[CPEO-MEF] Comments on EPA's Draft FUDS Policy

[Lenny Siegel <lsiegel@cpeo.org>]

[I am submitting these comments to U.S. EPA today. - LS]

EPA's draft policy on Formerly Used Defense Site (FUDS) is a significant
breakthrough. If implemented throughout the regions, it should force the
"re-opening" of sites which have been inappropriately "closed out."

In reviewing the policy, however, I have two concerns:

First, the scope should be more carefully defined. The term
"privately-owned" does not actually describe the universe of non-federal
entities. Properties owned by state, tribal, and local governments are
not privately owned. Furthermore, the policy should look closely at the
various forms of federal trust responsibility, included Native Alaskan
land allotments. If the U.S. government retains trust responsibility
over property, is it subject to EPA involvement? ]

Moreover, there are many FUDS where the impacted property is held by a
mix of federal and non-federal entities. Should EPA play a role where
the source area is in federal ownership but private or tribal property
owners live "downstream,"  where contamination may flow. At Alaskan
sites that I visited, debris from U.S. military operations - most of
which took place before property ownership was assigned - is spread over
wide areas of multiple types of ownership.

Second, the requirement to consult with States and Tribes is too vague.
I anticipate unnecessary conflict with other regulatory agencies, many
of which share EPA's concerns. Perhaps the policy should base EPA's role
on the legally recognized capacity of states and tribes to enforce
hazardous waste laws as well as the existence of adequate public
involvement programs at the state or tribal level. Perhaps it should
provide for statewide or tribal-wide memoranda of agreement between EPA
and state or tribal agencies. There should be a mechanism for adding
properties to the CERCLIS database even if state or tribal agencies take
the lead in site assessment. Whatever the mechanism, EPA should focus
its energies on sites where 1) other regulators are inactive, 2) state
or tribal regulators seek EPA assistance, or 3) members of the public
petition for EPA action.

I believe that clarifying these issues will strengthen the document and
make it possible for EPA to more effectively move contaminated FUDS
properties into the process of remediation.

Lenny Siegel
Executive Director
Center for Public Environmental Oversight

-- 


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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