: doesn’t list contaminants) Ex: City ordinance preventing well installation for consumption vs TCEQ requirement for well installation to prevent exposure. [Third Bullet] - Requires routine inspection that non-permanent IC exists and is followed.

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 [First Bullet] - MSD certification removes the potable groundwater pathway from consideration. Based on a city ordinance or restrictive covenant, which is an IC not in favor of the State, but it was created context of MSD certificate If underlying ordinance or restrictive covenant is revoked, VCP certificate contingent upon it may be void.

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 [First Bullet] Ex: Exhibit A – entire site boundary, no more than in VCP Application. Site boundaries changing over life of project needs to be memorialized in VCP application amendment. May require supporting site assessment information if modified. Exhibits related to restrictions/notice. Ex: PMZ vs physical control. [Second Bullet] - Lot and block and corresponding map of the site permanently contained in the county property records. - Metes and bounds and corresponding survey map (required for PRAAs). - County Appraisal District maps or maps prepared by consultant not sufficient. [Third Bullet] - Area necessary for restriction should still be made apparent. - Too large of a restricted area could cause issues in the future with obtaining prior TCEQ consent to perform response actions that are outside the affected area.

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

Contact Information Danielle Lesikar, Technical Specialist VCP-CA Section Remediation Division danielle.lesikar@tceq.texas.gov (512) 239-2268 Visit our booth during the Trade Fair!