Voluntary Investigation and Cleanup Program: Institutional Controls — What Are They and How Does the MPCA Use Them?

Definition

Institutional controls are defined by Minnesota Statute, Section § 115B.02, subdivision 9a, as legally enforceable restrictions, conditions, or controls on the use of real property, ground water, or surface water located at or adjacent to a facility where response actions are taken that are reasonably required to assure that the response actions are protective of public health or welfare or the environment.

Institutional controls include restrictions, conditions, or controls enforceable by contract, easement, restrictive covenant, statute, ordinance, or rule, including official controls such as zoning, building codes, and official maps. An affidavit required under section 115B.16, subdivision 2, or similar notice of a release recorded with real property records is also an institutional control.

Use of Institutional Controls

The institutional controls most commonly used by the MPCA’s Voluntary Investigation and Cleanup Program are environmental covenants, affidavits and easements. Institutional controls are recorded at the county recorder or registrar of titles in the county where the property is located.

The MPCA may use institutional controls, in addition to treatment, containment or removal of contaminants, as part of the overall site remedy. Institutional controls are intended to ensure that the response (cleanup) actions remain protective of public health and the environment. Institutional controls document the presence of contamination at a particular parcel and provide notice through recording in official property records so that interested parties become aware of residual contamination and any accompanying property use conditions and restrictions. Institutional controls may also include easements to ensure access to property for purposes such as maintaining response actions.

Environmental Covenant

An environmental covenant:

• establishes restrictions or conditions on the use of some or all of the property;
• requires maintenance of site conditions, engineering controls or response actions (e.g., response action equipment and water monitoring wells) to ensure protection of human health and the environment;
• provides disclosure of a release or threatened release of a hazardous substance, pollutant or contaminant; and
• obligates subsequent property owners/lessees to be bound by restrictions/ requirements related to contamination at the site.

Updated Template: Environmental Covenant and Easement

An updated template for the Environmental Covenant (dated February 2008) is now available on the Web. Please use this updated template when preparing environmental covenants for MPCA review. The document is available on the MPCA Risk-Based Guidance Documents Web page under the heading "Guidance on Incorporation of Planned Property Use into Site Decisions."

Real Property Notification/Affidavit

An affidavit:

• discloses information regarding a release or threatened release of a hazardous substance, pollutant or contaminant to any potential buyer or interest holder; and
• informs subsequent property owners/lessees that they should contact the MPCA prior to beginning planned site activities that may disturb contamination at the site

Easement

An easement:

• provides the MPCA with the right to access property for inspection; and
• allows the MPCA to conduct environmental response (cleanup) actions at the property, such as the installation and maintenance of structures, equipment, and water monitoring wells.

In summary, institutional controls are intended to ensure that response actions remain protective of human health and the environment. Institutional controls document the presence of contamination at a particular parcel, and provide notice to interested parties so that they are aware of residual contamination and any accompanying property use conditions and restrictions. Institutional controls may also ensure access to property for purposes such as the maintenance of response actions.