[CPEO-MEF] New DOD Interim Guidance on RODs

[Lenny Siegel <lsiegel@cpeo.org>]

On June 4, 2002, Assistant Deputy Under Secretary of Defense
(Environment) John Paul Woodley, Jr. signed an "Interim Guidance on
Environmental Restoration Records of Decision." The purpose of the
Interim Guidance is to clarify, for the Defense Components?Army, Navy,
Air Force, or Defense Logistics Agency?"documentation requirements for
remedial actions, to include specifically those containing land use
restrictions, in Records of Decision (RODs) required by the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)."

The Interim Guidance asserts:

"All RODS need to focus on the risk and action(s) selected to address
risk. Thus, the ROD needs to clearly:
* describe the risk(s) necessitating remediation;
* document risk exposure assumptions and reasonably anticipated land uses;
* state the remedial action objective(s)
* describe the remedy in general terms, specify the components of the
remedy, and basis for the selection; and
* list the entity(ies) responsible for implementing and maintaining the
selected remedial action."

Then the Woodley memo explains how this applies to use restrictions:

"In cases where use restrictions are selected as part of the remedy to
address risk and exposure to any remaining residual contaminants, use
controls are employed to manage the future use of the property. Where
this type of use control is an integral component of the remedial
action, the ROD (as stated in the OSWER guidance [see Reference Note])
needs to generally describe:
* the remedial action objective(s) of the use restriction;
* the specific controls proposed to effectuate the restrictions(s)
"(e.g., deed restrictions such as easements and covenants, deed notices,
land use restrictions such as zoning and local permitting, ground-water
use restrictions, and public health advisories)";
* the area/property covered by use restriction and associated control(s);
* the duration of the control(s), if not permanent; and
* the "entities responsible for implementing and maintaining controls
(e.g. property owner, town zoning authority, State health agency)."

Woodley's Interim Guidance continues, stating that Defense Components
may VOLUNTARILY "implement supplemental physical, legal, or
administrative measures that reinforce the selected use controls ..." It
list three examples:

"* provision for periodic monitoring or visual inspections of use
restrictions and controls (other than CERCLA five-year reviews);
"* certifications and reports to regulators associated with monitoring
or inspections; and
"* requirements for land use control implementation or assurance plans."

According to the Guidance, should regulatory agencies insist that
Defense Components include such measures in RODs or other post-ROD
enforceable documents, Component personnel should elevate the dispute.
In such cases, if regulators concur with the Component's preferred
"underlying physical remedy," then the Components are instructed to
"unilaterally issue and then execute the ROD respecting those consensus
elements of the physical remedy." The guidance argues, "The elevation of
and any dispute related to such specific use restriction and control, or
other post-remedy issues, should not and must not be allowed to impede
execution of those remedial selection and ROD agreements for which there
is agreement."

Reference Note: "A Guide to Preparing Superfund Proposed Plans, Records
of Decision, and Other Remedy Selection Decision Documents," U.S. EPA
Office of Solid Waste and Emergency Response, 9200.1-23P, July 1999 


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Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope 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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