Environmental Land Use Controls
Ever wonder what exactly “deed restriction” means and how it came about? How about “consent decree”?
Land Use Controls is the place to find out about these and other similar documents.
Environmental land use controls (LUCs) — also known as institutional controls (ICs), activity and use limitations (AULs), and environmental use restrictions (EURs) — are legal and administrative measures to protect human health and environment from risk based cleanups in which residual contamination is contained on site.
LUCs limit human exposure by restricting activity, use, and access to properties with residual contamination.
1. What is ICMA?
The International City/County Management Association (ICMA) is a professional and educational association of nearly 8,000 chief appointed administrators serving local governments. ICMA members manage cities, counties, towns, townships, boroughs, regional councils, and other local governments in the United States and throughout the world with populations ranging from a few thousand to several million people.
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2. What is the e-Library and why is it important?
The e-Library is a searchable online resource containing hundreds of Land Use Controls (LUCs) documents, collected through ICMA’s researching and documenting efforts over the last several years. The e-Library is an important source of LUCs information that provides stakeholders (environmental professionals, urban planners, city, state & federal management, consultants, etc.) with a representative sampling of the types of LUCs documents that are available today. This e-Library is not a tracking system, but rather a comprehensive virtual encyclopedia that aims to be the largest repository of LUCs documents in the nation.
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3. What are land use controls (LUCs)?
Land use controls (LUCs), also known as “institutional controls,” are administrative or legal mechanisms used to protect public health and the environment from residual contamination at Superfund sites, military bases, or other contaminated properties or former brownfields. LUCs are designed to limit land use and on-site activity that might interfere with the containment of residual contamination after completion of a response action. LUCs are typically used in tandem with physical or engineering measures — such as fences and containment caps.
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4. What is the difference between LUCs, institutional controls, and other terms used to describe similar mechanisms?
LUCs protect human health and the environment by preventing people, water, and soil from coming into contact with contamination. The term “institutional control,” adapted from Superfund guidance, is often used in place of LUC. Like LUCs, institutional controls refer to legal and administrative mechanisms€”as opposed to physical or engineering mechanisms€”for managing risks to human health and the environment. However, while institutional control is not incorrect, there are several problems with using the term. First, the term causes confusion for those not directly involved with environmental remediation. Second, the term may be misleading by suggesting that some “institution” will be engaged in monitoring, evaluating, and paying for these mechanisms.
Other synonyms used for LUCs include land-use restrictions (LURs), activity and use limitations (AULs), activity and use restrictions (AURs), groundwater contamination areas (CEAs or CKEs), spills, leaks, release tracking, contaminated sites, contaminated land, post closure responsibilities, post remediation care, and declarations of environmental use restrictions (DEURs). For more information on these terms, please click here.
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5. Why are LUCs used on Brownfields?
LUCs are used at brownfields to prevent human exposure to residual contamination in the soil or water. For example, an LUC may prohibit excavation past a certain depth to avoid disturbing contaminated soil.
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6. Why are LUCs used at Superfund sites?
LUCs are used at Superfund sites until final, unrestricted site use conditions are in place. LUCs are also used when final remedial action encapsulates residual contamination. LUCs at Superfund sites supplement other remedial actions such as treatment, and encapsulation of contaminants and are rarely used as the sole remedy. EPA guidance on Superfund remedial action advises Superfund site managers to use multiple types of LUCs to ensure long-term protectiveness of remedial action.
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7. Why are LUCs used on closed and realigned military bases?
LUCs are used on closed military facilities when residual contamination is left on site after the base has been transferred. Residual contamination may be present for a variety of reasons. In some cases the community and the local redevelopment authority have chosen a reuse option that does not require complete remediation. In other cases, due to insufficient funding or technological limitations, certain contaminants cannot be fully remediated.
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8. What are the various types of LUCs?
There are four general types of LUCs: private controls; governmental controls; enforcement tools with IC components; and informational devices.
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9. What are private controls?
Private controls are the most commonly used land use restrictions for preventing contact with residual contamination. Private controls are often referred to as proprietary controls because they use traditional property law devices, such as deed restrictions, restrictive covenants, and easements to restrict land use.
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10. What is a deed restriction?
A deed restriction places limits on the uses and conveyance of land. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and some state voluntary cleanup programs (VCPs) use the term “deed restriction” generally to include traditional proprietary controls, such as restrictive covenants and easements. Although deed restrictions operate like traditional property law devices, the term “deed restriction” has no clear meaning in traditional property law.
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11. What are restrictive covenants?
A restrictive covenant is a traditional provision in a deed limiting the use of property and prohibiting certain uses. For example, a landowner may promise or “covenant” not to develop residential housing on their property and to use it only for industrial purposes. Restrictive covenants are a form of private controls.
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12. What are reversionary interests?
Reversionary interests restrict the owner to uses that are compatible with the intended future uses of the site. If the current property owner violates the land use restrictions, ownership of the site reverts to the previous owner. Reversionary interests are a form of private controls.
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13. What is an easement?
An easement transfers a limited ownership interest in real property from the property owner to another party. The holder of the easement can access the property detailed in the easement or preclude certain uses of it. An easement is a form of private controls.
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14. What are government controls?
Government controls are restrictions on land and site resource use imposed by state laws and regulations or through a local government’s zoning, building, and land development authority. Governmental controls include notices and advisories, permits, zoning, overlay zoning, and siting restrictions.
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15. What are notices and advisories?
Notices and advisories inform the public of existing contamination on a site or of the risks of drinking contaminated groundwater. These legal notices are often implemented with signs or physical controls such as fences. Notices and advisories are generally implemented and maintained by state and local governments. Notices and advisories are a form of governmental controls.
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16. What are permits?
State or local governments can issue permits to allow certain activities that are otherwise restricted (e.g., building, grading, and development permits). Common examples of permits used at hazardous waste sites include restrictions on the construction or location of new wells, limitations on soil excavation at sites with contaminated subsoils, or limitations on the ability to alter a cap. A permit is a form of governmental controls.
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17. What is zoning?
Zoning regulates the location and uses of land. For example, industrial uses and activities might be barred in residential areas. Local governments usually pass planning and zoning ordinances to restrict land uses.
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18. What is overlay zoning?
Overlay zoning ordinances place additional limits on the use of resources in areas already regulated by general zoning rules. For example, a local land use authority could create a contaminated groundwater management zone in an area designated for industrial use. Overlay zoning is a form of governmental controls.
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19. What are siting restrictions?
Siting restrictions limit the land use in areas that are prone to natural hazards, such as flood plains and earthquake fault zones. Siting restrictions are a form of governmental controls.
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20. What are enforcement tools with LUCs?
Enforcement tools refer to legal orders or permits issued by the US Environmental Protection Agency (EPA) or state environmental regulatory agencies. Such orders and permits are used to compel landowners to use their property in ways that will not disturb remedial action. Because orders and permits are usually binding for present property owners only, they are not useful in situations where ownership of land frequently changes.
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21. What are Unilateral Administrative Orders?
Unilateral Administrative Orders (UAOs) are legal devices issued by regulatory agencies to compel parties to do - or refrain from doing - certain actions. EPA and state environmental agencies use UAOs to compel landowners to refrain from certain activities on their property. UAOs are a type of enforcement tool used to ensure the protection of remedial action.
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22. What are Consent Decrees?
Consent Decrees (CDs) are legal agreements between regulatory agencies and private parties in which private parties agree to do - or refrain from doing - certain activities. EPA and state agencies use CDs to ensure that landowners use their property in a manner that does not interfere with remedial action. CDs are enforcement tools that can have LUC components.
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23. What are informational devices?
Informational devices are used to alert parties to a real estate transaction of environmental conditions on the subject property. Frequently, these devices operate by placing a notice in the deed to the property that discloses the specific location of residual contamination and any restrictions on the use of the property. Such devices are referred to as deed notices. If properly filed, these devices can help ensure that future landowners and users are aware of hazardous chemical residues existing on properties.
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24. Why are some states more fully represented by way of sheer volume of documents in the E-Library?
Some states, such as Florida, California, and Colorado, have a multiplicity of documents from several different sources within the E-Library, while other states have very few or no documents. This unequal representation is easily explained in the fact that states like Florida are considered “bellwether” states: these states continually act as innovators in the LUCs arena. Their actions are considered indicators of future trends. Because www.lucs.org is not an LUC tracking system, we have selected certain states that have examples of different types of LUCs, which can inform our users.
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25. What other sources of information are there for LUCs?
In addition to documents located in the LUCs.org e-Library, there are a number of other sources of information on LUCs. Most of these sources contain copyrighted information.
Law Review and Journal Articles
Heidi Gorovitz Robertson, Legislative Innovation in State Brownfields Redevelopment Progams, 16 J. Envtl. L. & Litig. 1 (Spring 2001).
Alex Geisinger, Rethinking Risk-Based Environmental Cleanup, 76 Ind. L.J. 367 (Spring 2001).
Jeffery M. Gaba, Tulk v. Moxhay and Texas Environmental Law: Land Use Restrictions under the Texas Risk Reduction Program, 55 SMU L. Rev. 179 (Winter 2002).
John Seymour, Transfer of Federal Lands: Compliance with Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act, 27 Colum. J. Envtl. L. 173 (2002).
John S. Applegate & Stephen Dycus, Institutional Controls or Emperor’s Clothes? Long-Term Stewardship of Nuclear Weapons Complex, 28 Envtl. L. Rep. 10,631 (Nov. 1998).
John Pendergrass, Sustainable Redevelopment of Brownfields: Using Institutional Controls to Protect Public Health, 29 Envtl. L. Rep. 10,243 (May 1999).
George Wyeth, Land Use and Cleanups: Beyond the Rhetoric, 26 Envtl. L. Rep. 10,358 (July 1996).
Books
A Comprehensive Guide To Redeveloping Contaminated Property (Todd S. Davis, ed., 2nd ed., American Bar Association, Section of Environment, Energy and Resources 2002). (See Chapter 14 on Institutional Controls by Amy Edwards, Partner, Real Estate, Environmental and Land Use Practice Group of Holland and Knight, LLP.)
This entry was posted
on Monday, September 10th, 2007 at 11:03 am and is filed under ●Brownfields Fed, State & Local Government, ●Environmental Agencies, ●Environmental Service/Product Providers.
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