Re: [CPEO-MEF] Woodley's letters

[Lenny Siegel <lsiegel@cpeo.org>]

The following response comes from an environmental attorney with
significant CERCLA expertise and experience:

The Woodley letters back down from the legal dispute over whether EPA
must concur on post-remedial decisions.  It asserts that there is a
"theoretical limit to the actions the EPA Administrator can require ..
in the event of disagreement," but backs away from entering into a
debate over whether there is such a limit, no less where the line in the
sand might be located.  All that DoD is conceding is that EPA has
oversight and enforcement authority where there is long-term stewardship
required to ensure the protectiveness of the remedy.

Instead of enunciating a general principle, DoD is proposing a
case-by-case agreement on performance responsibilities, citing Hanscom
and Travis Air Force Base as examples.  The letter ASTSWMO cites one of
the typical, but essentially contentless, slogans that regulators need
to focus on performance rather than preparation of documents.  Of
course, the only way to know if performance is good or bad is through
documentation.  It is the equivalent of saying look at how much taxes I
am paying so I do not need to fill out my tax return.

In sum, these letters enunciate a strategic retreat, but not a
resolution of the underlying disagreement.    Nothing in the letters
even articulates a dispute resolution mechanism no less a principle by
which each RPM can decide disputes.

As a general matter, this approach leaves the staff DoD officials free
to conduct guerilla warfare against any EPA or state regulator's attempt
to review the implementation of the remedial action to determine if it
is working and more importantly to determine if more needs to be done. 
I think that DoD  still has created a de facto regulatory burden on EPA
and the states by shifting the burden to them.  Without a national
policy on the process, procedure, and general guidance on how to
exercise the regulator's discretion, the cost of making site-specific
decisions will, as a practical matter, result in some EPA Regional
personnel and some state officials backing off at DoD Restoration sites.
 

For example, this state of affairs (since I cannot call it a policy
since it contains no substance) renders implementation of the Long-Term
Management process essentially infeasible.  There is no regular
mechanism for reviewing the implementation of the remedy and making
changes in response to that evaluation. In fact, I suspect that the
primary purpose of this entire effort to abort post-ROD review is aimed
at avoiding the need to perform additional remedial action.

Notwithstanding the hand waiving of the DoD, there is no ambiguity in
the statute.  EPA must concur on remedial decisions.  Nothing in the
Restoration program explicitly pre-empts state laws.  DoD sites must
comply with CERCLA, which includes all state ARARs, the five year review
and continuing O&M requirements.   While I agree that it would be a
useless waste of time to require concurrence before every nut, bolt, or
pump is replaced in a remedial action, it is appropriate to have the
regulators review prior to implementation any major remedy change. 
Similarly, the regulators, not DoD, make the ultimate decision on
whether the remedy as operated is protective.

I suggest that CPEO propose that DoD and EPA should issue a joint policy
that contains the following elements:

1.      DoD operates the remedial actions and, for its own purposes, it
documents their effectiveness.

2.      DoD would submit a report periodically (no less than five years,
you could use a small number of years) on the operations, the
effectiveness, and the protectiveness.  If it is submitted every five
years, it would be the five-year review report.  This periodic review
would be reviewed by EPA or a state regulator (whoever is the lead regulator);

3.      If the periodic review finds that the remedy is not operating
properly or not effective, a change would be required.  During the five
year review, an Long-Term Management review would be required and, if
concurred in by EPA or its delegee (the state), the additional remedy
would be implemented;

4.      Periodic reviews would include determinations of whether the
land use restrictions are in place and effective.

5.      If a dispute arises between EPA and DoD or a state and DoD,
there would be two part process.  On purely technical issues (as opposed
to policy issues), at DoD expense, an independent expert panel would be
selected to advise the parties and the written record concerning the
dispute would be submitted to the expert panel.  Two members would be
selected by the regulators, two members would be selected by DoD, and
one member would be selected by the local RAB.  Both the regulator and
DoD would have veto power over any person selected.  The decision of the
expert panel would be final on scientific issues, but the question of
how the issue would impact the remedial action would be decided in the
first instance by DoD, but ultimate would be final only if concurred in
by EPA or the state regulator.  DoD would be required to follow EPA and
state cleanup policies/guidances to the same extent that private parties
are required to follow them. However, if a scientific or policy dispute
persists, the position of the regulator prevails.  DoD would need to
implement the remedy, if OMB approves funding. If OMB refuses to fund
the remedy, no remedy would be implemented, although a list of such
disputes would be submitted to the appropriate Congressional committees.

 6.      If DoD's internal documents determine that the remedy is not
effective or otherwise needs changes, the regulators should be
immediately informed.

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