[CPEO-MEF] Principals' UXO Principles

[Lenny Siegel <lsiegel@cpeo.org>]

On March 7, 2000, Sherri W. Goodman, on behalf of the Defense Department
(DoD) and Timothy Fields, Jr., representing U.S. Environmental
Protection Agency, signed the "Interim Final Management Principles for
Implementing Response Actions at Closed, Transferring, and Transferred
Ranges." Goodman is Deputy Under Secretary of Defense (Environmental
Security). Fields is Assistant EPA Administrator for the Office of Solid
Waste and Emergency Response. As the top policy-makers in their agencies
on these issues, they are informally known as the principals. The
Principles grew out of discussions between DoD and EPA that began in
April, 1999, when Fields sent a letter to Goodman critical of Defense
Department response practices at sites with unexploded ordnance (UXO).

The Management Principles, according the cover letter, "provide interim
guidance for ongoing response actions and will be in effect until the
final version of the Range Rule is promulgated." That could be as early
as this August, and no doubt the principals hope to finalize the Range
Rule before the November elections at the latest. The Principles
therefore provide an indication of what the final Range Rule will say,
since deliberations on that document are now confined to federal
agencies. In fact, the successful negotiations over the Principles may
pave the way for rapid completion of the Range Rule promulgation
process.

Though, unlike the Range Rule finalization process, the initial
Principles negotiations could have been opened up to states, tribes, and
other stakeholder groups, they were developed without their direct
participation. The cover letter perhaps reflects the anticipation of
criticism when it promises, "DoD and EPA will conduct discussions with
the States and Tribes on the UXO Management Principles."

The Management Principles are much shorter and more readable than the
proposed Range Rule. In fact, they consist of 10 pages plus another page
of references. One may obtain a 400K PDF (Adobe Acrobat) file containing
the Principles and cover letter from CPEO, either by e-mail attachment
from <cpeo@cpeo.org> or downloading it from the CPEO web site (see below
for instructions).

The "Interim Final Management Principles for Implementing Response
Actions at Closed, Transferring, and Transferred (CTT) Ranges" is a
highly nuanced document. Only the people who drafted it - if anyone -
fully understand the implications of the language. Much of the document
repeats non-controversial standard practices, and it's probably as
important to recognize what has been left out of the principles as it is
to analyze the statements of agreement. Furthermore, since the
Principles are not couched in legalistic terminology, they are probably
even more subject to varied interpretations than the proposed Range Rule
itself.

Dispute Resolution

In the analysis below I make a first stab at understanding the
Principles. I look forward to hearing other interpretations of the
language.

As I have written before, the key issue in the UXO response
decision-making process is that of ultimate authority: Who decides how
much clearance needs to be done, when, and how? While the Defense
Department has always agreed to coordinate with regulators and consult
the public on such decisions, it has long argued that Department of
Defense officials should sit at the top of the dispute resolution chain.
That is, when field representatives of the regulators and military
cannot agree on a response, they are supposed to elevate the dispute
within their two organizations. If, after a succession of elevated
negotiations, the agencies still cannot agree, then - according to the
original DoD proposal - the responsible armed service official (a high
level political appointee) would make the final ruling.

The military argued this position because 1) it is developing the Range
Rule under legal authorities which mandate DoD responsibility and 2)
because it has unique technical expertise on UXO. Critics, including
myself, argued that it puts the fox in charge of the henhouse. That is,
it allows the polluter to decide if and when to clean up after itself.
The ultimate authority to resolve disputes, we have argued, not only
affects those differences that are elevated up the chains of command. It
also sets the tone for all other negotiations at the lowest level - that
is, at the installation.

The March 7 agreement on Enforcement (Principle #7) is somewhat fuzzy,
but it appears to concede that regulatory officials - ultimately state
governors or the administrator of U.S. EPA - may at times hold ultimate
authority to resolve UXO disputes. Such authority would be established
through the negotiation of enforceable, site-specific agreements.

Principle #7 reads: "Regulator oversight and involvement in all phases
of CTT range investigations are crucial to an effective response,
increase credibility of the response, and promote acceptance by the
public. Such oversight and involvement includes timely coordination
between DoD components [the armed services and defense agencies] and
EPA, state, or tribal regulators, and, where appropriate, the
negotiation and execution of enforceable site-specific agreements."

The first supporting paragraph continues, "DoD and EPA agree that, in
some instances, negotiated agreements under CERCLA [the Superfund law]
and other authorities play a critical role in both setting priorities
for range investigations and response and for providing a means to
balance respective interdependent roles and responsibilities. When
negotiated and executed in good faith, enforceable agreements provide a
good vehicle for setting priorities and establishing a productive
framework to achieve common goals. Where range investigations and
responses are occurring, DoD and the regulator(s) should come together
and attempt to reach a consensus on whether an enforceable agreement is
appropriate. Examples of situations where an enforceable agreement might
be desirable include locations where there is a high level of public
concern and/or where there is significant risk. DoD and EPA are
optimistic that field level agreement can be reached at most
installations on the desirability of an enforceable agreement."

There are now over 150 current or former military installations on or
proposed for the "Superfund" National Priorities List. At least 108 of
those properties have negotiated inter-agency agreements in place. Only
a fraction of those contain Closed, Transferring, and Transferred
munitions ranges, and the Defense Department historically has not
necessarily agreed that those agreements cover the cleanup of unexploded
ordnance. 

The Principles attempt to clarify the relevance of those agreements: "At
NPL sites, disputes that cannot be mutually resolved at the field or
project manager level should be elevated for disposition through the
tiered process negotiated between DoD and EPA as part of the agreement
for the site, based upon the Model Federal Facility Agreement." The
Model Federal Facility Agreement places the U.S. EPA Administrator at
the top of the tiered dispute resolution process. However, the
Principles appear to allow DoD components to argue, in negotiations to
establish such agreements, that a Defense official hold ultimate
authority for resolving disputes regarding explosives safety. It depends
upon how closely the site-specific agreement has to follow the Model.

The Principles document also states that the parties to a dispute should
"give substantial deference to the expertise of the other party," and it
adds, "the parties will give great weight and deference to DoD's
technical expertise on explosive safety issues." However, it does not
define which potential areas of difference are explosive safety issues,
as opposed to those which are risk management issues.

The Enforcement section of the Principles also addresses non-NPL sites.
Since explosive safety is not evaluated in the ranking of properties for
inclusion on the NPL, most of the nation's Closed, Transferring, and
Transferred ranges are not covered by site-specific agreements. (There
are at least nine hundred such ranges in the U.S., but because many have
not yet been identified - particularly Closed ranges on active
installations - there could be more than two thousand.) 

The document says, "At non-NPL sites where there are negotiated
agreements, disputes that cannot be mutually resolved at the field or
project manager level also should be elevated for disposition through a
tiered process set forth in the site-specific agreement." At non-NPL
sites, states are usually the lead - and sometimes the only -
regulators. However, there are relatively few site-specific agreements
in place at non-NPL military properties, with or without UXO. Dispute
resolution is instead described in each statewide Defense State
Memorandum of Agreement (DSMOA), the model version of which assigns
ultimate authority jointly to the Governor and Armed Service Secretary.
This is similar to one of the alternatives listed by DoD in the proposed
Range Rule.

However - perhaps because state representatives were not party to the
Principles discussions - the Principles Enforcement section does not
refer to the Model DSMOA or any other model. This is significant because
the military often asserts that its UXO response is not subject to state
hazardous waste laws. In fact, in the Principles preamble, where the
authors list the relevant legal authorities, state law is not mentioned.
(However, the preamble says that other, unspecified authorities may
apply.) Thus, it appears that the Principles fail to provide any
additional  guidance to the resolution of UXO cleanup disputes at
non-NPL sites, the vast majority of CTT ranges and acreage.


Summary of Other Provisions

Beyond dispute resolution, the Principles process appears to reinforce
agreements reached by DoD and EPA with states, tribes, and other
stakeholders in a variety of venues. It declares, "Removal action
alternatives will be evaluated under the criteria set forth in the
National Contingency Plan (NCP) ..." It add, "Regulators and other
stakeholders will be provided an opportunity for timely consultation,
review, and comment on all phases of a removal response, except in the
case of an emergency response..."
 
The local role in establishing land use assumptions is recognized, but
it is not considered final: "Discussions with local land use planning
authorities, local officials and the public, as appropriate, should be
conducted as early as possible in the response process to determine the
reasonably anticipated future land use(s)." The document says, "In some
cases, explosives safety, cost, and/or technical limitations may limit
the ability to conduct a response and thereby limit the reasonably
anticipated future land uses."

To the degree that statistical analyses or models are used in site
characterization, the Principles suggest that DoD should recognize and
communicate the assumptions underlying such models. They say that
agencies should jointly develop site-specific data quality objectives
and quality assurance/quality control approaches.

The Principles recognize recent breakthroughs in UXO survey technology,
stating, "To the maximum extent practicable, the permanent record shall
include sensor data that is digitally recorded and geo-referenced." This
would allow cleanup crews to use new computer software to define digging
priorities and decision-makers to review the cleanup methodology long
after initial sweeps have taken place.

The document states that potential characterization technologies should
be evaluated according to two metrics, probability of detection and the
false alarm rates. While it says that both measures are necessary, it
adds that the former is paramount.

Significantly, the Technology section warns that full project cost,
"including the costs associated with recurring review and inadequate
detection," must be considered when selecting detection technologies.

The Principles devote a section to enforceable Land Use Controls,
stating "In almost all cases, land use controls will be necessary to
ensure protection of human health and public safety."  Land Use
Controls, such as institutional controls, site access, and engineering
controls, are important both before and after remedies are implemented.
They may be needed, it says, "early in the response process to provide
protectiveness until a final remedy has been selected..." And it
declares, "Land use controls must be clearly defined and set forth in a
decision document." But final Land Use Controls should be chosen "based
on a detailed analysis of response alternatives" under the NCP, not
"presumptively selected." Land Use Controls must not only be
enforceable, but "Roles and responsibility for monitoring, reporting and
enforcing the restrictions must be clear to all affected parties."

In the long run, the Principles add, "DoD will conduct periodic reviews
consistent with the Decision Document to ensure long-term effectiveness
of the response, including any land use controls, and allow for
evaluation of new technology for addressing technical impracticability
determinations." This appears to be consistent with the proposed Range
Rule, which, unlike other DoD policies, allows for the reopening of
remedies based upon the availability of improved cleanup technologies.

If appropriate institutional controls are in place and notice of
explosive safety hazards is given, then "DoD may transfer land with
potential explosive safety hazards to another federal authority for
management purposes prior to completion of a response action." However,
"Generally, DoD should retain ownership or control of those areas at
which DoD has not yet assessed or responded to potential explosives
safety hazards."

The Principles reaffirm that the Defense Explosives Safety Board's table
of assessment depths is to be used for interim planning purposes, but
that "Site specific data is necessary to determine the actual depth of
clearance.

Finally, the document also reaffirms that the cleanup of other
constituents, such as groundwater contamination from explosive wastes,
should meet both "applicable standards under appropriate environmental
laws and explosives safety requirements." It explains, "Responses to
other constituents will be integrated with responses to military
munitions, rather than requiring different responses under various other
regulatory authorities." I haven't at all been privy to the Principles
discussions, but it appears that DoD may rely upon this Principle to
argue that EPA shouldn't issue any future orders under the Safe Drinking
Water Act, as it has at the Massachusetts Military Reservation, to cover
UXO range remediation.

***

[To download the Interim UXO Management Principles, go to
http://www.cpeo.org/pubs/index.html. Scroll down the page to the section
titled "Other Relevant Publications" and click on "DOD-EPA interim UXO
management principles.pdf."]

-- 


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

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