[CPEO-MEF] Guardian Trust evaluated

[Lenny Siegel <lsiegel@cpeo.org>]

The following report on the Guardian Trust, a new entity formed to
implement land use controls at contamination sites, is from the
Pennsylvania Department of Environmental Protection's web site
http://www.dep.state.pa.us/dep/deputate/airwaste/wm/landrecy/guardian.html
Though the report rates the Guardian Trust positively, many of us who
did not participate in the official evaluation are withholding judgment
until we see more detailed descriptions of exactly how the Trust expects
to function.

Since the Trust hopes to help manage military contamination sites as
well as civilian Brownfields, I am posting this to both CPEO lists.
Please excuse the double-posting.

Lenny

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THE GUARDIAN TRUST

Background

The Pennsylvania Department of Environmental Protection's (DEP) Land
Recycling Program is leading the way in land recycling innovation and
progress. One of the Land Recycling Program's goals is to determine a
means to ensure the effectiveness of engineering controls (ECs) and
institutional controls (ICs) at brownfield and other contaminated sites
throughout the Commonwealth. These controls are engineering and
non-engineering measures intended to affect human activities in such a
way as to prevent or reduce exposure to hazardous substances.

Description

The Guardian Trust is a proposed program for the stewardship of
institutional and engineering controls. The program proposes to
privatize post-remediation obligations that result from risk-based
cleanups under federal and state statutes and would assure that
institutional and engineering controls are maintained after a cleanup
has been completed and approved by DEP or another environmental agency.
The Guardian Trust proposes to perform many of its duties through the
establishment of a direct property interest in a remediated site granted
by the current property owner. The Guardian Trust would establish a menu
of services that includes inspecting, monitoring and reporting of ICs
and ECs, tracking land use records to assure that deed restrictions are
included as part of property transfers, and assuming responsibility for
operating engineering controls such as groundwater pump and treat systems.

The Guardian Trust Pilot Study

In Spring 2001, MGP Environmental Partners LLC (MGP) received funding
from DEP and EPA to conduct a pilot study of the viability of The
Guardian Trust. In the pilot study, MGP and an advisory committee
comprised of representatives from DEP, EPA (RCRA and CERCLA programs
from Region III and EPA Headquarters), California and Maryland
environmental protection agencies, and the Department of the Navy
studied the feasibility of utilizing a not-for-profit trust mechanism
for the long-term stewardship of institutional and engineering controls.
The Guardian Trust Pilot Study was completed in February 2002.

The findings of the Guardian Trust Pilot Study are as follows:

*  Institutional and engineering controls are widely accepted and
important components of risk-based remedial strategies.  

*  The effectiveness of any risk-based cleanup depends upon the
long-term stewardship of the remedy including all institutional and
engineering controls.  

*  The past, current and future land use of a remediated site informs
both the extent to which ICs and ECs are appropriate and the long-term
obligations necessary to assure the protectiveness of the site.  

*  Federal and state environmental laws authorize the use of risk-based
cleanups that include ICs and ECs. The ability of the government to
assure the long-term maintenance of ICs and ECs depends upon the
statutory and regulatory regime applicable to the cleanup.  

*  There are significant gaps in legal authority to require the
long-term maintenance of ICs and ECs. The ability of the government to
enforce the long-term maintenance of ICs and ECs varies depending on the
statutory and regulatory regime applicable to the cleanup.  

*  Significant limitations in legal authority to require the long-term
maintenance of ICs and ECs and lack of coordinated oversight are likely
to be exacerbated over time at sites with risk-based remedies,
particularly when these sites are subdivided or transferred.  

*  There is a need for The Guardian Trust to act as a long-term steward
to assure that remediated sites continue to meet risk-based cleanup
levels.  

*  The Guardian Trust could offer, for a fee, services that include
inspections of sites and land use records; monitoring of sites, land use
changes and building permits; reporting to prescribed stakeholders;
financial assurance; developing a database and comprehensive information
system to properly track the status of ICs and ECs and disseminating
information accordingly; providing training programs for local
governments and other stakeholders; developing information relevant to
the status of ICs and ECs for public distribution and outreach; and
assuring the maintenance and protectiveness of an environmental remedy
by enforcing land use rights.  

*  The Guardian Trust, with this broad array of services will meet the
needs of environmental agencies, remediators, landowners, financial
institutions, local governments, land planning agencies, and the public.
 

*  The combination of services offered by The Guardian Trust are not now
offered by any single entity and cannot be provided by environmental
consultants or insurance companies alone.  

*  The Guardian Trust cannot be implemented without additional funding,
resources and support from the public and private sectors. 

The results of the Pilot Study show that The Guardian Trust can provide
important services to governmental agencies, environmental regulatory
agencies, local governments and private party remediators in assuring
the long-term care of sites remediated under federal and state law to
cleanup standards developed on the basis of risk. The U.S. Department of
the Navy and other military branches also are interested in this program
and private sector interest is high as well.

Most of the obligations associated with institutional and engineering
controls are long-term; therefore, the fees associated with retaining
The Guardian Trust to perform these tasks would provide a pool of
resources and, with a critical number of sites utilizing The Guardian
Trust, the value of the funds held in the Trust would be sufficient for
The Guardian Trust to perform its obligations. Thus, it would not be
necessary for DEP or other environmental agencies to "fund" The Guardian
Trust in the future. The Guardian Trust expects to be financially
self-sufficient once the implementation process is completed and
environmental agencies and others would simply be hiring The Guardian
Trust to perform services.  

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/96I-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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