Fact Sheet 4: 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

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.

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.

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 Illinois EPA, the NFR Letter must be filed by the site owner with the local county recorder's office to be effective (executed). 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.

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 Illinois EPA to obtain a new NFR Letter.

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 the:

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

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

An institutional control from 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.

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

Without your neighbor's consent, 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.

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 Illinois EPA.

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, then it must be managed accordingly. Contaminated soils not excavated or disturbed still require an equivalently protective cover.

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. Highway Authority Agreement can then serve as an institutional control.

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.