LAND USE & REMEDY SELECTION - RFF

[don@eesi.org]

 I have read the RFF study and it is excellent. It raises serious doubts about 
the effectiveness of institutional controls in assuring the continued 
effectiveness of restricted use remedies where contaminants are left in place. 

 Of particular note are the following conclusions and recommendations 
from pp. vii-ix of the executive summary:

"3. Institutional controls are: often critical to ensuring long-term protection;
(b) often neglected and left to the end of the remedy selection 
process; and (c) subject to legal, administrative , and social 
pressures that may limit their effectiveness. 

 At many sites, institutional controls are central to the success of the 
remedy to ensure protection of public health. In cases where the technical 
effects of a remedy are fully implemented, the remedy is not protective unless 
the institutional controls-in whatever form- are in place, function as 
anticipated and are enforced.... 

 When institutional controls are used to assure protection of human 
health and the environment, the technical adequacy of the remedy becomes 
dependent on a number opf non-technical factors over which EPA has little 
influence. These include: the efficacy of local government administration; the 
consistent application of zoning ordinances; the ability of private property 
restrictions (such as easements and restrictive covenants) to bind both current 
and successive users of the site; and prompt enforcement. 

4. Linking cleanup decisions to land use considerations places an even heavier 
responsibility on EPA to effectively involve the public in the remedy selection 
process....

 EPA has been selecting remedies that leave contamination on site at a 
large number of ... sites ... and the the reasons for doing so... are still 
factors that inform cleanup decisions.... Given these circumstances, it is 
critical that the remedy selection process be structured to make the choices 
about alternative remedies more transparent, to better anticipate at what points
and under what circumstances institutional controls may fail, and to provide 
opportunities for those who are most affected by institutional controls to 
participate more fully in cleanup decisions.... CERCLA and the NCP should be 
revised to clarify the role of land use in the remedy selection process, 
integrate the development of institutional controls into the cleanup process, 
specify the enforcement mechanisms for land use controls , and, finally, 
invigorate the EPA's public outreach and involvement program." 

 I realize that these conclusions and recommendations are directed at 
EPA's general Superfund implementation program, and it could be argued, with 
some justification, that through the RABs, the public around military bases, and
especially BRAC closure bases, are better informed about the incorporation of 
future land use and institutional controls into the remedy selection process 
than at private Superfund sites. However, these and other findings, conclusions
and recommendations in the report, together with the rapidly increasing 
proportion of BRAC RODs which rely on land use restrictions and institutional 
controls, raise a question in my mind as to whether DOD,s proposed Guidance on 
Adjourning (a euphemism for disestablishing) RABs (copy attached) is as benign 
as Lenny's earlier e-mail suggests. 

 From the deliberations within the Defense Environmental Response Task 
Force (DERTF), of which I am the environmental public interest member, it is 
clear that restricted use cleanups require effective institutional controls to 
assure continued effectiveness and safety of the remedy, but that there is not 
yet sufficient experience with the use of such controls to assure that they will
be adequately monitored and enforced. Therefore, I question whether the factors
which DOD intends to consider in deciding when to disestablish a RAB,-i.e. When 
an installation no longer has an environmental restoration program; when all 
environmental restoration decisions have been made final; When all remedies are 
in place and operating properly and successfully; When the BRAC cleanup team has
been disestablished, or When there is no longer sufficient, sustained community 
interest- are sufficient for bases where the final remedy incorporates 
restrictions on land use, groundwater use or other activities that in turn rely 
on institutional controls for their effectiveness. 

 It seems to me that the RAB, whose primary interest is in the continued 
safety of the selected remedy, is the best local institution to fulfill the role
of watchdog to assure that those with primary responsibility for enforcing the 
institutional controls do not fall down on the job. For this reason, I do not 
believe that RABs should be disestablished at facilities with restricted use 
remedies that rely on institutional controls unless and until it is determined 
that the restrictions and institutional controls are no longer needed to assure 
the continued safety of the remedy. However, they may need to be restructured 
to perform this new oversight function. 

 Don Gray

 Status of Development of DoD Guidance on Adjourning Restoration
 Advisory Boards

 May 27, 1997

 Purpose - This issue paper provides information on the status of
 development of the Department of Defense (DoD) guidance on
 adjourning Restoration Advisory Boards (RABs).

Background - At the May 96 meeting of the Defense Environmental
Response Task Force (DERTF), requested that DoD evaluate whether
policy and guidelines are needed for conditions under which RABs may be
disestablished. At the September 1996 and January 1997 meetings, the
DERTF was updated on this issue. At the January 1997 meeting, the
DERTF was informed that the DoD RAB/TAPP [Restoration Board/Technical Assistance
for Public Participation] Working Group had evaluated the issue, and will 
develop the necessary guidance. The DERTF requested, at the January 1997 
meeting, that it be kept informed on the development of such guidance.

Discussion - As cleanup programs accomplish their goal of reducing
risk, and sites are closed out, it is appropriate for RABs to adjourn,
i.e. stop meeting. Guidance on adjournment will be incorporated in
the next publication of DoD's Restoration Program management guidance,
and is summarized below.

 DoD will retain the authority to make the decision on RAB
adjournment, but should gather input from the RAB before a decision is
made. Some of the considerations in adjourning an installation RAB
are:

+ When an installation no longer has an environmental restoration
 program.

* When all environmental restoration decisions have been made final.

 When all remedies are in place and operating properly and
 successfully.

 When the BRAC Cleanup Team has been disestablished.

 When there is no longer, sufficient, sustained community interest.
 (NOTE: The installation may elect to adjourn the RAB as long as its
 overall community involvement program provides for continued
 stakeholder input to cleanup activities).

 The management guidance is under review, and is expected to be
 published by September 30, 1997.

The point of contact for this paper is Ms. Marcia Read, Office of the
Assistant Deputy Under Secretary of Defense (Environmental Cleanup),
at (703) 697-9793.