MEGA ISSUES IN FEDERAL FACILITIES CLEANUP

[Aimee Houghton <aimeeh@igc.org>]

From: Aimee Houghton <aimeeh@igc.org>
Subject: MEGA ISSUES IN FEDERAL FACILITIES CLEANUP

******* WARNING: THIS IS A LONG FILE *********

THE MEGA-ISSUES IN THE FEDERAL FACILITIES CLEANUP 
PROGRAM

Paul J. Yaroschak
Director, Environmental Compliance and Restoration Policy
Office of the Assistant Secretary of the Navy (Installations and 
Environment)
Washington, D.C. 20350-1000

Background. There are thousands of sites owned by the federal 
government that potentially require cleanup. Depending on how 
cleanup requirements are applied to individual sites, cost-to-complete 
cleanup estimates vary widely from many billions of dollars to over a 
trillion dollars. Funding for assessments and cleanups at these sites 
will be proposed in agency budgets, appropriated by Congress, and 
financed by the American taxpayer. To date, the cleanup program has 
been driven by a plethora of federal, state, and sometimes local, laws 
and regulations. Congress has complained about the cost and amount 
of time spent on "studies." By far, the two largest complaints from 
field managers trying to get the job done are the overlapping and 
sometimes conflicting authorities of regulators, and the equally 
frustrating, overlapping and sometimes conflicting requirements of the 
Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA) and the Resource Conservation and Recovery Act 
(RCRA). The reauthorization of CERCLA and the Administration's 
efforts at executive branch improvements to the CERCLA and RCRA 
processes offer an unusual opportunity to recast the federal facilities 
program in a way that maximizes efficiency and partnering between 
federal facilities and regulators.

Program Elements. An efficient federal facilities cleanup program 
must consist of the following key elements: (1) meaningful 
stakeholder involvement throughout the process, (2) both local and 
national prioritization of actions based on risk management principles, 
with a primary focus on relative risk categorization of site actions, (3) 
a programming and budgeting strategy based on a stable funding 
approach that adequately considers both risk and affordability while 
ensuring protection of human health and the environment, (4) a single 
statutory and regulatory regime for a federal facilities cleanup 
program, and (5) a delicate, but clear balance of responsibilities 
between the states and federal government that promotes partnering 
and recognizes the ultimate responsibility of the Congress to decide 
the appropriate level of cleanup funding. Forums such as the Federal 
Facilities Environmental Restoration Dialogue facilitated by the 
Keystone Center and the Office of Management and Budget's Federal 
Facilities Policy Group have reached consensus on some of these 
elements, but have not come to grips with the two mega-issues 
described below.

The Mega-Issues. There are two "mega-issues" involving federal 
facilities cleanups. First, under what statutory and regulatory regime 
should federal facilities' cleanups be conducted? An important 
corollary to this first issue is the mix of responsibilities and authorities 
between states and the federal government. Second, how should 
federal agency cleanup budgets be determined? This paper proposes a 
strategy for an efficient, cost effective federal facilities cleanup 
program. It requires recognition of the special nature of federal 
facilities, the role of Congress in authorizing budgets, and the 
relationship of cleanup spending with the overall federal budget and 
deficit issue. The following discussion will describe these issues and 
provide recommended solutions.

Issue 1. The Statutory and Regulatory Regime

 CERCLA was originally intended to ensure the cleanups of 
contaminated sites by finding and activating responsible parties to 
perform cleanups. Through the Superfund, EPA was charged with 
cleaning up sites where no responsible party could be found. 
Through section 120 of CERCLA, federal agencies were charged with 
identifying all potentially contaminated federal facility sites (the 
Federal Facilities Docket) and conducting the necessary assessments 
and cleanups. Why then, the need for a duplicative cleanup program--
RCRA corrective action? Frankly, with respect to federal facilities, 
there is no compelling need. For private facilities, RCRA corrective 
action does provide a method, via the hazardous waste facility 
permitting process, to identify and ensure corrective actions at sites 
that might have otherwise escaped attention from CERCLA. But for 
federal facilities, RCRA corrective action does little but add another 
oversight layer, new terminology, and more requirements without 
commensurate added value. In fact it, was RCRA corrective action 
that ballooned the site count within the Department of Defense (DoD) 
after a CERCLA based installation restoration program had been 
operating for many years. Some installations saw their site count 
double or triple after RCRA requirements were applied. Areas with 
merely small rubble piles, oil stains from parked vehicles, or areas 
with "stressed vegetation" were added to the program as Solid Waste 
Management Units (SWMUs). I'm sure many readers are aware of 
the "SWMU hunts" conducted by EPA contractors. If the same criteria 
were applied nationally, most backyards in America would qualify as 
a SWMU.

 Here's an example. Marine Corps Air Station (MCAS) Cherry 
Point, North Carolina originally identified 21 sites in their "CERCLA" 
cleanup program. Later, during a RCRA Facility Assessment, EPA's 
contractor identified an additional 95 sites "of concern." Through 
negotiations, the base was able to show that no further action was 
required at 81 of the sites, i.e., the sites were not "of concern." The 
remaining 14 sites required additional analysis. MCAS Cherry Point 
has pointed out to me a number of ways in which the 
RCRA/CERCLA overlap is burdensome. For example, RCRA 
corrective action cleanup decisions are called Statements of Basis and 
require modifications to the base's Part B permit every time a site or 
operable unit cleanup decision is reached. The cleanup decision is the 
RCRA equivalent of a Record of Decision (ROD). Does it really make 
sense to modify the permit for the base's hazardous waste storage 
facility every time we reach a cleanup decision? To my way of 
thinking, day-to-day management of the hazardous waste facility 
should be a separate activity from the cleanup of contaminated sites. 
Linking the two activities via mounds of RCRA paperwork simply 
adds overhead and is not needed to ensure cleanup which can be 
achieved more efficiently under the CERCLA program.

 Yet another layer of cleanup requirements is added from federal 
and state underground storage tank cleanup regulations. From a 
technical perspective, we don't really handle petroleum contaminated 
sites any differently than CERCLA sites. Technical personnel view 
this overlap and duplication very differently from legal/enforcement 
personnel. To technical personnel, a contaminated site is a 
contaminated site, and a cleanup is a cleanup. In other words, without 
the different regulators, terms, or paperwork required by different 
regulatory regimes, all sites would be addressed using the same 
methodology. Don't misunderstand me. While each site may have a 
unique geology and contaminant mix, the process of assessing and 
analyzing cleanup alternatives is basically the same. Usually, the 
same technical personnel, in DoD at least, have responsibility for 
cleanups of sites no matter what the regulatory regime, thus they have 
to learn and deal with multiple regimes. Legal/enforcement personnel 
see multiple regulatory regimes as advantageous. There are more ways 
to regulate the same activity if needed. Also, there are usually 
different legal/enforcement specialists for different programs (e.g., 
RCRA, CERCLA, UST). Thus, turf issues are a major factor. But, 
since all sites ultimately compete for the same funds in the agency's 
budget, why not categorize them all according to relative risk and 
manage them all under the same cleanup methodology and regulatory 
regime? "Because RCRA gives us another set of enforcement tools" 
is the response we typically receive from regulators.

 The following provides another example of the regulatory 
overlap situation. At Naval Station Roosevelt Roads, Puerto Rico, the 
Underground Storage Tank (UST) sites were being managed under 
Puerto Rico Environmental Quality Board Regulations. 
Contamination at the UST sites consists of diesel fuel, mostly free 
product, which is easily recovered by an extraction system. Recovery 
rates were excellent. Subsequently, EPA Region II issued a RCRA 
Corrective Action Permit which incorporated the UST sites as 
SWMUs. The sites are required to undergo the same intensive field 
study and analysis as sites with more complex contamination. The 
overlapping RCRA Corrective Action program has slowed the 
program and created additional expenses by requiring reports to be 
submitted to EPA for review and comment. The comments received 
from EPA were rather lengthy and consisted mainly of administrative 
comments, e.g., document submittal requirements. Responding to the 
comments requires a considerable amount of effort on the part of the 
base with no value added to the cleanup process. In addition, the 
Corrective Action Permit requires a full "Appendix IX" analysis be 
performed on the petroleum contaminants at a cost of about $2,000 
whereas sampling for Total Petroleum Hydrocarbons runs about 
$250.

 A truly efficient federal facilities cleanup program requires a 
streamlining of requirements. All federal facility cleanups can, and 
should, be conducted under a reformed CERCLA. The appropriate 
modifications to CERCLA section 120 and RCRA, if necessary, can 
be made to effect this unitary cleanup approach for federal facilities. 
Please note that these changes would in no way affect the existing 
RCRA Subtitle C requirements pertaining to hazardous waste 
generation, transportation, treatment, storage or disposal. It would 
only consolidate the federal facilities cleanup regime. However, 
serious barriers exist. Although the consolidation makes ultimate 
sense from a technical and efficiency standpoint, the existing 
statutory/regulatory framework and related bureaucracies will resist 
such a consolidation. Lying in the path of efficiency are many rice 
bowls. More importantly, states will view these changes as eroding 
their delegated RCRA corrective action authorities. Sorry, but in my 
opinion we can't have it both ways and be efficient. We can't have 
states requiring the level of cleanup funding through remedial action 
orders, and Congress deciding what they're willing to pay. The next 
section explains how this conundrum might be solved with a balance 
of delegated and retained responsibilities.

Corollary Issue 1. Responsibilities of States vs. Federal Agencies

 The notion of a single regulator for cleanups makes sense. The 
delegation of the EPA's oversight responsibilities to the states to 
eliminate duplication and move oversight closer to the cleanups is a 
move in the right direction. However, two key principles need to be 
incorporated in any state delegation regime for federal facilities. First, 
it is important to distinguish the difference between the delegation of 
amended federal CERCLA authorities to the states and the 
authorization of existing state laws for application to federal facilities. 
Federal facilities will not benefit from CERCLA reforms if state 
programs are simply authorized. Many of the proposed CERCLA 
reforms are not included in state programs and multiple regulatory 
regimes would nullify a unitary approach. Examples of possible 
reforms include consideration of cost as a factor in remedy selection 
and the consideration of land use in determining cleanup levels.

 The second key principle for federal facilities is the need to 
distinguish between the delegation of regulatory agency oversight and 
the delegation of authority to establish the pace and timing of federal 
facilities projects nationally. It simply will not be possible for a federal 
agency to prioritize and manage a national program according to 
relative risk if states are given the authority to unilaterally issue RCRA 
Corrective Action orders or similar remedial action orders authorized 
by state cleanup laws. In such a scenario, federal cleanup program 
priorities would be controlled by states that are the most efficient in 
issuing remedial action orders. Risk management processes for 
setting priorities would, in effect, be overridden by enforcement 
factors. Clearly, this scenario would not provide the public with the 
most risk reduction for the dollar and would pit states against one 
another. Additionally, this scenario would clash with the budget 
authorizing functions of Congress and would establish, in effect, 
reverse unfunded mandates. Most disturbing, it would discourage 
partnering and establish a confrontational mode between regulatory 
and federal agency field personnel. This would be unfortunate. The 
most significant improvement in the federal facilities cleanup program 
over the past three years has been the formal partnering efforts among 
states, EPA, and regulated federal agencies. For partnering to work 
effectively, there needs to be a balance of authority. If one partner has 
all the authority, reason and compromise are casualties.

 Changes to CERCLA regarding federal facilities should provide 
for the following process. All federal facility cleanups would be 
conducted under a single statute, CERCLA, thus providing a unitary 
cleanup regime. The reasons for selecting CERCLA as the cleanup 
law relate to the statutory authorities CERCLA gives to a CERCLA-
based cleanup authority that you can't get from any other law. For 
example, the limited judicial review standards of CERCLA Sec. 
113(h),the lack of a need for permits for "on-site" activities, the ability 
to waive ARARs, and the requirement to only satisfy substantive (not 
procedural or administrative) ARARs, are all designed to protect and 
expedite CERCLA-based cleanups, and are simply not available under 
any other cleanup statute, including RCRA's Corrective Action 
program.

 Of course, there would need to be some type of grandfathering 
clause for cleanups already satisfactorily underway under RCRA. 
Under the new unitary regime, Federal agencies would be required to 
(1) identify and conduct preliminary assessments at all sites as soon as 
possible, (2) conduct a relative risk ranking for all sites, (3) present an 
annual budget to Congress that adequately considers both risk and 
affordability while ensuring protection of human health and the 
environment. This would be done in full consultation with regulators 
and other stakeholders. Based on the funds appropriated by 
Congress, the agencies would execute their annual program in 
consultation with state regulators and other stakeholders. States 
would be delegated full oversight responsibility which could include 
approving remedy selections based on national cleanup goals. States 
would also have enforcement authority, including collection of fines 
and penalties for missed milestones on projects for which funds have 
been appropriated. Although partnering should minimize disputes, 
they will occur. Disputes should be resolved at the lowest level 
possible but, if necessary, raised to the State Governor and the 
Agency Head for ultimate joint resolution. These changes could be 
effected through statutory changes in CERCLA Section 120. and 
apply to both NPL sites and non-NPL sites.

Issue 2. Determining Cleanup Budgets

 How much should a federal agency budget annually for cleanup? 
The oversimplified answer is: "Enough to meet all legal 
requirements", or "Enough to meet all legal agreements." The real 
answer is more complex. Most existing cleanup agreements fail to 
account for budget realities and relative risk among sites. In addition, 
they do not account for the fact that other higher risk sites are not 
covered by legal agreements. And finally, they may cause a 
distribution of funds based more on the aggressiveness of regulators 
than on risk. While cleanups may be ultimately required by law, the 
timing of such cleanups is usually not specified by law and must be 
negotiated between regulator and federal agency. In reality, a 
generally applicable law can't determine when an individual site 
should be cleaned up. The law can, and should, provide guidance for 
developing timetables. There is general consensus that the pace of 
cleanups needs to ensure the protection of human health and the 
environment. In other words, prevent human exposure and prevent 
the problem from migrating or getting worse. There is also general 
consensus that the worst problems should be addressed first, with 
allowances made for other risk management factors. Lately, there is a 
recognition that cleanup funding must be set at levels that not only 
protect human health and the environment, but are also affordable and 
make reasonable progress toward completing the job .

 CERCLA reform should incorporate the following fiscal 
elements. Site level cleanup requirements need to be identified and 
categorized according to risk at the local level with some assurance of 
relative consistency. This identification and categorization needs to be 
done in full consultation with regulators and other affected 
stakeholders. These requirements then need to be analyzed and 
aggregated nationally by federal agency program managers. Now the 
hard part. A fact of life is that federal agencies have a large number of 
competing requirements, many required by law, but only a limited 
amount of funds. Federal agency heads must weigh all agency 
requirements, federal budget controls, and determine the appropriate 
funding levels for cleanup. The amount of additional requirements 
which could not be supported in the agency's budget could be 
separately identified in a Report to Congress with a general description 
as to the nature of the requirements and the reasons why such 
requirements could not be accommodated in the current budget 
request. Such disclosure will open up the process and defuse the 
current confusion and controversy concerning whether agencies have 
asked for "the full amount required." The authorization and 
appropriation process allows ample opportunity for regulators and the 
public to express views on the sufficiency of proposed cleanup 
funding.

Summary. We can maximize federal cleanup program efficiency and 
regulator-federal agency cooperation by establishing a unitary federal 
facilities cleanup regime under an amended CERCLA, ensuring 
stakeholder involvement in requirements identification and risk 
categorization, delegating full oversight authority to states, requiring 
full disclosure of requirements by federal agencies, and clarifying 
federal agency authority to set budget levels after considering 
requirements.

Note: The opinions expressed above are solely those of the author and 
do not represent official Department of the Navy or Department of 
Defense positions.