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Institutional Control which Involves a Use or Activity Restriction
An institutional control is an administrative or legal tool/action taken to minimize or reduce the public's potential exposure to contaminants. Institutional controls are designed to protect public health by limiting the use of contaminated areas including limiting any post remediation activity that might interfere with the residual contamination. Once in place, institutional controls are perpetual unless formally released and must be adequately maintained by the owner(s) to ensure the continued protection of public health and the environment. For example, a site in which the owner elects to leave contaminated soil on the property with concentrations between the Residential and Non-Residential Soil Remediation levels would be required, as a condition of the DEUR, to limit the area where the contamination in soil has been vertically and horizontally defined to non-residential use. This restriction would prohibit any future use of the restricted area for residential use, but would allow the property to be developed for non-residential purposes. All proposed institutional control and associated use restrictions are subject to ADEQ review and approval.
Reporting Requirements for Institutional Controls
Any property owner that elects to utilize an institutional control is required to submit to ADEQ a written report once each calendar year regarding the status of the institutional control. ADEQ has established September 1 as the annual reporting deadline. ADEQ will provide a site specific annual report form to responsible property owners of record prior to the reporting deadline. Property owners will be required to report as to the status of the institutional control, and return the completed form to ADEQ by the reporting deadline. ADEQ will review all annual reports for completeness and will periodically conduct site visits to ensure that the institutional control and DEUR provisions are being adequately maintained.
When a DEUR Involves an Engineering Control
Engineering controls could be required for a site as part of post remediation to protect public health and the environment from future exposure to contaminants. Engineering controls are remediation methods, such as barriers or caps, that are designed to prevent or minimize exposure to contaminants and include technologies that reduce the mobility or migration of contaminants. Once in place, engineering controls are perpetual, unless formally released, and must be maintained by the owner(s) to ensure the continued protection of public health and the environment.
When an engineering control is utilized an engineering control plan and a proposed form of financial assurance document must be included with the DEUR at the time it is submitted to ADEQ for approval. All proposed engineering controls, associated use restrictions, and proposed forms of financial assurance are subject to ADEQ's review and approval.
In addition, any property owner seeking to sell a property that is subject to a DEUR, which includes the use of an engineering control, must meet the requirements of A.R.S. § 49-152.01(C). This includes, but is not limited to, providing written notice of the sale to ADEQ and a written commitment from the buyer to comply with the requirements of the engineering control plan and to maintain or replace the financial assurance mechanism.
Reporting Requirement for Engineering Controls
Property owners electing to utilize an engineering control are required to inspect the engineering control at least once each calendar year. Within thirty days after the inspection, the owner must submit to ADEQ a written report containing the following information: a description of the current condition of the engineering control; the nature and cost of all restoration made to the engineering control during the calendar year; current photographs of the engineering control; a description of the status of the applicable financial assurance mechanism; and, a certification that the financial assurance mechanism(s) is being maintained. ADEQ will review all annual reports for adequacy and completeness and will periodically conduct site inspections to ensure that the engineering control(s) and provisions defined in the DEUR are being adequately maintained.
Release or Modification of the DEUR
The DEUR is perpetual unless formally released by ADEQ. Requests to release or modify any component of the DEUR will be forwarded to the Voluntary Remediation Program (VRP). VRP will oversee any required remediation and conduct the technical review of submitted documents. ADEQ will determine that a release of the DEUR is appropriate if the area of the property subject to the DEUR has been remediated to meet the requirements of A.R.S. §§ 49-152(D) and 49-158(L). Pursuant to A.A.C. R18-7-605 and 606, property owners must pay a fee to cover ADEQ's administrative costs for processing the DEUR release or modification.
Fees
Owners electing to use an institutional or engineering control to satisfy the requirements of A.R.S. §§ 49-152 or 49-158, must pay a fee to ADEQ established by rule. This fee shall be calculated pursuant to A.A.C. R18-7-601 through 606. All fees are non-refundable and are due at the time the DEUR is submitted to ADEQ for review and approval. All fees must be in the form of a company, cashier, or certified check, or other method approved by ADEQ.
ADEQ has developed a spreadsheet to assist property owners to calculate the DEUR Fees associated with their site. All proposed fees are subject to ADEQ review and approval.
Forms
Voluntary Environmental Mitigation Use Restriction (VEMUR)
Prior to the DEUR, the VEMUR was the form of institutional control utilized by ADEQ to provide notice to the public of sites that had been closed with contaminant concentrations remaining above an applicable residential clean up standard. ADEQ foresees that property owners may wish to formally cancel or modify the VEMUR, and has created two forms to meet your specific needs.
Additional Attachments for Proposed DEUR
ADEQ recommends that the following documents be included as components of the DEUR at the time it is submitted to ADEQ for approval: 1) a copy of the deed illustrating legal ownership and setting forth the legal description of the property; 2) a vicinity map illustrating the property's general location; 3) a legal description of the restricted area(s) as determined from a survey conducted by an Arizona licensed surveyor; 4) a map of the restricted area(s) created from the dimensions and bearings obtained from the survey; 5) a contaminant information page citing the contaminant(s) of concern and their respective concentration(s); and, 6) if the DEUR utilizes an engineering control, an engineering control plan and a proposed form of financial assurance document.
Please check with the applicable county recorder office for any pertinent formatting requirements prior to developing these documents. Specific criteria pertaining to margins, font size, paper size, etc., must be adhered to or the documents may not be recorded.
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