Site Closeout Comments

[Lenny Siegel <lsiegel@cpeo.org>]

THE ROAD TO SITE CLOSEOUT - SUGGESTIONS FOR IMPROVEMENT

The mere preparation of "The Road to Site Closeout" is a significant
accomplishment. It demonstrates the concern that the participating
agencies have about the post-decision phase of the cleanup process. The
clarifications of policy and terminology are valuable.

However, I believe there is still room for improvement:

1. Considering the Cost of Long-Term Monitoring

The need to reduce the investment in long-term monitoring suggests that
the consideration of alternatives to removal and treatment, as described
in the Defense Environmental Restoration Program Management Guidance,
should be conducted carefully. Leaving contamination in place just to
save money in the short run - under a so-called "risk-based framework -
may turn out to extremely expensive in the long run.

2. Response Complete vs. Response Taken

In practice, a site may require a sequence of responses. For example,
the development of a superior new technology to remove dense non-aqueous
phase liquids (DNAPLs) may occur after a groundwater extraction system
is put in place, and it may make sense to apply the additional remedy.
Or where the remedy is decided while the installation is active, a later
closure of that installation may trigger the need to do additional
cleanup to accommodate transfer and reuse. It think it would clearer to
consider the existence of more than one Response Complete milestone at a
site. Perhaps in those cases they should be known as Response Taken.

3. Unexploded Ordnance

One such example of new technology implying a two-phase response is the
isolation, detection, and removal of unexploded ordnance from former
impact ranges. Is this guide intended to apply to ordnance ranges, or do
the participants defer to the proposed Range Rule for all such
considerations?

4. Five-Year Review

As I understand it, the Five-Year Review is intended to consider whether
a remedy is adequate for the protection of human health and the
environment. As such, it's an important feature of the decision-making
process. However, I believe that five years is too infrequent, and the
standard review process too complex, to meet other long-term oversight
requirements. To ensure that operation and maintenance, physical
monitoring, or even the integrity of institutional controls are
continuing as planned, there needs to be a more regular auditing
function by an agency other than the lead agency.

5. National Priorities List (NPL) Deletion

I would like to better understand the consequences of NPL deletion. Does
EPA remain involved at an installation (where contamination is left in
place), or is all regulatory oversight turned over the state? Are
technical assistance grants available should issues (such as a proposal
be made to "turn off" or change a remedy unexpectedly) emerge requiring
technical review?

6. Post-Transfer Oversight

EPA is directly involved in the oversight of BRAC cleanups by virtue of
CERCLA (Comprehensive Environmental Response, Compensation, and
Liability Act) Section 120(h). What happens to the EPA role once all
transfer issues have been resolved at an installation where
contamination is left in place? Is all regulatory oversight turned over
to the state?

7. Community Involvement

This section does not directly address the challenge of facilitating
public involvement at the tail end of the cleanup process. The public
role in long-term oversight will vary both by the nature of the
contamination and by the attitudes of the community. I believe the guide
should offer flexible options for providing opportunities for continuing
public oversight, including:

* Annual fact sheets distributed to the restoration program mailing
list, local government, and the press.

* RAB Reunions - annual meetings to which the members of the (former)
RAB, as well as other people on the program mailing list, are invited.

* Continuing operation of the RAB, meeting regularly three or four times
a year.

* When property has been transferred to non-federal entities, formal
reports on the state of institutional controls and other long-term
monitoring issues to the legislative body and planning commission (or
their counterparts) of the local governments with land use planning
jurisdiction over the property. (In many communities, voluntary bodies
such as RABs may gradually lose their members, but local governments are
not likely to go away.)

8. Institutional Controls

There are so many documents out now dealing with institutional controls,
so I'm not sure where to offer my comments. Until I figure it out, I
will repeat my comments wherever they seem like they might be
appropriate.

Like most other official documents on the subject, this guide does not
recognize the tenuous nature of institutional controls. In the absence
of a formal enforcement or auditing mechanism, many or most are likely
to fall by the wayside with the re-transfer of property or the passage
of time. I would appreciate seeing a list of potential enforcement
mechanisms, as well as suggestions for better public notice of such
restrictions continuing for the life of the restrictions.

Furthermore, when institutional controls are proposed to impose land-use
restrictions upon non-federal property, it's important to go beyond the
CERCLA public involvement process and directly present the proposed
restrictions to the local government with present or future land use
planning authority over the property. This should not be a private
conversation; instead it should trigger the same type of public notice
and hearing that local residents expect for zoning changes and other
locally instigated land use restrictions.

In summary, the Road to Site Closeout is a major step forward, but since
it has not had input beyond DoD and regulatory agencies, it does not
fully consider the potential concerns of local governments, the public,
and (perhaps) tribes.

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org