Institutional Controls At Voluntary Cleanup Sites
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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 1
Transcript of Institutional Controls At Voluntary Cleanup Sites
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 [email protected](512) 239-2268
Visit our booth during the Trade Fair!
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