[CPEO-MEF] Summary of EPA Draft FUDS Policy

[Lenny Siegel <lsiegel@cpeo.org>]

EPA's draft policy on Formerly Used Defense Sites (FUDS), facilities
transferred from Defense Department ownership prior to the recent Base
Realignment and Closure (BRAC) rounds, represents a significant new
approach to decision-making at FUDS no longer under federal ownership.

Apparently, EPA lawyers took another look at Executive Order 12580,
which clarifies CERCLA, the Comprehensive Environmental Response,
Compensation, and Liability Act. CERCLA assigns specific powers relating
to environmental cleanup to the President. The executive order, signed
by President Reagan in 1987, delegates each Presidential power in CERCLA
to a federal department. Historically, this has meant that the agency
responsible for pollution at a federal facility is the lead agency for
cleanup. At FUDS, the Defense Department has acted as lead agency, and
its executive agent, the Army Corps of Engineers, has made most of the
key decisions. The new policy, however, is based upon EPA's authorities
at privately-owned and other non-federal properties. It does not apply
to properties now owned by other federal agencies.

In recent years, stakeholders in federal facilities cleanup have
identified two key problems with the FUDS program. First, the Corps
itself joins others in noting that the program is significantly
underfunded. The Corps officially puts the overall FUDS cost-to-complete
at over $7 billion, but the Department  of Defense (DoD) annually
requests only about $200 million. Even with Congressional increases -
usually pushed through by Senate Appropriations Committee Chair Ted
Stevens (R-Alaska), expenditures rarely exceed $250 million per year.
You don't have to be a hydrogeologist to figure that it will take at
least thirty years at that rate. I think the $7 billion figure is way
too low - it doesn't include contaminated sites where the Corps's
decision not to take action is likely to be reversed, and it clearly
isn't sufficient to clear transferred ranges - so it could take the
military twice as long to erase its FUDS liability.

Second, the Corps has decided not to proceed further with
characterization or remediation at nearly 6,000 of the 9,000 former
military properties evaluated under the FUDS program. Until recently,
the Corps called those "No Further Action" determinations. State
regulators surveyed properties so designated, and they found that about
half of the sites they checked contained contamination requiring further
attention.

In May, 1999, to clarify the situation, the Corps leadership changed its
terminology from No Further Action to "No DoD Action Indicated."
According to the Corps letter introducing the change, "This term is more
indicative of a determination that is open to further or future review
and is not a final decision."

However, while the new language indicated the Corps' willingness to
discuss re-opening inactive sites, it really did nothing to shake them
loose. That's why EPA stepped up to the plate. The new draft policy
directs EPA regions to "screen FUDS to evaluate potential risks prior to
considering entering these sites into the Comprehensive Environmental
Response, Compensation, and Liability Information System (CERCLIS)
database." EPA regions may also conduct preliminary assessments and site
inspections if warranted, and they may evaluate the properties for
including on the "Superfund" National Priorities List (NPL).

EPA regions will consult with States and Indian Tribes to establish
priorities and divide the labor of site assessment. Furthermore, "For
non-NPL FUDS which have already matured beyond the site assessment phase
and the [Army Corps] is responding to releases under the DERP [Defense
Environmental Restoration Program], EPA should work with the States and
Tribes to determine whether EPA, the State, or the Tribe will assume
primary oversight responsibility."

EPA plans to respond to non-NPL FUDS "in the same manner as other
privately-owned CERCLA sites." The agency "plans to utilize the same
enforcement approach as that applied to privately-owned CERCLA sites."
However, "It is EPA's expectation that for most non-NPL FUDS the States
and Tribes will provide the primary regulatory oversight of [Army Corps]
response action."

To see the entire draft EPA FUDS policy, see CPEO's website:
http://www.cpeo.org/action/FUDSDraftPolicy7_00.html

EPA is accepting comments on the policy through September 12. 


Lenny Siegel
-- 


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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