This guidance focuses on ICs already in place rather than on the details of selecting ICs. Properly selecting and implementing ICs, however, is essential for long-term durability and effectiveness. Therefore, this guidance provides a summary of some of the key components that are considered when choosing an IC. Also discussed are the decision-making aspects of IC implementation and planning that can affect the long-term durability of an IC, with links to additional guidance on IC selection. ITRC has also developed a downloadable tool that can help to create a long-term stewardship plan tailored to specific sites. This tool incorporates the various IC management practices presented here to assist in the early stages of site-specific IC planning.

This guidance is relevant to environmental regulators at all levels of government, private and public responsible or obligated parties (OPs), current site owners and operators, environmental consultants, and prospective purchasers of property and real estate agents. Additionally, stakeholders who have an interest in a property will find this guidance helpful in understanding the elements required to manage ICs (see Stakeholder Perspectives).

The terminology and process descriptions used in this guidance are consistent with those used in the Superfund Program. Some state and tribal governments have brownfield programs within their Superfund network; the terms and processes used in these brownfield programs may vary from those used here.

There are two types of LUCs: ECs and ICs (ITRC 2006; USEPA 2012). ECs are physical controls or barriers that prevent human exposure to contamination (see Figure 1). These controls limit direct contact with contaminated areas, reduce exposures, and control migration of contaminants through environmental media. Examples of these controls include fencing, capping, vapor mitigation systems, containment, slurry walls, extraction wells, and treatment methods that minimize the spread of contamination.

Figure 1. Examples of an EC for groundwater contamination (locked well).

ICs are administrative or legal controls that prevent unacceptable human exposure to contamination or protect the integrity of an EC by limiting land or resource use. ICs can supplement ECs, or they may be a stand-alone response. For example, an asphalt cap that covers contaminated soil might be supplemented with an IC that prohibits residential use of a property or disturbance of the cap. An IC may also be used without a corresponding EC. For example, a land use restriction may be applied to a property to prohibit its residential development due to potential exposure to residual soil contamination.

Whether an IC alone is sufficient, or whether both an IC and an EC are needed, depends on regulatory requirements as well as site-specific conditions. For example, when contaminated groundwater exists but is not in an area with a drinking water well, an IC to prohibit the installation of drinking water wells may be appropriate. On the other hand, if groundwater contamination exists in an area where drinking water wells are in use, an EC such as a slurry wall or pumping wells to provide hydraulic control of the plume may also be required. See ITRC’s LUC guidance for more detailed information on ECs (ITRC 2008).

Governmental controls rely on the regulatory powers of a state or local government and include, for example, existing ordinances, building and development rules, environmental restrictions, and other restrictions on land or resource use. Common examples include zoning ordinances (which limit or condition the type of land use that can occur in defined zones), groundwater use or well drilling limitations, reuse of contaminated soils generated from IC areas, and land development regulations. Government controls may involve preexisting ordinances relied on by a cleanup remedy or, in some cases, newly drafted governmental controls, such as ordinances limiting deep excavation in known areas of soil contamination, can be drafted specifically for use as an IC. By their nature, government controls tend to affect larger areas – such as the entire boundary of a given jurisdiction (for example, a city boundary) or a region within a jurisdiction (such as a contaminated groundwater overlay region). Government controls can be enforced by the jurisdiction that enacted the control.

Proprietary controls are the most common type of control. Other types of ICs in lieu of, or in combination with, proprietary controls often prove effective at large sites or where landowners are unwilling to agree. Proprietary controls usually affect a single parcel of property and are considered proprietary, or private, because they are established by a private agreement between the landowner and an outside party. This outside party can, in turn, enforce the restrictions or limitations provided in such agreements. Proprietary controls are created under the authority of state real property law; thus these agreements constitute a property right. These controls are attractive because they “run with the land” – meaning they endure as the affected property is sold to new owners.

Proprietary controls are sometimes called “deed restrictions,” which is a general term used to describe property rights that restrict the use of the property. Common examples of proprietary controls include restrictive covenants, environmental covenants, or easements that restrict use (also known as negative easements). These covenants or easements are typically multipage documents that describe the property affected and the restrictions imposed (for example, excavation prohibitions or well drilling prohibitions). The controls are recorded in the official land records so that they can be found under conventional title search procedures.

The state law authorizing proprietary controls varies. Nearly half the states have enacted statutes modeled after (National Conference of Commissioners 2003), which authorizes and helps assure that these types of controls can be enforced. Other states have enacted similar statutes, but not modeled after UECA. Finally, some states rely on the state common law (meaning law set by decisions over time, rather than state statute, over many years) for their authority. Regardless of the authorizing law, flexibility often exists as to the outside party (or parties) to the proprietary control agreement that can enforce the control. The outside party is often the state environmental agency, though it need not be.

Because each proprietary control affects a single parcel of property, when cleanup sites involve multiple parcels it is usually necessary to draft and negotiate proprietary controls for each parcel. While proprietary controls are the most common IC, at large sites or where landowners are unwilling to agree to proprietary controls, using other types of ICs in lieu of or in combination with proprietary controls often proves effective.

Enforcement and permit tools include government agency-issued permits, administrative orders, and enforcement agreements (such as consent decrees) that are enforceable by state or federal agencies. These tools can include requirements that restrict future land use. Rather than being a property right (as for proprietary controls), most enforcement and permit tools are binding on only the signatories to the agreement (or the party named in the permit or order) and, therefore, the property restrictions do not bind subsequent owners (they do not “run with the land”).

Informational devices provide information about risks from contamination. These devices are meant to inform and are generally not legally enforceable. Common examples include the following:

• Deed notices are documents filed in public land records with the property deed that provide information about potential health risks from contamination left on the property to the future buyers or other interested parties. They do not direct action and are not enforceable.
• State registries of hazardous waste sites contain information about contaminated properties. Some state laws provide that the use of the registered property cannot be changed without state approval.
• Advisories warn the public of potential risks associated with using contaminated land, surface water, or groundwater, and are usually issued by public health agencies.

This lack of implementation was usually the result of one or more of the following problems:

• a poorly established IC management program at the state or local level
• lack of state funding to establish an IC management program at the state level
• inconsistent remedies or acceptance of the remedies between state and local governments
• unenforceable ICs
• inability to track ICs if and when implemented
• poor public perception of ICs as a failure of government officials to connect with local interest groups]

Undiscoverable ICs. In addition, 20% of respondents indicated that an undiscoverable IC (Questions 5) or a new owner being unaware of the IC was also a reason for an IC failure in their state.

• Goals and objectives of the IC were not clearly defined and therefore IC success cannot be ascertained.
• Erroneous, incomplete, or unclear language results in over- or under-restrictive instruments, or reduced enforceability.
• The geographic areas to which the IC applies are not clearly delineated or identified and the IC does not apply to all current or future geographic areas that are or could be affected.
• Responsibilities for implementation, monitoring, and maintenance are not clearly assigned or defined.
• Legal issues related to ICs running with the land hinder durability.
  • ICs do not account for common law or other applicable statutes within the state in question and therefore may not result in a restriction that runs with the land.
  • The grantee or third party beneficiary of a proprietary control will not endure for the term of the IC, or is unable or unwilling to dedicate the financial, staff, and legal resources to maintain the IC.
  • Other real property interests (such as liens, mortgages, easements or judgments) may be prioritized higher than the proprietary IC. In most states, each interest is prioritized according to the date on which it is recorded with the land record authority. Thus, during certain proceedings (such as foreclosure) another senior interest-holder (such as a bank) may be able to dispose of all other interests, including the proprietary IC, if the IC was recorded on a later date and has lower priority. A subordination agreement is a legally binding agreement in which a party holding a senior lien or other interest consents to a change in priority, behind the proprietary IC. Such an agreement should be completed and recorded with the IC  to ensure that the IC survives foreclosure or other legal proceedings by other interest-holders. A governmental control is subject to periodic review, modification, or reauthorization by a local governing body, and therefore does not guarantee the permanence necessary to guarantee IC effectiveness.
• No financial assurance is provided to ensure long-term costs for maintenance, monitoring, and enforcement are covered.

Programs within the same agency or state (such as leaking underground storage tanks, brownfields, wetlands, Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and the Resource Conservation and Recovery Act (RCRA) were found to have different templates and differing standards for document drafting, review, and approval, as well as different overall IC implementation.

Only seven states surveyed reported using UECA. These acts establish the use of environmental covenants and, in doing so, address a number of issues relating to flawed implementation, particularly those that had hindered proprietary controls from running with the land to new owners. UECA statutes, however, do not address the monitoring of ICs or the larger set of IC program management topics addressed in this document.