Re: [CPEO-MEF] Last Minute DOD Ammendment

[Lenny Siegel <lsiegel@cpeo.org>]

Since Aimée posted her message about a last-minute amendment dealing
with FUDS, I've received a redline version of the amendment that appears
to clarify what is happening. I offer the following tentative analysis,
but . I hope that anyone closer to the legislative fray who knows more
about this will correct me if I err. This seems to require urgent
attention, because I assume that some members of Congress intend to
include it in the Defense Authorization Act, scheduled for floor action
this week in both the House and Senate

As I read the language, it is intended to legislate partially the
abandoned Range Rule. It would modify Section 2701 of Title 10, U.S.
Code, which established the Defense Environmental Restoration Program,
to include decision-making authority for response actions in that
Department of Defense program. Secondly, it would add the removal of
unexploded ordnance to the "proposals made by the Secretary [of Defense]
to carry out response actions" requiring Expedited notice. And third, it
would give regulators only 30 days to assert their site-specific
authority to make decisions on the response. Otherwise, the Defense
Department would have sole jurisdiction.

While it's not clear what would happen if the regulators were to assert
their authority within the limited time frame, if they don't meet the
30-day deadline at a site the Defense Department would be in a position
to dictate the objectives and strategies for unexploded ordnance
response at that site. This is similar to the Department's preferred
version of the Range Rule, which would have given the Pentagon ultimate
dispute-resolution authority.

This new language might have been initiated in one of the Pentagon legal
offices, but it runs counter to the Department's recent efforts to
resolve such issues through discussions with representatives of state
regulatory agencies. And it clearly was not approved by the White
House's Office of Management and Budget, which mediates disputes among
federal agencies.

Regulators and others who opposed the Defense Department's version of
the Range Rule have deliberately avoided a Congressional shoot-out on
the issue, seeking instead to come up with a mutually satisfactory
solution through negotiation. Even if Congress chooses sides, a
legislative "fix" at this time would severely damage the trust necessary
to create an effective national range remediation program under any
regulatory framework.

Lenny
-- 


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: 650/961-8918
lsiegel@cpeo.org
http://www.cpeo.org

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