2003 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 20 May 2003 21:24:24 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] Post-ROD issue to erupt again
In October, 2002, I reported that Assistant Deputy Undersecretary of
Defense (Environment), John Paul Woodley, Jr. had signed off on letters
to state and federal regulatory agencies, resolving the dispute over the
authority of those agencies to oversee cleanup programs after the
signing of Records of Decision for remedial actions. That report was
apparently premature.

I've learned that the Defense Department is considering a new position
paper, probably authored by lawyers for one of the armed services,
rejecting the regulators' position. I quote below the first three
paragraphs of the draft document.


"The Department of Defense (DoD) and the Environmental Protection Agency
(EPA) disagree over the role and authorities of each agency following
selection of the remedy at sites being addressed under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). The
current disagreement centers both on the degree of EPA's involvement in
the post-Record of Decision (ROD) period, and the specific nature of
EPA's involvement in the post-ROD period.

What Needs Resolution
Should Regulators have a concurrence role in five-year reviews?

During the five-year review, DoD assesses the remedy to determine
whether the remedial action objectives specified in the ROD are
achieved. If the remedial action objectives are met, DoD has fulfilled
the cleanup objectives and its DERP requirements. This is an important
milestone for DoD in order to maintain the DERP as a finite program. In
accordance with current DoD policy, regulators do not have a concurrence
role in DoD's five-year reviews. By allowing the five-year review to
become a primary document, EPA will obtain control over a significant
DERP milestone and could potentially extend the DERP in perpetuity.

Should LUC [Land Use Control] implementation details be enforceable?
When LUCs are part of [a] remedy, the LUC objectives are included in the
ROD; however, the processes by which DoD will achieve those objectives
(i.e., the implementation measures) are not. EPA would like to either
include the LUC Implementation Plan (LUCIP) as a primary document or
include LUC implementation measures in another primary document. If DoD
accedes to this point, EPA will not only be able to approve the remedy,
but also gain additional control over how LUCs are implemented. In
contrast, the benefit of a performance-based ROD is that it helps to
prevent "requirements creep" and avoids the response being locked into
overly prescriptive implementation details. Both "creep" and
prescriptive requirements tend to increase costs and become issues as
more and more implementation details become subject to regulatory review
and approval. Over time, a performance-based ROD can be essentially
converted into a set of detailed specifications and procedures that
prescribe one possible way to meet the objectives. This limits or
eliminates DoD's flexibility to cost-effectively meet ROD objectives.
Additionally, the enforceability of LUC implementation detail begs the
question as to what would constitute a remedy failure. Could regulators
assert that failure to follow one of more LUC implementation details
constitutes remedy failure, even when a pathway or receptors are absent.?



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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