Transactions - Institutional Controls for Property Remediation


As state cleanup programs move toward risk-based cleanups in an attempt to return contaminated properties to productive use, cleanups  increasingly rely upon the use of institutional controls as a part of the remedy.  Institutional controls are legal or administrative mechanisms for reducing risks of contamination to human health or the environment.  See Pendergrass, J., Sustainable Redevelopment of Brownfields, 29 Envtl. Rep. (Envtl. L. Inst.) 10243 (May 1999).  Institutional controls come in any number of forms, from a simple notice to a covenant restricting the use of the land.   Every institutional control involves a trade off  between leaving  more contamination in place and restricting the use of property, potentially decreasing its value.  This paper will focus on the types of institutional controls, how institutional controls have been implemented through Texas’ Voluntary Cleanup Program and practical considerations in implementing institutional controls.

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