[CPEO-MEF] "Post-ROD" Dispute Apparently Resolved - 2

[Lenny Siegel <lsiegel@cpeo.org>]

This is the second of two letters apparently resolving the dispute over
Post-ROD cleanup authorities.

Lenny

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Office of the Under Secretary of Defense
3000 Defense Pentagon
Washington, DC 20301-3000

Oct. 4, 2002

Mr. Stan Phillippe
Chair, Federal Facilities Research Subcommittee
Association of State and Territorial Solid Waste Management Officials
444 North Capitol Street, NW Suite 315
Washington, DC 20001

Dear Mr. Phillippe:

Thank you for your August 20, 2002, letter regarding Department of
Defense (DoD) and Service interim environmental restoration guidance. We
appreciate the interest and commitment the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO) have in
protection of human health and the environment, and the completion of
remediation at DoD sites. As you know, the Military Services have been
hard at work trying to settle a series of disputed Records of Decision
(RODs) over the past several months. These disputes arise over the
proper mechanism to ensure long-term viability of land use or
institutional controls (LUC/ICs) used to prevent exposure to residual contamination.

I welcome this opportunity to clear up any apparent misconceptions
regarding the interim remediation guidance put in place for the pendency
of these disputes. Ongoing environmental restoration efforts receive
regulatory agency and public review and comment throughout the
remediation process, including each distinct phase after the ROD. In
fact, our policies and guidance explicitly provide for coordination and
input from appropriate State authorities. It is my understanding that
only cleanup actions that are fully coordinated with appropriate State
authorities are proceeding under the interim guidance. If you are aware
of any information to the contrary, you would deeply oblige me by making
it know directly, so I may take corrective action.

We have been working with the US Environmental Protection Agency (EPA)
for some time on the appropriate framework and requirements for
proceeding with cleanup as the ROD negotiations proceeded. This summer
EPA Assistant Administrator Marianne Horinko and I, in view of the
progress we were making, agreed we should not suspend environmental
restoration work where we have agreement on the physical remedy. This is
the basis of our June 4, 2002, interim guidance.

You may know that we are engaged with Mr. Howard Roitman of Colorado,
under the auspices of the Environmental Council of States (ECOS), in
developing tools for long-term efficacy of land use controls that all
parties should adhere to in developing land use controls. We value and
encourage such discussions and the other collaborative efforts you
mention, and would be sorry if a misunderstanding of our interim
guidance had a negative effect on them. I am delighted to report to you,
however, that this has not so far been the case.

Issues related to post-ROD authorities, particularly as they relate to
LUC/ICs, are the natural results of our cleanup program maturing from
investigations to active remediation. Many of the assumptions of
circumstances that guided us and the States when these cleanup were
initiated have changed, or new assumptions must now be taken into
consideration. It is DOD's view that we collectively need to re-focus
our environmental restoration program upon substantive performance of
the remedial action and away from resource intensive document
preparation and review that is costly and time consuming without
commensurate environmental or public health benefit. We recognize that a
fully adequate and documented investigation, feasibility study, and ROD
are integral to achieving a successful remedy. Once the remedy is
selected, however, DoD Components are already fully responsible and
accountable under law to execute and maintain the remedy. Needless and
expansive post-ROD documents and reports, along with multiple review and
approval cycles, elevate procedure and process over substantive cleanup.
They must be appropriately viewed as means toward the real goal - remedy
in place and achieving the remediation objective.

We need to make our response process as efficient and cost-effective as
it can be. Our engagement with EPA and States, therefore, has centered
less on technical designations of respective post-ROD authorities and
more on a systemic evolution of the cleanup process toward performance,
efficiency and transparency. We have sought to incorporate the post-ROD
phases of remedial actions into the ROD itself by ensuring ROD
provisions fully focus on and capture essential performance requirements
and factors; open and appropriate notifications to regulators; regulator
access to all relevant information and our installations; and DoD
accountability through remedy implementation, operation and maintenance,
and review.

I am pleased that this "performance based" formula has met with
considerable success among States and EPA Regions. At Hanscom Air Force
Base (AFB), EPA Region 1, Massachusetts and the Air Force have executed
a multi-site ROD with significant LUC/IC remedial components. As you are
no doubt aware, we are within perhaps days of a similar agreement at
Travis AFB with EPA Region IX and California. The Air Force is
optimistic that they are within weeks of reaching agreement with
Virginia and EPA Region III on a similar ROD at Langley AFB, with the
added twist and challenge that the ROD has been crafted and expanded to
non-LUC/IC components of the remedy. The Air Force has also achieved
regulatory agreement on similar RODS at two Base Realignment and Closure
(BRAC) installations in Ohio and Illinois. The Army and Navy are also
involved in multiple negotiations, so there is every reason to be
encouraged that this new paradigm will succeed.

Accordingly, the interim guidance must not be taken out of its context,
or understood as having greater scope than its circumstances warrant.
The Department position has been and remains that EPA, States and
citizen have important and specified participation, oversight and
enforcement roles and authorities throughout the DoD response process,
to include each distinct post-ROD phase. Each DoD installation will
fully comply, as the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA, 42 USC 9601 et seq.) and DoD policy alike
require, with all nondiscriminatory substantive and procedural
requirements of CERCLA and its implementation regulation, the National
Contingency Plan (NCP). Congress has deliberately balanced and
circumscribed DoD's delegated lead agency authorities and functions with
function and rights EPA, States, and citizens. Concomitant with our lead
agency functions and authorities are the obligations to comply with all
legal requirements and to fulfill all of our non-discretionary duties
and functions.

EPA, States and citizens have been provided oversight and enforcement
authorities and remedies should we fail to either comply with legal
requirements or to carry out our non-discretionary duties, to include
any post-ROD phase. There can be no more fundamental obligation and
responsibility we have than to take and maintain remedial actions
selected and identified in the ROD that ensure protection of human
health and the environment. If we fail to exercise out duties or to
comply with CERCLA requirements, CERCLA appropriately enables citizens,
a term which includes States, to seek civil penalties and injunctive
relief in Federal district court (see 42 USC 9659). CERCLA furthermore
allows States to seek enforcement in Federal district court of any
Federal or State requirement, standard, criteria or limitation with
which our remedial action is required to conform (see 42 USC
9621(e)(2)). Unequivocally, CERCLA applies in an enforceable manner to
us in the post-ROD phases of remedial implementation, operation and
maintenance, and review.

However, DoD must apply its resources as effectively and efficiently as
possible to perform the actions necessary to protect human health and
the environment. We must ensure that our resources are directed to those
aspects of cleanup that we know will meet that obligation - remedy performance.

My many years of service in State government have given me more
appreciation of the vices inherent in unilateral Federal action, and I
do not intend to encourage them in DoD by any policy or guidance. The
Department gains by having input from State regulatory authorities, and
I would be distressed to learn that this is not occurring. I hope we all
will continue to work together as we transform the DoD environmental
restoration program to a performance level we can all point to as a
jointly earned success.

Very truly yours,

(signed)
John Paul Woodley, Jr.
Assistant Deputy Under Secretary of Defense (Environment)

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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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