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Land Use Controls (LUCs)

Land Use Controls (LUCs). The Trust concept for long term care. Paul J. Yaroschak Director, Environmental Compliance & Restoration Policy Office of the Assistant Secretary of the Navy (Installations & Environment). Background. DoD has thousands of contaminated sites

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Land Use Controls (LUCs)

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  1. Land Use Controls (LUCs) The Trust concept for long term care Paul J. Yaroschak Director, Environmental Compliance & Restoration Policy Office of the Assistant Secretary of the Navy (Installations & Environment)

  2. Background • DoD has thousands of contaminated sites • Remedies selected under CERCLA consider nine criteria • E.g., Protectiveness, permanence, cost effectiveness • If some contaminants are left in place, human exposure must be prevented • Land Use Controls (LUCs) are used to limit exposure

  3. What are LUCs? • Engineering controls (ECs)…physical measures to protect the remedy • Landfill caps, physical barriers, signs • Institutional controls (ICs)…legal and administrative measures to protect the ECs and/or the remedy • Deed restrictions, notifications, zoning, permits • LUCs = ECs + ICs

  4. Who’s responsible for LUCs? • Subject of national debate and evolution of policy • Current property owner • Former property owner • Environmental regulator • Local government

  5. The Issues • DoD must ensure long term protectiveness of remedy per CERCLA • Regulatory policy evolving – increasing long term process requirements • DoD desires to outsource and privatize non-core functions

  6. Is there a win-win-win solution that… • Is better than current situation • Ensures protectiveness • Is cost effective • Emphasizes regulators role • Keeps local gov’t informed • Reduces non-core functions for DoD/PRPs In other words, the solution would be liked by regulators and PRPs and the public

  7. The Guardian Trust Concept • A private, not-for-profit Trust to manage LUCs • Fee for service • Management of LUCs • Liability for LUCs • Established via a partnership among private industry, regulators and PRPs • Pilot study in Pennsylvania nearing completion • PA-DEP, EPA Region III, DoN key players • MD, VA, CA also playing

  8. Trust Menu of Services • Management of LUCs • Maintain LUC database…interface with Miss Utility • Inspections • Notifications & outreach to owners & local gov’t…interface with permit agencies • O&M of engineering controls • Liability for LUCs • Assume all liability for remedy and LUCs…via use of private insurance mechanism • Allows removal of liability from PRP financial statements

  9. DoN Course of Action • Participate on Pilot Program Oversight Board • Six meetings and final report in JAN 02 • Resolve issues regarding DoN/DoD use of Trust • Funding…annual vs. lump sum…how to transfer? • Insurance & indemnification • Develop Cooperative Agreement w PA-DEP • Develop list of pilot sites & LUC services • NSY Philadelphia & NSWC Warminster • Sign Agreement & fund • Assign/Transfer property interest to PA-DEP • Monitor actions & determine applicability nation-wide

  10. Responsibilities & Funding Department of Navy Pennsylvania DEP Board of Directors Guardian Trust Funding & LUC tasks via Cooperative Agreement Financial & performance oversight Contract w Trust

  11. Trust Benefits • Provides a manager for LUCs with single purpose…long term • Ensures protectiveness…minimizes potential for “exposure” litigation • Economies of scale managing hundreds of sites • Regulators have a role in Trust oversight and LUC enforcement • Privatizes LUC management

  12. Questions • Is it really cheaper? • If all DoN costs are considered, Trust probably cheaper…even more so if regional/national in scope • Can’t determine accurately until we try one • What if the Trust dissolves? • Oversight by underwriters & Board minimizes risk of failure • If failure, DoN would revert to existing CERCLA responsibilities

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