Land Use Controls

[Lenny Siegel <lsiegel@cpeo.org>]

LAND USE CONTROLS AT FEDERAL FACILITIES IN THE SOUTHEAST

Region 4 of U.S. EPA, covering the southeastern states, has developed a
policy on land use controls at federal facilities. Signed in April by
Jon Johnston, chief of the region's Federal Facilities Branch, the
6-page Memorandum provides instructions to EPA personnel for assuring
the long-term effectiveness of land use controls at federal facilities
where EPA has regulatory authority either under either the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) or the
Resource Conservation and Recovery Act (RCRA). EPA also offers the
policy for consideration to state regulators and federal responsible
parties who may have lead authority at other federal facilities within
the region. It is designed primarily to strengthen cleanup remedies on
properties expected to remain in federal hands.

The policy defines land use controls (LUCs) to include both legal
restrictions and physical barriers designed to support cleanup remedies
by limiting the exposure of people or ecological receptors to
contaminants. It explains:

"In such circumstances, uncertainties about the future use assumptions
and/or the ongoing effectiveness of the use limitations imposed are
directly related to achievement of the central objective of the entire
remediation process - protection of human health and the environment. In
light of EPA experience in this Region and elsewhere, that land use
control and environmental protection programs have not been adequately
coordinated to ensure adherence to LUCs, we believe that it is
essential to adopt new, more reliable means for assuring that necessary
LUCs are maintained. Because we regard inadvertent violations as the
most probable reason why LUCs might not be maintained on
federally-controlled property, we think that it is important for each
federal facility relying on LUCs to commit to implementing an active
LUC-monitoring process, and to raise the visibility of its LUCs through
periodic reporting/certification by each such facility's base commander
or top civilian manager reaffirming the ongoing integrity of LUCs to EPA
and state environmental regulators."

The policy requires the documentation of land use controls in both a
"Land Use Control Assurance Plan" (LUCAP) and within decision documents
such as Records of Decision.

LUCAP

The LUCAP may take many forms, such as a Memorandum of Agreement or part
of a Federal Facility Agreement. It should be referenced in the Base
Master Plan, if there is one. Among the minimum requirements that EPA
has established for LUCAPs are:

"* A commitment by the facility to request funds for maintaining LUCs in
budget allocation requests.

* A requirement for quarterly on-site monitoring by the facility for
compliance with the LUC Implementation Plans throughout the remediation
period, unless another monitoring frequency is approved in the LUC
Implementation Plan.

* A requirement for the facility to conduct field inspections at least
annually to assess the conditions of all sites subject to LUCs. These
inspections shall determine whether the current land use remains
protective and consistent with all remedial action/corrective measures
objectives outlined in the decision document."

In addition, EPA and state regulators must provide written concurrence
whenever there is a proposed change of land use or proposed transfer of
property subject to land use controls.

DECISION DOCUMENT

Decision documents should also include "reasonable assurances that LUCs
will be effectively maintained and monitored." The policy says,
"Decision documents establishing LUCs shall specify the general land use
designation, the associated land use exposure assumptions and the
general LUC objectives." Where decision documents are already in place,
EPA will address land use controls when the decision document comes up
for review, such as under the CERCLA 5-year review.

The policy probably goes as far as EPA can go in attempting to
institutionalize land use controls, but it suffers, like all other
attempts to make land use controls enforceable in the long run, from a
fatal flaw: There is no guarantee that the federal cleanup programs or
the agencies providing regulatory oversight will be funded over the
decades during which the contamination left in place - and kept from
exposure pathways by land use controls - poses a potential threat to
human health and the environment.

That's an argument for erring on the side of caution. That is, as I've
said before, land use controls should only be relied upon when there is
no feasible alternative or where factors, such as geography, reinforce
the controls.

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org