[CPEO-MEF] DOD Land Use Controls policy

[Lenny Siegel <lsiegel@cpeo.org>]

The Defense Department's new (August 31, 2000) "Interim Policy on Land
Use Controls Associated with Environmental Restoration Activities,"
incorporates a number of consensus ideas that have emerged from
discussions among stakeholder groups over the past year. However, it
still has some weaknesses, primarily in that it doesn't reinforce key
elements of other existing remediation policies.

The Interim Policy moves in the direction of treating Land Use Controls
(LUCs) like other proposed remedies. First, it says, "Feasibility
studies that consider a remedy requiring a land use restriction shall
include the costs of implementing and maintaining the LUC, as well as an
evaluation of an 'unrestricted use' alternative. This will enable
decision makers to appropriately consider cost in the remedy selection
process."

Second, decision documents such as Records of Decision (RODs) should
describe exposure scenarios. Furthermore, "Any currently existing
restrictions on land use that were part of the determination of
reasonably anticipated future land use should also be described."

To implement land use controls, the Interim Policy endorses layering, "a
system of mutually reinforcing controls" - normally including both
governmental and proprietary controls.

The Defense Components - that is, the armed services and Defense
Logistics Agency - "should maintain a central database of properties
restricted by LUCs. The database should include information on the types
of LUCs established and any DoD land use monitoring and management
responsibilities." The document also requires the Components to use
State LUC registries where available.

The document says, "The policy preference is to use existing processes
and mechanisms in the development, implementation, and management of
LUCs." However, it endorses the use of Memorandums of
Agreement/Understanding with regulatory agencies when needed, provided
they're "consistent with existing law and authority and ... similar in
scope for similar non-Federal property."

As provided in the California-Navy Memorandum agreement, negotiated
earlier this year, the Interim Policy states, "If possible, Components
should grant a property interest to the relevant state or local agency
that will allow the state or local agency to maintain and enforce the
LUC.

Among the more controversial points, at transferring property the
Interim Policy seeks to pass responsibility for maintaining land use
controls to others. Where property is transferred to other federal
agencies or Defense components, "the receiving agency generally will be
responsible for the maintenance and management of the LUCs." At other
transferring property, "Components should encourage the local government
and the property owner to take responsibility for the management and
enforcement of LUCs" because they will exercise direct authority over
the property.

An accompanying document, focused on "Property Planned for Transfer Out
of Federal Control," provides useful guidance on the scripting of land
use controls: "the deed should specifically state the restricted uses of
the property beyond the basic categories of residential, commercial,
recreational, or industrial. For instance: 'industrial uses permitted
include office space and light industrial, but exclude residential
housing, playgrounds, nurseries, child-care facilities, and elder-care
facilities.'" That's particularly important, because many localities
allow or even encourage the siting of child-care facilities at or near
workplaces.

This second document also makes clear that the maintenance of land use
controls should be subject to periodic review: "five-year reviews and
long-term monitoring of environmental restoration sites may provide
convenient opportunities for the Component to concurrently review LUCs.
At that time, the integrity of the LUCs or layering mechanisms can also
be checked (e.g., is zoning still consistent, is land use consistent,
are markers/fences still in place?)" 

It would have been more helpful, however, to suggest that land use
control implementation plans should build in much more frequent
monitoring of land use controls. Fences and signs, for example, must be
frequently monitored, repaired, and/or replaced to ensure that they
remain effective.

The guidance on Transfer Out of Federal Control reinforces another,
controversial policy on cleanup when land use changes. It restates, "If
a transferee desires to clean up property to a higher standard that
allows more uses of the property, the transferee must pay for any needed
additional studies or environmental restoration activities." Many
communities believe, in contrast, that  land-use-based cleanups give the
Defense Department a financial break. It's not clear that communities
should pay for cleanup that the Department would have been obligated to
do in the first place had the communities not agreed to restrict use.

The two greatest weaknesses in these documents, however, are "errors of
omission." They don't say, "if it's not clear that a land use control
can remain protective over the life of the contamination, another remedy
should be used instead." One might counter, that's already built into
the remedy selection process. I don't think that's good enough. A number
of elements in the DOD documents already exist elsewhere. By not
providing guidance for rejecting reliance on land use controls, the
Interim Policy appears to express a preference, in contradiction to
CERCLA (the Superfund law) and the National Contingency Plan, for
"non-treatment."

Second, the Interim Policy says little about the role of regulators in
developing and approving remedies including land use controls, and it
says nothing about the role of public stakeholders - other than
transferees. Both CERCLA and the Defense Department's own Environmental
Restoration programs do provide for public involvement, so this document
doesn't prevent it. Still, in providing guidance for facility-level
decision-makers, it would have been helpful to remind them that public
stakeholders have a role in both the consideration of land use controls
and in ensuring their long-term implementation and monitoring.

As previously posted, the documents may be found at:
http://www.dtic.mil/envirodod/lucs.pdf.

Lenny Siegel


-- 


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
http://www.cpeo.org


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