Title:
Introduction
Text: Land Use Control (LUC) policies, regulations, and procedures have evolved considerably in recent years. The purpose of this Web tool is to help familiarize Remedial Project Managers (RPMs) with Department of Navy (DON) LUC implementation policies and procedures.
A Web-based management tool called LUC Tracker is also introduced that allows RPMs to effectively manage and track LUCs at their sites.
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Title:
Types of LUCs
Text: LUCs are engineered or physical controls and/or administrative or legal mechanisms designed to protect public health and the environment from residual contamination at environmental sites. LUCs are implemented when a site cannot support unrestricted use or unlimited exposure. LUCs can be divided into two categories:
Engineering Controls (ECs)
Institutional Controls (ICs).
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Title:
Engineering Controls
Text: Engineering Controls (ECs) consist of engineering measures designed to minimize the potential for human exposure to contamination by limiting direct contact with contaminated areas, reducing contamination levels, or controlling migration of contaminants through environmental media. Some examples of ECs include:
Fences
Signs
Guards
Landfill caps
Slurry walls
Hydraulic control of groundwater.
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Title:
Institutional Controls
Text: Institutional Controls (ICs) are non-engineered instruments such as administrative and/or legal controls that are designed to minimize the potential for human exposure to contamination by limiting land or resource use and/or by providing information to help modify or guide human behavior at the site. Some examples of ICs include:
Easements and restrictive covenants
Consent decrees
Notices/advisories
Zoning
Dig Permits
Educational materials
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Title:
Institutional Control Categories
Text: There are four categories of ICs including governmental controls, proprietary controls, enforcement and permit tools, and informational devices.
Click on the categories in the table for more information.
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Title:
Governmental Controls
Text: Governmental Controls
State or local governments usually implement and enforce government controls. Examples of government controls include zoning restrictions, local ordinances or permits (i.e., building codes or drilling permit requirements), groundwater use restrictions, or property condemnation (government taking over a property to ensure that it is not used).
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Title:
Proprietary Controls
Text: Proprietary Controls
Proprietary controls generally create legal property interests that restrict or affect the use of property, relying on legal instruments placed in the chain of title for the property. The following are examples of proprietary controls:
Easements - An easement allows a non-landowner to access a property or to impose land-use limits.
Deed Restrictions - A deed restriction prevents the property from certain uses.
Reversionary Interests - When property is transferred to another individual/party, the deed states that the property will be transferred back to the original owner under certain conditions.
State Use Restrictions - State statutes may provide owners of contaminated property with the authority to establish use restrictions.
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Title:
Enforcement and Permit Tools
Text: Enforcement and Permit Tools
Federal and private site use can be limited by issuing an enforcement agreement or permit condition under Sections 104 and 106(a) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Examples of enforcement and permit tools include permits, administrative orders, and consent decrees. When a property is transferred to a new owner, the enforcement agreement or permit condition should be transferred with the property (i.e. run with the land.)
Long-term enforcement of ICs should be considered when selecting a site remedy. In order to address this issue, the enforcement tool could require United States Environmental Protection Agency (U.S. EPA) or state notification upon property transfer or the possible implementation of multiple ICs.
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Title:
Informational Devices
Text: Informational Devices
Informational devices provide information about site risks and are not legally enforceable. Examples of informational devices include:
Deed notices - filed in public land records to provide alerts concerning potential health risks from contamination left at a site.
State registries of hazardous waste sites - contain information about contaminated properties.
Advisories/Signs - warnings to the public of potential risks associated with using contaminated land, surface water, or groundwater.
Informational devices will most likely be used as secondary ICs layered with another type of IC.
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Title:
Land Use Control Layering
Text: LUC layering involves the use of multiple ECs or ICs either at the same time (i.e. simultaneously) or one after another (i.e. in series) in order to enhance the effectiveness of the remedy.
LUCs implemented in series may be utilized to address short- and long-term remediation goals at different times during the cleanup process. For example, to restrict land use, the site manager may issue an enforcement tool (Administrative Order); obtain an easement; initiate discussions with local governments about a potential zoning change; and enhance future awareness of the restrictions by recording them in a deed notice and in a state registry of contaminated sites.
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Title:
DON/U.S. EPA LUC Principles
Text: In 2003, the U.S. EPA and the DON developed a set of guidelines to assist in implementing LUCs at National Priorities List (NPL) sites. The guidelines were established to provide a more efficient process and do not replace any CERCLA statutory or regulatory requirements. The U.S. EPA and DON agree that the most efficient way to specify, implement, monitor, report, and enforce LUCs includes:
A standard Federal Facilities Agreement (FFA) for NPL sites;
A clear, concise Record of Decision (ROD), which states the LUC objectives;
Establishment of LUC implementation actions in a Remedial Design (RD) or Remedial Action Work Plan (RAWP).
This approach is documented in the Principles and Procedures for Specifying, Monitoring, and Enforcement of Land Use Controls and Other Post-ROD Actions (DoD/Navy, 2003). Also, click here to view the final agreement.
The DON/EPA LUC Principles were developed and approved only within the context of the CERCLA framework. However, DON intends for the Principles to be applied to RCRA Corrective Action programs and state RCRA programs to the maximum extent practicable. DON recognizes that RCRA and CERCLA phases, milestones and documentation requirements are not identical, but they are very similar and, therefore, the functional requirements of the Principles can be reasonably applied to RCRA programs.
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Title:
Roles, Efficiency, and Cost-Effectiveness
Text: DON acknowledges that the role of the U.S. EPA is to regulate and oversee enforcement at NPL sites. The U.S. EPA should coordinate with the state regulatory agencies as early in the Remedial Investigation/Feasibility Study (RI/FS) or RCRA Facility Investigation/Corrective Measure Study (RFI/CMS) process as possible.
The U.S. EPA acknowledges that the DON is the Federal lead agent for response actions at the site, but U.S. EPA maintains ultimate authority to select the remedy if all parties do not agree with the DON’s proposed remedy. It is necessary to work together to reach the most environmentally protective and cost-effective solution.
Both the U.S. EPA and DON desire that LUCs are specified, implemented, monitored, reported on, and enforced efficiently and cost-effectively to ensure long-term protectiveness of the environment. Given equal protectiveness, the most cost-effective remedy will be selected.
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Title:
Federal Facilities Agreements (FFAs)
Text: FFAs are the CERCLA Section 120 agreements that describe the roles and relationships between the U.S. EPA, DON, and any other state or local authority regarding response actions at NPL sites. FFAs also contain details for planning, budgeting, and dispute resolution.
FFAs will contain installation-specific data; however, each FFA should follow a standard format and include the Model language agreed to by DoD and U.S. EPA.
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Title:
Screening LUCs in FS/CMS (1 of 2)
Text: LUCs should be considered at any site with a remedy that does not allow for unrestricted land use. LUCs should be evaluated using the same criteria as any other remedial option. Before implementing LUCs as part of a remedial strategy, several criteria should be evaluated to determine their applicability and implementability. These criteria include the LUC objective, mechanism for meeting objectives, time required to implement LUCs, and responsibility to ensure LUCs remain in place. Click on the items in the table for more information about each determination.
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Title:
Text: Objective
The objective should clearly state what is expected to be accomplished by implementing the LUCs.
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Title:
Text: Mechanism
The mechanism or specific types of LUCs that will accomplish the stated objective should be identified.
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Title:
Text: Timing
The timeframe necessary for LUC implementation should be determined.
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Title:
Text: Responsibility
A determination of parties that will be responsible for implementing, monitoring, and enforcing LUCs should be made.
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Title:
Evaluating LUCs in FS/CMS (2 of 2)
Text: Once considerations have been given to the objectives, mechanism, timing, and responsibilities, an evaluation of the LUC as part of the remedy can be conducted. The National Contingency Plan (NCP) remedy selection criteria fall into three groups which include threshold, balancing, and modifying criteria. For more details about each of these evaluation criteria groups, click on the item in the table.
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Title:
Text: Threshold Criteria:
Overall protection of human health and the environment
Compliance with Applicable or Relevant and Appropriate Requirements (ARARs)
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Title:
Text: Balancing Criteria:
Long-Term Effectiveness
Reduction of Toxicity, Mobility, or Volume
Short-Term Effectiveness
Implementability
Cost
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Title:
Text: Modifying Criteria:
State acceptance
Community acceptance
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Title:
Records of Decisions (RODs) (1 of 2)
Text: Once the U.S. EPA and the DON have agreed that LUCs will be part of the selected remedy for a site, the ROD can be prepared. The ROD should document the remedy selection process and the decision with respect to which guidance, regulations, standards, criteria and policy were followed. Risk exposure assumptions along with LUC descriptions and a description of the LUC objectives should also be discussed in the ROD.
Additional items that are required in the ROD are specification of the locations where LUCs will be necessary, identification of who will be responsible for implementing, monitoring, reporting on, and enforcing the LUCs, and determination of how long the LUCs will be implemented.
As an example, click here to view the ROD for LUCs at Sites 8 and 10 Long Beach Naval Complex.
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Title:
LUC Objectives (2 of 2)
Text: The ROD should document the LUC objectives. The LUC objectives should describe who is responsible for implementing the LUCs, the LUCs purpose, and where they will be implemented. How the LUCs will be implemented including monitoring, reporting, and enforcing will be defined in more detail later in the RD/RAWP. Some examples of LUC objectives include the following:
Ensure no residential use or residential development of the property.
Ensure no withdrawal and/or use of groundwater.
Ensure no excavation of soils without a use permit and special handling procedures.
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Title:
Remedial Design and Remedial Action Work Plan
Text: The RD/RAWP describes the implementation, operation, maintenance, and enforcement actions for LUCs. Periodic inspections of LUCs are established in the RD/RAWP.
Implementation actions are outlined including periodic monitoring or visual inspections, notifying regulators of any changes at the site or of LUC failures, and providing a map of the site where LUCs are to be implemented. The use of software such as LUC Tracker can be mentioned in the RD/RAWP for long term oversight of LUCs.
Other than the RD/RAWP, no additional documentation is needed for the design and implementation of LUCs. Therefore, it is not necessary to develop LUC Implementation Plans (LUCIPs) or LUC Assurance Plans (LUCAPs).
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Title:
Property Transfer Issues
Text: When property is to be transferred to a non-federal entity, the RPM, real estate manager, and legal counsel need to ensure that the LUCs are practiced and legally enforceable under state law.
DON has the authority to impose restrictions on the transferee's use of the property, and these restrictions are to remain viable and honored by all subsequent owners. In these cases, the ROD should state the responsibilities of the new owner and state-specific laws regarding LUCs. DON and U.S. EPA are responsible for determining enforcement actions should there be a failure of a LUC objective at a transferred property. Any state oversight costs will be paid by the new owner.
Site boundaries and conditions, and terms and limitations of LUCs must be described in the Findings of Suitability to Transfer (FOSTs) and recorded on the deed. All restrictive deeds will require that subsequent owners report viability of site LUCs to the DON annually.
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Title:
Implementation Failure
Text: If a failure to meet LUC objectives on an active installation as outlined in the ROD has been identified, the DON RPM and installation personnel will notify the U.S. EPA Region and work together to take the appropriate actions.
An example LUC implementation failure is shown here. In this hypothetical case, the LUC Objective is to prevent a subsurface disturbance or construction on the property. However, the LUC failed to prevent excavation activities from occurring. LUC implementation failures can be serious, as in this example where the potential for contact with contaminants in the soil may occur.
Should there continue to be a failure to meet the objective, the U.S. EPA may notify the Deputy Assistant Secretary of the Navy (Environment), who will ensure that appropriate action is taken. The U.S. EPA and DON will consult on the enforcement action if there is a failure by a subsequent owner or third party at a transferred property.
A LUC violation is less severe than a failure and should be remedied at the RPM or installation level. Examples of LUC violations might be a missed reporting deadline or not conducting a scheduled LUC inspection. LUC violations typically do not present potential endangerment, but should be avoided and remedied as soon as possible.
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Title:
LUC Tracker (1 of 3)
Text: Once LUCs have been implemented, they require periodic monitoring and other activities to ensure that LUC objectives are being met. The DON wants to ensure that all LUC data from Navy installations are managed effectively. To help accomplish this goal, NAVFAC has developed a tool called the “LUC Tracker.”
LUC Tracker is a Web-based management tool that operates as part of the Naval Installation Restoration Information Solution (NIRIS) to allow RPMs and other personnel to effectively manage their LUCs. The LUC Tracker provides Web-based access for entry, storage, and management of all installation LUC data in a database. LUC Tracker will be made available to all RPMs when NIRIS is fully deployed.
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Title:
LUC Tracker (2 of 3)
Text: LUC Tracker allows the user to complete the following tasks:
Create/enter new LUCs
Review existing LUCs
Access inspection templates and maps
Enter inspection results and create inspection reports
Document and track deficiencies noted to corrective actions taken
Notify appropriate parties of non-compliance
Certify compliance and access applicable forms.
LUC Tracker will also track and can be queried for such things as inspection results, types and frequencies of violations, contaminants driving LUCs, and much more. Queries can be conducted Field Engineering Command (FEC)- or Navy-wide depending on the user's access restrictions.
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Title:
LUC Tracker (3 of 3)
Text: LUC Tracker also contains applications that will automatically send reminders to pre-selected parties of upcoming inspection, reporting, and certification requirements and provide the necessary forms and reports to fulfill the requirements. If a LUC violation has occurred, the appropriate parties can automatically be notified via e-mail using the LUC Tracker.
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Title:
Summary
Text: DON RPMs should be familiar with the latest LUC principles, including the DON and regulatory roles, screening and evaluation process, ROD process, property transfer process, and other factors associated with LUCs. RPMs should also be aware of the availability of the NAVFAC LUC Tracker application for managing LUCs. Links to several policies, directives, and guidance documents are provided for more information about implementing and managing LUCs.
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Title:
Contact
Text: For more information about LUCs, please contact:
NFESC POC
(805) 982-1656
PRTH_NFESCT2@navy.mil
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