Re: "DEFENSE REFORM" ANALYSIS

[Lenny Siegel <lsiegel@igc.org>]

I received the following response from an environmental consultant with 
extensive experience at federal facilities:

I have not yet read the bill, and will do so soon. However, I did read your
comments, and, with the caveat that I am responding to my
understanding of current law, without having read the new bill -- the
following comments/observations may be helpful.

1. Most of the statutory authority under the current CERCLA statute is to
the President. An Executive Order (12580) delegates the specific
CERCLA authorities to EPA and the Federal Agencies. DOD and DOE are
lead agencies for their sites. EPA's concurrence requirements come
from specific statutory language that they must concur on Records of
Decisions at NPL sites. Unless something in the proposed language
this, I assume the new executive order would be roughly the same.

2. Section 302. The key issue here is whether the new language in any
way affects EPAs concurrence at NPL sites. Otherwise, I'm not sure I
see any change. DOD as lead agency is the decision-maker under the
statute (through the Executive Order) at non-NPL facilities on issues
related to "reasonably anticipated future land uses." I 'm not certain why
this language is considered important, except that Congress appears to,
mistakenly believe that sites are not now cleaned up to reasonably
anticipated future land uses."

3. Section 311. Currently all DOD facilities must be cleaned up in a
manner consistent with the NCP, if CERCLA authorities are utilized --
whether or not they are on the NPL. They use removal or remedial
authorities (or they may defer to RCRA) while being consistent with the
NCP). This means that "relevant and appropriate requirements are
applicable now at non-NPL sites. Relevant and appropriate requirements
are requirements that have been promulgated for another purpose (than
the cleanup situation) but are considered to be sufficiently similar to a
particular situation that they should be used. Making the judgment call
of what activities are relevant and appropriate at specific sites has been
difficult, expensive and time consuming. In some cases, it has probably
resulted in some unnecessary requirements. Private parties at non-NPL
sites only have to comply with applicable requirements -- i.e. those
requirements that have been specifically promulgated for the type of
action being undertaken. They do not need to comply with relevant and
appropriate requirements. As I understand this change -- from the way
you have described it -- I do believe that this does make DOD sites more
consistent with private party cleanup. It stops short of previously
agreed to Superfund reauthorization language that would dispense with
relevant and appropriate requirements at all sites -- including NPL sites.

4. Section 312. Terminating Long-term O and M. I believe that the
current authority of the States and EPA to "concur" comes from two
sources (1) NPL sites cannot be deleted without EPA and State
concurrence. (2) Non NPL sites must follow applicable State law.
(Presumably such law will normally give the State the authority to say
when they are done.) Possibly all this new language does is clarify the
existing situation. I agree it is confusing -- but to me concurrence 
is just
that -- veto authority by whomever must concur.

I hope that this clarifies some points. I may have more when I have read
the actual language.