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

[themissinglink@eznetinc.com]

Good, I am glad to see the EPA bite back as the DOD tries to weaken
environmental laws and generally have their way as lead agency in various
cleanups.  I think the DOD being the lead agency is a travesty of the
justice system and counter to the Third Amendment to the Constitution.
Having the polluter, who also happens to be the financially responsible
party, be the lead agency is a clear conflict of interest.

The Third Amendment, moreover, speaks to civilian control over the military
and limitations on military operations affecting the civilian population.
The twisting of the First Amendment to cover political donations takes more
imagination than seeing how the Third Amendment, limiting the housing of
soldiers in civilian homes, can be applied to the military poisoning the
water, land, and air of those same civilians.

There is nothing more un-American than poisoning America and Americans.

Steven Pollack


----- Original Message -----
From: "Lenny Siegel" <lsiegel@cpeo.org>
To: "Military Environmental Forum" <cpeo-military@igc.topica.com>
Sent: Friday, October 11, 2002 12:01 PM
Subject: [CPEO-MEF] "Post-ROD" Dispute Apparently Resolved - 1


> 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
>
> ***
>
> 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)
>
>
> --
>
>
> 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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