[CPEO-BIF] Western Stakeholders' Forum on LUCs Summary

[CPEO Moderator <cpeo@cpeo.org>]

Below you will find the Summary from the CPEO/ICMA Western Stakeholders' 
Forum on Land Use Controls at Federal Facilities that was held at 
Hastings College of the Law in San Francisco on February 11 - 13, 2000.  
This document as well as summaries of each of the plenary and break-out 
sessions from the event are available on the CPEO website at 
http://www.cpeo.org/action/index.html (scroll down to the section 
entitled "other events").  Please contact Pauline Simon via e-mail at 
psimon@cpeo.org or by phone at 415-405-7750 if you would like an 
electronic or hard copy of the summary or a copy of the attendance list.

The Eastern Stakeholders' Forum on LUCs will be held on June 18-20, 2000 
in Washington DC.  Registration and Travel Scholarship information is 
available at www.icma.org/basereuse OR www.cpeo.org.  For more 
information contact Daniel Picket at 202-962-3613 or by e-mail at 
dpickett@icma.org.


Western Stakeholders' Forum on Land Use Controls at Federal Facilities 
Summary

Over 200 stakeholders from diverse backgrounds participated in a 3-day 
forum on issues surrounding the use of land use controls (often referred 
to as institutional controls) in the cleanup and future reuse of federal 
facilities (BRAC bases, FUD sites, active ranges, and DOE sites). 
Jointly sponsored by ICMA's Military Base Reuse program and the Center 
for Public Environmental Oversight (CPEO), the Western Stakeholders 
Forum for the first time brought together community members, local 
government officials, state environmental regulators, lawyers, 
engineers, developers, and federal officials (DOD, DOE, EPA, GSA, and 
the services) to share their insights and experiences regarding land use 
controls at various federal facilities.

Hosted by the Hastings College of Law in San Francisco, the forum helped 
the stakeholders to identify issues and obstacles concerning the use of 
land use controls and to offer possible solutions, thus influencing 
possible development of federal and state policies. The forum also 
provided participants the opportunity to network and share their 
experiences with a variety of other interested parties. ICMA and CPEO 
intend to adapt the proceedings from the Western Forum to form the 
agenda for the Eastern Stakeholders Forum set for June 2000 in 
Washington DC. The second forum will attempt to move the discussion 
forward by developing policy recommendations around a few key issues. 
Both forums are primarily supported by EPA's Federal Facilities 
Restoration and Reuse Office (FFRRO).

Land-use controls (LUCs) are defined broadly as legal and administrative 
measures that restrict activities and uses, as well as limit exposure 
and access to properties with residual contamination. Although they are 
generally legal mechanisms, LUCs are typically used in tandem with 
physical or engineering controls, such as fences or containment caps, in 
order to protect public health and the environment. LUCs such as deed 
restrictions, zoning codes and easements can help protect as well as 
warn citizens of potential dangers from residual contamination left at 
the site.

In his opening remarks, Bill Lee, City Administrator of San Francisco 
shared local government experiences regarding LUCs in the Bay Area. 
Next, Dianna Young of EPA's Federal Facilities Restoration and Reuse 
Office gave an overview of EPA's role and perspectives as well as their 
new draft IC (institutional control) guidance on federal facility 
cleanups. Mario Ierardi, environmental engineer with the Air Force Base 
Conversion Agency, then presented a comprehensive guide to site 
closeout, the product of an interagency working group. The last plenary 
speaker was Joe Schilling, Director of Economic Development at ICMA, who 
summarized a report on the findings of the recent ICMA report on LUCs at 
BRAC sites (for information on the report see the ICMA Base reuse 
web-site, www.icma.org/basereuse). That afternoon's breakout sessions 
discussed issues and recommendations involving types of 
contaminationtoxics, radiation and unexploded ordnance (UXO). These 
sessions allowed attendees to discuss more specific areas of concern.

Colonel John Selstrom of DOD's Environmental Security Department opened 
the second day with a presentation on the need for uniform guidelines 
and consistent rules for LUCs. Next, a panel highlighting LUC "tools" 
was presented, including how particular communities have implemented and 
enforced LUCs. This proved to be one of the more popular presentations 
and discussions. The speakers on this panel were Stan Phillipe, Division 
Chief at the California Department of Toxic Substances, Amy Edwards of 
the firm Holland and Knight and American Standards and Testing Materials 
(ASTM), Don Gardner of the City of Portland, John Yelenick, a co-Chair 
of the Rocky Mountain Arsenal Restoration Advisory Board (RAB), and 
Roger Baker, City Attorney for Tooele City and Redevelopment Agency, 
Utah. There was much discussion regarding these presentations, 
particularly Mr. Gardner's presentation on the Portland One-Call System, 
a fast and easy information source on LUCs.  The afternoon consisted of 
3 breakout sessions based on the type of closure/transferactive 
facilities, facilities transferring to non-federal ownership, inactive 
facilities remaining in federal hands, and formerly-owned defense sites. 
While each community has unique issues depending upon the nature of the 
contamination and the type of transfer, participants in the different 
sessions identified many similar issues that apply generally to LUC 
implementation and enforcement.

On the final morning, a framework from one of the breakout sessions was 
used to incorporate ideas from all the previous plenary and breakout 
sessions. A spirited but honest discussion ensued addressing the primary 
issues raised in the previous days' meetings and discussing ideas for 
the general topic of LUCs, with recognition of many specific issues and 
recommendations that were more site-specific. From this, a final listing 
of concerns and recommendations was made, which also attempted to 
incorporate much of the individual input. This process was not consensus 
based, but instead was an overall listing of what seemed to be the 
primary themes of the discussion. The following is a general outline of 
the key concerns, issues and recommendations.

Appropriateness of LUCs: While many of the participants arrived with the 
understanding that LUCs were a necessary component of cleanup and reuse, 
others questioned the appropriateness of LUCs. Some member felt that the 
use of LUCs was simply a way for the government/military to save cleanup 
costs in the short-term while shifting the long-term stewardship 
responsibilities to communities and local governments. Others, however, 
seemed convinced that with the high cost of cleanup, the need to put the 
property back to productive use as quickly as possible, and in some 
cases the impracticality of total cleanup, that LUCs would be a 
continuing reality. While the group did not reach consensus, a mutual 
understanding arose that early in the process decision-makers must 
carefully evaluate all the circumstances and impacts before deciding 
whether to use LUCs. Thus, LUCs should be employed when appropriate, not 
when convenient. Furthermore, a cost-benefit analysis of total cleanup 
versus the cost of long-term maintenance and monitoring of LUCs should 
be conducted to evaluate the long-term effectiveness of LUCs.

Design of LUCs: The first general area involves the design of LUCs. In 
many cases there seems to be a failure to consider a number of issues 
related to the design of LUCs, such as:
·Examining whether the realistic future land uses are compatible with 
community needs/wishes
·Ecological risk assessments
·Unique cultural and behavioral characteristics of the community
The group also noted a lack of community involvement in the design of 
LUCs and communication problems between the community, those designing, 
and those implementing LUCs at the site. Inter-agency and 
inter-governmental coordination and cooperation with regards to LUCs is 
also essential (especially for inactive facilities remaining in 
government hands). There was also concern about the lack of a timeline 
for LUCs (i.e., are they temporary or permanent remedies, when and how 
can they be lifted?), and about support in the event of the failure of 
LUCs at the site.

Options/Recommendations: Possible ideas to enhance LUC design included 
the following:
·Create and follow consistent standards for cleanup that would minimize 
political influence.
·Conduct more extensive research into the standards for LUCs to 
determine what is most effective (best practices), and set performance 
standards to measure the effectiveness of LUCs.
·Provide backup funding and support in the event of LUC failure.
·Document when and under what conditions LUCs could be lifted.
·Create a mechanism for resolving disputes between LUC-interested 
parties (the community, local government, regulators, etc.).
·Consider the impact of contamination on adjacent communities/cities 
when designing LUCs.
·"Layer" LUCs-- using overlapping LUCs to ensure long-term 
effectiveness.
·Involve key players early in the design of LUCs, especially the real 
estate community.
·Standardize terminology and procedures to bring some uniformity to the 
handling of LUCs.
·Define the roles and responsibilities of the different governmental 
entities involved.

Tracking and Recording: Data management is critical to the long-term 
effectiveness of LUCs. Communities need a method to accurately collect 
detailed information about all the forms of LUCs. More importantly, this 
must include dissemination of that information to the right people, 
including the community and the responsible parties.

Options/Recommendations:
·Develop a central integrated database and record-keeping system for 
contaminated properties, which is uniform in design and includes the 
following information: the need for the LUC, how it was determined, 
other relevant details of its properties. This database could be 
GIS-based (starting with most contaminated properties). It could also 
have a web-site for public access. Some kind of "red flag" could also be 
used in the record keeping to alert people to LUCs even if they aren't 
specifically looking for them. It was also suggested that this 
integrated list be maintained by some kind of independent entity 
separate from the agency involved in the cleanup.
·Beyond the recording of information, it was suggested that that a 
cultural record could be created, such as in the form of a "Cold War" 
museum, to help preserve long-term memory.
·Replicate and expand the Portland one-call system to allow for quick 
and easy access to LUC information.
·Train city/local personnel (from officials to road workers) as well as 
citizens regarding contaminated properties with LUCs in their areas.

Implementation of LUCs: The main concerns involved the monitoring of 
LUCs over the long term. How would this be accomplished? Who would take 
the responsibility? Further, the group raised issues about gaps in the 
legal system regarding LUCs and the lack of uniformity in federal LUC 
guidelines, as several EPA regions have different guidelines for active 
bases versus transferring bases. Finally, there seemed to be general 
consensus and concern that the mandated 5-year reviews of each site were 
lax and ineffective.

Options/Recommendations:
·Examine the "gaps" in the legal system related to LUCs and create 
solutions.
·Stricter operations and maintenance requirements- current laws and 
regulations are often not followed.
·Examine current oversight models (landfills, etc.) and possibly expand 
them to include LUCs.
·Maintain stricter enforcement and effectiveness of the 5-year review, 
possibly even shortening it to less than 5 years and including new 
technology reviews to determine if the land could be completely and 
practicably remediated (currently done only if land use changes, or if 
contamination is UXO-related).

Enforcement of LUCs: While implementation refers to putting the LUCs in 
place and maintaining them over time, enforcement involves how to ensure 
the LUCs are not breached and what actions to take if the are. Concerns 
discussed at the forum included: ensuring that covenants and deed 
restrictions run with the property, the lack of uniform state laws and 
regulations on LUC-enforcement, creating incentives to place enforcement 
authority with an appropriate entity; making enforcement simple, easy 
and feasible, and defining the role of tribal governments in LUC 
implementation and enforcement.

Options/Recommendations:
·Better coordination between the principal enforcement party and local 
stakeholders (community and local government).
·The legal ability/authority to take fast action in the event of an LUC 
"failure" while discussion proceeds on the matter.
·A simple and effective structure for directing complaints.
·Tracking and public notices of violations and enforcement actions.
·Expanding the role of the general citizen in enforcement: citizen 
suits, waiver of sovereign immunity, attorneys' fees and treble damages, 
creation of citizen groups for LUC monitoring (modeled on the "river 
keepers" and gate keepers" programs). However, others felt that while 
citizens have the right to participate in enforcement, it is not their 
duty and should not be institutionalized or handed to them without 
appropriate funding. They felt that government agency enforcement should 
still be paramount and that handing-off responsibility to citizen 
"watch-dogs" might simply be a way for the government to avoid its 
responsibility and costs.  

Cost and Funding issues: Questions centered around how much LUCs would 
cost over time, who would be responsible for the costs, and how LUCs 
would be funded over the long term. Also, how can public and political 
support be gained for supporting the funding of LUCs and the development 
of innovative cleanup technology? And finally, what role does (or can) 
the private sector play in funding LUCs?

Options/Recommendations:
·Perform life cycle cost-benefit analyses of LUCs early in the process.
·Clarify indemnification for enforcement and implementation of LUCs.
·Obtain comprehensive funding for LUCs over the long term.
·Create a DOD "insurance fund" to cover LUC-related and other cleanup 
costs.
·Look into the use of other insurance tools to resolve funding and 
indemnification issues.
·Notify potential buyers/developers of the life-cycle costs.

Stewardship/Capacity Building: Given the complexities of the policy 
issues surrounding LUCs, a need exists to develop a better understanding 
and mutual "ownership" of the site and the LUCs in place there. There is 
a general lack of communication throughout federal agencies, and between 
the other entities and regions involved with LUCs. Also, there are 
issues related to the role of new cleanup technology in the future and 
who will pay for its development.

Options/Recommendations:
·Develop outreach to educate all involved parties.
·Create a local "trust" to help manage LUCs at the site.
·Develop some protocol to check on the effectiveness of LUCs (possibly 
more often than every 5 years).
·Have a local party/entity (e.g., trust, county health dept.) take part 
in the monitoring/stewardship.
·Assign a statutory agency to maintain stewardship.
·Maintain clear documentation of the details and need for the LUCs, how 
long they should stay in place, and under what circumstances they may be 
lifted (enhance institutional memory).
·Consider LUCs only as a temporary solution until new technologies or 
funding is acquired to accomplish complete cleanup.
·Because of cleanup limitations for unexploded ordnance and radioactive 
contaminants, LUCs are necessary and present special long-term 
stewardship challenges. In the case of UXO, new technology possibilities 
should be part of any review.  
 
Long-term versus Short-term solutions:
During the discussions it became apparent that in order to accomplish 
the objectives of these two forums it would be expedient to divide 
possible solutions/recommendations into ones that could be implemented 
in the short-term and those that would take more time. More short-term 
options such as starting to develop accessible databases for LUC 
information, changing guidelines and especially more strictly 
implementing and enforcing the laws and regulations already existing 
could be more easily accomplished, creating positive results quickly. 
Other solutions might require legislation or involve more time-consuming 
processes that could be undertaken while short-term options are already 
being implemented. It is important for those people participating in the 
LUC-policy recommendation process to understand the complexities 
involved in order to more easily find common agreement.

The "Trust Gap":
One theme that pervaded throughout the forum was the gap in trust among 

many of the stakeholders. Many felt that LUCs were being put in place 
not because they were necessary but because they were a means by which 
the responsible agencies could unburden themselves of their cleanup 
responsibilities. They were not so much concerned about the technical 
aspects LUCs, but about whether the entities involved have the necessary 
level of commitment to long-term stewardship. Long after the military or 
federal agency is gone and well after the LRA has accomplished its task 
of economic reuse, members of the community and their local officials 
will remain. Thus, while some saw LUCs as a tool by which cleanup could 
be more effective and reuse more beneficial, others saw them as a tool 
to unload contaminated property.

LUCs- Another Tool:
Another general theme of the forum was that LUCs should be treated like 
any other possible toolthey should be evaluated, discussed, selected, 
recorded, implemented, maintained, and reviewed like any other 
treatment.

For the effective use of LUCs there needs to be:
·A discussion of the appropriateness of LUCs for the site (and whether 
the LUCs are temporary or permanent).
·A recording of the details of the LUCs (including how and when the LUCs 
could be ended) and storage of this information in an accessible method.
·An effective structure for the design, implementation and enforcement 
of the LUCs 
·A determination of responsibility for funding LUCs.
·A stewardship program and periodical re-evaluations of the LUCs.

Eastern Stakeholders Forum, Washington DC:
For the June forum, the issues and recommendations from the San 
Francisco forum will be more specifically discussed and examined; and 
the appropriateness, practicality and effectiveness of the various 
options will need to be determined. Without starting over, the process 
will seek to develop specific steps for policy makers to implement. This 
is the goal of the DC forum in June.
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