[CPEO-MEF] Fort Ord Ruling

[Lenny Siegel <lsiegel@cpeo.org>]

On March 12, 2001, U.S. District Judge Ronald M. Whyte, in California's
Northern District, issued a ruling (NO. C-99-20485-RMW) that not only is
likely to change the Army's unexploded ordnance cleanup effort at the
former Fort Ord, California, but if confirmed by higher courts could
impact the way the Defense Department approaches ordnance cleanup
nationwide. In this case, the Monterey Bay Unified Air Pollution Control
District sought summary judgment to prevent the Army's use of prescribed
burns in ordnance removal projects at Fort Ord.

Noting an earlier Appellate ruling that allowed certain legal challenges
to CERCLA (Comprehensive Environmental Response, Compensation, and
Liability Act) Remedial Actions but not Removal Actions at federal
facilities, the court determined that the Fort Ord ordnance project
could not continue as a "Removal." The court ruled:

"The court concludes that the Army's cleanup of OE [Ordnance and
Explosives] is most appropriately characterized as a remedial action. As
the [Air] District notes, the government's effort has been proceeding
for six years and is part of a broader plan to effect a permanent
solution. Both these factors weigh strongly in favor of finding that the
OE clearance is a remedial response....

"The Army notes that neither of these factors - duration or finality of
the measure being adopted - is decisive, and argues that the OE presents
an imminent threat to the community, rendering the clearance activities
a removal action. While the court does not wish to minimize the danger
from the OE... it cannot fairly be said that this is a situation in
which 'there is no time to safely conduct [detailed] review due to the
exigencies of the situation,' ..."

The judge also found, "additional security measures would likely
minimize risk of trespassing by even the most venturesome and bold trespassers."

In ruling the ordnance response a remedial action, Judge Whyte agreed to
consider the Air District's case. However, he still found that there was
insufficient evidence to enter a summary judgment in its favor. He
concluded that the Army has, with one possible exception, been complying
with a 1998 Settlement Agreement it had reached with the Air District to
govern the timing of prescribed burns.

He also found that the Army needed no burn permit because the response
was being conducted under CERCLA. In doing so, he rejected an argument
that the remedy was not being "conducted entirely onsite." The Air
District had claimed otherwise because smoke from the fires goes beyond
installation boundaries.

Although the Air District lost on the merits of the case, the judge's
ruling that the response is a remedial action is apparently forcing
process change that still leaves it up in the air to what degree
prescribed burns will be allowed as part of the ordnance response at
Fort Ord.

-- 


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: 650/968-1126
lsiegel@cpeo.org
http://www.cpeo.org

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