Last week, the Global Alliance on Health and Pollution (“GAHP”) released a report examining laws governing the remediation of contaminated properties in seven Latin America countries, as well as the United States, and identifying best practices. The report, entitled “Regulatory Best Practices for Remediation of Legacy Toxic Contamination,” was produced by the Cyrus R. Vance Center for International Justice. The Blacksmith Institute, a nonprofit focused on global toxic pollution issues which serves as the secretariat for the GAHP, also assisted in the production of the report.
SPR attorneys Jeff Gracer and Devin McDougall served as United States Coordinating Counsel for the report.
The six recommendations identified in the report are:
1. Create clear numeric guidelines for establishing whether a site is contaminated. Although contaminated sites are often defined as sites where pollution is present at levels that may present a threat to human health and the environment, it is useful to enact regulations that specifically define what those levels are, so that sites can be readily identified as candidates for further investigation and remediation.
2. Use commercial events to identify contaminated sites. Evaluation of historic contamination can be required when project proponents are applying for permits, and when industrial facilities are being bought and sold or decommissioned. These triggers will result in the identification of contaminated sites at a time when funding for investigation and remediation is most likely to be available.
3. Create incentives for voluntary remediation. Laws and regulations should make it easy for private parties to come forward on a voluntary basis to address legacy contamination. These incentives can include resolution of existing liability for site owners, liability exemptions for prospective purchasers, tax exemptions and tax credits, remediation funding grants, and other governmental incentives.
4. Create a clear and efficient remediation process. One of the most significant barriers to environmental cleanup is the uncertainty surrounding applicable cleanup standards, the complexity of the process, and the involvement of multiple governmental agencies with overlapping jurisdiction. Experience has shown that published cleanup standards, a simple process for engagement with the government, and clear delineations of which agency has jurisdiction over a particular cleanup will encourage increased private sector participation.
5. Provide meaningful opportunities for public review and comment. Environmental remediation regulations and practices often benefit from input from members of the business community who will be called upon to effectuate cleanups and also by members of communities who live in close proximity to contaminated sites. Site remediation plans may also be more pragmatic and tailored to actual risk if they are subject to prior public review and comment.
6. Develop effective mechanisms to address abandoned sites. Sites that are not subject to commercial activity or voluntary remediation can be the most troublesome from a governmental perspective. Governments should consider creating a registry of such sites so that they can be identified for investigation and evaluated as candidates for future remediation. Sites should be prioritized for clean-up based on a clear methodology established by the government to address those that pose the greatest risk first. Government funding can be made available to remediate such sites through a combination of lawsuits against former owners and operators or, if no responsible party can be reached, through other mechanism for funding in appropriate cases. Future “orphan” sites can be avoided by requiring environmentally sensitive operations to purchase environmental insurance policies.
For more information about the development of remediation policies in Latin America, please contact Jeff Gracer.