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Air Force Calls EPA’s Bluff on Superfund Cleanup

October 8, 2010

Ongoing disagreements between the U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Defense (“DOD”) regarding federal facility cleanups, escalated by a recent exchange between the U.S. Air Force and EPA, highlight continuing obstacles to cleaning up DOD sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). While DOD is subject to environmental laws including CERCLA and the Resource Conservation and Recovery Act (“RCRA”), its compliance with those statutes has sometimes lagged. Despite EPA’s efforts, non-compliance continues at contaminated military facilities and, in some circumstances, DOD has moved forward with cleanup, albeit on its own terms. At Tyndall Air Force Base (“Tyndall AFB”) in Florida, the Air Force recently announced its intent to continue implementing a cleanup plan largely of its choosing, without EPA oversight and, according to EPA, in violation of EPA’s RCRA Order governing the site. But due to statutory restrictions, adherence to the unitary executive principle and policy choices by the U.S. Department of Justice (“DOJ”), EPA has not effectively exercised its authority to compel DOD action under CERCLA.

CERCLA Section 120 and the Defense Environmental Restoration Program

In 1986, Congress passed the Defense Environmental Restoration Program statute (“DERP”)[1] as part of the Superfund Amendments and Reauthorization Act (“SARA”).[2] DERP requires that the Secretary of Defense “carry out a program of environmental restoration at facilities under the jurisdiction of the Secretary.”[3] DERP also applies to former Department of Defense facilities, providing that the Secretary of Defense:

shall carry out (in accordance with the provisions of this chapter and CERCLA) all response actions with respect to releases of hazardous substances from … [e]ach facility or site which was under the jurisdiction of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions leading to contamination by hazardous substances.[4]

DERP response actions must be carried out “subject to, and in a manner consistent with, section 120 (relating to federal facilities) of [CERCLA].”[5] Among other provisions, section 120 waives the federal government’s sovereign immunity for purposes of CERCLA, and subjects it to CERCLA “in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107 of this Act.”[6]

As of October 2009, DOD had established performance measures and identified over 31,600 sites eligible for cleanup under DERP, including about 4,700 formerly used defense sites (“FUDS”), 21,500 sites on active installations, and 5,400 sites on installations that have been closed or are designated to be closed or realigned under the Base Realignment and Closure process.[7] As of July 2010, EPA had listed over 140 DOD installations on the Superfund’s National Priorities List (“NPL”), containing the country’s most contaminated hazardous waste sites.[8] These sites are in addition to hundreds more across the country at which DOD qualifies as a PRP due to historical operations, but which are not designated as FUDS or governed by DERP due to a lack of current or former federal land ownership or control.

EPA Authority at DOD NPL Sites

Section 120 sets up a different path for CERCLA compliance at federal facilities than non-federal sites. That path is still mandatory, however, and enforceable by EPA and through citizens’ suits. For example, required actions by the federal department, agency or instrumentality that owns or operates the federal facility at issue must be performed under statutory deadlines. A remedial investigation and feasibility study (“RI/FS”) must be commenced within six months of a facility’s NPL listing, in consultation with EPA and appropriate State authorities.[9] Within 180 days of EPA’s review of the RI/FS, EPA and the head of the federal agency (i.e., DOD) must enter into an interagency agreement [(“IAG”]) designed to ensure “the expeditious completion by [the responsible federal department] … of all necessary remedial action at such facility.” The IAG must comply with CERCLA’s public participation requirements, and the responsible department must commence “[s]ubstantial continuous physical onsite remedial action” within 15 months of completing the RI/FS.[10] The IAGs must include, among other things, agreed-upon schedules, arrangements for operation and maintenance of the remedy, and remedial design selection. Should the responsible federal agency and EPA not reach agreement on selection of the remedial action, Section 120 provides that EPA shall select it.[11]

Status of DOD Cleanup Progress

CERCLA Section 120 subjects the United States to CERCLA and former President Ronald Reagan’s Executive Order 12,580 provides EPA with authority to issue administrative orders to federal agencies under CERCLA Section 106, but EPA must obtain DOJ’s concurrence before using that authority.[12] Largely because of DOJ’s adherence to the unitary executive principle – which provides that disputes between parties in the same governmental branch are not justiciable under Article III of the Constitution – EPA enforcement against federal agencies has been significantly more restrained than against private party, state, and local government PRPs.[13] As a result, federal PRPs are often effectively “insulated from direct administrative or judicial enforcement action by EPA.”[14] This void in enforcement also occurs because DOD has simply failed to enter into IAGs under CERCLA § 120 at several federal sites.[15]

Over the past few years, at the request of members of Congress, the U.S. Government Accountability Office (“GAO”) has scrutinized cleanup progress at DERP, FUDS, and DOD-NPL sites.[16] The GAO identified several tensions and disconnects between EPA and DOD at these sites. For example, EPA and DOD use different terms, metrics, and principles to gauge and report on cleanup progress. As a result, while EPA may report that cleanups at DOD sites are in early investigative stages, DOD might simultaneously announce that the cleanups at the same sites are almost done – resulting in a wide range of inconsistent information being distributed to the public. Further, DOD does not always obtain EPA approval for its cleanup decisions, so EPA does not recognize DOD’s cleanup efforts in those circumstances. In addition to procedural and reporting issues, the GAO noted significant delays in cleanup of serious contamination at federal facilities – including, for example, lead shot found on a school playground on Tyndall AFB in Florida in 2009.[17]

Illustration of Tensions and Stalemates Between EPA and DOD

A recent exchange between the U.S. Air Force and EPA regarding Tyndall AFB brought these issues into sharper public focus. Tyndall AFB has been listed on the NPL since 1997. Located southeast of Panama City, Florida, the 29,000-acre site has been an active Air Force installation since 1947. Contamination includes polychlorinated biphenyls, pesticides such as DDT, heavy metals, volatile and semi-volatile organic compounds, residues from exploded ordnance, and petroleum-based compounds such as jet fuel and oil. Those hazardous substances have been found in soils, sediments, surface waters, and groundwater at the base.[18]

The Air Force has not entered into an IAG with EPA at Tyndall AFB. EPA has objected to this failure, along with the Air Force’s reporting, remedy selection (largely, natural attenuation), and lack of progress at the base for years. These issues led EPA, in November 2007, to issue an Administrative Order under Section 7003 of RCRA to compel the Air Force to clean up the AFB.[19] The order was finalized in May 2008; through it, EPA intended to hold the Air Force to enforceable cleanup milestones. This strategy not been successful. EPA reports that Tyndall AFB is out of compliance with over 24 provisions of the RCRA 7003 Order.[20]

For its part, the Air Force announced plans to continue cleaning up Tyndall AFB largely on its own terms. It also described “a range of community involvement activities to solicit community input” that it has conducted. It reports that it “has and will continue to keep appropriate federal, state and local officials apprised of the work as it progresses. … . The Air Force is fully committed to the protection of human health and the environment, and to full compliance with applicable laws, at all of its facilities, for all programs, including cleanup.”[21]

On August 19, 2010, Terry Yonkers, Assistant Secretary for Installations Environment and Logistics of the Air Force, formally announced the Air Force’s intent to continue its unilateral cleanup of Tyndall AFB. In his memorandum, Assistant Secretary Yonkers asserts the Air Force action’s compliance with CERCLA, RCRA, DERP, and the May 2008 RCRA Order.[22] EPA previously announced that, once the Air Force enters into a CERCLA IAG with EPA and the State of Florida, EPA will withdraw the RCRA Order, and cleanup will proceed under CERCLA.[23] Assistant Secretary Yonkers, however, described the position of alleged compliance as “consistent with EPA’s recognition that RCRA corrective action and CERCLA response generally yield similar remedies in similar situations and that a cleanup under one program will satisfy the requirements of both.”

Last month, Cynthia Giles, EPA Assistant Administrator for Enforcement and Compliance Assurance, responded by letter to Secretary Yonkers’ memorandum “to express very serious concern.”[24] She alleges that the memorandum is inaccurate regarding cleanup progress and potential risks to human health and the environment, which are “likely to confuse and mislead the public.” She therefore “urged” Secretary Yonkers to “immediately issue clarifications that will more accurately portray potential risks to human health and the environment … and fully disclose the Air Force’s noncompliance with federal environmental requirements.” She also criticized the Air Force’s press release about cleanup progress, which she asserts “gives the incorrect impression that cleanup work at Tyndall is proceeding in an appropriate manner” when it is not. Assistant Administrator Giles described the Air Force’s unilateral actions at Tyndall AFB as “unprecedented,” and emphasized the significance of the contamination that the Air Force’s actions have not addressed – including exceedances of EPA risk-based standards for DDT in sediments by a factor of 200. She explained that Tyndall AFB is “one of only a few of more than 170 federal facility Superfund sites where EPA rates both ‘current human exposures’ and ‘groundwater migration’ as ‘not under control,’” as groundwater is only 3-4 feet below the surface and serves as a drinking water resource for humans and 40 species listed under the Endangered species Act. She concluded by stating that the Air Force’s actions violate EPA’s May 2008 RCRA Order and CERCLA: “Such unilateral action is clearly contrary to the intent of Congress and inconsistent with arrangements at other federal facility and private cleanup sites nationwide.”[25]

Remaining Questions

Assistant Administrator Giles’ letter, though strongly worded, illustrates EPA’s apparent inability to effectively address a contaminated site that is allegedly within EPA’s jurisdiction, cleanup of which is straying out of EPA’s control.

Congressional, presidential, or judicial action may be required in order to enable EPA to hold DOD accountable under CERCLA. In the meantime, the situation at Tyndall AFB and EPA/DOJ stalemates at other federal facilities present several questions relevant to EPA’s administration of CERCLA and RCRA and the achievement of those statutes’ objectives. For example, should DOD be allowed to proceed according to its own determinations as to compliance with environmental standards, or must it go through EPA’s standard Superfund process? Is DOJ’s policy decision not to sue federal agencies justified? Is it constitutional? Does it unfairly shift the burdens of Superfund liability? Should EPA discourage DOD and other federal agencies from taking any action if that action does not comply with the technical requirements of EPA’s Superfund process, or is some attempt at environmental restoration better than none? Is enforcement under RCRA alone adequate? If litigation is necessary in order to require DOD compliance with RCRA and CERCLA, would Congressional action have any effect on the stalemate if DOJ continues to refuse to take DOD to court on EPA’s behalf?

Unless and until Congress sharpens EPA’s enforcement authority against federal agencies under CERCLA, a court holds the unitary executive principle unconstitutional, the President issues an Executive Order addressing the issue, and/or DOJ changes its policy on suits between executive agencies, then attempts to hold the U.S. military liable for its legacy of contamination – according to EPA standards, at least – may be the province of citizen suit plaintiffs. Potential plaintiffs include states, local governments, and private parties – none of which are entitled to the deference afforded to EPA in CERCLA litigation.

For additional information, contact Jessica Ferrell or any other member of Marten Law’s Waste Cleanup group.

[1] 10 U.S.C. §§ 2700–10.

[2] Section 211 of SARA contains the DERP statute, which was codified at 10 U.S.C. §§ 2701-2708; Pub. L. No. 99-499 § 211, 100 Stat. 1613, 1719.

[3] 10 U.S.C. § 2701(a)(1).

[4] Id. § 2701(c)(1)(B).

[5] Id. § 2701(a)(2).

[6] 42 U.S.C. § 9620(a)(1).

[7] GAO Report to Committee on Armed Services, House of Representatives, Formerly Used Defense Sites: The US Army Corps of Engineers Needs to Improve Its Process for Reviewing Completed Cleanup Remedies to Ensure Continued Protection (Oct. 2009).

[8] GAO Report to Congressional Requesters, Superfund: Interagency Agreements and Improved Project Management Needed to Achieve Cleanup Progress at Key Defense Installations, GAO-10-348 (July 15, 2010) (“GAO 2010 EPA/DOD Report”).

[9] 42 U.S.C. § 9620(e)(1).

[10] Id. § 9620(e)(2).

[11] Id. § 9620(e)(4)(A).

[12] Executive Order 12,580 of Jan. 23, 1987, appears at 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

[13] For more information on the Unitary Executive principle, see W.C. Tucker, The Manacled Octopus: The Unitary Executive and EPA Enforcement Involving Federal Agencies, 16 Villanova Envt’l L.J. 149 (2005) and authorities cited therein. EPA officials report that they often do not seek DOJ assistance for litigation against DOD at Superfund sites because they are aware of “DOJ’s policy that one department of the executive branch will not sue another in court.” GAO 2010 EPA/DOD Report at 9 (citing Environmental Compliance by Federal Agencies: Hearing Before the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, 100th Congress 668, 675 (1987) (memorandum from John Harmon, Assistant Attorney General, Office of Legal Counsel, to Michael J. Egan, Associate Attorney General, June 23, 1978) (stating DOJ view that allowing EPA to sue another agency would violate established principle that “no man can create a justiciable controversy against himself”)).

[14] W.C. Tucker, supra n.13 at 157.

[15] See GAO 2010 EPA/DOD Report, passim (citing examples). Although the relevant statutory language is mandatory, DOJ interprets IAGs as agreements into which DOD must voluntarily enter. According to DOJ, “because an interagency ‘agreement’ denotes a consensual undertaking,” it does “not think that DOD necessarily is required to agree to all extra-statutory terms demanded by EPA.” DOJ to DOD, Re: Issuance of Imminent and Substantial Endangerment Orders at DOD Facilities (Dec. 1, 2008).

[16] See, e.g., 42 U.S.C. § 9620(e)(4)(A); GAO, Superfund: Greater EPA Enforcement and Reporting Are Needed to Enhance Cleanup at DOD Sites, GAO-09-278 (March 13, 2009).

[17] GAO 2010 EPA/DOD Report at 1 (discussing Tyndall AFB).

[18] EPA, Superfund, Tyndall AFB Profile (last visited Oct. 6, 2010).

[19] In 2007, EPA Region 4 spokeswoman Laura Niles stated that EPA took action under RCRA rather than CERCLA “because the Air Force must accelerate the study and cleanup and because efforts to enter into a federal facility agreement (FFA) over the issue have been unsuccessful.” BNA Environment Reporter, Air Force Ordered to Investigate, Clean Up Contaminated Sites at Tyndall Base in Florida(Nov. 30, 2007) (subscription required). Niles stated: “EPA attempted to negotiate a comprehensive and enforceable FFA that would govern the selection and implementation of the Air Force response at this site. These agreements have been successfully entered into at approximately 150 out of 172 federal facility NPL .… sites. Given the Air Force’s resistance to sign an acceptable FFA with essential provisions to ensure appropriate oversight and protectiveness, the imminent endangerment at the site necessitates that EPA move forward with the Order. As Congress specifically provided, nothing in the Superfund law affects the obligation of a federal agency to comply with any requirement under RCRA.” Id.

[20] EPA, Superfund, Tyndall AFB Profile. While the Order is enforceable by EPA or by citizens’ suits under RCRA § 7002(a), as of this writing, no enforcement action had occurred.

[21] Tyndall AFB, Air Force moving forward with clean up at Tyndall (Aug. 30, 2010).

[22] Terry Yonkers, Assistant Secretary for Installations Environment and Logistics of the U.S. Air Force, to EPA, Re: Environmental Restoration Program ERP Progress at Tyndall AFB, FL (Aug. 19, 2010).

[23] EPA, Superfund, Tyndall AFB Profile.

[24] Letter from C. Giles (EPA) to T. Yonkers (USAF), Sept. 13, 2010.

[25] Id. at 3.

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