Citizens' Report on the December, 2002
Military and the Environment
The Center for Public Environmental Oversight Volume IX, Number 3

Regulatory Framework Profile | Encroachment Update | Post-ROD Dispute | FY2003 Appropriations

REGULATORY FRAMEWORK PROFILE

by Lenny Siegel
December, 2002

CPEO just completed a review of its past three years of work with public stakeholders at federal facilities. We found, at most facilities, that the public’s ability to influence cleanup decisions is hampered by the absence of a common understanding of the laws, regulations and other policies that govern cleanup decisions. In turn, the trust necessary to conduct a responsive cleanup program is undermined. Sometimes community members are confused or uninformed because existing policies are not explained; but more often, it is because general briefings on the cleanup process do not tie local issues and concerns to these policies. Furthermore, in many situations, government agencies themselves do not agree on their respective authorities.

For example, at the Vieques (PR) Naval Ammunition Support Detachment as recently as Spring, 2001, the community thought that U.S. EPA exercised regulatory oversight authority, because it showed up at meetings. However, the Puerto Rican Environmental Quality Board (EQB) was the regulator of record, but at the time it was not playing an active role. Once members of the local community understood the problem, they urged the EQB to exercise its authority. On the other hand, most of the east side of Vieques is covered by a U.S. EPA-issued Corrective Action order under the Resource Conservation and Recovery Act. To raise issues about investigations and community relations issues there, the community needs to go to EPA.

At the Jefferson Proving Ground (IN), the Nuclear Regulatory Commission is the primary regulator of depleted uranium weapons and residue lying on the range. That doesn’t seem to be a problem, as long as the one is focused on the radiological hazards of uranium. But the community wants to know who is in a position to determine whether it’s necessary to address the toxic heavy metal characteristics of uranium.

There are a number of sites across the country where sites that appear to qualify for the National Priorities List (NPL, or “Superfund” list) have not been listed. The Sunflower Army Ammunition Plant (KS) was proposed for the NPL, but it remains in limbo. The community at Bellows Air Force Base (HI) has been told that the facility was scored for NPL inclusion, but it was never even formally proposed. Contamination at the former Marion Engineering Depot (OH) appears to have caused extensive health problems for students who attended school there, but it remains off the NPL, with the state serving as lead regulator. Stakeholders don’t understand why Superfund caliber facilities are not getting Superfund-level attention from EPA.

At Moffett Field (CA) the Navy is investigating contamination of a military housing area, adjacent to the airfield, now operated by the Army. It’s not clear yet if the contamination came from Navy operations at the former Naval Air Station, NASA activities at the contiguous Ames Research Center, migration from nearby electronics industry NPL sites, or an unknown party. At Restoration Advisory Board meetings, members of the public repeatedly asked which regulatory authorities applied. They finally learned that U.S. EPA considers the housing area to be part of the Moffett Naval Air Station NPL site, but that the Navy doesn’t agree.

Finally, in the absence of an agreed regulatory authority to address unexploded ordnance, munitions constituents, and discarded military munitions, ordnance sites across the country are being regulated (or not) under a mix of authorities, with the Defense Department still reluctant to see it governed as a hazardous waste or substance.

As a result, stakeholders often don’t know where to ask questions or to whom to direct comments. If they don’t like remedial decisions, it’s unclear to whom they should complain. They don’t know what rights they have to influence or challenge such decisions.

For that reason, CPEO recommends that the official cleanup team at each cleanup property prepare a local “Regulatory Framework Profile,” as both a document and a briefing, explaining the roles and responsibilities of each official agency at that facility. If different contaminants or parcels are subject to distinct frameworks, then the scope of each should be defined. If agencies disagree over their respective authorities, that too should be explained.

These are issues that need to be resolved, whether or not such profiles are generated, so actual publication should be relatively inexpensive and painless. And the benefits to the public could be enormous. That is, with a solid understanding of the regulatory process, public stakeholders could more constructively and effectively influence and oversee the local cleanup process.

ENCROACHMENT UPDATE

In early December, President Bush signed the Fiscal Year 2003 Defense Authorization Act, resolving, for this legislative session, the fate of the Defense Department’s Readiness and Range Preservations Initiative (RRPI). The Initiative’s conservation provisions, which were supported by the environmental community, passed intact. The Armed Services are prepared to utilize these sections, creating buffer zones around military installations vulnerable to civilian encroachment, but it’s possible that implementation will await the drafting of formal policies or instructions.

However, of the controversial rollbacks or clarifications—depending upon one’s perspective—contained in the Defense Department proposal, it appears that only the language modifying the Migratory Bird Treaty Act (MBTA) survived. Section 315 of the Act allows the Defense Department to kill migratory birds unintentionally during training for a period of up to one year during which the Secretary of Interior is directed to develop regulations determining when, where, and how the Department is permanently allowed to incidentally take migratory birds. During that year, the Defense Department is “(1) to minimize and mitigate, to the extent practicable, any adverse impacts of authorized military readiness activities on affected species of migratory birds [and] (2) to monitor the impacts of such military readiness activities on affected species of migratory birds.”

With Republicans now firmly in control of committees in both houses of Congress, the Defense Department plans to resubmit RRPI, perhaps with more provisions, earlier and with more comprehensive explanations. Environmental and state opposition, however, will remain strong, because key Republicans are reluctant to weaken laws designed to protect the environment.

More importantly, legislation or not, the problems remain. Urban sprawl, habitat protection, and other environmental issues are limiting Defense activities, and the legal/regulatory process for balancing environmental and other civilian needs against military requirements have plenty of room for improvement. The Defense Department can choose to once again do battle on Capitol Hill in 2003, or it can sit down with its “adversaries” to find common solutions.

Once again, CPEO calls upon the Department of Defense to :

  1. Quickly authorize the armed services to utilize the conservation provisions of the law as soon as it is enacted.
  2. Ally with environmental organizations and community organizations to block “un-smart” growth that encroaches upon military installations, and
  3. Sponsor one or more facilitated, multi-stakeholder dialogues to promote communications and seek broad, national solutions to apparent conflicts between readiness and the environment. Such dialogues may lead to legislative proposals, but a great deal can be done within the current legal framework.

Originally, CPEO proposed a single, overarching dialogue, but it may also prove valuable to establish specialized forums such as one dealing with marine mammals and sonar. The recent termination of multinational Naval exercises near the Canary Islands—apparently beyond the reach of U.S. law—illustrated that this particular issue will remain “hot,” deserving its own constructive debate, no matter what happens with legislation.

While the RRPI was embroiled in high-profile controversy, anti-encroachment legislation sailed through the California legislature. On September 26, 2002, Governor Gray Davis signed Senate Bill 1468, one of at least two major pieces of California legislation designed to minimize the negative impact of urban growth on military readiness activities within the state. Sponsored by the Navy on behalf of all the armed services, and passed with the cooperation of a wide range of stakeholder groups, these laws may serve as a national model for incorporating readiness concerns into local planning.

SB 1468 takes effect on January 1, 2003, but nothing substantial is likely to happen until the state and Defense Department negotiate a mechanism of reimbursement. If funded, it will requite the land use element of city and county general plans, “to consider the impact of new growth on military readiness activities carried out on military bases, installations, and operating and training areas, when proposing zoning ordinances or designating land uses covered by the general plan for land or other territory adjacent to those military facilities, or underlying designated military aviation routes and airspace. The bill would, with respect to the open-space element, define open-space land to include areas adjacent to military installations, military training routes, and restricted airspace.”

A week earlier, Governor Davis signed Assembly Bill 1108, modifying the requirements of the California Environmental Quality Act (CEQA), which requires the environmental review of major projects within the state. It’s the state counterpart of the National Environmental Policy Act (NEPA), which requires environmental reviews of federal projects. According to the Navy, “In addition to fixing the duplicative scoping meetings under CEQA and NEPA, AB 1108 creates a process whereby the military will receive early notification of significant proposed projects which could impact the military mission.” AB 1108 also takes effect on January 1, 2003.

POST-ROD DISPUTE

On October 4, 2002, Assistant Deputy Under Secretary of Defense (Environment) John Paul Woodley, Jr. sent letters to Assistant EPA Administrator (Office of Solid Waste and Emergency Response) Marianne Lamont Horinko and California official Stan Phillippe, who serves as Chair of the Federal Facilities Subcommittee of the Association of State and Territorial Solid Waste Management Officials. The letters sought to resolve the growing dispute between the Defense Department and its environmental regulators over the degree to which regulators could enforce environmental cleanup requirements after the signing of Records of Decision (RODs). That dispute reportedly was holding up the signing of new RODS at Defense facilities throughout the country.

Woodley appears to address regulators’ primary concern in his letter to the states. He wrote, “Unequivocally, CERCLA [the Comprehensive Environmental Response, Compensation, and Liability Act] applies in an enforceable manner to us in the post-ROD phases of remedial implementation, operation and maintenance, and review.” To EPA he stated, “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.”

Woodley clarified that the purpose of earlier memos from his office, the Army, and Air Force, was to ensure that disputes over long-term management at cleanup sites not prevent the implementation of physical remedies. Horinko agreed to this principle in a July 29, 2002 letter to Woodley.

Woodley also stated, “It is DoD’s view that we collectively need to re-focus our environmental restoration program upon substantive performance of the remedial action and away from resource intensive document preparation and review that is costly and time consuming without commensurate environmental and human health benefit.”

He also wrote, “Our engagement with EPA and States, therefore, has centered less on technical designations of respective post-ROD authorities and more on a systemic evolution of the cleanup process towards performance, efficiency and transparency. We have sought to incorporate the post-ROD phases of remedial actions into the ROD itself by ensuring ROD provisions fully focus on and capture essential performance requirements and factors….” Woodley praised agreements at Hanscom Air Force Base (MA) and Travis Air Force Base (CA), based on this “performance-based” formula.

Noting DOD’s desire that the requirements of its cleanup program match those covering EPA-led and private CERCLA sites, Woodley recommended to EPA, “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.”

FY2003 APPROPRIATIONS

The funds for Department of Defense Environmental Restoration (ER) in the fiscal year 2003 Appropriations Act generally match the President’s request, with the expected increases for Formerly Used Defense Sites (FUDS) and Kaho‘olawe. Funds for key environmental R&D programs were cut, but not so much as some feared.

In the Defense Appropriations Act:

ER, Army $395,900,000
ER, Navy $256,948,000
ER, Air Force $389,773,000
ER, Defense-Wide $23,498,000
ER, FUDS $246,102,000
Kaho‘olawe Island Fund $75,000,000

The President requested $212,102,000 for FUDS, and the Senate originally raised the amount to $252,102,000. The House initially proposed $25 million for Kaho‘olawe, and the Senate proposed $80 million.

The President requested $28,334,000 for the Environmental Security Technology Certification Program (ESTCP), but the Conference committee approved the Senate-proposed cuts to $21,334,000.

The President requested $60,468,000 for the Strategic Environmental Research and Development Program (SERDP). The House added $3,000,000 for the National Environmental Education and Training Center (NEETC) and $5,000,000 for Toxic Chemical Cleanup Criteria, while the Senate cut $11,000,000. The Conference committee ended up with $54,568,000, with $2,600,000 for NEETC and $2,500,000 for Toxic Criteria.

Perhaps more important, House-Senate Conferees from the Armed Services Committees, in their Report on the Defense Authorization Act, directed the Defense Department not to devolve ESTCP and SERDP to the Army, as proposed in an internal Defense Department memo this August.

In the Military Construction Appropriations Act (MilCon), the Senate proposed increasing Base Realignment and Closure (BRAC) environmental cleanup funding by $100,000,000, but the Conferees settled on $20,000,000 for the Environmental Cleanup Acceleration Initiative. Since the actual bill totals cover all BRAC spending, not just cleanup, one can assume that the plus-ups will be added to the numbers the Defense Department supplied earlier this year for BRAC cleanup.

Army BRAC cleanup was increased by $3 million to $150 million. Navy BRAC cleanup was increased by $11 million to $260 million. Air Force BRAC cleanup was increased by $6 million to $125 million. Agencies BRAC cleanup remained at $5 million.

To complicate matters, the Conferees reduced the total BRAC account by $4 million to reflect “savings that result from the re-estimation of inflation.” Such cuts were made throughout the Military Construction budget. It is not clear how they will be distributed among the BRAC accounts.

In addition, Section 131 of the final bill “directs the Department of Defense to accurately reflect the cost of environmental remediation activities in its future budget submissions” for BRAC. It’s not clear what, if any, impact this will have on future budgets.