|From:||Lenny Siegel <email@example.com>|
|Date:||Thu, 14 Sep 2000 22:17:29 -0700 (PDT)|
|Subject:||[CPEO-MEF] DOD Land Use Controls policy|
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 firstname.lastname@example.org http://www.cpeo.org ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ You can find archived listserve messages on the CPEO website at http://www.cpeo.org/lists/index.html. If this email has been forwarded to you and you'd like to subscribe, please send a message to: email@example.com ___________________________________________________________ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics
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