Fact Sheet 4: Institutional Controls

What are institutional controls?

Institutional controls are legal mechanisms for imposing restrictions and conditions on land use.

These restrictions and conditions are contained in an Illinois EPA No Further Remediation (NFR) letter, and may include:

  • Restrictive covenants and deed restrictions
  • Negative easements
  • Ordinances adopted and administered by a unit of local government
  • Agreements between a property owner and a highway authority

Why are institutional controls required?

Land use restrictions and conditions are necessary when remaining (post remediation) contaminants pose a risk to human health or the environment.

Institutional controls protect people from harmful exposure to contaminants that are left in place.

For example, the conditions of an institutional control may prohibit groundwater beneath a site from being used as drinking water, or require the maintenance of an engineered barrier to prevent exposure to contaminants. Violation of these conditions could pose an unacceptable health and safety risk.

How will I know if my site needs an institutional control?

You will need an institutional control when the remediation objectives used at your site are based on any of the following:

  • Industrial/commercial land use
  • Engineered barriers
  • Pathway exclusion
  • The point of human exposure is located at a place other than at the source
  • Any combination of the above

You will not need an institutional control if your site meets the residential remediation objectives.

How do institutional controls work?

The language of the institutional control(s) is found in the NFR letter (see Fact Sheet 3). The NFR letter may include copies of ordinances and deed restrictions in addition to maps showing the areas where remaining contaminants exceed the residential remediation objectives.

After approval by the Illinois EPA, the NFR letter must be filed by the site owner with the local county recorder's office to be effective. By indexing the letter to the property, users of the property will be made aware of contaminants left in place. This ensures current and future users of the property will be informed of the conditions of the institutional controls and/or protected from unwitting exposure to environmental health risks.

Are institutional controls permanent land use restrictions?

Yes. However, the site owner may conduct additional investigative and/or remedial activities in the future to reduce or eliminate the remaining contaminants posing a risk to human health or the environment. Once such work is completed, a request can be made to the Illinois EPA to obtain a new NFR letter.

What conditions may be imposed by institutional controls?

Conditions imposed by institutional controls could:

  • restrict land use to industrial/commercial,
  • prohibit installation of potable wells on site,
  • require three feet of clean cover to remain over contamination left in place,
  • require a site safety plan to be implemented if any intrusive activities occur in a contaminated area, and/or
  • require maintenance of a parking lot or other engineered barrier.

The conditions or restrictions found in institutional controls all serve to prevent human exposure to remaining contaminants, but are site-specific and depend on multiple factors. These factors include:

  • amount of contamination left behind
  • location of contamination
  • nature or type of contamination
  • potential migration pathways or routes of exposure
  • geology of the site
  • location of site and population at risk

The Bureau of Land (BOL) can assist you in identifying your site's options.

My property is already zoned commercial, so do I need an institutional control from the Illinois EPA restricting the property to commercial/industrial use?

An institutional control from the Illinois EPA is not the same as a local commercial zoning ordinance.

Local zoning does not offer the same health protection because residential use of commercially zoned property is not necessarily prohibited. Restricting the land use to commercial/industrial property under TACO means that the property cannot be used for residential purposes.

TACO defines "residential property" as any real property that is used for habitation by individuals or properties where children have the opportunity for exposure to contaminants through ingestion or inhalation at educational facilities, health care facilities, child care facilities or playgrounds.

Contaminants from my site migrated to an adjacent property. I want to resolve any concerns about off-site contamination. If I need an institutional control for my property, does that mean my next door neighbor's property needs one too?

Yes, if the levels off-site exceed residential remediation objectives and your neighbor agrees to the land use restriction.

What if my neighbor will not accept an institutional control?

Without your neighbor's consent, the Illinois EPA will not issue the NFR letter specifying off-site institutional controls. You must either re-negotiate with your neighbor to gain consent, or clean up the off-site contamination to residential remediation objectives.

I heard that if a city ordinance limits the community's drinking water source to a public water supply, then the ordinance can serve as an institutional control. Is this true?

Yes, it can serve as an institutional control if the ordinance effectively prohibits the use of private wells for drinking water, and the procedural requirements specified in 742.1015 are met -- including a memorandum of understanding between the city and the Illinois EPA.

One condition of my institutional control requires three feet of clean soil to be placed over the contamination. However, I need to put in a foundation for a new office building which will disturb the three feet of cover. What can I do?

A building foundation can be constructed, but the construction workers must be adequately protected from exposure to the contaminants pursuant to OSHA regulations and safe worker practices.

If contaminated soil is to be excavated as part of the foundation construction, it must be managed accordingly. Contaminated soils not excavated or disturbed still require an equivalently protective cover.

If my contamination extends beneath a highway, what can I do?

Since roadways can be acceptable engineered barriers, a site owner can enter into an agreement with the highway authority (state, county or local) for the purposes of developing remediation objectives. This agreement can then serve as an institutional control.

Point of Human Exposure

In TACO, it is assumed that the point of human exposure, i.e., the risk, is at the contaminant source. If, however, an institutional control or an engineered barrier is in place, the point of human exposure is moved to the edge of such controls.