Risk-Based Cleanup Objectives, Land Use, and Transportation

Abstract

Land use has always been a factor in developing site-specific cleanup objectives for contaminated property. However, land use is taking on major new significance in the “brownfield” legislation being enacted in a growing number of states. Under this method, a tiered approach is used to analyze the risk posed by contaminants and to derive cleanup objectives based on that risk. By many accounts on the leading edge of the brownfield movement, the Illinois Environmental Protection Agency (IEPA) is going so far as to propose a tiered approach to cleanup objectives (TACO) generally across its land pollution programs. TACO relies heavily on restricting land use to obtain less stringent cleanup objectives, and it is this aspect of TACO that represents both an opportunity and a challenge to Illinois transportation agencies and the shape of things to come nationally. The opportunity lies in much lower cleanup costs that these agencies will incur in dealing with contamination in their own yards and rights-of-way. The challenge lies in considering requests from property owners adjoining the rights-of-way for land use restrictions on the rights-of-way, in dealing with land use restrictions on property acquired through eminent domain, and in processing land use restrictions that will be imposed for IEPA’s own cleanups.