Re: CLEANUP REFORM

[Lenny Siegel <lsiegel@igc.org>]

THIS IS A RE-POSTING. THE ORIGINAL WAS GARBLED. IT 
IS A FAIRLY LONG FILE.

I prepared the following remarks for a panel presentation tomorrow 
(11/15/95) at the National Environmental Policy Institute Cleanup 
Forum/Department of Navy Environmental and Natural Resource 
Program Managers Meeting in San Diego, California. However, the 
meeting was shut down at noon today because of the Federal budget 
impasse. LS

Reform Cleanup without Weakening Goals

by Lenny Siegel
November, 1995

 The current national approach to cleaning up hazardous wastes 
often gets the job done, but it's frustrating. Polluters and other 
responsible parties argue that they're required to spend too much 
money. Communities aren't sure that their health or the natural 
environment is being adequately protected.

 While there are many creative reforms in the wind, the thrust 
of most proposals for administrative and legislative reform is to reduce 
cleanup. As a someone who lives within a few miles of more than a 
dozen Superfund sites, including Moffett Naval Air Station, this 
worries me. I am sure there are some situations where current rules 
and procedures force unrealistic cleanup remedies, but I am equally 
certain that the existing process allows as much contamination to be 
swept under the tarmac.

 Unless we can be assured, to scientific certainty, that 
hazardous substances are breaking down into harmless byproducts 
faster than they are being spread or released, then we should carefully 
question cleanup requirements that permanently leave contamination in 
place. I recognize, however, that we're still figuring out how to deal 
with certain types of contamination, such as radionuclides and 
unexploded ordnance. 

 Partial solutions based upon limited future land or water use 
scenarios not only pose a threat to public health and the environment, 
but they lower the value of the affected property, whether that value is 
measured by resale value or simply potential public use. Decision to 
weaken standards based upon use may pass on environmental costs to 
future generations, so we should be treat such decisions in the same 
vein as the periodic vote to raise the national debt.

 I also believe that the fundamental principle of our current 
system of liability - that the polluter must pay - is not only fair, but it 
provides generators of hazardous waste with an enormous incentive to 
properly manage or prevent the generation of wastes. In my 
experience, both the electronics industry and the military have become 
leaders in pollution prevention because they've been hit hard with the 
cost of cleanup.

 I do think there is room for new approaches, however, where 
cleanup costs are absorbed by responsible parties who in fact bear no 
responsibility for the contamination.

 But I didn't come here to defend the current system. In 
redefining our approach to cleanup, I support three essential reforms. 
All of these are underway to some degree or another, but in today's 
political climate they do not achieve the spotlight proffered to 
proposals to weaken cleanup objectives.

1. Actual investigation or cleanup, not the delivery of documents, 
should be the measurable goal of cleanup programs.

2. The funding, management, and oversight of cleanup should 
cut through arbitrary geographic boundaries and distinctions among 
media.

3. Direct public participation in the oversight of cleanup should 
be strengthened.

REDUCE THE FOCUS ON DOCUMENTS

 When I first read the Federal Facilities Agreement for Moffett 
Field, I was confused. The schedule established milestones for the 
completion of a long series of documents, but it didn't really tell me 
when actual cleanup would be accomplished. I attributed my 
confusion to my naivet, but when our group finally hired a technical 
consultant, he asked essentially the same question. I concluded, over a 
period of time, that our system of conducting investigation and 
cleanup contains built-in inefficiencies, based upon the endemic focus 
on the production of documents.

 When I agreed to serve on the External Review Group of the 
Air Combat Command's project on Streamlined Oversight, I found 
out how extensive that inefficiency was. The project concluded:

 Findings of the report suggest that the current set of 
institutional relationships that form the regulatory oversight process 
accounts for significant time and money spent on the investigation and 
cleanup of Air Force hazardous waste sites. Estimates suggest that this 
process may account for as much as 60 percent of the time and 10 
percent of the costs of a typical Remedial Investigation/Feasibility 
Study (RI/FS). These costs are not the result of individual players 
(regulators, Air Force, contractors, community) in the oversight 
interaction failing to conduct their jobs properly, but rather the 
existence of a system that is often driven by documents and 
deliverables, as well as definitions of roles and responsibilities that 
may be inherently inefficient.^1

 The project consultants also found out that state and regulatory 
agencies not only did not have the capacity to review the documents 
that regularly cross their desk, but that the continuing generation of 
new documents will put them further and further behind. That is, 
activities are not only delayed by the time it takes to review and 
comment on documents, but by the time it takes the regulator to pore 
through the backlog of documents he or she must address first.

 I'm not sure why, but government participants in the project 
were surprised to hear that environmentalist representatives didn't like 
facing a bookshelf full of documents for every site that concerned us. 
But even if the best of situations, activists don't have the resources to 
review every last detail of a cleanup activity. We want to focus our 
energy in overseeing and advising on critical decisions.

 Why do we have to move so much paper before we move dirt? 
Many of the documents are not even required by law. Others need not 
be so bulky. There are many reasons, including the following: 

* The cleanup process, originally developed for private facilities, 
is inherently adversarial. Thus, each party generates, reviews, and 
responds to comments on the assumption that their lawyers will have 
to go to court to defend their position. In fact, often after the engineers 
have done their work, their respective lawyers routinely go through it.

* When the process was developed, computer networking 
systems that facilitate the sharing of data in electronic form were not 
generally accessible.

* Consultants, it appears, must get paid by the page. They often 
repeat boilerplate and other material in multiple documents.

 The solution, of course, is for all parties to agree up front 
which documents are really necessary. For large facilities, such as 
military bases, it is possible to generate standard documents that guide 
work at numerous sites, and then to prepare "exception reports" where 
site-specific conditions dictate changes. The more the parties trust each 
other - and trust does not require agreement on all issues of substance 
- the easier it is to streamline the process.

 These are the type of recommendations found in the Air 
Combat Command report. Since this is a Navy audience, I want to 
assure you that I have seen the Navy implement similar approaches, 
independently, before the Air Force.

 I have taken this position to Capitol Hill, where legislative 
staff have repeatedly attacked the long trail of studies associated with 
cleanup. One committee, in fact, has proposed an arbitrary cap on 
Defense Department cleanup studies. Perhaps I am too optimistic, but 
key Congressional staff appear to understand the need for actual 
sampling and analysis, but like many of the rest of us, are frustrated 
with the paperwork.

ELIMINATE ARBITRARY BOUNDARIES

 Government work, unfortunately, forces competent, assertive 
people into their own little boxes. Those who attempt to extend their 
authority or oversight often get slapped down. However, to get 
cleanup done, that's exactly what's necessary.

 First, there is the need to overcome geographic boundaries. 
For example, Moffett Field shares a vast plume of TCE with several 
nearby electronics companies, but historically U.S. EPA has assigned 
separate Remedial Project Managers (RPMs) to the military and 
civilian parties. It took us a long time to get the civilian party RPM to 
meetings of the Navy Technical Review Committee. Now the both 
RPMs come to the Restoration Advisory Board, and they both play an 
important role. NASA, whose areas of responsibility overlap the two 
"Superfund" areas, also sends their RPM to the RAB and RPM 
meetings.

 Similarly in Tucson, there are numerous responsible parties at 
the Tucson Airport "Superfund" site. Each separate party, until 
recently, had a separate advisory group or forum for dealing with the 
public. Community activists stopped coming to meetings because 
there were too many. Only when the public participation process was 
consolidated did the community return to the table.

 Second, as you know, the cleanup of environmental 
contamination is covered by a range of Federal and state laws. Funds 
may come from a variety of budgets. For example, petroleum 
contamination - in the absence of interaction with other contamination 
- is dealt with separately from solvents. While we debate when 
munitions become a hazardous waste, the military allows cleanup 
money to be used to clear closed ranges at closed bases but clearance 
for closed or inactive ranges at active bases must be funded elsewhere. 
At closing bases, the remediation of lead paint and asbestos is not 
even considered part of cleanup.

 From the community's point of view, contamination is 
contamination. Cleanup and oversight at each facility should be 
consolidated. Even where laws and budget guidance documents 
appear to require distinct programs, it should still be possible to 
coordinate them. Why reinvent the backhoe every time a jurisdictional 
boundary is crossed?

LISTEN TO THE PUBLIC

 As the neighbor of numerous "Superfund" sites, I have always 
held that I have a right to be involved in the cleanup process. 
Contamination can affect the health of my family, the integrity of our 
local environment, and even our property values. But as a volunteer, I 
only expect an advisory role. I want clear, concise information early in 
the process. I want the opportunity to advise and otherwise interact 
with decision-makers before decisions are made. And if I'm really 
dissatisfied, you'll know about it.

 That is, if I don't like the decisions or actions of the 
responsible parties, I can take my case to the regulators. If that doesn't 
work, I can go to elected officials. I don't expect to challenge the 
responsible parties every time I'm unhappy, but I - and the 
organizations that I belong to - expect contest remedies, standards, or 
schedules if I consider them a serious risk. I consider cleanup to be, in 
the final analysis, a political process, so I am prepared to go to local 
government, the press, and even door-to-door to organize support for 
my positions.

 The Restoration Advisory Boards (RABs) and similar groups 
established by Federal agencies are to a large degree based upon our 
experiences at Moffett Field. Community activists learned, early in the 
operation of our Technical Review Committee, that the Navy was 
serious about cleanup. The Navy learned that even the most militant 
community activists actually wanted cleanup, too. This fundamental 
recognition of a common goal, despite other differences, had led to a 
trust relationship between the community and the Navy. It has also 
made it easier for the regulatory agencies to form a partnership with 
the Navy.

 Most observers agree that RABs are a public relations success, 
at the vast majority of facilities, and many participants are downright 
enthusiastic. It will be some time, however, before we know how 
much the RABs contribute to safer, better, faster, and cheaper 
cleanup. I believe that the Moffett RAB will advance those objectives, 
but for other boards to be successful they must entail all the 
components that we've put together at Moffett:

1. The RAB must be broadly representative of the community, 
not just left-wing tree-huggers like myself. At the other extreme, it 
should not consist entirely of retired military officers and the base 
commander's racquetball partners. When you achieve consensus 
among activists, local government, local business interests, etc. up 
front, you can expect fewer problems down the road.

2. State and or federal regulators should have clear regulatory 
jurisdiction. It's impossible to build a productive partnership when 
one party holds all the cards. Once there is a balance of power, it's 
possible to get beyond the adversarial relationships that have 
obstructed cleanup in the past.

3. The military should, sometimes at least, listen to the 
community. The Navy at Moffett won points when, at our request, the 
checked the 565,000-gallon storage tanks for leaks. That's more than 
just public relations.

4. Information and proposals should be shared, if they're 
relevant, even in the absence of a legal requirements. Nothing builds 
suspicion more than withholding information. In fact, people often 
demand information simply because they've been told that they can't 
have it. At Moffett, we've worked out procedures through which 
subcommittees of the RAB receive documents automatically, while 
other members only receive them upon request.

5. The community needs access to independent technical help. At 
Moffett and the surrounding civilian sites, the community receives 
EPA technical assistance grants, and our consultants have helped us 
frame our role constructively in the process. At non-Superfund sites 
such as North Island, however, community members of an otherwise 
effective RAB are telling me that their work is severely constrained by 
the lack of such support.

6. RPMs and other field officials should not be penalized for 
taking the time to interact with the public or the regulatory agencies. 
Timetables set important goals, but more often than not working 
things out early in the process will save time and other resources later.

 I recognize that many government officials have bought into 
the concept of public participation because they want community 
groups to take the heat for decisions to skip or delay cleanup activities. 
That's not enough. The affected public not only has the right, but it 
often has site-specific expertise, to improve the entire cleanup 
program. We don't want to bust the budget. We don't consider every 
single site top priority. Participation in the process actually takes a lot 
of time and energy. 

 Nothing undermines our trust for the process more than 
proposals which would allow polluters to avoid their obligation to 
clean up after themselves. If that's what meant by reform, then the 
entire system will grind to a halt. If reform means spreading 
successful techniques, some of which I have mentioned earlier, then 
the spirit of partnership will bring better results.

^1. Versar Corporation, "Moving Sites Faster through Streamlined 
Oversight," US Air Force Air Combat Command, August, 1995.