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Institutional Controls

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, or when cleanup has not yet occurred, 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. 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 to use it only for commercial or industrial purposes. OLQ provides program specific ERC templates for use:

Major Change In Recording Requirements

Indiana code 32-21-2 required all instruments recorded in an Indiana county recorder’s office to have either been acknowledged by a notary or proved by a disinterested witness.

Effective July 1, 2020 senate enrolled act No. 340, replaced the word or with the word and in the law. Therefore, recorded instruments must be both acknowledged by a notary and proved by a disinterested witness. The ERC templates above contain the revised language required for acknowledgment by a notary. Under the new law, ERCs will also have to include proof by a disinterested witness. Any instrument that does not include both the acknowledgement by a notary and the proof by a witness will be rejected by the recorder’s office.

Institutional Controls Registry

IDEM’s Institutional Controls Registries are a listing of sites with institutional controls, sorted alphabetically by county. IDEM updates these lists about once a month. The Registries include information such as the site name and location, the IDEM cleanup program overseeing the project, and the land use restrictions. The registries also have interactive links to the institutional control documents in IDEM’s Virtual File Cabinet and an interactive GIS map of restricted sites, including an explanation of the available information [PDF].

The Institutional Controls Registry Remediation Sites Report is a list of sites that IDEM has approved a risk-based closure decision and incorporates the placement of legally binding land use restrictions. The Institutional Controls Registry Remediation Sites Report also includes environmental restrictive covenants approved by the Indiana Brownfields Program in conjunction with the issuance of a comfort or site status letter. The Institutional Controls Registry Solid Waste Sites Report is a list of solid waste sites that require a deed notice under Article 10 of Title 329 of the Indiana Administrative Code (IAC). Both Institutional Controls Registry summary reports are available:

Environmental Restrictive Covenant Modification/Termination and Cost Recovery

As of September 2019, close to 3,000 environmental restrictive covenants (ERCs) have been recorded on properties throughout Indiana. 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 staff members will use current risk-based policy, recent and historical data, and proposed land use to make a written determination as to the appropriateness of an ERC modification or termination. The determination will either approve the submittal, or OLQ will provide detail for meeting the requirements. If OLQ has recorded an ERC for a closure or release incident, then any modification/termination to that ERC requires OLQ approval.

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. However, OLQ will not issue the written determination until payment for invoiced costs is received.

Individuals who want to request modifications or terminate an ERC must provide written justification and all supporting documentation necessary for OLQ review, including the following completed forms.

Copies of this information may be emailed to institutionalcontrols@idem.IN.gov, or mailed to:

Indiana Department of Environmental Management
Office of Land Quality Institutional Controls Group
100 North Senate Avenue Room N1101
Indianapolis, IN 46204-2251