Re: Report on the UXO Focus Group

[Marilyn Bardet <mjbardet@earthlink.net>]

.To Lenny, and everyone who attended CPEO conference--

What I learned from participants at the conference, including DoD and Cal
and US-EPA officials, certainly undergirded our community's own lines of
inquiry here in Benicia about the problems of characterizing and assessing
a UXO contaminated site, the problem of qualitatively evaluating a UXO
cleanup--i.e. how will we know for sure what the cleanup actually achieves
and to what degree risk from "residuals" has been reduced?-- and the
problems of long-term monitoring and risk managment given the potential
for changing land uses, etc.

One of the statements that rang loud and clear was made by Jeff Waugh from
DoD, Wash D.C. Please allow for my paraphrase here:  Jeff made the point
that the technologies "just weren't there yet" to give us absolute
certainty in detection. He admitted DoD had had "far more failures than
successes" with FUDS UXO cleanups. Jeff's statements were followed up by
Jim Austreng from Cal-EPA's Department of Toxic Substances Control,
Military Facilities, who said that, given the problem with detection,
there was no way yet found to quantify the uncertainty or qualitatively
"model the uncertainty" from UXO that remain in the ground undetected. As
I recall, Jim said that this "uncertainty" factor was still too great, and
had to be considered when addressing short-term and long-term risk
managment strategies that would be protective of cleanup/construction
workers, as well as of the public, into the future when change of land use
could occur. (A park or golf course could become site for residential
development.)

One thing the offical conference summary forgot to mention: The problems
of"privatized" FUDS site cleanups involving UXO clearance, under "Support
For Others" funding arrangements.  The question of jurisdiction and final
authority under SFO must be addressed, especially in the case where the
formerly used defense site property is slated for residential development.
Given our experience thus far with the implementation of this
DoD-sponsored SFO funding arrangement, community members here believe we
are witnessing the hybridization and localization of "UXO cleanup
standards", which should be anathema to federal regulators. Since there
are now 200 UXO FUDS in California alone, with corporate developers
wanting a green light for all kinds of uses, including housing, I believe
that the use of Support for Others scheme should be fully analysed for all
of the "impacts" privatization of FUDS cleanups involving UXO can have
upon communities. For example, in our case, the developer's housing
project proposal was concurrently put forward for public review at the
same time as the cleanup proposal. The developer set the timetable for
both projects.

First: We need to know whether there are any current national guidelines
that exist for use of Support For Others for UXO site cleanups where the
site is slated for residential use. If there are no guidelines, then we
need to investigate how the SFO has been authorized by DoD to be used in
the past. [Support For Others apparently allows a public agency or
municipality to contract USACE and/or other qualified private contractors
to do an OEW cleanup. I was told by the Corps that Support for Others has
been used to clean up an area, in the vicinity of a neighborhood of
Roseville, CA, where a Vietnam-era train wreck occured.  As I understand
it, the wreck had caused the ordnance-loaded train to explode, which
contaminated the area with buried OEW. When OEW was later uncovered at the
site, an SFO funding arrangement allowed the site to get cleaned up more
quickly. I am not sure of any other factors which influenced the use of
SFO for this cleanup.]

Second: Considering the issues raised at the conference about the
difficulty of qualitatively assessing UXO cleanups, there needs to be
national discussion of the use of Support For Others for UXO
cleanups.What's happened under SFO here in Benicia, CA., should be
followed closely.

For those reading here who haven't heard of our case:

There has now arisen the unprecedented UXO cleanup project wherein the
cleanup proposed on former leased properties of the Benicia Arsenal has
been privatized--taken from the Army Corps of Engineers--and expedited by
a huge corporate developer, Granite Management/Ford Motor Co., that
intends to build 426 homes on the site which they'd purchased in 1980.  
The 220 acre "Tourtelot" site, a former leased property of the Benicia
Arsenal, is also affected by uses of adjacent properties within the
Arsenal leased boundaries, and was found to be contaminated with UXO, OE,
and HTRW. The property was long ago slated for residential development,
before there was any preliminary FUDS investigation information made
public about the former military uses of the various Arsenal properties.

The UXO/HTRW investigation and cleanup for the entire Arsenal FUDS was to
have been done by the Army Corps, but Granite/Ford Motor, hired a retired
three-star general from USACE, Sacramento, to lobby DoD to allow the
cleanup to proceed on their privately owned portion of the former Arsenal
properties under the little known Support For Others funding mechanism.
DoD agreed to allow the Tourtelot cleanup to proceed under SFO.

In the case of Tourtelot, the cleanup is designed by the developer and
property owner, Granite/Ford Motor Co., and would be more thorough--with
"100% quality assurance", according to them--than the Army Corps would
have done.  The Support For Others agreements put the City of Benicia in
the role of "lead agent" on this cleanup, whereby the City contracts the
Army Corps and Earth Tech to do the work, and the money is given by the
developer to the City to pay for all work done. Environmental Impact
Reports (EIR) were intiated on the cleanup project AND the proposed
residential development simultaneously, effectively bull-dozing the
community and paying only lip service to any public participation plan
that had been proposed in the SFO agreements.

Here's a hint of the problem with SFO funding, which gets back to the
kinds of issues raised at the conference:

The agreements signed by the City, Army Corps and Granite/Ford Motor,
under the aegis of Support For Others, limits USACE to a technical
advisory role only. When the cleanup work is finished, the agreements only
permits USACE to "sign off" on the cleanup work done: the meaning of the
"sign-off" is limited to signifying that "all USACE protocols have been
followed". The agreements signed do not permit the Corps to make any
qualitative judgement about the final UXO/HTRW cleanup and what it did or
did not achieve. Obviously Ford Motor Co. has clout enough with DoD and
the City of Benicia to get what it wants.

The complications from these kind of "arrangements"  for the public and
for regulators are legion: it is clear that, in signing the agreements
under SFO, the developer sought to limit federal or state EPA regulatory
oversight on the cleanup to a "verifying role". Federal EPA deferred to
Cal-EPA to address the problem in Benicia. The State Department of Toxic
Substances Control finally issued a unilateral "immanent endangerment and
enforcement" order to become involved on the project in their appropriate
oversight capacity and with full regulatory authority. Now we have city
officials here echoing one of the contentious assertions rumored to be at
the heart of DoD and US-EPA differences about who has authority to
regulate on UXO sites. I've heard it nearly shouted by one important
elected official here: "But, DTSC knows nothing about UXO-- they don't
have any experience!".

What I learned at the conference is that communities are caught in the
middle of fierce federal in-fighting over defining policy for UXO cleanups
and re-use of these FUDS properties. Regulatory jurisdiction is not clear,
nor is the role of USACE in relation to federal and state EPA. Proof? The
Army Corps of Engineers has told us that, once we have a RAB in place for
the "Arsenal-wide investigation", we will not be able to discuss
Tourtelot, since that site is being privately cleaned up under Support For
Others. Talk about piece-mealing the Arsenal FUDS cleanup!

UXO risk management is complicated by muddied jurisdicitonal authority and
such schemes as Support For Others now allows.To put it simply: Who has
the final authority to judge a UXO cleanup safe for residential housing?--
or to advise a city about the wisdom of residential development on a UXO
site? Considering the problems of detection, lack of ability to "model
uncertainty" and the risk of "residuals", federal and state agencies need
to protect communities and unsuspecting families who would consider buying
homes on such "cleaned up" properties.

We need the federal dialogue on Range Rule, etc., to include the problems
for communities of privatization: the hybridization and localization of
"standards" for UXO cleanups slated for housing.

Thank you all again for a very enlightening conference--  Stay tuned! 

Marilyn Bardet 
community member, Benicia, CA.