From: | Aimee Houghton <aimeeh@igc.org> |
Date: | Tue, 26 Nov 1996 15:16:34 -0800 (PST) |
Reply: | cpeo-military |
Subject: | MEGA ISSUES IN FEDERAL FACILITIES CLEANUP |
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. | |
Prev by Date: UXO OVERVIEW Next by Date: Global Green Forum, Indianapolis 12/11/96 | |
Prev by Thread: UXO OVERVIEW Next by Thread: Global Green Forum, Indianapolis 12/11/96 |