rJ5-.,
f% ", UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
"; WASHINGTON, B.C. 20460
Signed June 4, 2001
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
OSWER 9355.7-06P
MEMORANDUM
SUBJECT: Reuse Assessments: A Tool To Implement The Superfund Land Use Directive
FROM: Larry Reed, Acting Director S/Elaine F. Daviesfor
Office of Emergency and Remedial Response
TO: Superiund National Policy Managers
Regions 1-10
PURPOSE
This directive presents information for developing future land use assumptions whenmaking remedy
selectiondecisionsforSuperfund sites underthe Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). The purpose of this directive is to:
1. Reaffirm the directive "Land Use in the CERCLA Remedy Selection Process," OSWER Directive
No. 9355.7-04, May 1995 (the Superiund Land Use Directive) in Superiund response actions,
and highlight its importance in achieving the goals of the Superfund Redevelopment Initiative (SRI);
2. Extend the applicability of the Superiund Land Use Directive to non-time-critical removal actions',
where appropriate; and
3. Introduce the "Reuse Assessment" as a tool to help implement the Superfund Land Use Directive
(see Attachment 1).
BACKGROUND
On July 23, 1999, the Environmental Protection Agency (EPA) announced the Superiund
Redevelopment Initiative (SRI) to help communities return Superfund sites to productive use. The SRI
launched a coordinated national effort to develop policies, procedures and practices
'Applicability of this directive has not been extended to non-time-critical removal actions for
Brownfields revolving loan fund pilot projects. Regions and Brownfields Pilot recipients should continue
to refer to the relevant Brownfields program guidance.
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OSWER 9355.7- 06P
needed to achieve this goal. The SRI also reemphasizes EPA's current practice of considering future land
use assumptions in cleanup decisions and encourages communities to communicate their future land use
preferences before the Agency fully implements a cleanup remedy, hi implementing the SRI, the Agency
is clear in assuring that site reuse, where it can be achieved, occurs without compromising cleanup
standards or the protectiveness of response actions.
IMPLEMENTATION 2
1. Reaffirm the Importance of the Superfund Land Use Directive in Superfund Response
Actions.
The Superfund Land Use Directive (see Attachment 2) provides basic information on developing
and using future land use assumptions to support Superfund remedial actions. The Superfund Land Use
Directive promotes early discussions with stakeholders regarding potential future land use options for sites
and promotes the use of that information to develop realistic assumptions regarding future land use. The
following topics are addressed in the Directive:
• Why realistic assumptions of future land use are important to the Superfund response
process;
Types of information that can be considered;
• How to use assumptions of future land use in the development, selection and
implementation of response actions;
• Public involvement considerations;
• The role of institutional controls when response actions result in restricted future uses; and
• The applicability of future land use considerations to Federal Facility sites undergoing
response actions, as well as RCRA Corrective Action sites.
Integrating realistic assumptions of future land use into Superfund response actions is an important
step toward facilitating the reuse of sites following cleanup. Therefore, implementation of the Superfund
Land Use Directive can be an important factor in achieving the objectives of the SRI wherever cleanup
actions can be catalysts for returning Superfund sites to productive use. Regions should review the
Superfund Land Use Directive and ensure that reasonable future land use assumptions are incorporated
into the development, evaluation and selection of response actions, where appropriate.
Applicability to Federal Facilities and RCRA Corrective Action. Where another federal agency
is performing a CERCLA-based remedial action or non-time-critical removal, it should develop
assumptions of reasonably anticipated future land use as part of the response process consistent with the
Superfund Land Use Directive, where appropriate. Information in this directive may be helpful to Federal
Facility site managers conducting this work. In particular, the Reuse Assessment Guide conveys a
concise and practical approach to addressing future land use issues. Also, information in this directive
may be helpful to RCRA project managers in developing future land use assumptions. However, RCRA
stakeholders should also refer to guidance on land use in the May 1, 1996, Notice of Proposed
Rulemaking (Vol. 61, No. 85, 40 CFR, pages 19432 to 19464).
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OSWER 9355.7- 06P
2. Extend the Applicability of'the Superfund Land Use Directive to Non-Time-Critical Removal
Actions,
This directive extends the applicability of the Superfijnd Land Use Directive to non-time- critical
removal actions, where site conditions and the nature of the response action warrant. Assumptions
regarding reasonably anticipated future land use can be considered when developing the Engineering
Evaluation/Cost Analysis (EE/CA). Future land use assumptions can support site characterization, risk
assessment, and the development, evaluation and selection of response actions. The analysis supporting
the assumptions of future land use can be scaled back, as appropriate, consistent with the scope of the
removal action.
3. Reuse Assessments - A Tool for Developing Reasonably Anticipated Future Land Use
Assumptions.
The reuse assessment, as described in Attachment 1, involves collecting and evaluating information
to develop assumptions about reasonably anticipated future land use(s) at Superfund sites. It provides a
tool to implement the Superfund Land Use Directive and may involve a review of available records, visual
inspections of the site and discussions about potential future land uses with local government officials,
property owners and community members. Information gathered as part of the reuse assessment can be
combined with other information on potential future land use obtained through the CERCLA community
involvement process and through dialogue with state officials.
Information obtained from the reuse assessment can be particularly useful during the planning stages
of a response action. The resulting assumptions of reasonably anticipated future use can be considered as
part of the following:
• The baseline risk assessment when estimating potential future risks;
• The development of remedial/removal action objectives and the development and
evaluation of response alternatives; and
• The selection of the appropriate response action required for the protection of human
health and the environment.
Similarly, a reuse assessment can be useful for developing future land use assumptions as part of the EE/CA
and action memorandum supporting a non-time-criticalremoval action.
ADDITIONAL INFORMATION
Copies of this document are available on the Superfund web site, at
http://www.epa.gov/superfund/pubs.htm. Copies of this document may also be obtained from the OERR
Document Center (703) 603-9232. General questions about this topic should be referred to the Hotline
at 1-800-424-9346. The subject matter specialist for this document is
Paul Nadeau of OERR.
Notice: This document is intended to provide guidance and information for EPA staff, states, tribes,
Potentially Responsible Parties (PRPs) and contractors conducting site cleanups under CERCLA, as well
as for local governments and other stakeholders involved with Superfund sites and the CERCLA response
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OSWER 9355.7- 06P
process. The approach in this guidance is meant to be considered at current and future sites undergoing an
RI/FS or EE/CA, to the extent possible. Any decisions regarding a particular remedy selection decision will
be made based on the statute and regulations, and EPA decision makers retain the discretion to adopt
approaches that differ from this guidance, where appropriate, on a case by case basis. Consistent with the
Superfund Land Use Directive, this guidance is not intended to suggest that previous remedy selection
decisions should be reopened. EPA may change this guidance in the future.
Attachment 1 - Reuse Assessment Guide
Attachment 2 - Land Use in the CERCLA Remedy Selection Process
cc: Jeff Josephson, Superfund Lead Region Coordinator, USEPA Region 2
NARPM Co-Chairs
OERR Records Manager, IMC 5202G
OERR Documents Coordinator, HOSC 5202G
OERR Regional Center Directors
Paul Nadeau, OERR 5204G
John Harris, OERR 5204G
Steve Caldwell, ST/SIC 5204G
Suzanne Wells, CIOC 5204G
Jim Woolfbrd, FFRRO 5101
Earl Salo, OGC
Barry Breen, OSRE 2271A
Lori Boughton, OSRE 2271A
Elizabeth Cotsworth, OSW 5301W
Linda Garczynski, OSPS 5101
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OSWER 9355.7-06P
Attachment 1:
REUSE ASSESSMENT GUIDE
Introduction
The reuse assessment involves collecting and evaluating information to develop assumptions about
reasonably anticipated future land use(s) at Superfund sites. It provides a tool to implement the Superfund
Land Use Directive, and may involve a review of available records, visual inspections of the site and
discussions about reasonably anticipated future uses with local government officials, property owners and
community members.
Information obtained from the reuse assessment can be particularly useful during tiie planning stages
of a response action. The resulting assumptions of reasonably anticipated future use can be considered as
part of the following:
• The baseline risk assessment when estimating potential future risks;
• The development ofremedial/removalaction objectives and the development and evaluation
of response alternatives; and
• The selection of the appropriate response action required for the protection of human health
and the environment.
Similarly, a reuse assessment can be useful for developing future land use assumptions as part of the EE/CA
and action memorandum supporting a non-time-critical removal action.
A reuse assessment assists in developing assumptions regarding the types or broad categories of
reuse that might reasonably occur at a Superfund site. Examples of land use assumptions that appear likely
based on the conclusions of a reuse assessment include, but are not limited to, residential,
commercial/industrial, recreational and ecological. More specific end uses (e.g., office complex, shopping
center, or soccer facility) can be considered during the response process whendetailed planning information
is readily available.
Getting Started
The scope and level of detail of the reuse assessment should be site-specific and tailored to the
complexity of the site, the extent of the contamination, the level of redevelopment activity that has already
occurred at the site and the density of development in the vicinity of the site. Reuse assessments and the
development of future land use assumptions should rely on readily available information, to the extent
possible. Determining the applicability and scope of a reuse assessment will be dependent on site specific
circumstances and/or the overall approach anticipated for addressing the site. For example:
• Sites where the owner desires to maintain the current use, or area-wide ground water
contamination sites in highly developed urban areas, may only require a limited assessment;
• Sites where future land use decisions have already been determined and documented may
simply require a review to confirm the information;
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Large sites, or sites with several operable units and potentially different future use scenarios,
may benefit from multiple reuse assessments, or an iterative approach to developing future
land use assumptions.
While a reuse assessment may not be necessary at every site, EPA should collect and summarize
available information about potential future uses for NPL sites and non-time-critical removal actions, as
appropriate, to form the basis for the assumptions regarding reasonably anticipated future land use.
The Superfund Land Use Directive states that in cases where the future land use is relatively certain,
the remedial action objective(s) generally should reflect this land use. hi this case, alternative future land use
scenarios generally are not required unless it is impracticable to provide a protective remedy that allows for
the desired use. The Superfund Land Use Directive also states that in cases where the reasonably
anticipated land use is uncertain, or where multiple uses are being considered, a range of potential future land
use options should be considered when developing remedial action objectives. For example, information
gathered for the reuse assessment suggests the site could be used either for recreational purposes or for
commercial/light industrialactiviry. hi that case, when identifying multiple potential reuse scenarios, the reuse
assessment should consider input from stakeholders on which scenario they believe is most likely. In other
cases, alternative future land use scenarios can be reflected by developing a range of remedial alternatives
for detailed evaluation that could achieve different land use potentials.
Reuse assessments should have greatest applicability to sites with waste materials on the surface
and/or contaminated soil. Future ground water use was not extensively considered in the Superfund Land
Use Directive. There are separate expectations established in the NCP, Section 300.430 (a) (1) (iii) (F)
that "EPA expects to return usable ground waters to their beneficial uses, wherever practicable, withina time
frame that is reasonable given the particular circumstances of the site." Generally, ground water use is
determined independently fromland use, through Comprehensive State Ground Water Protection Programs,
state ground water classifications and EPA's "Guidelines for Ground Water Classification Under the EPA
Ground Water Protection Strategy," Final Draft [1984]. However, it is important to consider the current
and future ground water uses when developing future land use assumptions, since the need to protect ground
water quality may drive the soil cleanup levels. For example, portions of surface or sub-surface
contamination that present a threat to ground water may require a greater degree of cleanup over a larger
area than might be needed for soil clean up alone. Alternatively, an area of clean land may be needed to
install a ground water pump and treat system to contain or restore underlying contaminated ground water.
Each of these situations could affect future land use options for the site.
In general, a reuse assessment can be conducted by the entity conducting the RI/FS or EE/CA.
As with other activities performed under the RI/FS or EE/CA, EPA can determine the appropriate level of
oversight when PRPs perform this work. EPA is responsible for ensuring that reasonable assumptions
regarding future land use are considered in the selection of a response action. This determination should be
coordinated with the state.
Outline for a Reuse Assessment
The reuse assessment should provide sufficient information to develop realistic assumptions of the
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reasonably anticipated future use(s) for a site. Items that should be considered are listed in Table 1, which
further describes and builds upon the items identified in the Superfund Land Use Directive. The entity
conducting the reuse assessment may use this outline as a guide for carrying out the assessment. Each reuse
assessment will be different, but this outline offers a structure that should ensure a thorough evaluation can
be performed. As noted, the scope and level of effort needed to complete a reuse assessment will be
dependent on conditions at the site and should be tailored accordingly. Information supporting a reuse
assessment should be obtained from existing and readily available sources to the extent possible.
Table 1: Outline for a Reuse Assessment
Stakeholders
• Identify stakeholders and their connection to the site, e.g., site owner, current user, developer, PRP, state
and local or tribal government, community member, Community Advisory Group, (CAG), etc.
• Determine which stakeholders are responsible for local land use determinations
• Document the stakeholders who participate in the Reuse Assessment
Site Description
• Physical features: size, shape, topography, special features
• Existing buildings and other site improvements
• Site location in relation to residential, commercial, industrial, agricultural and recreational areas
Current and past uses
Neighboring activities and land uses
Relevant public infrastructure: roads, utilities, transit, parks, etc.
Environmental Considerations
• Contaminants and their location(s), technology constraints, to the extent this information is known
• Potential restrictions resulting from the environmental contamination
• Areas that are "clean" (i.e., where risks are acceptable, consistent with their planned use) and potentially
available for immediate reuse
Ground water use classification/determination
• Other site characteristics (e.g., wetlands, surface waters, upland habitat, forested habitat, flood plains)
Site Ownership
Person or entity that holds title to the site; who controls access to the site
Any property liens, bankruptcy considerations
• Site owner(s) preferences and plans
Any plans for the sale of the property
Land Use Considerations and Environmental Regulations
Zoning
Existing area master plans
Federal, state or tribe and local environmental regulations (e.g., wetlands, flood plain, etc.) impacting
reuse
Institutional controls (e.g., easements, covenants) already in place
Historical and cultural resources
Community Input
Future reuses that community members would support
Future reuses that community members would oppose
Cultural factors that may create barriers or assets to any type of future reuse (historic buildings, Native
American sacred lands)
Environmental justice issues
Public Initiatives
Infrastructure plans that may influence the site uses
Potential municipal/public uses, including park and recreational facility, transit facility, public building
Publicly initiated private sector redevelopment project (e.g., government-organized industrial park)
Funds available/committed for the redevelopment of the site
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Table 1: Outline for a Reuse Assessment
Most Likely Future Uses
Summarize the information as the basis for concluding the most likely future use or uses
Collecting the Information
Land use, including the potential reuse of contaminated sites after cleanup, is generally determined
by local government officials and private stakeholders. When formulating assumptions about future land use,
it will be important to consult with them. There are key questions one should try to answer to arrive at the
assumptions about future land use that are needed to support a reuse assessment. The list below draws on
the discussion in the Superfund Land Use Directive about Ihe types and sources of information that should
be considered. It is not intended to be comprehensive, but includes questions that may be appropriate in
a large number of cases. The questions that are relevant at a specific site will be determined by conditions
at that site and by the scope of the effort needed to properly assess the anticipated future use of land.
It maybe possible to answer some of these questions fairly readily by gathering existing information
from available documents, by interviewing stakeholders, or by visiting the site. Some questions may be
answered by information already obtained in the course of the PRP search, or in developing a community
involvement plan. If it is difficult to get information from the site owner through interviews, consider getting
the basic information from a title report and a market price appraisal. These can be obtained from a local
title and real estate company. Where sites are part of tribal lands, there are many possible scenarios for site
ownership and for making decisions about future use. It is most appropriate to consult with tribal
government officials for information about how to work with tribes on site ownership as well as on other
issues relevant to tribes. Appendix A offers a fairly comprehensive list of sources that may have information
that will be useful when forming assumptions about potential reuse.
Consider the following questions:
What is the History of the Site? (Review existing documents)
• What were the past use(s) of the site?
• What does title and lien information show about past ownership?
• Are there historical sites, cultural factors, Native American religious sites to consider?
What Are the Current Uses and Indications of Change? (Site visit or interview with site
owner, or local government or tribal officials)
• What are the current uses at the site?
• What are the uses in neighboring areas?
• What does census information show about the local area?
What is the character of the neighborhood (e.g., residential, mixed use, in transition from
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one type of use to another)?
• What are the trends in land use in the surrounding area (e.g., decreasing residential
population, increasing commercial/industrial use, enterprise zone designation)?
• Are there any local Brownfields assessment and redevelopment activities?
WhatPlansDo the Owner and Purchaser Have for Future Use of the Site? (Interview with
current owner)
• What are the owner's plans for the site following cleanup? Will the use remain the same?
Will the site be sold? To whom?
• Is there a prospective purchaser for the property?
• If there are no current plans, what does the current owner consider to be the likely use?
What is the basis for this conclusion?
What Factors Favor or Limit Future Use? (Documents, maps, zoning regulations, land
records and interviews with local government officials in departments such as Planning,
Public Works, Environment and Economic Development; or tribal government officials,
where appropriate, who have jurisdiction or influence over land use)
• What zoning laws and ordinances apply? What is current zoning for the site? Is the zoning
expected to change in the near future? Why?
• What are the applicable local area land use plans, master plans, etc.? How do they affect
the site?
• What local restrictions on property use apply? Are there any existing institutional controls?
• What are the property boundaries?
• Are there any obvious advantages, obstacles or other factors that may affect reuse of the
site, such as size of the parcel, waterfront access, steep slopes or irregular terrain, heavy
traffic on the access street, difficult access to the site, abandoned buildings, etc.?
• Ifthe site is adjacent to surface water, are there any resource protection programs or other
restrictions (e.g., fish advisories) in place or planned that could impact reuse?
Are there ground water use determinations, wellhead protection areas, recharge areas and
other areas identified in the state's Comprehensive Ground Water Protection Program?
• Are there flood plains, wetlands, or endangered or threatened species to be taken into
account?
• What other land or ground water use regulations or controls affect the reuse potential?
• Are there any infrastructure improvement plans that might affect reuse?
Which Key Individuals and Groups Will Determine Reuse and What Are Their Views?
(Interviews with local government officials, or tribal government officials where appropriate,
who have jurisdiction or influence over land use)
• Who are the key individuals that will be involved in determining reuse of the property?
What are the local officials' assessment of what is likely to happen at the site?
• Have any ideas for reuse been discussed for this site? What are they?
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• How certain and detailed are the ideas for reuse? Can documents be obtained that
describe them?
• Have they been submitted to the planning agency for approval? With what result?
• Who will be the lead person or Agency for implementing the plans for reuse?
• What other individuals have important information regarding the reuse of the site?
• If there are no current plans for the site, who will determine future site reuse and how will
it be accomplished?
How Is the Community Involved in Reuse Planning for the Site? (Interview community
groups and leaders, including TAG grantees and CAG leadership, if such groups exist)
How is the community involved in local land use planning?
What are the community's expectations for reuse of the site?
What would community members like to see?
What would community members oppose?
If there are reuse ideas or plans being discussed, what do community members think about
these plans?
Environmental Conditions
EPA should integrate site-specific information on environmental conditions, to the extent available
at the time the reuse assessment is being done, with the results of the site visit, interviews, and document
review to ensure realistic future land use assumptions are developed. If an entity other than the RPM/O SC
is conducting the Reuse Assessment, EPA should decide at the outset how site-specific information on
environmental conditions will be incorporated into the analysis. Consider the following:
• What is currently known about the nature and extent of the contamination that could impact
future land use (e.g., major contaminants, location, depths, volumes, etc.)?
• Are there any uses or activities on the site that may be precluded due to the contamination,
cleanup process or residual contamination?
• Are there portions of the site that are not contaminated and not likely to be needed during
the cleanup phase that could be made available for reuse on an expedited basis?
• Are there any institutional controls that currently exist or are likely to exist in the future? If
institutional controls exist, what are they? Have they been effective?
Community Involvement
As noted above, and as reflected in the Superfund Land Use Directive, the reuse assessment
process should include soliciting community input on future land use considerations for sites. Community
input can be particularly useiul for sites where the future land use is uncertain and should be directed toward
understanding the types or categories of future land use that the community believes would be appropriate
for the site, and categories of land use that the community believes inappropriate. This information can be
used as an indicator of the potential reliability and reasonableness of the future land use assumptions and their
potential relevance for consideration in the remedy selection process.
hi addition, assumptions regarding reasonably anticipated future land use and their impact on the
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baseline risk assessment, response actionobjectives and the proposed response action, should be integrated
into the CERCLA community involvement process. Future land use assumptions should be included in fact
sheets, public meetings and other communication tools, as appropriate, over the course of the response
action.
State and Tribal Roles
States and tribes have substantial and meaningful involvement in Superfund cleanups. Therefore,
it is important to involve state officials and tribal leaders in the reuse assessment and in the development of
future land use assumptions. This is especially true at Fund-financed sites where states have a cost share
obligation for the response. State officials can provide useful information regarding economic development
incentive programs or other state-lead activities that could impact the potential future land use for the site.
Tribes canalso supply useful information in many areas relevant to reuse assessment. If there are differences
on land use questions that involve tribes, work with tribal leaders to resolve the issues.
Documenting the Reuse Assessment
After site visits, interviews, community meetings and document reviews, EPA or the entity
conducting the reuse assessment should have basic information regarding the potential future land use for
the site. The information collected should be documented in a report, or as a section of the RI/FS or
EE/CA, identifying and supporting the potential future land use(s). This documentation should be used by
the entity conducting the RI/FS or EE/CA and EPA for developing the reasonably anticipated future land
use assumptions for the site.
Results of the reuse assessment should be described in the decision document for the response
action (Action Memorandum or Record of Decision). The decision document should discuss the reasonably
anticipated future land use(s) and the basis for these assumptions. The decision document should discuss
how the future land use assumptions were addressed in the baseline risk assessment and feasibility study or
the streamlined risk evaluation and EE/CA activities for non-time-critical removals. The decision document
also should describe the types of uses that can be supported at the site following completion of the response
action. The basis for selection of the response action should be consistent with CERCLA and the NCP.
When the reuse assessment and the selected remedy result in categories of allowable future land use
(e.g. commercial, industrial, recreational), but not unrestricted use, appropriate institutional controls should
be identified in the decision document. Institutional controls should be used, where appropriate, to prevent
exposure to contamination remaining on-site and to provide access to, or protect, components of the
remedy. Use of institutional controls should be coordinated with state and local government officials and
the community to ensure they can be implemented and maintained as planned. (See: "Institutional Controls:
a Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and
RCRA Corrective Action Cleanups," OSWER 9355.0-74FS-P, EPA540-F-00-005, September 2000.)
Attachments:
1. Appendix A - Sources of Useful Information
2. Appendix B - Glossary of Terms, Acronyms and Abbreviations
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Appendix A
Sources of Useful Information
Site-Related Sources
Current owner and user(s)
Future owner and user(s)
Agent/broker on behalf of current owner
Lenders/banks who will finance reuse development
Environmental consultant
Local Government
Mayor or County Executive
City Manager or County Administrator
City or County Council
Planning Department/Commission
Department of Economic Development, or local economic development corporation
Department of Environment
Department of Public Works
Brownfields Program
Department of Housing and Community Development
State/Tribal Government
State or tribal project manager
Department of Economic Development
Department of the Environment
Department of Planning
Department of Housing and Community Development
Department of Water and Utilities
Department of Parks and Recreation
Community
Local community development corporations
Local environmental organizations
Influential community members
National and regional tribal environmental organizations
CAGs
TAG groups
Private Sector
Real estate brokers and appraisers
Site selection/search firms
Banks/lenders
Attorneys - real estate, environmental, land use
Chambers of Commerce
Environmental Protection Agency
Remedial Project Manager
On-Scene Coordinator
Community Involvement Coordinator
EPA web site (http://www.epa.gov/)
EPA Office of Solid Waste and Emergency Response (hrtp://www.epa.gov/swerrirnsA
EPA Superfund Redevelopment Initiative (nttp://www.epa!gov/superfunoVprograms/recycle/index.htm')
EPA Federal Facilities Restoration & Reuse Office (http://www.epa.gov/swerffrr/)
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Appendix B
Glossary of Terms, Acronyms and Abbreviations
ARARs
CAG
CERCLA
EE/CA
EPA
NCP
NPL
OERR
OSC
OSWER
PRP
ROD
RI/FS
TAG
CRO
SSAB
Applicable or Relevant and Appropriate Requirements in the Superfund
Response Process
Community Advisory Group
Comprehensive Environmental Response, Compensation, and Liability
Act, commonly known as Superfund
Engineering Evaluation/Cost Analysis
U.S. Environmental Protection Agency
National Contingency Plan
National Priorities List
Office of Emergency and Remedial Response
On-Scene Coordinator
EPA Office of Solid Waste and Emergency Response
Potentially Responsible Parties
Record of Decision
Remedial rnvestigarion/Feasibility Study
Technical Assistance Grant
Community Reuse Organization
Site Specific Advisory Board
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Attachment 2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
May 25, 1995
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
OSWER Directive No. 9355.7-04
MEMORANDUM
SUBJECT: Land Use in the CERCLA Remedy Selection Process
FROM:
TO;
Elliott P. Laws s/
Assistant Administrator
Director, Waste Management Division
Regions I, IV, V, VII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII; IX
Director, Hazardous Waste Division,
Region X
Director, Environmental Services Division
Regions I, VI, VII
Purpose;
This directive presents additional information for considering
land use in making remedy selection decisions under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) at
National Priorities List (NPL) sites. The U.S. Environmental
Protection Agency (EPA) believes that early community involvement, with
a particular focus on the community's desired future uses of property
associated with the CERCLA site, should result in a more democratic
decision-making process; greater community support for remedies
selected as a result of this process; and more expedited, cost-
effective cleanups.
The major points of this directive are:
• Discussions with local land use planning authorities,
appropriate officials, and the public, as appropriate,
should be conducted as early as possible in the scoping
phase of the Remedial Investigation/Feasibility Study
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(RI/FS) . This will assist EPA in understanding the
reasonably anticipated future uses of the land on which the
Superfund site is located;
• If the site is located in a community that is likely to have
environmental justice concerns, extra efforts should be made
to reach out to and consult with segments of the community
that are not necessarily reached by conventional
communication vehicles or through local officials and
planning commissions;
• Remedial action objectives developed during the RI/FS should
reflect the reasonably anticipated future land use or uses;
• Future land use assumptions allow the baseline risk
assessment and the feasibility study to be focused on
developing practicable and cost effective remedial
alternatives. These alternatives should lead to site
activities which are consistent with the reasonably
anticipated future land use. However, there may be reasons
to analyze implications associated with additional land
uses ;
• Land uses that will be available following completion of
remedial action are determined as part of the remedy
selection process. During this process, the goal of
realizing reasonably anticipated future land uses is
considered along with other factors. Any combination of
unrestricted uses, restricted uses, or use for long-term
waste management may result.
Discussions with local land use authorities and other locally
affected parties to make assumptions about future land use are also
appropriate in the RCRA context. EPA recognizes that RCRA facilities
typically 'are industrial properties that are actively managed, rather
than the abandoned sites that are often addressed under CERCLA.
Therefore, consideration of non-residential uses is especially likely
to be appropriate for RCRA facility cleanups. Decisions regarding
future land use that are made as part of RCRA corrective actions raise
particular issues for RCRA (e.g., timing, property transfers, and the
viability of long-term permit or other controls) in ensuring protection
of human health and the environment. EPA intends to address the issue
of future land use as it relates specifically to RCRA facility cleanups
in subsequent guidance and/or rulemakings.
This guidance is also relevant for Federal Facility sites. Land
use assumptions at sites that are undergoing base closure may be
different than at sites where a Federal agency will be maintaining
control of the facility. Most land management agency sites will remain
in Federal ownership after remedial actions. In these cases, Forest
Land Management Plans and other resource management guidelines may help
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develop reasonable assumptions about future uses of the land. At all
such sites, however, this document can focus the land use consideration
toward appropriate options.2
Background;
Reasonably anticipated future use of the land at NPL sites is an
important consideration in determining the appropriate extent of
remediation. Future use of the land will affect the types of exposures
and the frequency of exposures that may occur to any residual
contamination remaining on the site, which in turn affects the nature
of the remedy chosen. On the other hand, the alternatives selected
through the National Oil and Hazardous Substance Contingency Plan (NCP)
[55 Fed. Reg. 8666, March 8, 1990] process for CERCLA remedy selection
determine the extent to which hazardous constituents remain at the
site, and therefore affect subsequent available land and ground water
uses .
The NCP preamble specifically discusses land use assumptions
regarding the baseline risk assessment. The baseline risk assessment
provides the basis for taking a remedial action at a Superfund site and
supports the development of remedial action objectives. Land use
assumptions affect the exposure pathways that are evaluated in the
baseline risk assessment. Current land
use is critical in determining whether there is a current risk
associated with a Superfund site, and future land use is important in
estimating potential future threats. The results of the risk
assessment aid in determining the degree of remediation necessary to
ensure long-term protection at NPL sites.
EPA has been criticized for too often assuming that future use
will be residential. In many cases, residential use is the least
restricted land use and where human activities are associated with the
greatest potential for exposures. This directive is intended to
facilitate future remedial decisions at NPL sites by outlining a public
process and sources of information which should be considered in
developing reasonable assumptions regarding future land use.
This directive expands on discussions provided in the preamble to
the National Oil and Hazardous Substance Contingency Plan (NCP) ; "Risk
Assessment Guidance for Superfund Vol. I, Human Health Evaluation
Manual" (Part A) (EPA/540/1-89/002, Dec. 1989); "Guidance for
conducting Remedial Investigations and Feasibility Studies Under
CERCLA" (OSWER Directive 9355.3-01, Oct. 1988); and "Role of the
Baseline Risk Assessment in Superfund Remedy Selection Decisions"
2 Federal agency responsibility under CERCLA 120 (h) (3),
which relates to additional clean up which may be required to
allow for unrestricted use of the property is not addressed in
this guidance.
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OSWER 9355.7-04
(OSWER Directive 9355.0-30, April 22, 1991).
This Land Use directive may have the most relevance in situations
where surface soil is the primary exposure pathway. Generally, where
soil contamination is impacting ground water, protection of the ground
water may drive soil cleanup levels. Consideration of future ground
water use for CERCLA sites is not
addressed in this document. There are separate expectations
established for ground water in the NCP rule section 300.430
(a) (1) (iii) (F) that "EPA expects to return usable ground waters to
their beneficial uses, wherever practicable, within a timeframe that is
reasonable given the particular circumstances of the site".
Objective
This directive has two primary objectives. First, this directive
promotes early discussions with local land use planning
authorities, local officials, and the public regarding reasonably
anticipated future uses of the property on which an NPL, site is
located. Second, this directive promotes the use of that information to
formulate realistic assumptions regarding future
land use and clarifies how these assumptions fit in and influence
the baseline risk assessment, the development of alternatives,
and the CERCLA remedy selection process.
Implementation
The approach in this guidance is meant to be considered at current
and future sites in the RI/FS pipeline, to the extent possible. This
directive is not intended to suggest that previous remedy selection
decisions should be re-opened.
Developing Assumptions About Future Land Use
In order to ensure use of realistic assumptions regarding future
land uses at a site, EPA should discuss reasonable anticipated future
uses of the site with local land use planning authorities, local
officials, and the public, as appropriate, as early as possible during
the scoping phase of the RI/FS. EPA should gain an understanding of
the reasonably anticipated future land uses at a particular Superfund
site to perform the risk assessment and select the appropriate remedy.
A visual inspection of the site and its surrounding area is a good
starting point in developing assumptions regarding future land use.
Discussions with the local land use authorities and appropriate
officials should follow. Discussions with the public can be
accomplished through a public meeting and/or other means. By
developing realistic assumptions based on information gathered
from these sources early in the RI/FS process, EPA may develop remedial
alternatives that are consistent with the anticipated
future use.
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The development of assumptions regarding the reasonably
anticipated future land use should not become an extensive, independent
research project. Site managers should use existing information to the
extent possible, much of which will be available from local land use
planning authorities. Sources and types of information that may aid EPA
in determining the reasonably anticipated future land use include, but
are not limited to:
• Current land use
• Zoning laws
• Zoning maps
• Comprehensive community master plans
• Population growth patterns and projections (e.g. ,Bureau of
Census projections)
• Accessibility of site to existing infrastructure
(e.g.,transportation and public utilities)
• Institutional controls currently in place
• Site location in relation to urban, residential, commercial,
industrial, agricultural and recreational areas
• Federal/State land use designation (Federal/State control
over designated lands range from established uses for the
general public, such as national parks or State recreational
areas, to governmental facilities providing extensive site
access restrictions, such as Department of Defense
facilities)
Historical or recent development patterns
Cultural factors (e.g., historical sites Native American
religious sites)
Natural resources information
Potential vulnerability of ground water to contaminants that
might migrate from soil
Environmental justice issues
Location of on-site or nearby wetlands
Proximity of site to a flood plain
Proximity of site to critical habitats of endangered or
threatened species
Geographic and geologic information
Location of Wellhead Protection areas, recharge areas, and
other areas identified in a State' s Comprehensive Ground-
water Protection Program
These types of information should be considered when developing
the assumptions about future land use. Interaction with the public,
which includes all stakeholders affected by the site, should serve to
increase the certainty in the assumptions made regarding future land
use at an NPL site and increase the confidence expectations about
anticipated future land use are, in
fact, reasonable.
For example, future industrial land use is likely to be a
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reasonable assumption where a site is currently used for industrial
purposes, is located in an area where the surroundings zoned for
industrial use, and the comprehensive plan predicts the site will
continue to be used for industrial purposes.
Community Involvement
NPL sites are located in diverse areas of the country, with great
variability in land use planning practices. For some NPL sites, the
future land use of a site may have been carefully considered through
local, public, participatory, planning processes, such as zoning
hearings, master plan approvals or other vehicles. When this is the
case, local residents around the Superfund site are likely to
demonstrate substantial agreement with the local land use planning
authority on the future use of the property. Where there is substantial
agreement among local residents and land use planning agencies, owners
and developers, EPA can rely with a great deal of certainty on the
future land use already anticipated for the site. For other NPL sites,
however, the absence or nature of a local planning process may yield
considerably less certainty about what assumptions regarding future use
are reasonable. In some instances the local residents near the
Superfund site may feel disenfranchised from the local land use
planning and development process. This maybe an especially important
issue where there are concerns regarding environmental justice in the
neighborhood around the NPL site. Consistent with the principle of
fairness, EPA should make an extra effort to reach out to the local
community to establish appropriate future land use assumptions at such
sites.
)tions in the Bat
Future land use assumptions allow the baseline risk assessment and
the feasibility study to focus on the development of practicable and
cost-effective remedial alternatives, leading to site activities which
are consistent with the reasonably anticipated future land use.
The baseline risk assessment generally needs only to consider the
reasonably anticipated future land use; however, it may be valuable to
evaluate risks associated with other land uses. The NCP preamble (55
Fed. Reg. 8710) states that in the baseline risk assessment, more than
one future land use assumption may be considered when decision makers
wish to understand the implications of unexpected exposures. Especially
where there is some uncertainty regarding the anticipated future land
use, it may be useful to compare the potential risks associated with
several land use scenarios to estimate the impact on human health and
the environment should the land use unexpectedly change. The magnitude
of such potential impacts may be an important consideration in
determining whether and how institutional controls should be used to
restrict future uses. If the baseline risk assessment, evaluates a
future use under which exposure is limited, it will not serve the
traditional role, evaluating a "no action" scenario. A remedy, i.e.,
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institutional controls to limit future exposure, will be required to
protect human health and the environment. In addition to analyzing
human health exposure scenarios associated with certain land uses,
ecological exposures may also need to be considered.
Developing Remedial Action Objectives
Remedial action objectives provide the foundation upon which
remedial cleanup alternatives are developed. In general, remedial
action objectives should be developed in order to develop alternatives
that would achieve cleanup levels associated with the reasonably
anticipated future land use over as much of the site as possible. EPA
recognizes, however, that achieving either the reasonably anticipated
land use, or the land use preferred by the community, may not be
practicable across the entire site, or in some cases, at all. For
example, as RI/FS data become available, they may indicate that the
remedial alternatives under consideration for achieving a level of
cleanup consistent with the reasonably anticipated future land use are
not cost-effective nor practicable. If this is the case, the remedial
action objective may be revised which may result in different, more
reasonable land use(s).
EPA's remedy selection expectations described in section
300.430 (a) (1) (iii) of the NCP should also be considered when
developing remedial action objectives. Where practicable, EPA expects
to treat principal threats, to use engineering controls such as
containment for low-level threats, to use institutional controls to
supplement engineering controls, to consider the use of innovative
technology, and to return usable ground waters to beneficial uses to
protect human health and the environment. (Some types of applicable
or relevant and appropriate requirements (ARARs) define protective
cleanup levels which may, in turn, influence post-remediation land use
potential.)
In cases where the future land use is relatively certain,
the remedial action objective generally, should reflect this land use.
Generally, it need not include alternative land use scenarios unless,
as discussed above, it is impracticable, to provide a protective
remedy that allows for that use. A landfill site is an example where
it is highly likely that the future land use will remain unchanged
(i.e., long-term waste management area), given the NCP'S expectation
that treatment of high volumes of waste generally will be impracticable
and the fact that EPA's presumptive remedy for landfills is
containment. In such a case, a remedial action objective could be
established with a very high degree of certainty to reflect the
reasonably anticipated future land use.
In cases where the reasonably anticipated future land use is
highly uncertain, a range of the reasonably likely future land
uses should be considered in developing remedial action objectives.
These likely future land uses can be reflected by developing a range
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of remedial alternatives that will achieve different land use
potentials. The remedy selection process will determine which
alternative is most appropriate for the site and, consequently, the
land use(s) available following remediation.
As discussed in "Role of the Baseline Risk Assessment in Superfund
Remedy Selection Decisions" (OSWER Directive 9355.0-30, April 22,
1991) , EPA has established risk range for carcinogens within which EPA
strives to manage site risks. EPA recognizes that a specific cleanup
level within the acceptable risk range may be associated with more than
one land use (e.g. , an industrial cleanup to 10"6 may also allow for
residential use at a 10 ~4 risk level. ) It is not EPA's intent that the
risk range be partitioned into risk standards based solely on
categories of land use (e.g. , with residential cleanups at the 10"6
level and industrial cleanups at the 10 ~4 risk level.) Rather, the
risk range provides the necessary flexibility to address the technical
and cost limitations, and the performance and risk uncertainties
inherent in all waste remediation efforts.
Land Use Considerations in Remedy Selection
As a result of the comparative analysis of alternatives with
respect to EPA's nine evaluation criteria, EPA selects a site-specific
remedy. The remedy determines the cleanup levels, the volume of
contaminated material to be treated, and the volume of contaminated
material to be contained. Consequently, the remedy selection decision
determines the size of the area that can be returned to productive use
and the particular types of uses that will be possible following
remediation.
The volume and concentration of contaminants left on-site, and
thus the degree of residual risk at a site, will affect future land
use. For example, a remedial alternative may include leaving in place
contaminants in soil at concentrations protective for industrial
exposures, but not protective for residential exposures. In this case,
institutional controls should be used to ensure that industrial use of
the land is maintained and to prevent risks from residential
exposures. Conversely, a remedial alternative may result in no waste
left in place and allow for unrestricted use (e.g. , residential use) .
Results of the Remedy Selection Process
Several potential land use situations could result from
EPA's remedy selection decision. They are:
• The remedy achieves cleanup levels that allow the entire
site to be available for the reasonably anticipated future
land use in the baseline risk assessment (or, where future
land use is uncertain, all uses that could reasonably be
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anticipated).
The remedy achieves cleanup levels that allow most, but not
all, of the site to be available for the reasonably
anticipated future land use. For example, in order to be
cost effective and practicable, the remedy may require
creation of a long-term waste management area for
containment of treatment residuals or low-level waste on a
small portion of the site. The cleanup levels in this
portion of the site might allow for a more restricted land
use.
The remedy achieves cleanup levels that require a more
restricted land use than the reasonably anticipated future
land use for the entire site. This situation occurs when no
remedial alternative that is cost-effective or practicable
will achieve the cleanup levels consistent with the
reasonably anticipated future land use. The site may still
be used for productive purposes, but the use would be more
restricted than the reasonably anticipated future land use.
Furthermore, the more restricted use could be a long-term
waste management area over all or a portion of the site
Institutional Controls
If any remedial alternative developed during the FS will require
a restricted land use in order to be protective, it is essential that
the alternative include components that will ensure that it remain
protective. In particular, institutional controls will generally have
to be included in the alternative to prevent an unanticipated change
in land use that could result in unacceptable exposures to residual
contamination, or, at a minimum, alert future users to the residual
risks and monitor for any changes in use. In such cases, institutional
controls will play a key role in ensuring long-term protectiveness and
should be evaluated and implemented with the same degree of care as is
given to other elements of the remedy. In developing remedial
alternatives that include institutional controls, EPA should
determine: the type of institutional control to be used, the existence
of the authority to implement the institutional control, and the
appropriate entity's resolve and ability to implement the
institutional control. An alternative may anticipate two or more
options for establishing institutional controls, but should fully
evaluate all such options. A variety of institutional controls may be
used such as deed restrictions and deed notices, and adoption of land
use controls by a local government. These controls either prohibit
certain kinds of site uses or, at a minimum, notify potential owners
or land users of the presence of hazardous substances remaining on
site at levels that are not protective for all uses. Where exposure
must be limited to assure protectiveness, a deed notice alone
generally will not provide a sufficiently protective remedy. While
the ROD need not always specify the precise type of control to be
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imposed, sufficient analysis should be shown in the FS and ROD to
support a conclusion that effective implementation of institutional
controls can reasonably be expected.
Suppose, for example, that a selected remedy will be protective
for industrial land use and low levels of hazardous substances will
remain on site. An industry may still be able to operate its business
with the selected remedy in place. Institutional controls, however,
generally will need to be established to ensure the land is not used
for other, less restricted purposes, such as residential use, or to
alert potential buyers of any remaining contamination.
Future Changes in Land Use
Where waste is left on-site at levels that would require limited
use and restricted exposure, EPA will conduct reviews at least every
five years to monitor the site for any changes. Such reviews should
analyze the implementation and effectiveness of institutional controls
with the same degree of care as other parts of the remedy. Should
land use change, it will be necessary to evaluate the implications of
that change for the selected remedy, and whether the remedy remains
protective. EPA's role in any subsequent additional cleanup will be
determined on a site-specific basis. If landowners or others decide
at a future date to change the land use in such a way that makes
further cleanup necessary to ensure protectiveness, CERCLA does not
prevent them from conducting such a cleanup as long as protectiveness
of the remedy is not compromised. (EPA may invoke CERCLA section
122 (e) (6), if necessary, to prevent actions that are inconsistent
with the original remedy.) In general, EPA would not expect to become
involved actively in the conduct or oversight of such cleanups. EPA,
however, retains its authority to take further response action where
necessary to ensure protectiveness.
Further Information
If you have any questions concerning this directive, please
call Sherri Clark at 703-603-9043.
NOTICE: The policies set put in this memorandum are intended solely as
guidance. They are not intended, nor can they be relied upon, to
create any rights enforceable by any party in litigation with the
United States. EPA officials may decide to follow the guidance
provided in this memorandum, or to act at variance with the guidance,
based on an analysis of specific site circumstances. Remedy selection
decisions are made and justified on a case-specific basis. The Agency
also reserves the right to change this guidance at any time without
public notice.
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