EESI ON FUTURE LAND USE

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

EESI COMMENT ON DRAFT FUTURE LAND USE POLICY
The following comments were submitted by Don Gray, Senior Fellow at the 
Energy and Environment Studies Institute.
LS
 
 October 18, 1996
 
Ms. Patricia A. Rivers
Assistant Deputy Under Secretary
(Environmental Cleanup)
Department of Defense
3000 Defense Pentagon
Washington, D.C. 20301-3000
Dear Ms. Rivers:
 Thank you for forwarding the draft Department of
Defense (DOD) policy on DOD's responsibility to perform
additional cleanup on transferred land to me for
comment.
 The draft policy statement appears to comply with
the Defense Environmental Response Task Force (DERTF)
recommendation that DOD develop a full disclosure policy
to ensure that all stakeholders in a base closure
community, including the Remedial Advisory Board (RAB)
and Local Reuse Authority (LRA), are fully informed
about and understand the short and long term
consequences and limitations of a cleanup based on
restricted land use, before a remedy selection decision
is made; and, if the subsequent land owners or others
seek to change or remove a restriction on land use, the
process and relevant criteria by which DOD will consider
approval of such requests.
 However, I do have some concerns about the content
of the policy being disclosed. For example, the draft
policy statement says: "A very important part of this
policy is that the community be fully informed of our
intent (emphasis added) to consider realistic land use
expectations in the remedy selection process.... The
disclosure to the community for a specific site shall
clearly communicate the basis for the decision to
consider land use, any institutional controls relied
upon, and the finality of the remedy selection decision,
including this policy." This statement could be
interpreted to mean that DOD could decide on a
restrictive use cleanup irrespective of the wishes of
the local community regarding reuse.
 Although the draft policy earlier refers to
"developing future land use assumptions in close
cooperation with the local community", nowhere does it
include the statement made by Jim Van Ness at the
National Association of Atorneys General (NAAG)
conference in San Francisco, that DOD will clean up
sites to the level necessary for residential or
unrestricted use, if the community so desires, although
it might take considerably longer and cost more. I
believe that the policy statement should include a
commitment to be guided by the wishes of the local
community regarding future use when making the remedy
selection decision. Otherwise, the draft policy
statement could be interpreted as being inconsistent
with what I understand to be existing DOD policy,
despite the saving clause that "This policy should be
read to be compatible with and does not supersede other
related DOD policies."
 Finally, I am concerned about the fairness of that
part of the draft policy which states that "Where
additional remedial action is required only to
facilitate a use prohibited by an enforceable deed
restriction [i.e. a change in land use] or other
appropriate institutional control, DOD will neither
perform nor pay for such additional remedial action."
Under existing law DOD is liable for cleaning up to the
level necessary for residential or unrestricted use
unless there is a showing that this is not
technologically feasible or is economically prohibitive,
or the new owner is agreeable to restricting future use
to one which requires a lesser level of cleanup.
 Although the reason usually cited by DOD for
encouraging restricted use cleanups is to make base
closure properties available for reuse by local
communities more quickly, there is a widespread
assumption that it will also result in considerable
savings for DOD. These savings will be even greater if
responsibility for monitoring and enforcing the
institutional controls necessary to assure compliance
with land use restrictions is passed on to EPA and/or
state and local regulatory agencies.
 Therefore, I believe a fairer policy would be for
DOD to contribute to the cost of any additional cleanup
necessitated by a subsequent change from the original
restricted use, to the extent that DOD realized savings
from the original restricted use cleanup. Since
alternative cleanup remedies are usually costed-out
during the remedy selection process, it should not be
too difficult to calculate the amount of such savings.
 I appreciate the opportunity to comment on the
draft policy statement, and I hope that you will give
consideration to my suggestions in drafting the final
document.
 
 Sincerely,
 
 Don Gray, Senior Fellow,
 Member, Defense Environmental
 Response Task Force