Fort Ord legal concession

[Center for Public Environmental Oversight <cpeo@cpeo.org>]

FORT ORD LEGAL CONCESSION

On October 30, 1998, attorneys for the U.S. Department of Justice,
representing the U.S> Army, made significant concessions to the Fort Ord
Toxics Project in its lawsuit over the Army's response to unexploded
ordnance contamination at the Fort Ord, Monterey County, California. The
Justice Department wrote a letter in response to a Federal judge's
preliminary finding (legally, a hint of a finding) in favor of the
plaintiffs.

In the letter, the Justice Department made three important statements.

1) The Army will voluntary undertake a Remedial/Investigation and
Feasibility Study to address ordnance and explosives at Fort Ord,
pursuant to section 120(e)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). This was the
principal purpose of the Toxics Project litigation.

2) The Army will request the early transfer of the Fritzsche Army
Airfield and remaining scheduled economic development conveyances at the
base. That is, it will seek to transfer the property to local agencies
before cleanup has been completed.

3) The Justice Department "clarified" that its previous position that
UXO-contaminated areas at Fort Ord are not part of the base's National
Priorities List listing (Superfund) was "not entirely accurate."

While this case shows that the Justice Department is nervous about the
Army's assertion that CERCLA regulatory authority may not fully apply to
unexploded ordnance, it does NOT set a legal precedent. That's why the
Army chose to voluntarily comply. This issue may end up being fought out
in other federal courts.

The decision re-opens the paperwork portion of the Fort Ord ordnance
cleanup, but it's too soon to know whether it will lead to more
stringent clearance or newer technologies. It may make the regulatory
agencies' role clearer, in that the Army will be forced to reach a
record of decision, but it's also possible that the Army's contractors
will put together a more detailed document and attempt to carry out the
same, limited actions it proposed in the Environmental Evaluation/Cost
Analysis that the legal case overturned.

Lenny

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
http://www.cpeo.org