LEGAL AND POLICY IMPLICATIONS OF RISK ASSESSMENT INSTITUTIONAL CONTROLS AND THE CHALLENGE OF LONGTER

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LEGAL AND POLICY IMPLICATIONS OF RISK ASSESSMENT
INSTITUTIONAL CONTROLS AND THE CHALLENGE OF
LONG-TERM STEWARDSHIPSally Legg, PhD Student
CRC CARE
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Thesis Proposition
Changes in the scientific approach to the
assessment of contaminated sites, in particular
to focus on a site-based approach, have triggered
the need for new and unique legal and policy
measures to ensure long-term management of
partially remediated sites and to address the
issues of residual liability and sustainability.
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Thesis Structure

• Part 1 The Concept of Risk Assessment and its
  Application in Contaminated Sites Law and Policy
• Chapter 1 - Scientific Basis of Risk Assessment
• Chapter 2 Development of Guidelines for the
  Assessment of Contaminated Sites in Australia
• Chapter 3 Emergence of Site-based Risk
  Assessment and the Trend to In-Situ Retention

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Thesis Structure

• Part 2 Legal and Policy Issues
• Chapter 4 Nature and Effect of ICs The
  United States Experience
• Chapter 5 The Experience of other Overseas
  Jurisdictions re ICs
• Chapter 6 ICs The Australian Experience
• Chapter 7 Residual Liability Finality
  issue
• Chapter 8 Sustainability concepts
  Precaution, Intergenerational Equity and
  Public Participation

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Role and Purpose of ICs

• Emerging Trends
• From Risk Reduction to Risk Avoidance
• In-situ retention
• Voluntary Cleanup of Brownfields
• Need for ICs and Long Term Stewardship

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Definitions What are ICs

• ICs are legal controls that prevent the public
  from being exposed to unhealthy concentrations of
  contaminants
• ICs are often used to supplement engineering
  controls
• Examples
• Proprietary Controls (eg. Environmental
  covenants, restrictive covenants and negative
  easements)
• Government Controls (eg. Zoning, Ordinances and
  Permits)
• Information Devices
• Agency Issued Enforcement Orders or Agreements
  

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US Site Contamination Laws

• US Federal Legislation
• 1976 - Resource Conservation and Recovery Act
  (RCRA)
• 1980 - Comprehensive Environmental Response,
  Compensation, and Liability Act (CERLCA)
• CERCLA Background
• 1978 Love Canal Disaster

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US Site Contamination Laws CERCLA

• Scope and Objectives
• 1. Specify who was liable for Cleaning up
  hazardous waste sites and provide a mechanism for
  cleaning up abandoned sites for which no
  responsible party can be found.
• 2. Remedial program to regulate results of past
  activities rather than control on-going behavior.
  

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US Site Contamination Laws RCRA

• Scope and Objectives
• 1. Minimize Future Pollution resulting from
  solid waste landfills
• 2. Incentive to Manufacturers, transporters and
  users of the products and materials to
  effectively self regulate and reduce the quantity
  of these materials.

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Emergence of the Brownfields Movement

• 1993 Brownfields Initiative
• 2002 Small Business Liability Relief and
  Brownfields Revitalization Act

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2002 Brownfields Act

• Scope and Objectives
• 1. To promote Brownfields Redevelopment through
  federal funding, liability relief, and assistance
  in the development of State Voluntary Cleanup
  programs
• 2. To provide relief from liability at Superfund
  National Priority List (NPL) sites in certain
  circumstances

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Recognition of the Need for Institutional
Controls

• No specific guidance under CERLCA or RCRA
• Enforceability and stakeholder awareness issues
• Long-Term Stewardship Challenges

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Form of ICs - Uniform Environmental Covenants Act

• Purpose
• Legal infrastructure for creating, changing, and
  enforcing institutional controls
• To be seen as but one tool!
• Criticisms
• Creation and enforcement especially the issue
  of third party citizen suits
• Interference with local zoning
• Reliance on state property law interest

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Wider Policy Issues

• Long Term Stewardship Challenges
• Long Term Stewardship Task Force 2004
• Six Broad areas of concern
• Roles and Responsibilities
• Institutional Controls
• Engineering Controls
• Costing
• Funding and Resources
• Resources and Information Management

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Lessons Learned

• Lessons from the United States Experience
• Clearly ICs have an important role to play in
  returning contaminated sites to use
• Forms of ICs advantages to a uniform approach
• Implications for Australia too early to tell

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Where to next

• Next stages of research involve
• Consideration of the use of ICs/Long-Term
  stewardship in other overseas jurisdictions
  (Canada, Europe and the United Kingdom)
• In depth review of current approaches in
  Australia
• Discussion on matters surrounding the issue of
  residual liability
• The relevance of sustainability concepts such as
  precaution, intergenerational equity and public
  participation