Tiered Approach to Corrective Action Objectives (TACO)
Fact Sheet 4: Institutional Controls
What are institutional controls?
Institutional controls are legal mechanisms for imposing restrictions and conditions on
land use.
These restrictions and conditions are contained in an Illinois EPA No Further
Remediation (NFR) letter, and may include:
- Restrictive covenants and deed restrictions
- Negative easements
- Ordinances adopted and administered by a unit of local government
- Agreements between a property owner and a highway authority
Why are institutional controls required?
Land use restrictions and conditions are necessary when remaining (post remediation)
contaminants pose a risk to human health or the environment.
Institutional controls protect people from harmful exposure to contaminants that are
left in place.
For example, the conditions of an institutional control may prohibit groundwater
beneath a site from being used as drinking water, or require the maintenance of an
engineered barrier to prevent exposure to contaminants. Violation of these conditions
could pose an unacceptable health and safety risk.
How will I know if my site needs an institutional control?
You will need an institutional control when the remediation objectives used at your
site are based on any of the following:
- Industrial/commercial land use
- Engineered barriers
- Pathway exclusion
- The point of human exposure is located at a place other than at the source
- Any combination of the above
You will not need an institutional control if your site meets the residential
remediation objectives.
How do institutional controls work?
The language of the institutional control(s) is found in the NFR letter (see Fact Sheet 3). The NFR letter may
include copies of ordinances and deed restrictions in addition to maps showing the areas
where remaining contaminants exceed the residential remediation objectives.
After approval by the Illinois EPA, the NFR letter must be filed by the site owner with
the local county recorder's office to be effective. By indexing the letter to the
property, users of the property will be made aware of contaminants left in place. This
ensures current and future users of the property will be informed of the conditions of the
institutional controls and/or protected from unwitting exposure to environmental health
risks.
Are institutional controls permanent land use restrictions?
Yes. However, the site owner may conduct additional investigative and/or remedial
activities in the future to reduce or eliminate the remaining contaminants posing a risk
to human health or the environment. Once such work is completed, a request can be made to
the Illinois EPA to obtain a new NFR letter.
What conditions may be imposed by institutional controls?
Conditions imposed by institutional controls could:
- restrict land use to industrial/commercial,
- prohibit installation of potable wells on site,
- require three feet of clean cover to remain over contamination left in place,
- require a site safety plan to be implemented if any intrusive activities occur in a
contaminated area, and/or
- require maintenance of a parking lot or other engineered barrier.
The conditions or restrictions found in institutional controls all serve to prevent
human exposure to remaining contaminants, but are site-specific and depend on multiple
factors. These factors include:
- amount of contamination left behind
- location of contamination
- nature or type of contamination
- potential migration pathways or routes of exposure
- geology of the site
- location of site and population at risk
The Bureau of Land (BOL) can assist you in identifying your site's options.
My property is already zoned commercial, so do I need an institutional control from
the Illinois EPA restricting the property to commercial/industrial use?
An institutional control from the Illinois EPA is not the same as a local
commercial zoning ordinance.
Local zoning does not offer the same health protection because residential use of
commercially zoned property is not necessarily prohibited. Restricting the land use to
commercial/industrial property under TACO means that the property cannot be used for
residential purposes.
TACO defines "residential property" as any real property that is used for
habitation by individuals or properties where children have the opportunity for exposure
to contaminants through ingestion or inhalation at educational facilities, health care
facilities, child care facilities or playgrounds.
Contaminants from my site migrated to an adjacent property. I want to resolve any
concerns about off-site contamination. If I need an institutional control for my property,
does that mean my next door neighbor's property needs one too?
Yes, if the levels off-site exceed residential remediation objectives and your neighbor
agrees to the land use restriction.
What if my neighbor will not accept an institutional control?
Without your neighbor's consent, the Illinois EPA will not issue the NFR letter
specifying off-site institutional controls. You must either re-negotiate with your
neighbor to gain consent, or clean up the off-site contamination to residential
remediation objectives.
I heard that if a city ordinance limits the community's drinking water source to a
public water supply, then the ordinance can serve as an institutional control. Is this
true?
Yes, it can serve as an institutional control if the ordinance effectively prohibits
the use of private wells for drinking water, and the procedural requirements specified in
742.1015 are met -- including a memorandum of understanding between the city and the
Illinois EPA.
One condition of my institutional control requires three feet of clean soil to be
placed over the contamination. However, I need to put in a foundation for a new office
building which will disturb the three feet of cover. What can I do?
A building foundation can be constructed, but the construction workers must be
adequately protected from exposure to the contaminants pursuant to OSHA regulations and
safe worker practices.
If contaminated soil is to be excavated as part of the foundation construction, it must
be managed accordingly. Contaminated soils not excavated or disturbed still require an
equivalently protective cover.
If my contamination extends beneath a highway, what can I do?
Since roadways can be acceptable engineered barriers, a site owner can enter into an
agreement with the highway authority (state, county or local) for the purposes of
developing remediation objectives. This agreement can then serve as an institutional
control.
Point of Human Exposure
In TACO, it is assumed that the point of human exposure, i.e., the risk, is at the
contaminant source. If, however, an institutional control or an engineered barrier is in
place, the point of human exposure is moved to the edge of such controls.
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