The Guardian Trust

http://www.dep.state.pa.us/dep/deputate/airwaste/wm/landrecy/guardian.html

	Search Subjects

Background

The Pennsylvania Department of Environmental Protection's (DEP) Land Recycling Program is leading the way in land recycling innovation and progress. One of the Land Recycling Program's goals is to determine a means to ensure the effectiveness of engineering controls (ECs) and institutional controls (ICs) at brownfield and other contaminated sites throughout the Commonwealth. These controls are engineering and non-engineering measures intended to affect human activities in such a way as to prevent or reduce exposure to hazardous substances.

Description

The Guardian Trust is a proposed program for the stewardship of institutional and engineering controls. The program proposes to privatize post-remediation obligations that result from risk-based cleanups under federal and state statutes and would assure that institutional and engineering controls are maintained after a cleanup has been completed and approved by DEP or another environmental agency. The Guardian Trust proposes to perform many of its duties through the establishment of a direct property interest in a remediated site granted by the current property owner. The Guardian Trust would establish a menu of services that includes inspecting, monitoring and reporting of ICs and ECs, tracking land use records to assure that deed restrictions are included as part of property transfers, and assuming responsibility for operating engineering controls such as groundwater pump and treat systems.

The Guardian Trust Pilot Study

In Spring 2001, MGP Environmental Partners LLC (MGP) received funding from DEP and EPA to conduct a pilot study of the viability of The Guardian Trust. In the pilot study, MGP and an advisory committee comprised of representatives from DEP, EPA (RCRA and CERCLA programs from Region III and EPA Headquarters), California and Maryland environmental protection agencies, and the Department of the Navy studied the feasibility of utilizing a not-for-profit trust mechanism for the long-term stewardship of institutional and engineering controls. The Guardian Trust Pilot Study was completed in February 2002.

The findings of the Guardian Trust Pilot Study are as follows:

• Institutional and engineering controls are widely accepted and important components of risk-based remedial strategies.
• The effectiveness of any risk-based cleanup depends upon the long-term stewardship of the remedy including all institutional and engineering controls.
• The past, current and future land use of a remediated site informs both the extent to which ICs and ECs are appropriate and the long-term obligations necessary to assure the protectiveness of the site.
• Federal and state environmental laws authorize the use of risk-based cleanups that include ICs and ECs. The ability of the government to assure the long-term maintenance of ICs and ECs depends upon the statutory and regulatory regime applicable to the cleanup.
• There are significant gaps in legal authority to require the long-term maintenance of ICs and ECs. The ability of the government to enforce the long-term maintenance of ICs and ECs varies depending on the statutory and regulatory regime applicable to the cleanup.
• Significant limitations in legal authority to require the long-term maintenance of ICs and ECs and lack of coordinated oversight are likely to be exacerbated over time at sites with risk-based remedies, particularly when these sites are subdivided or transferred.
• There is a need for The Guardian Trust to act as a long-term steward to assure that remediated sites continue to meet risk-based cleanup levels.
• The Guardian Trust could offer, for a fee, services that include inspections of sites and land use records; monitoring of sites, land use changes and building permits; reporting to prescribed stakeholders; financial assurance; developing a database and comprehensive information system to properly track the status of ICs and ECs and disseminating information accordingly; providing training programs for local governments and other stakeholders; developing information relevant to the status of ICs and ECs for public distribution and outreach; and assuring the maintenance and protectiveness of an environmental remedy by enforcing land use rights.
• The Guardian Trust, with this broad array of services will meet the needs of environmental agencies, remediators, landowners, financial institutions, local governments, land planning agencies, and the public.
• The combination of services offered by The Guardian Trust are not now offered by any single entity and cannot be provided by environmental consultants or insurance companies alone.
• The Guardian Trust cannot be implemented without additional funding, resources and support from the public and private sectors.

The results of the Pilot Study show that The Guardian Trust can provide important services to governmental agencies, environmental regulatory agencies, local governments and private party remediators in assuring the long-term care of sites remediated under federal and state law to cleanup standards developed on the basis of risk. The U.S. Department of the Navy and other military branches also are interested in this program and private sector interest is high as well.

Most of the obligations associated with institutional and engineering controls are long-term; therefore, the fees associated with retaining The Guardian Trust to perform these tasks would provide a pool of resources and, with a critical number of sites utilizing The Guardian Trust, the value of the funds held in the Trust would be sufficient for The Guardian Trust to perform its obligations. Thus, it would not be necessary for DEP or other environmental agencies to "fund" The Guardian Trust in the future. The Guardian Trust expects to be financially self-sufficient once the implementation process is completed and environmental agencies and others would simply be hiring The Guardian Trust to perform services.

For Powerpoint slide show, see:

www.brownfields2001.org/proceedings/MH-03-03.pdf