2003 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 23 Oct 2003 20:12:55 -0000
Reply: cpeo-military
Subject: Re: [CPEO-MEF] Air Force to include land use controls in RODs
My observation yesterday, that the Air Force had apparently reversed its
position on incorporating land use controls into cleanup decision
documents, was wrong. I have since received documents showing that the
Air Force and U.S. EPA still remain at odds over the implementation of
land use controls, but that the Navy and EPA have reached a detailed

On October 2, 2003, Deputy Under Secretary of Defense (Installations and
Environment) Ray Dubois sent a letter to Acting EPA Administrator
Marianne Lamont Horinko, clarifying the Defense Department's current
position and bringing into the open internal disputes that have simmered
within the Pentagon for over a year. In essence, the letter says that
the Air Force and Navy don't agree, so the Department has blessed both
as they go their own ways. There is no mention of the Army. Dubois
confirmed that EPA supports the Navy's "Principles and Procedures for
Specifying, Monitoring and Enforcement of Land Use Controls and Other
Post-ROD Actions." In fact, the Principles appear to be an agreement
negotiated between the two agencies.

Dubois noted that EPA "may have reservations over the Air Force
approach," but he asserted, "I understand that EPA headquarters, though
exercising appropriate policy supervision, will neither require nor
forbid the Regions from negotiating on the basis of either approach."
It's my understanding that such negotiations may indeed take place, but
that headquarters may intervene before agreements are signed, to ensure
that precedents unacceptable to the agency are not set.

When we obtain digital versions of the Dubois letter, Navy-EPA
Principles, or the Air Force alternative, we will make them available.
For now I will present key excerpts, with most acronyms spelled out for
ease of understanding.


The joint document is a blueprint for cooperation. It first acknowledges
the existing roles and responsibilities of the two agencies. Then it
explains, "EPA and the Department of Navy agree that the most efficient
framework for specifying, implementing, monitoring, reporting on and
enforcing Land Use Controls is:
- a standard Federal Facilities Agreement for National Priorities List
- a clear, concise Record of Decision with Land Use Control objectives,
- a Remedial Design or Remedial Action Work Plan with Land Use Control
implementation actions."

According to the Navy-EPA principles, "the Record of Decision shall:
- Describe the risk(s) necessitating the remedy including Land Use
- Document risk exposure assumptions and reasonably anticipated land
- Generally describe the Land Use Control, the logic for its selection
and any related deed restrictions/notifications;
- State the Land Use Control performance objectives....
- List the parties responsible for implementing, monitoring, reporting
on, and enforcement of the Land Use Controls;
- Provide a description of the area/property covered by the Land Use
Controls (should include a map);
- Provide the expected duration of the Land Use Controls; and
- Refer to the Remedial Design or Remedial Action Work Plan for Land Use
Control implementation actions, since these details may need to be
adjusted periodically based on site conditions and other factors."

The agreement adds, "The Record of Decision at transferring properties
will need to be crafted based on the responsibilities of the new owner
and state-specific laws and regulations regarding Land Use Controls. At
transferring properties, compliance with the Land Use Control
performance objectives may involve actions by the subsequent owners in
accordance with deed restrictions, however, ultimate responsibility for
assuring that the objectives are met remains with the Department of Navy
as the party responsible under CERCLA for the remedy. Department of Navy
and regulators will consult to determine appropriate enforcement actions
should there be a failure of a Land Use Control objective at a
transferred property."

Under the Navy-EPA Principles, the Remedial Design or Remedial Action
Work Plan is a dynamic, primary document under the Federal Facilities
Agreement. At all facilities, it will "describe short and long-term
implementation actions and responsibilities for the actions in order to
ensure long-term viability of the remedy which may include both Land Use
Controls (e.g., institutional controls) and an engineered portion (e.g.
landfill caps, treatment systems) of the remedy. The term
'implementation actions' includes all actions to implement, operate,
maintain, and enforce the remedy. Depending on the Land Use Control and
site conditions, these actions can include:
* Conducting CERCLA five-year remedy reviews for the engineered remedies
and/or Land Use Controls.
* Conducting periodic monitoring or visual inspections of Land Use
Controls; frequency to be determined by site-specific conditions.
* Reporting inspection results.
* Notifying regulators prior to any changes in the risk, remedy or land
use including any Land Use Control failures with proposed corrective
* Including a map of the site where Land Use Controls are to be

At active bases, where the normal non-federal land use control
instruments generally do not apply, the Principles call for:
"- Developing internal Department of Navy policies and procedures with
respect to Land Use Control monitoring, reporting, and enforcement in
order to institutionalize Land Use Control management and to ensure base
personnel are aware of restrictions and precautions that should be
taken; Consulting with EPA at least 14 days prior to making any changes
to these policies and procedures to ensure that any substantive changes
maintain a remedy that is protective of human health and the
- Developing a comprehensive list of Land Use Controls with associated
boundaries and expected durations.
- Notifying regulators of planned property conveyance, including
federal-to-federal transfers. 'Property conveyance' includes conveying
leaseholds, easements and other partial interests in real property.
- Obtaining regulator concurrence before modifying or terminating land
use control objectives or implementation actions."

At closing bases and other excess property, where third parties are
necessarily involved, the Principles call for:
"- Notifying regulators of planned property conveyance, including
federal-to-federal transfers.
- Consulting with EPA on the appropriate wording for land use
restrictions and providing a copy of the wording from the executed deed.
- Defining responsibilities of the Department of Navy, the new property
owner and state/local government agencies with respect to Land Use
Control implementation, monitoring, reporting, and enforcement.
- Providing a comprehensive list of Land Use Controls with associated
boundaries and expected durations.
-Obtaining regulator concurrence before modifying or terminating land
use control objectives or implementation actions."

The document continues with examples of both objectives and
implementation actions.


The Air Force, as Mr. Dubois noted, has developed its own "Principles of
Agreement for Performance-Based Records of Decision in Environmental
Restoration." It states, "The Record of Decision should be streamlined
to contain remedial objectives, essential implementation and maintenance
actions to achieve the objectives, and other content elements required
by CERCLA and the National Contingency Plan. These performance
objectives in the Record of Decision, supported by the 'essential
actions' taken to meet them, are enforceable requirements of the

The Air Force makes clear, however, that it expect to unilaterally make
implementation decisions: "The Air Force must still determine the
detailed steps to take to carry out actions that achieve remedial
objectives. This can include, as appropriate, Operation and Maintenance
Plans or detailed implementation plans; the details of such documents
will be shared with regulators for review and comment, but are not
subject to additional EPA approval and enforcement beyond that applied
to the Record of Decision...

"The Record of Decision should not require new or further deliverables
and documents, or contain repetitive information, and should use
cross-references, existing data, templates, and remedy selection
assumptions wherever it makes sense and is cost-effective to do so."

The document continues, "The Air Force will be held accountable to
achieve the remedial objectives and essential actions identified in the
Record of Decision. This means being prepared for enforcement actions
should the Air Force fail to perform its essential responsibilities."
That is, the Air Force expects to be regulated by its compliance with
overall objectives, not a detailed checklist of specific activities.

The Air Force Principles further explain, "Because 'success' and
'compliance' will be defined in terms of achieving performance
objectives and essential actions, rather than meeting document exchange
deadlines, Air Force personnel must foster and maintain dialogues with
the regulators, particularly concerning technical implementation issues.
Work plans or other technical documents that are not independently
enforceable or subject to regulator approval should nonetheless undergo
review by all parties to ensure compatibility with ultimate remedial
objectives. The failure to do so will increase the likelihood of a
legitimate challenge by the regulators and the public as to whether
remedial action objectives in fact are being achieved (or have been
achieved, if a closeout determination is at issue)."


It's heartening that all these agencies are taking land use controls
seriously. Clearly public health and the environment must be protected
where contamination is left in place at levels that do not allow
unlimited access or unrestricted use. The Navy-EPA approach seems to
provide the best opportunity to ensure that such protection continues
for the life of the hazard.

In itself, the Air Force emphasis on performance objectives also makes
sense. The goal of cleanup programs should be to achieve results, not
generate documents. However, the Air Force version of the
performance-based approach is unilateral. That is, during most of
planning and implementation of long-term site management, it denies a
decision-making role to regulators. As such, it denies a long-standing
principle of environmental protection, embodied in both state and
federal laws: Entities responsible for pollution should be held
accountable by independent regulatory agencies.


Lenny Siegel wrote (yesterday):
> [The following appears to be a reversal of position. - LS]
> Cleanup process gets DOD support
> by Staff Sgt. C. Todd Lopez
> Air Force Print News
> 10/20/2003 - WASHINGTON -- The Air Force gained Department of Defense
> support in October for an environmental-cleanup approach that may
> accelerate progress at as many as 24 Air Force sites.
> The new method involves merging land-use control actions into records of
> decision, said Maureen Koetz, deputy assistant secretary of the Air
> Force for environment, safety and occupational health.
> The record is a document that explains how service officials intend to
> clean up contaminants in the environment, Koetz said. It is essentially
> the conclusion of a series of studies and investigations that often
> takes more than a decade to complete.
> "What the Air Force is planning to do is incorporate (its) performance
> actions for maintaining land-use controls right into the record of
> decision -- an enforceable document under the law," Koetz said.
> Nevertheless, the record is not the final step before actually cleaning
> a site.
> As part of a cleanup, Air Force officials agree with regulators in many
> cases as to land-use controls. These controls specify what restrictions,
> if any, will be placed on a site during and/or after it is cleaned.
> By merging land-use controls into the record of decision, Koetz said,
> the Air Force is bringing its environmental cleanup process more in step
> with the White House administrator’s results-oriented approach to
> government. Instead of focusing on administrative processes, the service
> can begin to focus on performance and achieving results.
> "We would prefer to have our agreement with environmental regulators
> right up front and come to terms with exactly what it is we are expected
> to do to fulfill our responsibilities," Koetz said. "This is really
> where the major transformation is taking place.”
> Officials want to take the focus away from submitting documents, Koetz
> said. They want to make the objectives, and actions required to meet
> them, to be the main responsibility.
> The Air Force has had success working with Environmental Protection
> Agency officials to combine the land-use controls and record of decision
> at two cleanup sites: Travis Air Force Base, Calif., and Hanscom AFB,
> Mass. Officials now hope to apply that same process to as many as 24
> records of decision that until now have been delayed because of
> differences with regulators and DOD.
> for the original, see
> http://www.af.mil/stories/story_print.asp?storyID=123005837


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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