OSWER Directive No. 9355.7-04
MEMORANDUM
SUBJECT: Land Use in the CERCLA Remedy Selection Process
FROM: Elliott P. Laws
Assistant Administrator
TO : 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 decisionmaking 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:
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• 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
(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.
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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 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.1
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.
1 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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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" (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."
Obj ective
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 reasonably
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.
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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.
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 floodplain
• 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
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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
reasonable assumption where a site is currently used for
industrial purposes, is located in an area where the surroundings
are 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 may be 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.
Land Use Assumptions in the Baseline Risk Assessment
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
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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. 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.)
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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 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 a 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
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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 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 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
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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 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
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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 out 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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