Seven years ago, we created a new methodology for increasing the effectiveness of institutional controls, and as of June 29, 2010 this innovation is protected by a patent.

So what led to the patent?  Failed approaches led to a new idea.  We knew a duty existed to monitor safe use of contaminated sites, but whose duty is it? First, we tried providing institutional control (IC) tools to the city for their implementation. We were inspired by the approach taken by the City of Emeryville, and thought to leverage that method to other cities.  The Emeryville  web database describes institutional controls that could be viewed by planners.  However, after numerous visits to other local governments, we learned the hard way that most cities had other higher priorities. Except for cities dominated by brownfields, cities could not afford the time to track ICs. Ultimately, a venture capitalist challenged Terradex to take control of the process of making ICs effective. Any business must control its value proposition.  This challenge sparked the innovation of Terradex’s LandWatch.

Returning to the the venture capitalist, we presented a methodology of a changed Terradex.  Now Terradex, instead of  relying on local government, took control of the land activity review process. Terradex controlled its value proposition. This challenge lead toward the patented innovation inherent to LandWatch, a methodology to monitor and respond to land activities.  As it turned out, we ended up moving forward without the venture capitalist.

In the development of a methodology where we controlled the process, we observed that numerous other land activities beyond local permitting and planning could be reviewed.  Around 2004, the Internet was just beginning to make visible numerous permit sources including excavation, real estate, building permits, and sensitive use (day care, hospitals, etc.).  We saw this as a powerful new methodology, and sought to apply it to institutional control implementation.  We also sought to protect the intellectual property we developed as we began to introduce it to clients.

Early clients like Chevron and BP appreciated the power of the innovation, and helped sponsor the development of the application.  Today Terradex monitors hundreds of facilities across nearly 600,000 acres. We look forward to applying the protection the patent offers as we extend the methodology to more facilities across the country.

Terradex can monitor numerous transactional real estate data sources permitting the detection of problematic real estate scenarios at tracked properties.  The sources include monitoring new residential and commercial listings, new sold properties, pre-foreclosure actions, foreclosure actions, tax liens, bankruptcies, new easements and new occupants. Thorough real estate monitoring is critical when the responsible party no longer owns the land, and tracking ownership and the owner’s financial health are duties to help assure the integrity of institutional controls.

Terradex alerts metatrader 4 upon key changes including a listing of a property, ownership change, financial duress, or placement of new liens or easements.  The expanded real estate monitoring services were inspired at a California site monitored by Terradex – in this case the then owner entered bankruptcy, the property foreclosed, and the convenants agreed to by the then current property owner were vanquished.  This suite of real estate sources raises the reliability of institutional controls monitored by Terradex.

• Listing Services – search by address match, this information provides indication of a sale (or a new tenant). The information is derived from commercial listing services and reviewed daily. Various commercial aggregators of real estate information provide the data set that Terradex monitors daily.
  • Residential For Sale– Search criteria maintained in MLS residential listings
  • Residential For Rent – Search criteria maintained in residential listings
  • For Sale By Owner – Listings filed on websites listing for sale by owner
  • Commercial For Sale – Search criteria maintained in two commercial listings
  • Commercial For Lease – Search criteria maintained in two commercial listings

• Economically Distressed Properties – searched by address match at weekly basis, this information provides indication of a pending sale.
  • Pre-foreclosures – such as Notice of Defaults and Notices of Sale typically alerting of potential foreclosure about 4 months prior to foreclosure sale (derived from county recorder offices; commercial aggregators)
  • Bankruptcies – property listed as asset in bankruptcy filing – dervied from court records; commercial aggregators
  • Tax Liens – government taxing agency may sell property to collect taxes owed (derived from commercial aggregators; county recorder records, other sources)
  • Trustee/Sheriff Auction – this is a judicial foreclosure event and occurs within one year of notice of default (commercial data aggregators; newspapers)

• Change of Ownership – The information is derived from the County Tax Assessors and/or commercial aggregaters. This identifies principal owners changes, but may not identify a change in members of a partnership.
  • Change in Tax Records – After close of escrow and filings with the county recorder, new owners are recorded into the county assessor office. (avail from commercial data aggregators; county tax assessor)
  • Foreclosures – property title has transferred to lender through private (non judicial) foreclosure (avail. from commercial data aggregators; county recorder offices). The nonjudicial foreclosure occurs typically within 4-6 months of the default.

Reporting Procedure for Real Estate Events

A real estate event (listing, economic distress or sold) would be reported as an email to the contact associated with a particular property. The alert would contain the information about the property transaction and the associated site monitored. The alert would then be tracked by Terradex to make sure that the information was received. During the process you (the client) may ask clarifying questions, and we can see if our data providers have further information.

When is the Alert Issued?

The alert is issued daily. The trigger is the real estate event at the property (or zone monitored). There is latency between the the real estate event and when the knowledge of that activity is detected by Terradex. For example, a county may be slow at maintain the filings that we search, and the county’s speed is beyond our control.

When is a Property Listed for Sale?

This is at the discretion of the owner, broker or government agency. We rely on the Internet for these listings, and our sources anticipate residential or commercial MLS, or a listing in FSBO web wervices. When sold by a government agency, the filings or newspaper advertisements control the timing of the listing.

After A Sale, What Could Terradex Do?

Preliminary title review could be conducted to produce documents. Some clients ask Terradex to conduct a preliminary title review and produce documents that their counsel could review to determine if environmental easements are still in force. Upon request, Terradex can produce these documents.

A strategic direction for Terradex has been to augment federal stewardship of environmental sites with our LandWatch service.  The Association of State and Territorial Solid Waste Managers invited Terradex to present at their symposium Beyond Construction Completion:  Long-Term Protection of Human Health and Environment at Federal Facilities. Terradex LandWatch is monitoring numerous federal facilities including active bases and formerly used defense sites.

A recent study by the Association of State Solid Waste Management Officials (ASTSWMO) highlighted the importance of cleanup site land use controls (LUCs) and listed needed improvements and further research.  “[T]here is an ever increasing universe of sites relying on LUCs as an integral part of an overall protective remedy” for cleanup of environmentally impaired property.  The success of these cleanups and subsequent redevelopment, according to ASTSWMO, “will rest on understanding and effectively using LUCs.”

According to the study, states monitor LUCs by either conducting site visits or reviewing property owner self-certifications, and this monitoring ranges in frequency from about 1 to 5 years.  Local governments, according to the study, are not significantly involved with LUC oversight. Improved efforts to keep locals aware of LUCs, the study concluded, would be a first step in creating state-local partnerships and would likely result in greater LUC compliance. Monitoring the rising number of LUCs will continue to strain state resources, according to the study.

The study also listed “underlying themes” for the future success of LUC monitoring, including: 1) better awareness of the presence of LUCs; 2) better understanding of the activities restricted and obligations imposed by LUCs; 3) a regular monitoring and oversight program seems to be key to ensure LUC compliance.  In light of these findings and given the increasing strain on state resources, the study recommended future “research on identifying specific monitoring and oversight methods that are efficient and cost effective and that also increase awareness and voluntary compliance with LUC.”

California, as the study notes, relies on Terradex, Inc. to perform daily monitoring of the LUC sites across the state. At Terradex, we agree that better awareness and regular monitoring holds the key to the success of the thousands of LUCs (and the redevelopment they protect) across the country.  Having helped prevent LUC violations for years, we proudly continue to strive on the cutting edge of sustainable LUC stewardship for protection of people and the environment.  And in doing so, we bring the power of technology to increase the efficiency and cost effectiveness of this evolving endeavor.

ASTSWMO’s study highlights the importance of LUCs, the significant progress across the states, and needed improvements including better awareness, communication with local government, and more efficient monitoring.  To read the study, visit //www.astswmo.org/publications_cercla.htm.

J. Michael Sowinski, JD
Environmental Engineer
Environmental Law and Policy Analyst

Vice President,

Terradex, Inc.

The United States Environmental Protection Agency has adopted an “enforcement first” policy for institutional controls, which will likely increase both recording and monitoring of ICs. The USEPA Office of Site Remediation and Enforcement has directed the agency’s program and enforcement staff, as well as Department of Justice, to pursue any action needed to ensure the implementation and effectiveness of institutional controls. This policy promotes the “polluter pays” principle. Potentially Responsible Parties shall “play a significant role in supporting a robust analysis of the effectiveness of Institutional Controls and in implementing necessary controls at Superfund sites.”

Terradex avoided a “disaster” threatening the potable water in Los Angeles, according to the United States Environmental Protection Agency. The local permit agency approved the installation of a cathodic protection well. This type of deep well, used to prevent pipeline corrosion, has perforated walls and can thus allow groundwater to flow downward from a shallow aquitard to a deeper one. The permit agency did not flag the fact that a benzene contaminant plume existed in shallow groundwater at the well site. However, Terradex did proactively detect the conflict. The responsible party, alerted by Terradex, prevented an installation that would have become a conduit from the benzene plume to the deeper, potable water supply aquifer for Los Angeles.

Details of the Los Angeles alert are included in a Summary Pilot Report issued in February 2006 by the USEPA. The report’s primary focus, however, is a two-year evaluation of Terradex’s institutional controls monitoring system in California’s Silicon Valley. The multi-site case study tested Terradex’s IC monitoring at numerous contaminated sites, including Superfund sites, BRAC sites, leaking underground fuel sites and brownfield sites. An extract from USEPA’s report:

A prime example of the potential of an IC monitoring system to protect the public and the environmental from exposure to contamination occurred in January 2006. While the Del Amo Superfund site was not technically part of the pilot program, many of the same parties using the same process employed in the pilot program, detected and prevented a disaster from occurring there. Chevron had proposed drilling a 300-foot well for cathodic protection of one of its pipelines. The local permitting agency missed a conflict with a benzene plume in the area of the planned excavation and permitted Chevron to drill the well. The IC monitoring service used in the pilot program, Terradex, alerted stakeholders to the conflict and Chevron canceled the drilling. Had the well been drilled, concentrated benzene would have polluted the Lynwood Aquiifer that supplied drinkable water to Los Angeles County. Chevron is now working with regulators toward a solution that will protect human health and the environment.