DEP IC/EC Audit Program To provide a level of assurance that the PRSRs are fulfilling their obligations under their ICs, the Waste Cleanup Program has established a program to independently verify both ICs and ECs on a five-year cycle. This effort is called ICECAP (IC/EC Audit Program). State contractors are tasked to review the county property records to verify that the restrictions are currently recorded on the deed, interview property owners to determine if they are aware of the property use restrictions, and inspect the property for any signs that the restrictions are not being maintained (e.g., wells installed where they are prohibited, breaches in an impermeable cap, etc.). The results of the inspections are sent to DEP site managers and the Office of General Counsel for further action. The goal of ICECAP is to perform inspections at every 5 years to ensure that the ICs/ECs are in place and effective. Other DEP cleanup programs may also periodically inspect IC/ECs. As part of the recorded IC, the property owners who own conditionally closed sites grant site access to DEP for inspection purposes.
Attachment 38: Institutional Controls Quick Reference Table Institutional Control Description Documentation Required from PRSR (electronic copy preferred) Departmental Considerations Declaration of Restrictive Covenant A recordation made in the county property records by a property and agreed to by DEP, restricting use of or access to property in order to control the spread of contamination or exposure to contamination. Restrictive Covenant. Deed to property. Legal description of property to be restricted. Survey of area of restriction (if different from property or if there are stormwater features that need to be maintained). Title report. Constructive notice. Actual notice to holders of interest in the real property to be restricted. Most common type of IC received by the Department. many of these are/have been done, review can be accomplished quickly. This type of control runs with the land in perpetuity due to statutory exclusion from the Marketable Records Title Act (MRTA). Municipal or County Ordinance requiring connection to water system A local government regulation requiring that property owners hook up to an existing system that supplies potable water. Copy of the ordinance, or specific web link to documentation, the property owner wishes to rely upon, including maps supporting the characterization of the contamination property as within the service area and within the required proximity to the water system. Document or statement that property is either undeveloped or connected to water system. Deed to source property. Constructive notice. Actual notice to any offsite property owners, if contamination goes beyond property Possibly deeds to off source properties impacted. This decision to be made on a case by case basis. Possibly title work to determine encumbrances for both the source and non-source properties. This decision to be made on a case by case basis. This type of IC is only contemplated for groundwater contamination. OGC must evaluate any ordinance proposed to ensure the ordinance is valid and meets the definition of IC in statute. Is this type of IC adequately protective considering the contamination at issue? I.E. is there a significant exposure risk if the contaminated GW is utilized or spread for non-potable uses. of Agreement for Land Use An agreement between a governmental or MOA (MOALUC, MOARC, other names possible) – these are complex documents, This type of IC is limited to governmental or entities that have appropriate control
Controls (MOALUC) or of Agreement for Restrictive Covenant for Ports and Airports entity with a high degree of control over access to the contaminated media. generally developed between OGC and governmental entities’ counsel. Deed(s) to property. description of property to be restricted. Details about known existing contamination. Construction Management Plan (for some agreements- this can also be handled in the body of the MOA) Title report. Constructive notice. Actual notice to holders of interest in the real property to be restricted. over access to contaminated media within their jurisdiction. Interagency Agreement (DOT MOU is our only current example) An agreement between agencies that controls access to and exposure/spread of contamination. Signed Interagency agreement that sets out framework for the IC – this is a complex document. Proposal for a map note – developed with and acceptable to DEP and DOT, includes a request letter from DEP, summaries of soil and groundwater data and surveys and other documents detailing contamination. Reference to map note to be recorded in County land records. Currently, the only such agreement we have in is the DOT MOU. DOT MOU is limited to petroleum contamination only in DOT ROWs. Adding contaminants is currently being negotiated between DEP and DOT. Land Management Plans for State Owned Lands Lands (currently Board of Trustees lands only, see above for DOT). Plans developed by DEP or possibly other agencies for land owned and controlled by the state. Management plan. Statement from both the leasee and staff with DEP DSL approving the control. These can only be enacted on state owned lands. Delineated areas under 62-524 Areas that have been identified by rule of the Department as contaminated, which are used to Rule reference to the specific part of 62-524 delineating the area Constructive notice Possibly work to determine encumbrance Currently delineated areas are limited to those areas already adopted by rule. Those include historic EDB sites, some superfund/CERCLA sites
inform decisions by Water Management Districts (WMD) on well and consumptive use permits (CUP). holders for both source and non-source properties. This determination to be made on a case by case basis. Actual notice to any off-site property owners affected. and a few miscellaneous sites. Since delineated areas target potable water well installations, may still need to consider whether there is a significant exposure risk if the contaminated GW is utilized or spread for non-potable uses. Municipal or County Zoning or Land Use DRIs, Development Orders, or Deed Notices Zoning classifications, land use categories, Development of Regional Impact Final Orders, development orders, or deed notices. These will all require various different components to form complete packages. All of them may be acceptable as part of a layered IC, but it is not likely that any of them can form the basis of an IC alone. Communicate with OGC early in the development of any closure plan that includes the use of these types of controls. Constructive notice may provide some utility if layered along with other controls. Conservation Easements An easement given by the Property Owner for conservation purposes. Draft conservation easement and supporting documentation (much of this is similar to the supporting documentation required for a Restrictive Covenant, see the Conservation Easement handbook, SLER 1515 for specifics). Constructive notice This type of IC is recognized by statute, but may not be a good fit for controlling access to or spread of contamination. Requests to evaluate this type of IC should be forwarded to OGC early in the process of developing the IC.