Indiana Institutional Controls - Environmental Restrictive Covenants and Use Limitations
How institutional controls work in Indiana cleanups. Environmental restrictive covenants, activity and use limitations, recording, and the IC registry.
Overview
Institutional controls (ICs) are non-engineered instruments that limit human exposure to contamination remaining at a site after cleanup. In Indiana, the primary institutional control mechanism is the Environmental Restrictive Covenant (ERC) - a legal document recorded on the property deed that describes remaining contamination and restricts activities that could result in unacceptable exposure.
ICs are part of the remedy, not a substitute for remediation. The Risk-based Closure Guide (WASTE-0046-R2) allows ICs when contamination remains above unconditional remediation objectives (typically residential Published Levels) but risk is controlled under the specified land use and exposure conditions. Sites that achieve unconditional closure do not need ICs.
IDEM’s Institutional Controls Program Guide (WASTE-0081-NPD) provides the administrative framework for implementing and managing ICs across all IDEM cleanup programs. The IC program applies to sites in the Voluntary Remediation Program, State Cleanup Program, petroleum remediation (LUST), RCRA corrective action, and the Indiana Brownfields Program.
When Institutional Controls Are Required
An institutional control is required whenever a site closes conditionally - meaning contamination remains above unconditional remediation objectives and an ongoing remedy is necessary to control risk. Common scenarios include:
- Soil contamination remains above residential Published Levels but is below commercial/industrial levels - an ERC restricts the property to non-residential use
- Groundwater contamination remains above applicable levels - an ERC prohibits groundwater extraction for drinking purposes
- A physical barrier (cap, clean soil cover) is part of the remedy - an ERC requires maintenance of the barrier and prohibits activities that would disturb it
- A vapor mitigation system is operating - an ERC requires continued operation and maintenance of the system
- Contamination extends beneath a building - an ERC restricts demolition or subsurface work without proper controls
The R2 (Task 8) requires that ICs be paired with other remedy components when necessary. An IC alone may not be sufficient if active contamination migration is occurring or if the exposure pathway cannot be interrupted by land use restrictions alone.
Types of Institutional Controls in Indiana
Environmental Restrictive Covenants (ERCs)
The ERC is the standard institutional control mechanism for IDEM cleanup sites. An ERC is a legally binding document that:
- Describes the identity, quantity, and location of remaining release-related chemicals
- Specifies the activity and use limitations that apply to the property
- Runs with the land - it binds all current and future property owners
- Is recorded in the county recorder’s office where the property is located
ERCs are authorized under IC 13-25-5-8.5(c) (for VRP sites) and applied across all IDEM cleanup programs through the R2 framework.
Indiana has not adopted the Uniform Environmental Covenants Act (UECA). ERCs in Indiana are governed by the state’s own framework under IC 13-14-2-8 (departmental approval of environmental restrictive covenants) and IC 13-14-2-9 (modification of restrictive covenants). The ERC criteria are defined in IC 13-11-2-193.5.
Environmental Restrictive Ordinances (EROs)
In some cases, local government ordinances may serve as institutional controls. An ERO is a municipal ordinance that restricts activities within a defined area - for example, a groundwater use restriction covering a contaminated plume that extends across multiple properties.
EROs are less common than ERCs but are recognized under IC 13-25-5-8.5(e), which requires IDEM to consider and give effect to environmental restrictive ordinances in evaluating risk-based remediation proposals. The VRP program guide notes that when an ERO is used, IDEM requires acknowledgement from both the water utility and the local government unit that enacted or proposed the ordinance.
Governmental Controls
Governmental controls include zoning restrictions, building permits, well drilling prohibitions, and other regulatory mechanisms administered by local or state agencies. These are generally considered supplementary to ERCs rather than replacements for them, because governmental controls can be changed by the administering authority without consulting IDEM.
ERC Content Requirements
An ERC must include sufficient information for a property owner or prospective purchaser to understand what contamination remains and what restrictions apply. Required elements include:
Property identification:
- Legal description of the property
- County and parcel identification
- Property address
Contamination description:
- Identity of remaining release-related chemicals
- Location of remaining contamination (which media, what areas of the property)
- Approximate quantity or extent
- Reference to the investigation and closure reports that document the contamination
Activity and use limitations:
- Specific restrictions on property use (e.g., “the property shall not be used for residential purposes”)
- Restrictions on subsurface activities (e.g., “no excavation below 4 feet without prior IDEM approval”)
- Groundwater use restrictions (e.g., “no installation of groundwater extraction wells for potable use”)
- Requirements for maintaining engineered controls (caps, barriers, vapor mitigation systems)
Ongoing obligations:
- Monitoring and reporting requirements
- Maintenance obligations for engineered controls
- Notification requirements for property transfers, changes in use, or planned construction
IDEM provides standard ERC templates. The Office of Land Quality offers one Remediation Program ERC template covering all cleanup programs (RCRA, LUST, State Cleanup, VRP) and a separate Solid Waste Landfill ERC template. Both are available as DOCX downloads on the IDEM Institutional Controls page. IDEM strongly recommends following the template - deviations require review by IDEM’s Office of Legal Counsel and will delay the project.
Recording and Implementation
Recording Process
The ERC must be recorded in the county recorder’s office for the county where the property is located. Recording makes the ERC part of the public land record and ensures that subsequent property owners and title searchers will discover the restrictions.
The recording process:
- IDEM reviews and approves the ERC language
- The property owner signs the ERC
- IDEM reviews and approves the ERC language. IDEM has authority to enforce ERCs under IC 13-14-2-6
- The signed ERC is recorded with the county recorder
- A copy of the recorded ERC (with recording stamp) is provided to IDEM
The ERC takes effect upon recording. IDEM will not issue a Certificate of Completion and Covenant Not to Sue for a conditional closure until the ERC is recorded.
Property Transfer Notification
When a property with an ERC changes ownership, the new owner assumes all obligations described in the covenant. The ERC runs with the land under IC 13-11-2-193.5 and appears in the county land records, so a standard title search will identify the restrictions. The ERC itself must explain how it may be modified or terminated.
The IDEM Institutional Controls Registry
IDEM maintains an Institutional Controls Registry - a public listing of properties with environmental restrictive covenants and other institutional controls across all IDEM cleanup programs. The registry is organized by county and includes:
- Site name and location
- Program (VRP, State Cleanup, LUST, RCRA, Brownfields)
- Type of institutional control
- Status
The IC Registry is available online as a downloadable Excel spreadsheet at the IDEM Institutional Controls page. IDEM also maintains a “What’s in my Neighborhood” interactive GIS map that depicts properties closed with ERCs on the “Restricted Sites” layer.
The IC Registry is a valuable due diligence resource for environmental professionals conducting Phase I ESAs. Properties listed in the registry have known contamination with use restrictions - this information should be identified as a recognized environmental condition or controlled recognized environmental condition in the Phase I report.
Monitoring and Enforcement
Annual Compliance Reporting
IDEM operates an IC audit program where staff periodically check compliance with ERC terms. Additionally, IDEM has developed Long Term Stewardship (LTS) guidance - currently in draft - that addresses ongoing monitoring, reporting, and maintenance obligations for sites with conditional closures. LTS guidance documents are available upon request from the IDEM Institutional Controls program.
IC Violations
If the terms of an ERC are violated - for example, a property owner excavates through a cap without authorization, or a residential structure is built on a property restricted to commercial use - the violation must be reported to IDEM. IDEM has authority to require corrective action to restore the protectiveness of the remedy.
Common IC violations include:
- Unauthorized excavation or construction that disturbs contaminated soil
- Change of use from commercial/industrial to residential without IDEM approval
- Failure to maintain engineered controls (cap deterioration, vapor system shutdown)
- Installation of a potable well on a property with a groundwater use restriction
Modification and Termination
An ERC can be modified or terminated if site conditions change. Scenarios that may support modification include:
- Additional remediation reduces contamination below unconditional levels (supports ERC termination)
- Land use changes that require revised restrictions
- New toxicological information changes the risk basis for the restrictions
- A more effective remedy replaces the need for the IC
Under IC 13-14-2-9, the property owner initiates the process by submitting to IDEM: (1) a written request for modification, (2) a copy of the proposed modification, and (3) information explaining why the covenant should be modified. The commissioner evaluates whether the modification would increase potential hazards to human health or the environment. IDEM charges $75.00 per hour for the review under 329 IAC 1-2-7. IDEM provides ERC Modification and ERC Termination templates (updated April 2025) and a formal request form (Form 56082). For ERCs originally recorded through the Brownfields Program, coordinate directly with IFA Brownfields staff.
Comparison to Ohio
| Feature | Indiana | Ohio |
|---|---|---|
| Primary IC mechanism | Environmental Restrictive Covenant (ERC) | Activity and Use Limitations (AULs) / Deed restrictions |
| Governing law | IC 13-25-5-8.5(c); WASTE-0081-NPD | OAC 3745-300 |
| Where recorded | County recorder | County recorder |
| IC registry | IDEM Institutional Controls Registry | Ohio EPA maintains a list of VAP-restricted properties |
| Required for conditional closure | Yes - always | Yes - any NFA with restricted use |
| Financial assurance | May be required | Required for deed-restricted properties |
| IC enforcement | IDEM monitors and enforces | Ohio EPA can enforce; CP reviews during audits |
The substantive requirements are similar - both states require recorded deed restrictions when contamination remains above unrestricted-use levels. The primary difference is administrative: Indiana’s IC program is centralized through WASTE-0081-NPD with a single registry across all programs, while Ohio manages ICs separately within each program framework (VAP, BUSTR, DERR).
Practical Tips
Engage a real estate attorney early. ERCs are legal instruments that affect property rights. The environmental consultant defines what restrictions are needed; the attorney drafts the covenant language and handles recording. Start this process during remedy selection, not after IDEM approves the closure report.
Coordinate with the property owner’s lender. Lenders often have concerns about environmental covenants on mortgaged properties. Some lenders require specific language or provisions in the ERC. Identify and resolve lender concerns before finalizing the ERC with IDEM.
Check the IC Registry during Phase I ESAs. The IDEM IC Registry is a due diligence resource. Properties with ICs should be identified in Phase I reports and evaluated for compliance with existing restrictions.
Plan for long-term costs. Conditional closures with ICs often require ongoing monitoring, reporting, and maintenance. Budget for these costs upfront and factor them into the remedy selection analysis in R2 Task 8. For some sites, the long-term cost of maintaining ICs exceeds the cost of additional remediation to achieve unconditional closure.
Consider the property transaction timeline. If the VRP closure is tied to a property sale, the ERC recording process can affect the transaction timeline. Allow adequate time for IDEM review of the ERC language, property owner execution, and county recording.
Key Forms and Documents
- Institutional Controls Program Guide (WASTE-0081-NPD)
- Risk-based Closure Guide (WASTE-0046-R2)
- Remediation Program ERC Template (DOCX): available on the IDEM Institutional Controls page
- IDEM Institutional Controls Registry (XLSX): available on the IDEM Institutional Controls page
Source
IC 13-25-5-8.5(c). IDEM Nonrule Policy Documents: Institutional Controls Program Guide (WASTE-0081-NPD), Risk-based Closure Guide (WASTE-0046-R2). IDEM Institutional Controls Registry.