DOD QUESTIONS EPA INSTITUTIONAL CONTROLS POLICY

[Lenny Siegel <lsiegel@cpeo.org>]

DOD QUESTIONS EPA INSTITUTIONAL CONTROLS POLICY

The Department of Defense (DOD) is questioning policies included by the
U.S. Environmental Protection Agency (EPA) in its "Draft Interim Final
Guidance on Institutional Controls and Transfer of Property under CERCLA
Section 120(h)(3)(A), (B), or (C)." I haven't seen the original document,
but a copy of DOD's comments landed on my desk. In a letter to Acting
Assistant EPA Administrator Timothy Fields, Jr., Deputy Under Secretary of
Defense Sherri Wasserman Goodman wrote, "As you know, this is a critically
important issue for us as we strive to make former military installations
available for economic redevelopment. For this reason, my Office and the
Services have given this draft guidance an especially thorough review.
Regrettably, that review has revealed what we regard as significant
problems with this guidance as currently drafted; consequently, we urge
EPA to withhold issuing this document as even interim final guidance until
further discussions with DoD and other affected agencies have taken
place."

In essence, DOD believes that EPA's planned review of proposed
institutional controls "would have the effect of further delaying property
transfer and economic redevelopment without providing to the affected
community compensating benefits in terms of increased human health and
safety." DOD believes the EPA's proposal to review proposed deed and
property transfer documents goes beyond its authority. It also argues that
EPA's statutory finding that a remedy is "operating properly and
successfully" applies only to engineering controls, such as
pump-and-treat, not land use controls.

In this instance, I think EPA's position is stronger. Institutional
controls, in general, are a way for responsible parties - that is,
polluters and property owners - to get away with less than complete
treatment or removal. Sometimes that's appropriate, but those responsible
for protecting public health and the environment must make sure that
institutional controls effectively prevent exposures to the contamination
- in the long run. Without the ability to review such controls, regulatory
agencies would have disapprove any remedy that relies upon them. The
transfer of contaminated property without enforceable mechanisms to
prevent public or ecological exposure is not protective of public health
and safety. Property transfers that are not protective don't only threaten
public health; they create legal liability for the parties that receive
the property.

CPEO has been trying for some time to set up a national forum that brings
all stakeholders - including federal and state agencies, industry, local
government, and community activists - to discuss this significant and
complex issue. I don't urge the finalization of policies until public
stakeholders have had a chance to offer their views, but the policy should
be driven by the need to protect, not the opportunity to redevelop.


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
(PLEASE NOTE THAT WE ARE PHASING OUT
MY OLD E-MAIL ADDRESS: lsiegel@igc.org)
http://www.cpeo.org