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Site Remediation Controls- Engineering Controls vs. Institutional Controls

2018 02 28 Site Controls Blog Image.jpg

How many techniques and tools can you use to remediate a contaminated site? Too many to list in one blog post.

First, there are the invasive, direct physical actions that one can take, such as excavation of contaminated soil and aerating or otherwise cleaning up contaminated groundwater, but that's not the subject of this post. There are remediation tools, however, that go beyond those kinds of efforts, including institutional controls (IC) and engineering controls (EC). Across the county, institutional and engineering controls are imposed at the federal, state and local levels as part of site remediation programs.

What's the difference between ICs and ECs?

The EPA uses ICs to reduce the chance of exposure to contamination through administrative and legal methods. These non-physical controls are implemented throughout, and even following completion of, the remediation process: from the moment contamination is discovered until no further restrictions on property usage are necessary to protect human health and the environment. ICs could be imposed on a site years after active, physical remediation is complete.

New York State's Department of Environmental Conservation (DEC) and the NYC Office of Environmental Remediation define ICs as non-physical methods that reduce human and environmental exposure to contamination by restricting the use of land that might increase the likelihood of such exposures. ICs can also take the form of public notice and educating the local community so they can modify their behavior to avoid both potential contamination and exposures (e.g., pamphlets distributed to residents advising that a particular property should not be trespassed upon, etc.).

Alternatively, DEC and NYC define ECs as physical barriers that actively or passively control contamination by stabilizing, monitoring, or eliminating the spread of potential contamination throughout the remedial process. These physical methods can be used both to control contamination and to protect people. For example, a common EC implemented to address soil vapor contamination and vapor intrusion is a sub-slab depressurization system (SSDS).

The best way to clean up a site is to use both institutional and engineering controls, along with the active remediation - together, these methods address the physical contamination and the potential effect on people and the environment.

Examples of Institutional Controls

· Restriction on the use of groundwater;

· Requirement that redeveloped sites be limited specifically to their current or intended use under current zoning;

· Land use and zoning tools like deed restrictions and environmental easements; and

· Environmental notices to the public.

Examples of Engineering Controls

· Site covers or caps like clean soil or pavement;

· Subsurface barriers;

· Vapor barriers;

· Slurry walls;

· Ventilation systems; and

· Installation of fences as a way to limit public access.

In New York, a formal policy was issued in 2010 detailing how to draft and implement ICs. With so much information to understand, it is important to hire an experienced environmental attorney who can assist with negotiating and implementing ICs. And when it comes to ECs, an attorney can work with environmental engineers to ensure that ECs are appropriate for the project. Experienced environmental attorneys can negotiate ECs, which are typically set out in both Site Management Plans and, in some instances, environmental easements, and work with environmental engineers to ensure that ECs required by the government are not unduly restrictive of the flexibility that property owners want to have.

If you want to read more about the Institutional Control policy, check out DEC's website.

Call the attorneys of Periconi, LLC at (212) 213-5500 to learn more about the role environmental attorneys play in negotiating and implementing institutional and engineering controls.

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