dial alternatives, and proposes an action (Section 120 of CERCLA; EPA, 1988, 1990a, 1999). However, the process, program, and funding for DOD remediation differs from a nonfederal CERCLA cleanup and depends on the type of DOD cleanup site.
The precise oversight role at DOD sites depends somewhat upon the program: (1) sites no longer owned or controlled by DOD are handled by the formerly used defense sites (FUDS) program3 (U.S. Army, 2009b); (2) active bases are addressed by the Defense Environmental Restoration Program (DERP); and (3) sites on closing bases are addressed by the base realignment and closure (BRAC) program.
Some sites are placed on EPA’s National Priorities List (NPL), which means, as its name implies, that these cleanups generally receive a higher priority and a greater degree of EPA oversight. At NPL sites, EPA and DOD must negotiate a federal facility agreement (FFA), which provides a detailed agreement concerning the process and timing by which the site investigation is performed, the remedy selected, and the remedial action implemented, including the regulatory review (EPA, 1988, 1999.)
As of 2010, EPA and DOD had successfully negotiated FFAs at 136 out of 141 facilities (GAO, 2010), and additional agreements have been entered since 2010. However, at a small number of installations, disputes between EPA and DOD concerning implementation of FFAs have arisen (GAO, 2010). DOD has in rare cases failed to obtain EPA’s prior approval for key cleanup decisions, leading EPA not to recognize them and warn that additional work may be required (GAO, 2010; Ferrell and Prugh, 2011). According to GAO, “when an agency refuses to enter into an… [FFA] and cleanup progress lags because of statutory and other limitations, EPA cannot take steps—such as issuing and enforcing orders—to compel CERCLA cleanup as it would for a private party” (GAO, 2010). EPA may seek to have DOD perform additional work (EPA, 1988).4 Thus, disputes must be resolved through interagency discussions (GAO, 2010). Since Section 120 of CERCLA also contains a waiver of sovereign immunity, individuals and states may bring citizen suits if an agency is not adhering to a CERCLA mandate (EPA, 1999; GAO, 2010; EPA, 2011b).
At non-NPL sites, EPA’s role is less direct and the cleanup may be more flexible. For the most part, state agencies oversee DOD cleanup activities at non-NPL sites, which are the majority of DOD sites (U.S. Army, 2009b).
Section 120 of CERCLA requires federal agencies, such as Army facilities containing CWM, to comply with CERCLA “in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability” (EPA, 1980). The DERP statute requires that DOD “carry out a program of environmental restoration at facilities under the jurisdiction of the Secretary,” including response actions that are “subject to, and in a manner consistent with, section 120,” which in turn, requires compliance with CERCLA in the same manner as any nongovernmental entity. The Army final military munition guidance applies the CERCLA remedy selection process to munitions response sites, although explosive safety (which is generally not addressed at CERCLA sites) is the “paramount priority” during a munitions response (U.S. Army, 2009b). U.S. Army guidance, in effect, treats NPL and non-NPL sites the same with regard to coordination with regulators and meeting regulatory requirements.5 Thus, CERCLA remedy selection criteria apply to DOD sites and are discussed in detail below.
CERCLA Remedy Selection Factors
CERCLA remedial actions are selected using nine criteria. The mandatory threshold remedy selection criteria are “overall protection of human health and the environment” (EPA, 1980) and “compliance with federal and state regulatory requirements found to be applicable or relevant and appropriate” (EPA, 1990a). Protectiveness is essential. CWM responses address “the chemical safety; explosives safety, when applicable; human health; or environmental risks presented by chemical-agent-filled munitions or agents in other than munitions configurations” (U.S. Army, 2009b). Risks posed by agent-filled munitions are “assessed through a baseline risk assessment that adheres to the requirements of CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (U.S. Army, 2009b).
The final remedy is generally selected from protective and applicable, relevant, and appropriate requirement (ARAR)-compliant alternatives based on long-term effectiveness and permanence; the reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability; and cost (EPA, 1990a).
State and community “acceptance” must be considered, but it does not provide either the state or local citizens the right to veto a remedy (EPA, 1990a). U.S. Army guidance is clear that regulatory agencies and local governments must be part of the CERCLA planning process and must be consulted in key decisions (U.S. Army, 2005). However, as a practical matter, the exact process utilized and role of the state and community depends largely on whether the site is an NPL site or not.
3DOD, Environmental Restoration Program, web site. Available at https://www.denix.osd.mil/denix/Public/Library/Cleanup/CleanupOfic/derp/index.html. Last accessed March 16, 2012. See also Army Regulation 200-1, Envi ronmental rProtection and Enhancement (February 21, 1997); AR 200-1 (para 3-3b) requires facilities to include a contingency/response plan for hazardous substances as part of an SPCCP.
4Paragraph J Subsequent Modifications of Final Reports, subparagraph 3 of the 1988 Model Federal Facility Agreement.
5Deborah A. Morefield, Environmental Management, Office of the Deputy Under Secretary for Installations and Environment Department of Defense, “Remediation Operations from an OSD Installations and Environment Perspective,” presentation to the committee on November 2, 2011.