Environmental cleanup and compliance at federal facilities: an EPA perspective.

I. Introduction: Federal Facilities Are Part

of the Regulated Community

The U.S. Environmental Protection Agency (EPA), along with all other federal departments and agencies, is struggling to ensure that the federal government leads the way in efforts to protect the environment. In this effort, federal leadership is vitally important. The federal government must be seen as one that practices what it preaches, and it must set an example for others. It should (and in many cases the law requires it to) do what it asks of others.

I was honored to be chosen by President Clinton and EPA Administrator Browner as the Assistant Administrator for Enforcement at EPA. As such, I am responsible for ensuring that the regulated community complies with environmental laws, both civil and criminal. The regulated community includes the federal government.

I am encouraged by the attention federal agencies like the Department of Defense are now giving to environmental issues. Unfortunately, this has not always been the case. In many respects we are playing catchup and are paying for the sins - of omission and commission - of those who came before us. Certainly, many of our predecessors were unaware of the consequences for the environment of some of their actions or inactions. Others disregarded those concerns in pursuit of the policies and priorities which dominated our body politic for the fifty years following World War II.

Today, however, we have no choice but to confront the legacy of past abuse and neglect of our environment. We no longer can claim ignorance. We must leave our children and grandchildren a healthier, safer environment. The public demands it, and our laws requiring federal cleanup and compliance with environmental standards reflect these demands. Unless we act responsibly and boldly, both in cleaning up past pollution and preventing future pollution, our children will not forgive us the environmental and fiscal debacle we will leave to them. As with almost every issue that we face in dealing with questions of public policy, this is easier said than done. There are still many unknowns and the solutions are often not easy to come by.

Be that as it may, we must face the awesome challenge confronting us. And it is awesome. The total cleanup of federal facilities will cost hundreds of billions of dollars and require decades of studies and remedial actions.(1) The challenges faced by the Department of Defense (DOD) and other agencies are immense. For example.

* DOD is engaged in cleanup at nearly 1,800 military installations in the United States and overseas.(2) One hundred of these installations are on the Superfund National Priorities List.(3) DOD's sites are contaminated primarily with chemical wastes such as fuels, solvents, and wastes from military equipment service and repair. Unexploded ordnance and wastes from munitions manufacturing and testing are also sources of serious contamination.(4)

* The Department of Energy's environmental management program contains 137 sites and facilities in 34 states and territories.(5) "The nuclear weapons complex alone is spread over 4,000 square miles in 13 states."(6) The sites are contaminated primarily with radioactive and other hazardous waste from nuclear weapons production.(7)

* The Departments of the Interior and Agriculture may be faced with cleaning up hundreds of thousands of abandoned and inactive mines and other sites on public lands.(8)

We have seen the federal environmental restoration and compliance budget increase to over $11 billion in fiscal year 1994. Of this, the Department of Energy (DOE) received about $6.2 billion,(9) and DOD received about $4.5 billion.(10) Our biggest challenges are yet to come, as we move from studying sites to remediating them.

President Clinton has made clear his commitment to subjecting the federal government to the same environmental laws it administers against others. In his Earth Day 1993 message, the President stated that "it is time that the United States Government begins to live under the laws it makes for other people."(11) And in their book, Putting People First, President Clinton and Vice-President dent Gore stated that their administration will support legislation that allows ordinary citizens to sue federal agencies that ignore environmental laws and regulations designed to preserve our environment - to make government bureaucrats accountable for environmental compliance.(12)

II. EPA's Role in Federal Facilities Enforcement

Now, what is EPA's perspective on all this? EPA's role is unique. EPA does not control or manage the contaminated properties in question. Rather, EPA is the federal government's principal pal environmental regulator and enforcer, charged by Congress with setting cleanup and other environmental standards; ensuring that federal facilities, like private facilities, comply with them; and enforcing against facilities found to be in noncompliance. For example, the 1986 Superfund amendments make EPA's decision final in selecting other agencies, cleanup plans,(13) and the 1992 Federal Facility Compliance Act directs EPA to use administrative enforcement authority under RCRA "in the same manner and under the same circumstances" for federal agencies as for private parties.(14)

When Congress debated the bill that became the Federal Facility Compliance Act, one group of congressmen issued a statement explaining why they supported it. They said.

Americans demand Federal leadership in environmental efforts, not recalcitrance from Federal agencies. Placing Federal facilities on an equal footing with private facilities with respect to administrative orders and civil penalties will leave no question of Congress, intent concerning Federal facilities compliance. This provision is necessary to restore the faith of the American people that protection of human health and the environment will not give way either to bureaucratic recalcitrance, the lack of funding, or simple inactivity.(15)

Congress recognized that the federal government was a chronic violator of environmental laws and that without the threat of enforcement, federal environmental cleanup and compliance efforts would take a backseat to other priorities. Indeed, the General Accounting Office issued a report in 1988 showing that federal facility compliance with the Clean Water Act was twice as bad as private sector compliance.(16) The report also noted that there was consensus among regulators that enforcement against noncomplying federal facilities resulted in increased priority for environmental compliance and prompt corrective action.(17) This of course makes perfect sense: when faced with competing demands, we act first on the one for which we may suffer a penalty or other reprimand if we do not perform.

By enhancing EPA's enforcement authorities, Congress sought to ensure that EPA would be an independent force to keep environmental compliance and cleanup a high federal government priority. The general public also looks to EPA to play a distinct and independent role in federal facilities compliance. In various fora and meetings, citizens have repeatedly stressed that they expect EPA to act as an honest broker, within the federal government, an agency that will oversee other agencies, cleanups and environmental compliance and take enforcement action when necessary.

EPA has been filling this role. In the first year of implementing the Federal Facility Compliance Act, EPA and the states conducted RCRA compliance inspections at 305 of 338 federal waste treatment, storage and disposal facilities.(18) In 1993, EPA and the states issued over fifty penalty orders for RCRA violations to federal facilities under the Act's new enforcement authorities. Forty of these orders were issued by the states; twelve were issued by EPA, including eleven against DOD facilities. The average proposed EPA penalty in the DOD actions was over $400,000.(19) Some of the alleged violations in these actions included open burning or detonation of munitions without a permit, and storing hazardous wastes without a permit.

Often people are outraged at or mystified by the notion of one federal agency fining or penalizing another federal agency. The questions are asked: "Why are you fining us?" "Why are you embarrassing us?" "Why don't you just show us how to do it right?" The simple but truthful answer is that the enforcement action and penalty are a deterrent to noncompliance. They are an incentive for federal agencies to comply with the laws of the land. That incentive is not getting caught, not being exposed to the public and one's superiors as a violator, and not being fined or reprimanded. There must be and there will be a penalty for noncompliance. There must be an incentive to ensure that federal officials do not wait until they are caught before they comply with the law.

III. EPA's Role in Federal Facilities Cleanup

and Compliance Assistance

At the same time, we are also trying to assist our federal colleagues. We are trying to talk and listen to each other so that we understand and respect each others missions and responsibilities. To encourage the building of partnerships between DOD and EPA, Deputy Under Secretary of Defense Sherri Goodman and I have agreed to hold a series of joint regional workshops with EPA and DOD personnel to review remedy selections and other environmental issues at DOD facilities. These workshops will use the information developed during the recent "bottom up" review of DOD facilities, and will build on EPA and DOD's past experience with site remediation and waste management. The workshops will provide an additional forum for EPA and DOD to review statutory roles and obligations regarding compliance with environmental statutes, share innovative cleanup and pollution prevention technology, explore ways to improve budget and contractor accountability, and develop strategies for improving public outreach.

We are also working together to support President Clinton's program to accelerate military base closures and realignment in order to ensure the protection of the environment upon the return of the bases to productive civilian use.(20) To support EPA in this program, DOD has recently provided EPA with funding to hire 100 additional EPA staffers to assist with the acceleration of environmental cleanups at closing bases.(21) For major closing or realigning bases on the Superfund National Priorities List, EPA Regions will assign a Remedial Project Manager (RPM) to work full-time with DOD, the state, and local communities to expedite the cleanup process. For closing bases not on the National Priorities List, or for minor realignment of installations, the Region may assign an RPM to more than one base. The RPM will be supported by a team of experts in such areas as hydrogeology, health risk assessment and toxicology, ecological risk assessment, engineering, community relations, field work support, and clean parcel identification. These experts will work across installations, depending upon the needs at each site.

In addition to base closure, EPA will continue to support and encourage cooperative efforts similar to the one presently underway at McClellan Air Force Base, where EPA, the State of California, and several Fortune 500 companies have collaborated on a number of innovative technologies for remediation. As a result, EPA is proposing the establishment of more public-private partnership projects at several other federal sites. EPA and DOD are also working with others to coordinate development of technological solutions to environmental restoration and waste management problems between states and the federal government.

There is an important lesson to be learned in our efforts to clean up the overwhelming volumes of past contamination: If we are to succeed in the long run, we must prevent pollution before it happens so that we will not have to spend additional millions on future cleanup and storage. Instilling the pollution prevention ethic in the federal government will be good for the environment as well as for the federal treasury. As such, pollution prevention is one of the top priorities for EPA and the Clinton Administration. Indeed, Congress has directed EPA through the Pollution Prevention Act of 1992(22) to lead the pollution prevention effort within the federal government.(23)

Last August, President Clinton signed Executive Order 12,856, committing federal agencies to implement pollution prevention practices across all missions and activities.(24) Pursuant to this Executive Order, all facilities must comply with the Pollution Prevention Act and the Emergency Planning and Community Right-to-Know Act.(25) In addition, federal facilities must meet a series of planning requirements and reduction goals by specified deadlines, including a fifty percent reduction in toxic pollutant releases from federal facilities by the end of 1999.(26) The Executive Order will require approximately 1,600 federal facilities to develop facility-specific pollution prevention plans by the end of 1995. EPA stands ready to help federal agencies meet these requirements and has issued interim final guidelines to federal agencies on the implementation of the Executive Order.(27)

As one of the largest consumers and employers in the country, the federal government must act in an environmentally responsible way. Executive Order 12,856 directs EPA to establish the "Federal Government Environmental Challenge Program," or "Green Government" program, to encourage federal agencies to adopt voluntary programs that improve compliance through pollution prevention.(28) This program also supports proactive environmental programs that go beyond compliance, such as purchasing recycled paper and soy-based inks, and using energy efficient products like compact fluorescent light bulbs.(29) Green Government also encourages agencies to adopt a statement of environmental principles that demonstrates a strong environmental ethic. You will be hearing more about this program from EPA and the Interagency Task Force set up under the Executive Order.

IV. The Future of Federal Facility

Compliance and Cleanup

In all of these efforts, EPA is encouraging increased federal agency openness and accountability by involving all stakeholders in environmental decisionmaking. The need for this outreach with regard to federal facilities is especially critical. Unfortunately, the American public has little faith in the government in this area. Based on the federal government's past performance, this cynicism is well founded. Thus, the success of the federal government's environmental cleanup and compliance efforts will be measured in part by the degree to which key stakeholders, such as the public, states, and Congress, believe that we are diligently pursuing our mission to clean up our facilities and comply with environmental laws. They are watching what we do, not what we say. More importantly, they want a say and they want it early in the process.

EPA has taken the initiative to ensure meaningful public involvement as we face this difficult task. In 1992, EPA chartered the Federal Facilities Environmental Restoration Dialogue Committee as a formal federal advisory committee. The Restoration Dialogue Committee brings together a diverse range of interests, including representatives from various federal agencies, including DOD; state governments; tribes; labor organizations; public interest groups, including networks of residents near federal facilities; and others. Recently, the Committee's membership expanded to include local governments and environmental justice groups.

In April 1993, the Committee released a report that recommended several groundbreaking strategies for ensuring that federal cleanup decisions reflect the concerns of all affected stakeholders.(30) The report suggested improving the flow of information to stakeholders and encouraged agencies and stakeholders to exchange budgetary and priority-setting information. In addition, it urged the establishment of Site Specific Advisory Boards (SSABs) as independent public stakeholder bodies to provide policy and technical advice for federal site cleanups. SSABs are the most visible example of enhanced stakeholder participation, empowering stakeholders in the environmental decisionmaking process in their own communities. Hopefully, this empowerment will allay stakeholder concerns and reduce the costs, delays, tensions and litigation often associated with federal facilities environmental matters. I urge support for these efforts at individual bases and facilities. The more the public knows and understands about the nature of the tasks we are facing, the more supportive they will be of our efforts. The more secretive we are, the more suspicious and resistant the public will be.

EPA's Office of Enforcement recently underwent a substantial reorganization, recommended by the National Performance Review and ordered by Administrator Browner. Under the new structure, we have the enhanced ability to prioritize our actions, target specific actions to specific sectors or members of the regulated community, and seek the most appropriate relief for particular circumstances. In addition to building on the single media expertise we currently possess, we will seek to expand the use of multimedia inspections and enforcement actions whenever practicable.(31) This is particularly important as we increasingly focus our attention on protecting whole ecosystems and whole communities.

EPA's federal facilities program has been a leader in multimedia enforcement with its Federal Facilities Multimedia Enforcement compliance Initiative, a coordinated, nationwide enforcement effort. In one year, EPA has conducted a total of forty-one multimedia inspections in all ten EPA Regions, including thirty-three inspections at DOD facilities. These inspections revealed multiple violations of numerous statutes, with RCRA violations accounting for almost one-third of the total violations. Clean Water and Clean Air Act violations also were numerous, with twenty percent and fifteen percent of the total, respectively.(32) Forty additional federal facilities have been slated for inspection in fiscal year 1994. One of EPA's major goals for these inspections is to demonstrate innovative pollution prevention technologies at federal facilities that can be used in supplemental environmental projects (SEPs) to address compliance problems.

EPA will maintain its consolidated approach to federal facilities enforcement activities, for Superfund and for all other environmental statutes, in the Federal Facilities Enforcement Office (FFEO). Maintaining a consolidated federal facilities enforcement program will ensure concentrated focus and expertise in this area. It will also enable the FFEO Director to provide overall direction and one-stop, transactions for stakeholders. Given the importance of this mission, the FFEO Director will report directly to my office. FFEO will continue to serve as the primary focal point for federal facilities enforcement matters. However, now FFEO will be able to take advantage of the strategic planning, targeting, and information management that will be enhanced throughout our Office of Enforcement and Compliance Assurance (OECA).

V. Conclusion

In closing, I would like to stress again that EPA's role in federal facilities cleanups and compliance is a unique and sometimes difficult one. On the one hand, we are committed to working with our fellow federal agencies to address the enormous environmental challenges confronting the federal government. On the other, we are charged by law with being the federal government's principal environmental regulator and enforcer. We will continue to work cooperatively with other federal agencies whenever possible to solve the government's environmental problems through shared expertise, innovative technology and pollution prevention. But we will also take enforcement actions whenever appropriate to ensure that federal facilities fully comply with the nation's environmental laws, and to provide an effective deterence to noncompliance. Congress, the public, and this Administration expect no less of us. And although EPA's role, described by some as "schizophrenic," is often misunderstood, we intend to persevere because it is in all of our mutual interests to do so. (1.) Hearings Before the Senate Comm. on Govt'l Affairs, 103rd Cong., 1st Sess. 5 (Sept. 21, 1993) testimony of Alice M. Rivlin, Deputy Director of the Office of Management and Budget). (2.) 1994 U.S. Dep't Def. Ann. Rep. 2 [The report was from DOD's Defense Environmental Cleanup Program and was to Congress for Fiscal Year 1993, complete date was March 31, 1994: HBB 14.2 (c)]. (3.) Hearings Before the Subcomm. on Military Installations and Facilities of the House Armed Services Comm., 103rd Cong., 2d Sess. (Apr. 19, 1993, (statement of Elliott P. Laws, Assistant Administrator, U.S. EPA Office of Solid Waste and Emergency Response). (4.) For a survey of the forms and extent of contamination on military installations, see Seth Shulman, The Threat At Home: Confronting The Toxic Legacy of the U.S. Military (1992). (5.) U.S. Department of Energy, Pub. No. DEO/EM-0119, Environmental Management 1994: Progress and Plans of the Environmental Restoration and Waste Management Program 1 (Feb. 1994). (6.) Hearings Before the House Armed Services Comm. Military Application of Nuclear Energy Panel, 103rd Cong., 2d Sess. 7 (Mar. 16, 1994) (statement of Thomas P. Grumbly, U.S. Department of Energy, Assistant Secretary for Environmental Restoration and Waste Management [hereinafter Grumbly Statement]. (7.) For an introduction to the serious environmental problems at facilities of the DOE nuclear weapons complex, see Michael D'Antonio, Atomic Harvest: Hanford and the Lethal Toll of America's Nuclear Arsenal (1993) (focusing on the Hanford Nuclear Reservation in Washington state, where the cost of cleanup may eventually run as high as fifty billion dollars). (8.) Majority Staff of Subcomm. on Oversight & Investigations of House Comm. on Natural Resources, 103rd Cong., 1st Sess., Deep Pockets: Taxpayer Liability for Environmental Contamination (Comm. Print (9.) Grumbly Statement, supra note 6, at 25. (10.) Hearings Before the Subcomm. on Military Readiness and Defense Infrastructure of the Senate Armed Services Comm., 103d Cong., 2d Sess. 4, 12 (Apr. 27, 1994) (statement of Sherri W. Goodman, Deputy Under Secretary of Defense (Environmental Security), U.S. Department of Defense). (11.) President's Remarks on Earth Day, 29 Weekly Comp. Pres. Doc. 630, 633 (Apr. 21, 1993). (12.) See, e.g., U.S. EPA, Pub. No. EPA 800-R-94-001, Office of Water, President Clinton's Clean Water Initiative 78-80 (Feb. 1994) (explaining the Administration's proposal for clarifying the waiver of sovereign immunity in the Clean Water Act). (13.) 42 U.S.C. [sections] 9620(e)(4) (1988). (14.) Federal Facility Compliance Act [sections] 102(b), 42 U.S.C. [sections] 6961(b)(1) (Supp. IV 1992). (15.) H.R. Rep. No. 111, 102d Cong., 1st Sess. 30 (1991). (16.) U.S. General Accounting Office, Pub. No. GAO/RCED-89-13, Water Pollution: Stronger Enforcement Needed to Improve Compliance at Federal Facilities 23 (Dec. 1988). (17.) Id. at 40. These conclusions were recently reaffirmed by results of a six-year study conducted by EPA Region 9 of RCRA compliance trends in California. The study found that federal facilities repeated violations of indicator requirements at almost four times the rate of the private sector. The study also determined that overall compliance rates at both federal and private facilities ties improved as the number of inspections and amount of penalties increased. Region 9 RCRA Compliance Trends Analysis, Memorandum from Jeffrey Zelikson, Director, EPA Region 9 Hazardous Waste Management Division, to Bruce Diamond, Director, EPA Office of Waste Programs Enforcement (Jan. 21, 1994) (on file with author). (18) Statistics compiled from EPA RCRA Information System (RCRIS) (Mar. 1994). (19.) Id. (20.) See President Clinton's Five Point Plan (July 2, 1993) (on file with author). (21) Memorandum of Understanding Between the U.S. Environmental Protection Agency and the U.S. Department of Defense, Support for Implementation of Fast Track Cleanup at Closing Department Of Defense (DOD) Installations (Feb. 3, 1994) (on file with author). (22.) Pollution Prevention Act of 1990, 42 U.S.C. [subsections] 13,101-13,109 (Supp. IV 1992). (23.) Id. [sections] 13,103. (24.) Exec. Order No. 12,856, 58 N Fed. Reg. 41,981 (1993). (25.) Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. [subsections] 11,001-11,050 (1988 & Supp. IV 1992). See Exec. Order No. 12,856. supra note 24, at [sections] 1-101. (26.) Exec. Order No. 12,856, supra note 24, at [sections] 3-302. (27.) U.S. EPA Office of Federal Facilities Enforcement, Guidance on Implementing of Executive Order No. 12,856, Interim Draft (Feb. 1994); Office of Federal Facilities Enforcement, U.S. EPA, Pub. No. 300-B-94-007, Pollution Prevention in the Federal Government: Guide for Developing Pollution Prevention Strategies for Executive Order 12,856 and Beyond (Apr. 1994). (28.) Exec. Order No. 12,856, supra note 24, at [sections 4-405. (29.) Pollution Prevention in the Federal Government, supra note 27, at 32-37. (30.) Interim Report of the Federal Facilities Environmental Restoration Dialogue Committee, Recommendations for Improving the Federal Facility Environmental Restoration Decision-Making Process and Setting Priorities in the Event of Funding Shortfalls (Feb. 1993). (31.) On the need for a multimedia approach to environmental enforcement, simultaneously enforcing all applicable environmental requirements, see Peter J. Fontaine, EPA's Multimedia Enforcement Strategy: The Struggle to Close the Environmental Compliance Circle, 18 Colum. J. Envtl. L. 31 (1993) (32.) These findings will be consolidated and released in a forthcoming report by the EPA Office of Federal Facilities Enforcement.