LENNY'S TESTIMONY - SEN. ENVIRO CTE

[Lenny Siegel <lsiegel@igc.org>]

The following is the written version of my testimony before the 
Superfund Subcommittee of the Senate Enviroment Committee last 
week. I hope that other participants in the newsgroup will feel free 
to post other testimony before public bodies, as well to offer 
comments on my own statements.

Lenny Siegel

THIS IS A LONG FILE!!!

STATEMENT OF LENNY SIEGEL BEFORE THE U.S. SENATE 
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

WASHINGTON, DC - MAY 9, 1995

 My name is Lenny Siegel and I am a neighbor of Moffett 
Field, California. Through my position at San Francisco State 
University, I work with community groups, across the country, 
concerned about the impact of military hazardous waste 
contamination on the health of their families, the integrity of their 
natural environment, and particularly where bases are closing or 
downsizing, their economic future.

 Six years ago, when I first examined the progress of cleanup 
at federal facilities, I found a gridlock of competing goals and 
widespread mistrust. Though there is room for improvement, now 
the polluting agencies, regulators, and other stakeholders are more 
often than not working together toward a common objective, 
environmental restoration. Unfortunately, today that cooperation is 
threatened by the hesitancy of the federal government to meet 
obligations that it incurred when it released hazardous substances 
into the environment.

 Instead of slashing cleanup budgets and gutting 
environmental statutes, Congress can support efforts already 
underway to make cleanup better, faster, cheaper, and safer. Here 
are nine of the most important statements that Congress can make 
regarding the cleanup of federal facilities. As I see it, the cleanup 
challenge at Defense facilities does not require an overhaul of 
federal legislation governing the cleanup of hazardous waste.

1. Provide stable funding for environmental restoration.
2. Strengthen local advisory boards to oversee federal cleanup.
3. Direct federal agencies to adopt open, flexible systems for 
allocating insufficient cleanup budgets.
4. Maintain reasonable cleanup standards.
5. Encourage streamlined oversight focused on real-world results, 
not deliverable documents.
6. Lead regulatory authority should be transferred to state agencies 
only when they can demonstrate the will and the capacity to do the 
job.
7. Treat munitions impact ranges as hazardous waste sites.
8. Don't let "non-stockpile" chemical munitions leak through 
bureaucratic cracks.
9. Drain, contain, and neutralize chemical munitions, instead of 
building incinerators, and use the savings for cleanup.

1. Provide stable funding for environmental restoration.

 Congress should establish a mechanism to assure the public 
and our state governments that the federal government is prepared 
to meet its environmental obligations. One such approach would be 
the Defense Department's proposal to annualize the cost of cleanup. 
That is, estimate the long-term cost of cleanup. Set a goal for 
program completion, for both active and closing bases. And provide 
steady budgets to meet those goals. 

 In the current fiscal climate, I expect cleanup programs to 
absorb their fair share of budget cutbacks, but recent, 
disproportionately large reductions suggest that Congress thinks the 
Federal government is above the law. In my community, in Silicon 
Valley, there are nearly thirty privately owned facilities on the 
"Superfund" National Priorities List. It would be extremely difficult 
to force responsible parties at those properties to meet their 
obligations if the Navy, which shares a massive underground plume 
of trichloroethylene with three of those sites, refused to pay for its 
own cleanup, because of Congressional budget decisions,.

 The notion that the federal agencies should escape 
environmental obligations is already undermining the military's 
central mission. In many parts of the country, communities are 
opposing the expansion of training areas because the government 
does not appear willing to take responsibility for environmental 
damage extant at current ranges.

2. Strengthen local advisory boards to oversee federal cleanup.

 As a member of the Federal Facilities Environmental 
Restoration Dialogue Committee, I have been one of the principal 
advocates of increased stakeholder involvement in federal facilities 
cleanup, through the formation and empowerment of site-specific 
advisory boards. I am pleased that both the Defense and Energy 
Departments are aggressively implementing those 
recommendations. 

 I am most familiar with the Defense Department's 
Restoration Advisory Boards (RABs). At the vast majority of 
military installations where they have been formed, RABs have 
been an enormous success. Communities, long ignored by the 
armed services, are pleased to have increased access to information 
and channels for influencing decisions that affect their lives. 
Military officials, in turn, are surprised that most of their 
community critics are taking a constructive attitude. Perhaps most 
important, at many locations the sunshine cast by public 
participation is making it possible for regulatory agencies and the 
polluter to work as partners, not as potential courtroom adversaries.

 To be constructive, however, stakeholder involvement must 
be well informed. Last year Congress authorized funding for 
training and technical assistance for the community members of 
Restoration Advisory Boards, but that support has not yet 
materialized. I believe that the Defense Department needs at the 
very least a gentle push, or perhaps clarifying language, to expedite 
that assistance. I know from my experience with an EPA-fund 
independent technical consultant at Moffett Field that communities 
are more willing to consider innovative, cost-saving approaches to 
cleanup when they have access to their own trusted technical 
advisors.

3. Direct federal agencies to adopt open, flexible systems for 
allocating insufficient cleanup budgets.

 How can federal agencies meet cleanup obligations on 
limited budgets? They should not eliminate urgent projects essential 
to protecting public health and the environment. They should not 
ignore hazards as they spread - and become more costly to 
remediate. But they can establish systems for focusing funds where 
they are needed most, delaying - not abandoning - lower priority 
activities. To meet budgetary goals yet retain public confidence, 
priority-setting systems should be based upon the following 
principles. None of these requires statutory change.

* Under the "Polluter pays" principle, the agency responsible 
for contamination should fund cleanup and set priorities within its 
own budget.
* Regulatory agencies and public stakeholders should play 
key roles in establishing funding priorities.
* To earn the support of people threatened by cleanup delays, 
Congress should promise stable cleanup funding within each 
agency.
* Instead of ranking the relative risk of sites, government 
agencies and outside stakeholders should evaluate the risk reduction 
effectiveness of proposed activities.
* Socioeconomic and cultural goals, sound management 
practices, and other factors - not just "risk" - should always be 
considered as part of a comprehensive priority-setting system.

4. Maintain reasonable cleanup standards.

 In some communities, either the armed services or 
development interests consider existing cleanup standards to be a 
barrier to reuse of contaminated property such as closing military 
bases or urban "brownfields." Nationally, key members of both 
Congress and the administration have suggested that current 
cleanup goals are too costly. They have proposed that restoration 
standards be based upon the intended reuse of the property. If 
facilities or land are expected to be used as airports or factories, 
they say cleanup should be incomplete. 

 Current law already takes future property use into account in 
establishing cleanup standards. Taking it further would perpetuate 
pollution. In fact, weak cleanup standards not only threaten public 
health and the environment, but they are a barrier to conversion: 

* First, contamination at industrial sites may migrate, through 
the air, surface water, or groundwater, to adjacent areas. It's much 
easier to control such contamination early, before it spreads. 
Current law calls for the establishment of soil cleanup standards by 
conducting risk assessments based upon reuse, but groundwater 
standards are generally based upon drinking water pathways, which 
have nothing to do with reuse. Since groundwater standards, not 
soil standards, generally govern the extent of cleanup, it is not wise 
to seek savings in time or money by weakening standards.
* Second, the new owner or lessor of the property becomes 
liable for contamination. This includes regulatory liability - that is, 
the owner or lessor may be forced to foot cleanup costs in the future 
- and tort liability, where third parties may sue for health or 
economic damage caused by the contamination. Though Federal 
law now contains provisions for indemnifying new users of military 
property for costs associated with military-caused contamination, 
the burden of proof lies on the new user to show that the military, 
not the new user, is responsible for the contamination. While this 
may not seem like much of a problem in the short run, in twenty or 
thirty years it may be difficult to establish responsibility for a plume 
of spilled jet fuel or a heavy metal hot spot, particularly if the new 
activity uses substances similar to those used or generated by the 
military.
 Thus, the local government that accepts property may be 
accepting an enormous economic risk. For this reason, banks are 
unlikely to finance and insurance companies are unlikely to insure 
projects on property which is not cleaned to a high standard. Thus, 
rushed deals that ignore environmental risk could backfire 
financially in the long run.
Parenthetically, proposals to permit the non-federal transfer or 
indefinite leasing of contaminated federal property are likely to 
create similar problems. In promoting economic redevelopment, 
there is no substitute for a clean bill of health.
* Third, communities needs flexibility in planning future land 
use. That is, if cleanup is limited to "industrial" standards because 
the expected short-term use is industrial, then the community is 
committed to such a use indefinitely. The Department of Defense 
will not return to an industrial park or airport in twenty or thirty 
years to do further cleanup just because local decision-makers 
decide to build housing or a college on the site. Weaker standards 
will not mean "clean to re-use." They will force "re-use to 
accommodate contamination."
 For example, at Moffett Field the community organizations 
in which I participate have insisted that substantial areas be cleaned 
to residential standards even though federal agencies continued to 
operate the airfield after the "closure" of the Naval Air Station. 
Recent events have proven the wisdom of our position. Now it 
looks like the Federal government may close the airfield, Our 
community could be saddled with an unwanted civilian airport if we 
allow the contamination to determine the future use.

5. Encourage streamlined oversight focused on real-world results, 
not deliverable documents.

 Across the country, there is a growing perception that 
hazardous waste cleanup programs, such as EPA's Superfund 
program or the federal facilities cleanups carried out under the same 
authorities, are bogged down in study. Congress, in fact, has asked 
the Defense Department to move more resources into actual 
remedial action, as opposed to continued study.

 The problem, however, is not with studies, per se. 
Sometimes they are necessary to ensure that remedial action 
reduces, rather than spreads risk, or that premature action does not 
increase long-term project costs. Yet from the volumes of 
documentation generated for each cleanup, it often seems that 
consultants or contractors are paid by the word, not for their 
contribution to the reduction of human or environmental risk.

 Unfortunately, the entire process of environmental 
restoration is organized around deliverable documents, not real 
world objectives. The typical milestones in a Federal Facilities 
Agreement, for example, refer to the completion of a remedial 
investigation or a remedial design, not the characterization of a 
plume or the removal of a risk.

 I propose, therefore, that project milestones define activities 
- such as characterizing contamination at a specific site or removing 
tanks - or objectives - such as achieving the desired reduction in 
groundwater contamination. At most federal facilities, this approach 
could be phased in without any statutory change. I see five principal 
advantages:

* To communities, the press, and other non-specialists, real-
world milestones would make cleanup much more easy to 
understand. I have seen many eyes glaze over at the sight of charts 
summarizing the completion of documentary cycles.
* Real-world milestones - including activities and objectives - 
would provide better measures of project success. Delivery of a 
study proves nothing; but if that study thoroughly maps the spread 
of a contaminant of concern, then something has been 
accomplished. Contractors and officials could be evaluated not by 
the amount of paper they push, but by their contribution to the 
reduction of risk.
* The production and review of documents is often a waste of 
time and resources. At minor sites or routine sites, contractors 
generate documents and regulators go through them with a fine-
tooth comb because it's standard procedure. Obviously, a planning 
system that calls for documents when necessary, not just by routine, 
would be more efficient. For example, the Air Force Combat 
Command's Project on Streamlined Oversight, coordinated by 
Versar, Inc., is developing strategies for reducing unnecessary 
document flows.
* By developing management plans based upon activities, not 
sites, agencies will make it easier to prioritize activities, as I have 
discussed above. That is, adopting real-world cleanup milestones 
would improve the picture of cleanup success while, more 
importantly, the improved process would make it easier to focus 
limited resources on real-world results. 
* At facilities where cleanup is expected to contribute to 
economic recovery or job training and employment, it's essential to 
have a public roadmap of the anticipated cleanup schedule. 
Building activities into a site management plan is a good way to 
give institutions that are supporting economic development or 
providing training advanced notice of work that is expected. 
Everyone must recognize that such a plan is predictive - it is not an 
invitation for bids - but it is the type of information that must be 
disseminated early if economic objectives are to be met.

6. Lead regulatory authority should be transferred to state agencies 
only when they can demonstrate the will and the capacity to do the 
job.

 I recognize that proposals to transfer lead authority over 
CERCLA cleanup regulation of federal facilities from the 
Environmental Protection Agency to its state counterparts have 
generated a great deal of friction among regulators. In fact, I work 
with capable, dedicated regulators on both sides of the issue. 
Because capability and independence vary from region to region 
and state to state, I don't think there is a simple, uniform solution. 
Rather, it should be pragmatic - based upon a public process in 
which it is determined that the state is indeed willing and able to 
take additional responsibility.

* Authority should be transferred only on a facility-by-facility 
basis. This would permit states to assume leadership at high profile 
facilities where a great deal of attention is already being paid, but it 
would leave the bulk of serious, but lower profile facilities in the 
old system.
* States petitioning the EPA Administrator for such authority 
should be required to demonstrate that they have the ability, the 
resources, and the will to carry out the full CERCLA program at the 
facility.
* No such transfer of authority shall be carried out without 
full opportunity for the affected public to express its views, both 
through advisory boards - if established at the facility - and through 
widely publicized public hearings. 
* EPA should be directed (and funded) to provide the training 
and coordination necessary for state regulators to participate in 
national standardization schemes such as technology certification, 
presumptive remedies, and priority-setting.

7. Treat munitions impact ranges as hazardous waste sites.

 Measured by area, America's largest hazardous waste 
problem is not radioactive waste nor is it industrial toxics. Literally 
millions of acres of land and waterways are contaminated by 
ordnance - that is, munitions - and explosive wastes. The most 
immediate threat is unexploded ordnance, which tends to migrate to 
the surface under most geologic and climatic conditions. In 
addition, in the long run the corrosion, explosion, and combustion 
of munitions releases heavy metals and other hazardous substances 
into the environment.

 Some have suggested that we simply walk away from such 
sites - as the military has frequently done over the past several 
decades. Build a fence. Post a sign. And pretend it's a wildlife 
refuge. This may save money in the short run. At some locations it 
is a viable medium-term strategy. But it is no long-term solution.

 Particularly at closing and former bases, impact ranges 
should be considered what they are, hazardous waste sites. As soon 
as possible, threats to human health and the environment should be 
characterized. The public should be fully informed. Access should 
be carefully regulated. 

 With currently proven technologies, it is technically 
unfeasible or prohibitively expensive to clean fully most impact 
ranges. In the long run it is too costly to our nation to consider such 
vast areas - of economic, environmental, and cultural value - 
permanently off limits. Congress, therefore, should support the 
Defense Department's efforts to develop and test new methods of 
investigation, range remediation, and demilitarization. 

8. Don't let "non-stockpile" chemical munitions leak through 
bureaucratic cracks.

 If agents of a foreign government were to detonate lethal 
chemical weapons in populated areas of the United States, our 
armed forces would take swift military action. But what can we do 
to protect our citizens when our own military is responsible?

 By the Defense Department's own account, more than 200 
sites in the United States may contain "non-stockpile" chemical 
munitions, old bombs buried underground or even lying on the 
surface. At some sites, such as the Aberdeen Proving Ground, in 
Maryland, concentrations of chemical munitions are found near 
homes and schools. The transportation and demilitarization - actual 
on-site detonation - of those munitions frequently put the public at 
risk, but emergency preparedness agencies are unprepared.

 Old chemical weapons pose a high risk to the public, but in 
many areas responsibility and cleanup funding are much harder to 
find than the shells themselves. Congress must direct the military to 
identify high-risk sites and make sure that funds are in the proper 
accounts to enable immediate protective action.

9. Drain, contain, and neutralize chemical munitions, instead of 
building incinerators, and use the savings for cleanup.

 The demilitarization and disposal of our country's aging 
stockpile of lethal chemical agent - "nerve gas" and "mustard gas" - 
is viewed by the public as an environmental cleanup issue, even 
though the government fits it into another pigeonhole. At all nine 
stockpile sites, community opposition to the Army's baseline 
technology of incineration is growing, but not nearly so fast as the 
Army's life-cycle cost estimate for the program - somewhere around 
$12 billion.

 The stockpile's neighbors do not consider incineration a safe 
disposal technology, but even if it were, it would be too costly. 
Once many of the people who live, work, and attend school near the 
stockpile sites simply took a NIMBY - "not in my back yard" - 
position, a stand most of us would have taken had it been our own 
backyards. Now, however, they propose an approach which not 
only would ease their fears, but which would reduce costs, meet 
arms control goals, and satisfy critical security needs.

 They have proposed that the Army move quickly to drain 
and contain chemical munitions, putting lethal agent into secure, 
monitored containers. Research into chemical neutralization, which 
already shows great promise, should be expanded, to provide for the 
eventual disposal of both stockpile and non-stockpile munitions.

 The prohibitively expensive, risky incineration program 
exists only because of the Army's inertia. It should be abandoned. 
Instead, the stockpile demilitarization budget should be spent on 
storage and security, reconfiguration - that is, to drain and contain 
lethal agent - and the development of alternatives. The remainder, 
which may amount to $250 million or more this year, should be 
made available, within the Defense budget, for environmental 
restoration.

 I recognize that cleanup funds are being cut primarily 
because many members of Congress believe that the funds are 
critically needed elsewhere, for readiness and weapons 
modernization. Diverting money from incineration would not 
threaten those programs. Instead, it would re-allocate "non-
traditional" Defense expenditures from an unpopular, out of control 
program to environmental restoration, a relatively well managed 
program that works with the public, not against it.

 In conclusion, the neighbors and employees of military 
facilities are not looking for a blank check from the federal 
government. However, after years of literally being dumped upon 
by the institutions that are supposed to defend us, we are looking for 
environmental programs that we can trust. We are working hard to 
make sure that scarce resources are spent wisely, but we cannot 
accept proposals that sacrifice the safety of our families, the health 
of our natural environment, or our economic future. Over the last 
few years, communities that had been impacted by pollution from 
federal facilities have been working cooperatively with the polluters 
and regulatory agencies. We ask Congress to affirm its support and 
participation in that partnership.