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

• Author: Herman, Steven A.

1. 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)

2. 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...