The Office of Land Quality (OLQ) uses a risk-based approach to address hazardous substances or petroleum releases. When contamination remains on site after remediation is complete, OLQ may employ a legal or administrative measure called an institutional control. An institutional control protects human health and the environment by applying land use restrictions to properties that limit activity, use, or access to minimize exposure to contamination left in place. Environmental restrictive covenants (ERCs) are a type of institutional control that are used to apply land use restrictions to properties. For example, a landowner may agree to not develop a site for residential use and allow only commercial or industrial development.
Institutional Controls Registry
The Institutional Controls Registry is an Excel spreadsheet of sites with an approved Institutional control. The Institutional Controls Registry includes environmental restrictive covenants approved by IDEM as well as Solid Waste sites that require a deed notice under Article 10 of Title 329 of the Indiana Administrative Code (IAC). The registry is updated the first Monday of every month.
ERC Templates
OLQ is now providing one template to cover all remediation programs; Resource Conservation and Recovery Act (IC 13-22), Regulated Leaking Tanks (IC 13-23), ICP/petroleum releases (IC 13-24), State Cleanup/Hazardous Substances (IC 13-25), and Voluntary Remediation Program (IC 13-25-5) and another ERC template for Solid Waste Landfills. To ensure a prompt review, follow the template and provide a copy of the property deed along with a draft copy of your ERC to your assigned project manager. Deviations from the ERC template will require a review from IDEM’s Office of Legal Counsel and will delay your project. The ERC templates include drop downs (choose item in blue font), optional language (highlighted blue) and fillable fields (highlighted yellow). To complete the fillable fields, click on each, hover over the three dots to the left of the field and begin typing.
Training Tutorial
A training tutorial on institutional controls and IDEM restricted sites is available on YouTube. “E101: Let’s talk about Institutional Controls and Comfort Letters”.
Long Term Stewardship
Long-term stewardship (LTS) applies to sites where long-term management of contaminated environmental media is necessary to protect human health and the environment while providing a conditional closure to responsible parties (RPs). LTS includes the establishment and maintenance of physical and legal controls, implementation entities, authorities, financial assurance, information and data management, and resources that are necessary to ensure these sites remain protective of human health and the environment. At this time, LTS is in draft phase, however the following documents are available upon request for your consideration.
- Long Term Stewardship Flow Chart
- IDEM LTS Guidance
- Long Term Stewardship - Master Plan
- Groundwater Monitoring Work Plan Cover Sheet & Report Format
- Vapor Monitoring Work Plan Cover Sheet & Report Format
- Engineering Control Monitoring Work Plan Cover Sheet & Report Format
- Land Activity Monitoring Work Plan Cover Sheet & Report Format
- Long Term Stewardship Agreement
What’s in my Neighborhood
IDEM has launched What’s in my Neighborhood? The page includes an interactive GIS map of multiple environmental cleanup layers with more planned. IDEM’s properties closed with Environmental Restrictive Covenants (ERCs) are depicted on the "Restricted Sites" layer. The new website is a valuable tool to determine environmental activity on or near specific properties.
Modification and Terminations
As site conditions and use evolve, environmental guidance becomes more refined, and properties change hands, it may be necessary to evaluate recorded ERCs and ensure that the land use restrictions in place are appropriate and necessary. In accordance with Indiana Code 13-14-2-9(c)(3), an ERC may be modified if supporting information is provided. OLQ will use current risk-based policy, recent data, and proposed land use to make a written determination as to the appropriateness of an ERC modification or termination.
OLQ requires reimbursement for the administrative and personnel expenses associated with the development of the written determination under 329 IAC 1-2-7 [PDF]. OLQ personnel expenses are $75.00 per hour, and once a written determination is made, an invoice reflecting the actual number of hours spent on the review will be provided. To request a modification or termination please provide written justification and all supporting documentation necessary for OLQ review, including the following completed forms, via email to the Institutional Controls program.
- ERC/Deed Notice Modification or Termination Request - 56082 (available on the IDEM Agency Forms page)
- ERC Modification Template, May 2018 [DOC]
- ERC Termination Template, May 2018 [DOC]
Environmental Restrictive Covenants (ERCs) and Easements
An easement is a permanent right of access to real property not owned by the easement holder. Easements “run with the land,” so when a property having an easement is sold to a new owner, the easement still exists, and the new owner must allow access. To ensure that ERCs are enforceable on real property that has already-existing easements, proposed ERCs with excavation restrictions or passive engineering controls should also include: 1) a map showing all easements that affect the property and 2) a copy of any easements that relate to the property. If, after a review of the easement and the proposed land-use restrictions in the ERC, IDEM determines that the easement and ERC have conflicting terms, to ensure that the ERC is enforceable by IDEM, additional documents are required to use the ERC for regulatory closure.
The person placing the ERC on the property has the option of either obtaining a Subordination Clause [DOCX] or a Joinder and Consent [DOCX] to ensure that the ERC properly manages risk for persons also using the easement. Another option may be to work with the property owner and easement holder to renegotiate the easement so that it does not conflict with the ERC. If an agreement regarding the priority of the ERC with regard to the easement cannot be reached, the ERC may not appropriately manage risk, and an alternative remedy may be necessary.
Persons wanting to use ERCs on properties with potentially conflicting easements should obtain knowledgeable environmental and/or real estate counsel to discuss all options.
Self-audits
To ensure that property owners are both aware of property restrictions and to ensure compliance necessary to protect human health, IDEM has begun to mail out Requests for Self-Audits. If you receive this request in the mail, you may either provide a hard copy to the Office of Land Quality with “ATTN: Institutional Controls Group” on the mailer, or you may download a digital copy of State Form 55715 and email it to the Institutional Controls program.
Contamination in the Right of Way Links
Use the following links to help fill out State Form 57234 [PDF] which provides notice that contaminated soil and or groundwater is present in the Right-of-Way because of a release of contamination to the environment from an IDEM reported incident. This information will be used by the roadway’s managing authority to consider worker safety and proper management practices during future construction activities.
- ArcGIS - My Map To help you identify the managing authority use this link to determine if a road is owned by an entity other than INDOT.
- Virtual File Cabinet To view the ERC in its entirely, visit IDEM’s Virtual File Cabinet
- IDEM’s Uncontaminated Soil Nonrule Policy Document (NPD) (Waste-0064-NPD) Use to determine whether it is appropriate to reuse excavated soil in a construction project.
- Effective Nonrule Policies To help find the most current version of the Nonrule Policy Document to determine the appropriate criteria to evaluate soil containing detectable levels of human introduced chemicals and the proper management of such soils.