[CPEO-MEF] Air Force guidance on remedy selection

[Lenny Siegel <lsiegel@cpeo.org>]

On January 23, 2002, the Air Force environmental office issued a
"Guidance on Remedy Selection Documentation in RODs [Records of
Decision]." Reportedly, the Guidance, as well as similar guidance
documents at the other armed services, is likely to bring the Defense
Department into formal dispute with U.S. EPA and possibly state
regulatory agencies.

Signed by Assistant Deputy Assistant Secretary of the Air Force
(Environmental, Safety, and Occupational Health) Terry A. Yonkers, the
Air Force guidance builds upon the lead agency authority that federal
responsible parties hold under Executive Order 12580. The wording is
carefully crafted, and I've done my best to summarize and simplify its
main points.

Yonkers' cover memorandum explains, "the Air Force shall ... Consistent
with the ROD, implement and maintain the remedy, to include LUC [Land
Use Control] remedial components, to protect human health and the
environment. As lead agency, we have the authority to and are
responsible for implementing, operating, maintaining and reviewing the
protectiveness of the remedy, to include LUC components. However,
implementation, operation, maintenance and review of such measures are
not to be included in the ROD or other post-ROD reports or documents as
enforceable terms and measures."

The Guidance itself says that the Air Force may voluntarily agree to
"supplemental voluntary measures" in support of a remedy, but such
measures "shall not be included in the ROD or any post-ROD enforceable
documents. Examples of supplemental voluntary measures that are not to
be included are:

"* provisions 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."

If EPA insists upon including such "supplemental measures" in the ROD,
Air Force personnel are directed to sign the Air Force version of the
ROD and seek EPA signature on a statement documenting the two agencies'
disagreement. Yonkers' memo instructs, "It is imprudent and inconsistent
with our lead agency functions, as delegated by Executive Order (EO)
12580, to hold up the execution of our cleanup actions pending
resolution of legal and policy issues with EPA that may take many months."

The Air Force acknowledges the EPA Administrator's authority to select a
remedy when there is an unresolved dispute between the lead agency and
EPA, but it asserts "this remedy selection authority of EPA does not
extend to ROD issuance or the expansion of 'remedy' and 'remedy
selection' to include post-remedy selection and post-ROD remedy
implementation, operations, maintenance, and review provisions and functions."

I find this legal argument unconvincing. How can a responsible party
agree to remedial activities without an implied enforcement mechanism?
The Air Force seems to be asserting that it is immune from enforcement
as soon as a ROD is signed, even if it fails to comply with the ROD. As
I read it, the Air Force says that only study or the selection of a
remedy is subject to regulator review with any teeth. The Air Force
believes it doesn't have to accept review of actual cleanup
(implementation, operations, maintenance, etc.). I doubt that's what
Congress expected when it wrote and amended the nation's hazardous
waste/substance laws to cover Defense Department cleanup.

More important, I don't understand why the Defense Department doesn't
see the value of extending the pre-ROD partnership beyond remedy
selection. Defense Department characterization and planning is helped by
requirements to achieve regulatory approval. Long-term stewardship
activities, including the implementation of land use controls as well as
the review, adjustment, and optimization of remedies, should benefit as well.

Furthermore, polluters, including the armed services, have often
avoided, delayed, or reduced cleanup activities in the absence of
empowered oversight. Particularly in times of tight budgets,
stakeholders have little reason to assume that the Defense Department
will regulate itself effectively.

I'm not sure why, but the Defense Department, propelled by some of its
environmental lawyers, is backsliding. I thought that years ago the
military accepted a simple principle: The military should subject to the
same environmental laws and enforcement mechanisms as other institutions
within our society. It should re-affirm, rather that seeks loopholes in,
that principle.

Lenny
-- 


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