Re: LAND USE & REMEDY SECTION - RFF

[Lenny Siegel <lsiegel@igc.org>]

RFF REPORT ON LAND USE - A "MUST READ"

I have just finished reading "Linking Land Use and Superfund Cleanups: 
Uncharted Territory," by Robert Hersh et al, published in June, 1997 by 
Resources for the Future (RFF). I posted an RFF press release on the 
report about a week ago.

If you are concerned about the relationship of land use to 
environmental cleanup - whether under the Superfund law or any other 
authority - this 107-page report is well worth reading. The authors 
cite EPA Administrator Carol Browner's recent Congressional testimony: 
"Currently about 60% of EPA's records of decision (ROD) include a land 
use other than residential land use." They respond, "Thus, one can 
argue that the proverbial train has already left the station, making it 
more urgent that the implementation issues raised in this report be 
addressed, and addressed soon."

I would go a rhetorical step further. I think the lesson of this study 
is that the Emperor has no clothes. At least as currently implemented, 
the institutional controls upon which we, as a society, rely to protect 
public health and the environment often provide no more assurance of 
protection than the deed notice at Love Canal - actually cited in the 
RFF report. It's imperative, as the authors suggest, to improve quickly 
the mechanisms used for developing and enforcing institutional controls 
and, in the absence of certainty of long-term protection, to resist 
remedies based upon declared or implied institutional controls.

I found the fourth chapter of the study particularly valuable, because 
it explains in detail both how proprietary controls, such as deed 
restrictions and easements, and local land use policies, such as 
zoning, are supposed to work, and how as presently designed they don't 
work well enough. For example, the authors conclude, "proprietary 
controls, negotiated between [potentially responsible parties]/site 
owners and government (federal, state, or local) may be insufficient by 
themselves to effectively ensure the long-term safety of the public 
from residual contamination." They also note, "Local governments, 
rather than EPA, have the authority to impose government controls at 
NPL sites, yet local governments may have little incentive to restrict 
land use or face political pressure to allow unrestricted use."

One can easily conclude that those polluters - including federal 
agencies - who now suggest enormous savings from land-use based 
cleanups don't recognize (or more cynically, perhaps they don't care 
about) the weakness of the institutional controls upon which such risk 
management strategies are ultimately based.

If there's any area where the authors could have gone further, but 
didn't, it's the relationship between soil remediation and groundwater 
contamination. Here in the arid west, the threat to groundwater, not 
the risk of surface exposure, more often than not drives soil cleanup 
strategies.

Still, at a time, when committees of Congress - as well as elements of 
the Clinton Administration - are racing to stoke the engine of land-use 
based cleanup, the RFF report is a well studied, well written warning.

 I was unable to convert the report into a text file, but if you have 
the right software you may be able to download if from the RFF Website: 
<http://www.rff.org/research/reports/home.htm>. Hard copies can be 
ordered by calling 202/328-5000.

Lenny Siegel