This post was written by Edward V. Walsh III.
Brownfield developers and owners of contaminated property contemplating a cleanup should take note of two important guidelines issued by the U.S. EPA. These guidelines recommend early consideration of the use of institutional controls (legal documents such as deed restrictions, restrictive covenants and the like) in planning for site remediation. Institutional controls are intended to reduce the likelihood of exposure to residual contamination following cleanups, and commonly allow for leaving residual contamination at a site subject to the controls. But, with an emphasis on making the institutional controls enforceable by government agencies and the recommendations for community involvement in decisions on future land-use planning, the EPA guidelines have the potential to add another layer of complexity and risk to brownfield re-development, and to the cleanup of other sites, whether voluntary or not. The guidelines are reported to be a priority with EPA, and are likely to be followed by state agencies in their consideration of cleanup proposals for brownfield and other contaminated sites. We will continue to monitor and report on the guidelines as they are put into practice.