If this is truly the new policy then it needs to be assessed against the CERCLA language to determine if it is an appropriate agency interpretation. My initial thought is that this is another problem brought on by EO 12580.
Because congress recognized it was not expert in science and risk assessment it enacted general principles of environmental standards and delegated its authority to an agency.
EPA was the agency chosen by congress to implement CERCLA. This authority includes both rulemaking and adjudication. Rulemaking entails congressional delegation of policymaking, the balancing of various interests in implementing the statutes.
Executive orders, on the other hand, are management tools allowing the executive to be more effective in administering the law. Executive orders cannot change existing laws. By removing the EPA as the agency implementing CERCLA at federal facilities in favor of, in this case, the DOD, EO 12580 represents an intrusion by the executive branch on the legislative authority to enact all laws.
First, in adjudications, all environmental standards and risk tolerances would have to be decided by prior EPA rulemaking in order for the DOD to simply be implementing the will of congress. This is not the case because each cleanup is unique and policy decisions regarding risk assessment and environmental standards are enumerated within the adjudications. Because DOD was not the agency chosen by congress to determine these policy decisions EO 12580 represents a serious separation of powers problem.
It gets worse when DOD is not acting in an adjudicatory power, claiming to be implementing EPA regulations, but rather setting environmental policy directly like this article suggests. Is the DOD interpreting CERCLA when it says it will not spend money to improve cleanup standards beyond that representing 1/10,000 cancer risk? Is it interpreting EPA regulations? Or is it simply using policy choices fitting its own independent view of risk tolerance?
EO 12580 needs to be challenged and it will be. I plan to challenge it in my comments to the proposed ROD for Landfill 7 at Fort Sheridan and further in the 7th Circuit if it is necessary to challenge the ROD after it gets published.
Sincerely,
Steven Pollack
www.familyjeweler.com/fortweb.htm
Lenny Siegel <lsiegel@cpeo.org> wrote:
[Has anyone seen the policy referred to in the third paragraph of this
article? LS]
Federal rules scrap cleanup at Williams Gateway
By J. Craig Anderson,
East Valley Tribune (AZ)
May 16, 2005
The U.S. Air Force scrapped an innovative plan to clean up toxic
chemicals at Williams Gateway Airport because Bush administration
officials decided the contamination isn't likely enough to give
residents cancer, an Air Force representative said.
The Air Force was planning to use new technology to extract pollutants
from a 20-acre jet fuel spill at the Mesa airport in late 2004 when top
military advisers handed down a revised policy, said Anthony Wong,
environmental coordinator for base realignment and closures at the Air
Force Real Property Agency.
The policy change places restrictions on the amount of money that can be
spent
decontaminating former military installations if the risk of
causing cancer in humans is less than 1 in 10,000.
...
For the entire article, see
http://www.eastvalleytribune.com/index.php?sty=41411
--
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
http://www.cpeo.org
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