2002 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 27 Jul 2002 01:36:54 -0000
Reply: cpeo-military
Subject: Re: [CPEO-MEF] New DOD Interim Guidance on RODs
The Defense Department's June 4, 2002 "Interim Guidance on Environmental
Restoration Records of Decision [ROD]" reinforces earlier memoranda
issued by Army and Air Force officials, and it represents a step in the
wrong direction. Use controls, as they apply to cleanup remedies, are
used as a substitute for treatment or removal, usually because it's
difficult or costly to complete a permanent remedy that would allow for
unrestricted use or unlimited exposure. That is, the responsible party
(polluter) is getting away with an incomplete cleanup.

The history of use controls, at least since Love Canal, is that they
don't enforce themselves. To rely upon use controls in place of
permanent remedies, there must be mechanisms for ensuring the certainty
of the restrictions. That's why, for several years, many of use have
argued that use controls should not be considered supplemental
activities, but are intrinsic elements of remedies. They should be
evaluated, funded, and enforced like any other remedial activity. That
means, the instruments for maintaining the use controls, as long as they
are needed, should either be included or referenced in remedial decision documents.

I fail to understand why the Defense Department, which professes a
willingness to partner with regulatory agencies in the characterization
of sites and the selection and documentation of physical remedies, is
unwilling to apply that partnership to the maintenance of use controls.
Voluntary measures lack the certainty that's necessary to protect public
health and the environment. Such voluntary measures, at sites where
CERCLA is invoked because there is serious risk to be managed, is like
voluntary traffic laws. Defense Components, like most drivers, need a
"traffic cop" to protect the public. This isn't merely a theoretical
problem. That's the way cleanup, and particularly use controls, has
worked over the years.

The Defense Department, EPA, and many states will be arguing this issue
for months to come. I invite others to say what they think is right, or
to suggest ways out of this growing impasse.


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

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