[CPEO-MEF] Post-ROD Issues

[Lenny Siegel <lsiegel@cpeo.org>]

We're starting to hear that two policy issues are holding up the signing
of cleanup Records of Decision at a number of military installations on
the "Superfund" National Priorities List. First, regulators have told me
that the Defense Department does not want to bear the continuing cost of
implementing and enforcing land use controls at properties where
contamination is left in place at levels that will not allow
unrestricted use.

Second, the following letter from the Defense Department to EPA appears
to say that the military Components will not, at least for now, sign any
documents recognizing the formal decision-making authority of regulatory
agencies subsequent to the signing of a Record of Decision (ROD)
selecting the remedy at a site or operable unit. 

This is unfortunate, because at a growing number of sites, complete
cleanup is not expected or envisioned. Post-ROD activities and
decisions, therefore, are growing in importance as more sites are left
with contamination in place. 

It's also shortsighted. If regulators and communities only get one "bite
at the apple," they'll insist that it be a very big bite. That is, if
they are unable to influence cleanup or ensure that the Pentagon will
undertake adequate long-term stewardship programs, they will demand
maximum cleanup, up front.

Lenny

***



From: Office of the Under Secretary of Defense
3000 Defense Pentagon
Washington, DC 20301-3000
May 25, 2001

To: Michael Shapiro
Acting Assistant Administrator
United States Environmental Protection Agency
Washington, DC 20460

Sylvia Lowrance
Acting Assistant Administrator
United States Environmental Protection Agency
Washington, DC 20460

Dear Mr. Shapiro and Ms. Lowrance:

I am replying on behalf of the Navy and Air Force to the May 14, 2001
letter from Daniel Meers, EPA Region IX, to Paul Yaroschak of the Navy
and the May 15, 2001 letter from Craig Hooks, Federal Facilities
Enforcement Office, to Terry Yonkers of the Air Force. I appreciate
EPA's willingness to move forward on the issue of Federal Facility
Agreements (FFAs) and sign the agreements at Langley and Hanscom Air
Force Bases, Alameda Naval Air Station and Concord Naval Weapons
Station. EPA's review and consultation on our cleanups is welcome and
improves both the program and protection of the environment and public health.

The Department of Defense and its Components are committed to protecting
human health and the environment and complying with all applicable legal
requirements at cleanup sites under its jurisdiction. However, I
reaffirm the position that Mr. Meehan relayed to the military components
on April 23, 2001, the formed the bases for his April 23, 2001 letter to
Mr. Keith Takata, EPA Region IX, which stated: "Components may sign
FFAs, after the DoD-wide 72 hour review, if non-Model post-remedy terms,
requirements, or conditions are not included in the FFAs. Components may
amend FFAs signed after the date of this memorandum to update the
agreements based on the results of a policy review." This direction
precludes our Components from accepting your proposal to include
post-Record of Decision (ROD) terms, requirements of conditions in
Memoranda of Understanding, Memoranda of Agreement, or any separately
enforceable document.

The Department of Defense is conducting an internal policy review of
post-ROD issues to determine the impacts of including post-ROD terms,
requirements, or conditions in FFAs  in addition to those listed in the
Model FFA. The treatment of these issues is the focus of our on-going
assessment. At an appropriate point in our analysis, my staff will
continue our discussions with EPA Headquarters. Expanding the scope of
the agreed-upon primary documents to incorporate post-ROD terms,
requirements or conditions at this time or agreeing to other separate
enforceable documents is every bit as objectionable to us as creating
new primary documents.

My point of contact for FFAs is Ms. Patricia Ferrebee ...

Raymond F. Dubois, Jr.
Deputy Under Secretary of Defense
(Installations and Environment)

-- 


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

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~