[CPEO-MEF] "Post-ROD" Dispute Apparently Resolved - 1

[Lenny Siegel <lsiegel@cpeo.org>]

The post-ROD authorities dispute between the Defense Department, on the
one hand, and state and federal regulators, on the other, appears to
have been resolved. In two October 4 letters, Assistant Deputy Under
Secretary of Defense (Environment), John Paul Woodley, Jr. has clarified
the Department's position. The text of the first, to EPA Assistant
Administrator Marianne Horinko, is pasted below. The text of the second,
to California regulator Stan Phillippe, appears as a second message.

Please note that Woodley considers "post-ROD authorities" a misnomer. 

Lenny

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Office of the Under Secretary of Defense
3000 Defense Pentagon
Washington, DC 20301-3000

Oct. 4, 2002

Marianne Horinko
Assistant Administrator 
Office of Solid Waste and Emergency Response
U.S. Environmental Protection Agency
EPA West Building
1301 Constitution Avenue NW
Washington, DC 20004

Dear Ms. Horinko,

I have been considering our response to your kind letter of 29 July.
Much of the difficulty (beyond that associated with my difficult travel
schedule) has been that several events have taken place in the meantime
that have required reconsideration of the appropriate response to make.

I have felt for some time that the "post-ROD authorities" dispute
between EPA and DoD was ill-named, and that the debate under way was a
debate between a caricature of our position on the one hand and a
caricature of your position on the other. Surely we do not assert that
EPA's role at a contamination site governed by CERCLA, in which the
remedy chosen involves long-term stewardship to protect the public
health from toxic releases, is one of consultation alone.

Our view is much more modest. It is simply that there exists some
theoretical limit to the actions the EPA Administrator can require under
her authority to select a remedy in the event of disagreement, as
provided in CERCLA [Section] 120.

Be that as it may, it seems to me that if we define our task as
discovering the extent of the theoretical limits I mentioned (if we can
agree in the first instance that there are any theoretical limits) and
seek to define the difference between the remedy, on the one hand, and
its implementation, on the other, we are dooming ourselves to failure.
This is true even if we enlist the estimable assistance of the
Department of Justice or the Office of Management and Budget, or both.

In direct response to your letter, I think we can agree that EPA's
authority extends to such oversight and enforcement as is needed to
insure protectiveness of the remedy. Now we can proceed to reach
agreement on what oversight and enforcement is in fact needed. Since EPA
does not want more than is needed, and DoD does not want more than is
needed, we should have little difficulty reaching agreement. 

In fact, great progress in this direction has recently been made. EPA
Regions 1 and 9 and the Air Force have succeeded in focusing on
performance responsibilities in connection with Hanscom and Travis Air
Force Base RODs. I expect that more progress will soon be announced in
connection with the Langley Air Force Base ROD. This progress on
resolving issues based on execution and performance at the ground level
is cause for cautious optimism. In the meantime, the fundamental
agreement that progress on execution of remedial activities must not
pause for resolution of long-term stewardship issues has been most gratifying.

Now that we have put the "post-ROD authorities" issue behind us, we can
begin to devote the prodigious talents of our professional staffs,
including the enormous capabilities of our legal professionals, to
productive use on important matters related to the management of our
cleanup programs. These include the Guardian Trust concept, the relation
of our program to the brownfields initiative, alignment of EPA GPRA
goals and DoD program goals, and many, many others.

One thing of concern to DoD is that the requirements of our program
closely mirror those of the EPA program and of private PRP-lead sites.
As our approach to long-term stewardship matures, I recommend the
development of a rule of general applicability under CERCLA to address
these issues globally. We would very much appreciate the opportunity to
work with EPA in the development of such a rule, which would go a great
way toward satisfying public concerns over the administration of
remedies involving long-term stewardship.

very truly yours,

(signed)
John Paul Woodley, Jr.
Assistant Deputy Under Secretary of Defense (Environment)


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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
<lsiegel@cpeo.org>
http://www.cpeo.org

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