[CPEO-MEF] Defense comments on EPA draft FUDS policy

[Lenny Siegel <lsiegel@cpeo.org>]

The Defense Department's October 12, 2001 comments on U.S. EPA's July
13, 2001 draft policy on Formerly Used Defense Sites (FUDS) illustrate
the growing political chasm between the two agencies. Those comments,
embedded within the EPA draft as blue line text and strike-outs, as well
as the Defense Department cover letter, are available on CPEO's website
at http://www.cpeo.org/pubs. Just jump down to the list of "Other
Relevant Publications."

The purpose of the EPA policy is to clarify the agency's role at FUDS
property not currently owned by the federal government, and which are
not on the "Superfund" National Priorities List (NPL).

EPA relies on an apparently new interpretation of Executive Order 12580,
issued by President Reagan in 1987, to give it authority to assert a
lead role in the cleanup of FUDS. The policy says that "oversight of
most non-NPL FUDS will continue to be provided primarily by the states,"
but it also suggests that EPA assert primary oversight at some FUDS properties.

The Defense Department relies upon the Defense Environmental Restoration
Program statute, annual funding from Congress, and historical practice
to justify its continuing lead agency role at FUDS. It also argues for
continued lead regulatory role for states and tribes at non-NPL FUDS.
Defense accepts EPA's authority to oversee cleanup by non-federal
parties who share or bear the responsibility for FUDS cleanup. And
throughout the document, it encourages EPA to coordinate closely with
the Army Corps of Engineers to avoid duplication of effort.

EPA's draft policy says each EPA Region "should ensure that a
comprehensive, reliable inventory of FUDS is available," and it mentions
that Regions might develop their own FUDS tracking systems. The Defense
Department, on the other hand, suggests that the policy call upon the
Regions to "participate with USACE [U.S. Army Corps of Engineers],
states and Tribes in the Statewide Management Action Plan process during
which a comprehensive, reliable inventory of FUDS is developed and
updated regularly." That inventory is maintained by the Army Corps.
EPA's language allows for such cooperation, but it would preserve the
option of independent EPA-run inventories.

In the section on Site Screening, Defense suggests a number of language
changes, but it accepts that regulators may have reason to screen sites
where the Army Corps has determined that no further Defense Department
action is necessary. However, where EPA takes "steps to ensure that
further CERCLA assessment and any necessary cleanup work is performed,"
Defense proposed to clarify: "Such steps include confirmation with USACE
that the site will be addressed in the FUDS program in accordance with a
rational priority scheme for the expenditure of the appropriations made
by Congress for the FUDS program and utilization of information
developed by others, including USACE." 

EPA writes that it "plans to utilize the same enforcement approach for
FUDS as is applied to privately owned CERCLA sites," even at sites that
do not qualify for the NPL. That is, where it finds that it is not
appropriate for states or tribes to serve as lead regulator, EPA would
"provide primary oversight under CERCLA [the Comprehensive Environmental
Response, Compensation, and Liability Act, or Superfund law]" and seek
an agreement with  the Army Corps "that provides for performance of work
and reimbursement of oversight costs before attempting other
alternatives." Furthermore, EPA expects the Defense Department to
consult with EPA as a private party would, providing information and
submitting documents for regulatory review, and it plans to "explore its
enforcement alternatives ... when the USACE fails to meet EPA's
expectations for consultation under DERP [the Defense Environmental
Restoration Program]."

The Defense Department agrees to provide information and documents, but
it rejects EPA's enforcement strategy. It responds, "The USACE is not
merely a PRP [Potentially Responsible Party]; it is a governmental
agency with a mission to address DoD [Department of Defense]
contamination at FUDS, and it receives appropriations specifically for
that purpose. Those appropriations are not available for other purposes,
and other funds are not available to be used for the same purposes for
which the FUDS account has been appropriated. These are fundamental
differences from private parties, and these differences must be fully
taken into account by the Regions in their dealings with USACE..." 

Where EPA is the lead regulator, Defense writes "EPA should work closely
with USACE to ensure that the site will be addressed in the FUDS program
(if appropriate) in accordance with a rational priority scheme for the
expenditure of the appropriations made by Congress for the FUDS
program." It adds, "While DoD must consult, the Regions should recognize
the distinctions between consulting with a sister federal agency and
regulation of private parties, which do not receive funds from Congress
that can only be spent to fulfill their environmental responsibilities."

The Defense Department insists that it conduct response actions at
non-NPL FUDS, at least with respect to DoD-related wastes. It calls for
"a cooperative approach" where the Army Corps and EPA Region disagree
about response actions, and if agreement is not possible in the field,
it says "both Agencies should attempt to cooperatively resolve the
issues through senior leadership involvement." EPA wants to reserve its
ability to negotiate orders to conduct work, but Defense says that
enforcement "should not be employed merely to resolve bureaucratic
disputes over primacy." It says that the "good offices of the Department
of Justice should be used in all but the most extraordinary cases ..."

In a cover letter to EPA Assistant Administrator Marianne Lamont
Horinko, John Paul Woodley, Jr. (the new Assistant Deputy Undersecretary
of Defense for Environment), writes, "We feel this document is more
appropriate than the earlier version reviewed informally in 2000 ...,"
but he calls for a more collaborative approach. In asserting, "We
believe that enforcement should be a last resort...," he implies that
Defense Department lawyers may believe that EPA's legal interpretation
of its authority might be upheld. That may explain why Defense has
sought legislation clarifying agency roles at FUDS.

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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