SUPERFUND LAND USE DIRECTIVE

[Lenny Siegel <lsiegel@igc.org>]

EPA SUPERFUND LAND USE DIRECTIVE

On May 25, U.S. EPA Assistant Administrator Elliot Laws issued a 
directive clarifying his agencies policies on the role of future land use 
in the determination of remedies under the Superfund law 
(CERCLA). The directive applies to Federal facilities, such as 
closing military bases, as well as privately owned properties. It 
states, "The U.S. Environmental Protection Agency (EPA) believes 
that early community involvement, with a particular focus on the 
community's desired future uses of property associated with the 
CERCLA site, should result in a more democratic decisionmaking 
process; greater community support for remedies selected as a result 
of this process; and more expedited, cost-effective cleanups.

"The major points in this directive are:

"* Discussions with local land use planning authorities, appropriate 
officials, and the public, as appropriate, should be conducted as early 
as possible in the scoping phase of the Remedial 
Investigation/Feasibility Study (RI/FS). This will assist EPA in 
understanding the reasonably anticipated future uses of the land on 
which the Superfund site is located.

"* If the site is located in a community that is likely to have 
environmental justice concerns, extra efforts should be made to reach 
out to and consult with segments of the community that are not 
necessarily reached by conventional communication vehicles or 
through local officials and planning commissions;

"* Remedial action objectives developed during the RI/FS should 
reflect the reasonably anticipated future land use or uses;

" Future land use assumptions allow the baseline risk assessment and 
the feasibility study to be focused on developing practicable and cost 
effective remedial alternatives. These alternatives should lead to site 
activities which are consistent with the reasonably anticipated future 
land use. However, there may be reasons to analyze implications 
associated with additional land uses;

"* Land uses that will be available following completion of remedial 
action are determined as part of the remedy selection process. During 
this process, the goal of realizing reasonably anticipated future land 
uses is considered along with other factors. Any combination of 
unrestricted uses, restricted uses, or use for long-term waste 
management may result."

The directive recognizes, however, the significance of groundwater 
contamination: "This land use directive may have the most relevance 
in situations where surface soil is the primary exposure pathway. 
Generally, where soil contamination is impacting ground water, 
protection of ground water may drive soil cleanup levels."

EPA limits the use of the directive: "This directive is not intended to 
suggest that previous remedy selection decisions should be re-
opened."

It explains the rationale behind exploring more than one future use at 
a site: "it may be useful to compare the potential risks associated with 
several land use scenarios to estimate the impact on human health and 
the environment should the land use unexpectedly change. The 
magnitude of such potential impacts may be an important 
consideration in determining whether and how institutional controls 
should be used to restrict future uses." However, some uses, such as 
landfills, it suggests, are likely to remain unchanged." 

In explaining institutional controls, the directive adds, "Where 
exposure must be limited to assure protectiveness, a deed notice 
alone generally will not provide a sufficiently protective remedy."

The directive concludes that the it is merely a guidance, designed to 
help EPA officials make decisions. It attempts to explain, but it does 
not create, legally enforceable standards or processes.