[CPEO-MEF] DOD vs. EPA

[Lenny Siegel <lsiegel@cpeo.org>]

Relations between the environmental bureaucracy at the Defense
Department (DOD) and the regulators who oversee Defense cleanup at the
U.S. Environmental Protection Agency (EPA) are rapidly deteriorating.
The primary areas of dispute appear to be post-remedy selection
activities such as the enforcement of land use controls, authority over
the cleanup of former Defense properties now in non-federal ownership,
and the remediation of land contaminated with unexploded ordnance. Each
agency is sharply contesting the other's policies. Mistrust is
approaching the levels of the early 1990s. They've even reportedly
started arguing about the timely availability of each other's documents
for review.

Though, as a community activist, I tend to take EPA's side in many of
these arguments, I believe that no one is served by the increasingly
adversarial relationship between the two agencies. Both the Defense
Department and EPA should be fighting pollution, not each other.

The new political leadership at both agencies should step forward and
attempt to resolve major policy disputes. In some cases, they should
involve representatives of other stakeholders groups, including state
and tribal regulators; local governments, community activists, and
environmental justice representatives; and other federal agencies. This
was the formula that allowed the Federal Facilities Environmental
Restoration Dialogue Committee (FFERDC) to overcome significant
obstacles in the 90s. If the conflicts cannot be resolved, or at least
reduced, non-federal stakeholders groups will need to ask Congress to
clarify who's "in charge" of each aspect of federal facilities cleanup.

Long-Term Stewardship

In the 90s, most questions about federal facilities cleanup focused on
the selection of remedies. By now, however, a large number of remedies
have been selected and memorialized in Records of Decision (RODs). Many
key decisions involve remedy operations (such as pump-and-treat),
long-term monitoring, and the implementation of land use controls. To
deal with such issues, a multi-agency task force wrote "The Road to Site
Close-Out." The Navy recently published an innovative report, "Guidance
for Optimizing Remedial Action Operation ." Both EPA and the Defense
Department have published recent documents on land use controls.

Despite agreement with regulators and public representatives on many
issues involving long-term stewardship, including progress in the
structuring of land use controls, the Defense Department has taken what
appears to me to be a new position: It doesn't recognize regulatory
authority over most post-ROD decisions. I won't argue the legal basis -
I'm not a lawyer. But I don't see how the regulatory agencies - state
and federal - can remain partners in the post-ROD process if they don't
have a recognized decision-making role. In fact, the military's failure
to recognize post-ROD regulatory authority is likely to force regulators
to oppose, up front, those cleanup plans that rely on monitoring and
land use controls.

The Defense Department seems to want to limit its ongoing cleanup
responsibilities - through mechanisms such as early transfer - but its
current posture will make that difficult. Ironically, I've seen much
more conflict over the right to make decisions than disputes over
post-ROD cleanup activity itself.

Formerly Used Defense Sites

For years, state and federal regulators have complained about the slow
pace of the Pentagon's Formerly Used Defense Sites (FUDS) program,
executed by the Army Corps of Engineers on behalf of the Army - and
funded through the Defense budget. Cleanup progress has been slow. Many
contaminated sites were prematurely declared to need "no further
action." High-profile sites such as Tierra Santa, Spring Valley, and the
Marion Depot have siphoned off funds from other sites, with little
formal justification of the Army's priorities. In response, the Army has
reformed its program, but the FUDS universe remains enormously underfunded.

A couple of years ago EPA lawyers came up with a new interpretation of
Executive Order 12580, which delegates the President's authority under
CERCLA (the Comprehensive Environmental Response, Compensation, and
Liability Act). They determined that EPA could play a greater role in
FUDS cleanup decision-making, a role that grew in importance with the
demise of the Defense Department's proposed Range Rule last year. Most
ranges that would have been subject to that Range Rule are found on FUDS
properties. EPA appears to want to use its authority selectively.

The Defense Department, however, believes that its authority over the
FUDS program is intact. It's willing to work with EPA, but it wants to
remain in charge of the program and make reform decisions itself. Once
it admits that EPA can exercise the authority it has recently started to
assert, there's nothing - the Defense Department seems to fear - to keep
EPA from taking over the entire program.

I'm not sure where I stand on the FUDS authority issue. It's important,
however, for EPA, the Defense Department, and the states to work
together. No matter how the regulatory issues are resolved, little
additional cleanup will be accomplished unless all parties work together
to boost FUDS funding.

Unexploded Ordnance

Throughout the long discussions over the Defense Department's proposed
Range Rule, I argued that state and federal regulators needed ultimate
decision-making authority over range response. The Defense Department is
now engaged in discussions with state representatives to resolve that
point, but I'm not optimistic. Too many of the discussions over range
cleanup authority have historically degenerated into arguments over
definitions and their implications for CERCLA, RCRA (the Resource
Conservation and Recovery Act) and other statutes.

I think it makes more sense to consider the Defense Department's
concerns over the potential recognition that range cleanup is just one
more form of hazardous waste cleanup. I think the military has at least
three valid concerns:

1) Explosive safety. The Defense Department doesn't want regulatory
agencies ordering ordnance technicians to take unnecessary explosive
safety risks. No regulator has ever ordered an individual to approach or
handle ordnance against his/her will, but some response strategies
entail more risk to personnel than others do. There needs to be a way to
weigh risk management for the public against risk management for
response workers.

2) Active ranges. The military doesn't want to be forced to clean
operational ranges. This has actually happened at the Massachusetts
Military Reservation, for good reason, but the evidence elsewhere thus
far doesn't show many comparable threats to public drinking water
supplies. Perhaps the military should do a better job of keeping the
public away from active impact areas, but no one expects active ranges
to be cleaned to a level safe enough for a kindergarten field trip.

3) Budget. Using today's technologies, requirements to conduct response
actions at former ranges, even at minimal levels, could break the bank.
(Army experts have told me that even site security plans could drain all
other resources, if mandated in the near future.) The Pentagon doesn't
want outsiders to insist that it spend billions of dollars on range
cleanup. No matter what the regulatory framework, however, it could take
hundreds of years to address ordnance contamination, at former ranges,
at the current rate, and that's unsatisfactory. Ideally, all parties
would work together to ask Congress to establish a higher level of
effort for range cleanup - and promote the development and prove-out of
cost-saving technologies.

At some point, the Defense Department, EPA, and other regulators will
have to resolve who's in charge, when, and where. But there doesn't have
to be a complete resolution. As with FFERDC, agreements could be reached
that answer that question most of the time, or at least reduce the need
to ask it because everyone's already on the same track.  Eventually
Congress will need to step in, but the more the agencies work out on
their own, the better the solutions will be.

-- 


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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