States Accuse Pentagon Of Threats, Retaliation
Allegations Arise in Base Cleanup Hearing
By Lyndsey Layton, Washington Post Staff Writer
Friday, September 19, 2008; A02
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Environmental officials from several states that have tried to force the Pentagon to clean up polluted military sites say the Defense Department has retaliated by reducing or withholding federal oversight dollars due them.

A group representing state environmental officials says California, Colorado, Alabama, Ohio and about a dozen other states have been pressured by the Pentagon to back off the oversight of cleanup at polluted military sites.

"In the worst-case scenarios, the Department of Defense is intimidating a state environmental agency into not pursing enforcement," said Steve Brown, executive director of the Environmental Council of States.

The disclosures came during a Senate hearing yesterday on the Pentagon's refusal to follow final orders from the Environmental Protection Agency to clean up three military bases: Fort Meade in Maryland, Fort McGuire in New Jersey and Tyndall Air Force Base in Florida.

Congress gives the Pentagon about $30 million annually to dispense to states with contaminated military bases, to help pay the states' costs to oversee cleanup of those sites.

But in 2006, the Pentagon began telling some states they would no longer receive money for various oversight activities and would lose all of the money if they took enforcement action.

Alabama, for example, ordered the Army to clean up a former chemical weapons school, Camp Sibert, after a study ranked it worst in the nation among old military sites for the hazard of unexploded weapons.

Soon after, the Pentagon withheld oversight money and held fast until Alabama revoked the cleanup order, said Dania Rodriguez of the association representing the states.

Wayne Arny, deputy undersecretary of Defense, told the Senate Environment and Public Works Committee that he was not aware that the Pentagon had cut or threatened to withhold any oversight money.

"If I find that is true, I will stop it," Arny told Sen. Barbara Boxer (D-Calif.), chairman of the committee.

Arny also discussed the Pentagon's refusal to sign agreements to clean up the three sites that the EPA has said pose "imminent and substantial" dangers to public health and the environment. It also has declined to sign agreements required by law that cover 11 other military sites on the Superfund list of the most polluted places in the nation.

He said that the military is committed to protecting public health and the environment and merely differs with the EPA over cleanup procedures. He said the Pentagon was proceeding with its own cleanup.

Under executive branch policy, the EPA will not sue the Pentagon as it would a private polluter. Although the law gives final say to EPA Administrator Stephen L. Johnson in cleanup disputes with other federal agencies, the Pentagon refuses to recognize that provision. Military officials have asked the Justice Department and the White House to intervene in the dispute.

"This has nothing to do with substantive cleanup," Arny told the Senate panel. "This has to do with the form."

Arny said Pentagon lawyers and policymakers judged the EPA's cleanup plans to be "excessive."

But Boxer said it is not the role of the polluter to design the cleanup. "I don't want the EPA making decisions on war strategy, and I don't want you making decisions on environmental cleanup, because you have an interest in the easiest way out," Boxer told Arny.

The Pentagon is the nation's biggest polluter. Of 1,255 Superfund sites, the Pentagon is responsible for 129 -- the most of any entity.

Pollution cleanups pit Pentagon against regulators
By Peter Eisler, USA TODAY
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DENVER — Amy Ford's baby girl was just learning to crawl last year when men in respirators and hazardous materials suits showed up at the family's suburban home to tear out the yard.

Since then, workers have hauled away tons of asbestos-laced soil from the new development of $500,000 houses. The pollution is a vestige of Lowry Air Force Base, which closed in 1994 and was sold for $8 million to a redevelopment agency set up by the cities of Denver and Aurora. The 1,800-acre site now supports 2,800 homes, schools, shopping areas, offices and parks.

State health and environmental officials found bits of asbestos in the ground in 2003 and ordered that all contaminated soil be removed. They said that if the soil was disturbed — by gardening or by children playing, for example — the asbestos fibers might get into the air and raise residents' risks of debilitating lung problems.

But Air Force officials have refused to pay for the $15 million dig. They say the state used bad science to conclude that the risks from the asbestos were high enough to warrant a cleanup. That has left the redevelopment agency and builders to do the work and pay the bill. And the Air Force has done no cleanup at all on 22 vacant acres it still hasn't sold in the community.

"You have citizens here who want to preserve property values, who want to preserve the safety of their families and see this community developed as it was promised," Ford says. "The Air Force is refusing to take responsibility."

Lowry isn't the only neighborhood wrestling the military over environmental damage. Across the nation, the Pentagon is taking extraordinary steps to limit the military's accountability for a 50-year legacy of pollution, a USA TODAY investigation finds. The moves reflect a Bush administration view that the armed services' national security mission gives them special standing to challenge environmental laws and the state and federal agencies that enforce them. (Related graphic: An in-depth look at military bases' cleanup efforts)

That view has implications for millions of Americans who live on or around thousands of current and former military sites where soil and water are polluted by buried munitions, fuel spills, solvents or other waste.

About one in 10 Americans — nearly 29 million — live within 10 miles of a military site that is listed as a national priority for hazardous-waste cleanup under the federal Superfund program, a USA TODAY analysis shows. In all, the Defense Department is responsible for more than 10% of the 1,240 total sites listed for priority cleanup under the program, which aims to restore the nation's most polluted properties, both public and private.

Since 2001, Pentagon officials have stalled cleanups at scores of military sites where contamination from training and manufacturing has fouled soil and water. They've used their political clout to sidetrack new regulations that could force the services to spend hundreds of millions of dollars more to deal with pollution. And they've challenged state and federal regulators' power to make the military obey existing environmental laws.

EPA backs off

At the same time, the U.S. Environmental Protection Agency is backing off its oversight of the military. The agency is inspecting military sites less often and has cut the use of legal orders and fines to force the services to clean up pollution.

Now the administration is pushing Congress to exempt millions of acres of military land from major environmental requirements. Four years after President Bush campaigned on a pledge to make the military "comply with environmental laws by which all of us must live," the White House is the Pentagon's chief ally in pushing for relief from such laws.

Within the administration, "it's no secret that the EPA is running into this wall with the Pentagon," says Linda Fisher, who served two years as Bush's deputy EPA administrator — the agency's second-in- command — before returning to private work last year.

"Is the Department of Defense taking (regulatory disputes) to the White House more often? Absolutely," says Fisher, who has held environmental jobs in every Republican administration since Ronald Reagan's. "Is the Department of Defense more powerful than the EPA? Yes."

Defense officials say state and federal environmental agencies have too much power to demand costly and intrusive cleanups on military land. The Pentagon wants to cut its $4 billion a year in environmental costs — less than 1% of defense spending — by gaining more authority over where and how cleanups will be done.

"Some of these regulators are doing wrongheaded things based on poor scientific evidence," says Raymond DuBois, deputy undersecretary of Defense for installations and environment. "Shouldn't we, as stewards of the taxpayers' money, decide how we're going to clean up?"

By law, it's up to health and environmental agencies to assess health risks on polluted property and direct any necessary cleanup. Those responsible for creating the pollution get relatively little say.

Congress, with support from both Republican and Democratic administrations, reinforced that notion repeatedly over the past two decades. It approved a series of measures to hold the armed services to the same environmental rules as private industry. The Pentagon responded with new efforts to control and clean up pollution, and now the military generally does as well as private industry in making current activities comply with environmental laws.

But the military's big challenge is cleaning up messes from the past, when less was known about the environmental risks associated with building the world's mightiest fighting force. That's where the Pentagon faces the biggest costs. And that's where environmental regulators see the biggest threat to public health.

Limiting accountability

USA TODAY reviewed thousands of pages of federal records, many obtained through requests under the Freedom of Information Act, and interviewed scores of current and former federal officials, state regulators and independent authorities on environmental and military policy. Key findings:

•The Pentagon is thwarting environmental agencies' efforts to set cleanup rules.

Since 2001, the armed services have delayed more than 70 federal cleanup agreements that would dictate the scope and timing of restoration at contaminated military sites. The Pentagon objected to language restricting future construction on sites where hazardous waste would remain buried. The EPA and the Pentagon agreed on principles for settling the dispute at the end of last year, and many of the stalled agreements have since been signed.But EPA memos and budget documents blame the impasse for a "tremendous backlog" of unsigned agreements that play a "major role" in delaying cleanups.

The Pentagon also is fighting EPA efforts to set new pollution limits on two military contaminants: perchlorate, a munitions ingredient, and trichloroethylene (TCE), a solvent. After military officials complained to the White House that the EPA's studies overstated the chemicals' health risks, the agency opted to wait for years of additional study before making new rules.

State environmental regulators are facing military resistance, too. In Colorado, California, Ohio and Minnesota, the services are fighting state efforts to restrict the future use of contaminated military property. In California, Florida, Hawaii and Alaska, the military has challenged the authority of state officials to fine the armed forces for pollution problems.

•The EPA is cutting efforts to make the military comply with environmental laws.

Inspections are the EPA's chief tool for evaluating whether federal environmental laws are being followed. But since the Bush administration took office, the average number of annual EPA inspections at military installations has dropped 26%. The EPA averaged 117 inspections a year from 1997 to 2000 to check military sites' compliance with laws on hazardous-waste disposal, air pollution and wastewater discharges. From 2001 to 2003, the agency averaged 87 inspections a year.

The number of fines, cleanup orders and other EPA "enforcement actions" against military facilities has dropped 25%. From 2001 through 2003, the EPA averaged 18 actions a year, down from an average of 24 from 1998 through 2000.

When fines are issued, they tend to be far smaller: From 2001 through 2003, the EPA assessed an annual average of $619,089 in fines against the military, down 64% from its average of $1.7 million a year over the prior three years.

•The Pentagon is spending less on cleanups.

The Bush administration has proposed cuts in the Pentagon's budget for environmental cleanups in each of the past three years. Congress has refused to approve some of the reductions. Even so, overall spending to clean up polluted military sites, including closed bases, has dropped 20% since 2001, from $2.1 billion a year to $1.68 billion.

The administration also has refused to include more contaminated military lands in the Superfund program, which would speed cleanups and make funding for them a federal priority. When Bush took office, six military properties were on the list of new sites proposed for Superfund cleanup by the EPA and state environmental agencies, but none has been approved. By comparison, the Clinton administration added eight military installations to the Superfund program in its last three years.

And among the 130 military sites that were included in the Superfund program before Bush took office, the services are reaching cleanup milestones at slower rates than private companies. The services have finished 26% of cleanup remedies — such as water-treatment plants and soil-decontamination facilities. At Superfund sites owned by private industry, the completion rate is 54%.

The Pentagon view

Administration officials say there is no concerted effort to weaken environmental oversight of the military or to lessen its commitment to cleanups. After 15 years of pressure on the armed services to emphasize conservation and pollution control, they say, that commitment is here to stay.

But Pentagon officials acknowledge that they're more aggressive in resisting environmental rules and cleanup demands that they see as misguided. With the services strained by wars in Afghanistan and Iraq, they add, it's more important than ever to make sure their missions aren't hampered.

"There are two very important national issues here. There's the issue of protecting the environment and the issue of protecting our nation," says Donald Schregardus, deputy assistant secretary of the Navy for environment. "We want to make sure that the environmental laws allow us to do both."

Defense officials say cleanup orders from environmental agencies can limit their ability to "train as we fight," a motto of military readiness. They argue that some of the demands could dictate everything from where planes may practice their bombing runs to what sort of ammunition troops may use on artillery ranges.

For instance, soldiers at Camp Edwards, an Army National Guard base on Cape Cod, Mass., do their howitzer training on simulators because a 1997 EPA order barred the use of live ammunition that was polluting drinking water supplies. Edwards is the only military installation in the nation where operations have been curtailed as a direct result of orders from an environmental agency.

More often, the services' disputes with state and federal environmental regulators are based on concerns about the scope and cost of cleanups. The services have learned a lot about "what makes sense" in cleaning up pollution, says Maureen Koetz, a deputy assistant secretary of the Air Force who oversees environmental matters. So military officials "come to the table with (proposals) that we think are a better menu of options for both us and the regulators."

Health and environmental officials say the military's cleanup proposals at many polluted sites don't do enough to reduce health risks. When that sort of impasse occurs on privately owned land, regulators often use their authority to simply order a cleanup on their terms. But the military is fighting for special treatment — and getting it.

Regulators challenged

On Aug. 22, 2001, EPA Administrator Christie Whitman was preparing for a dinner with Defense Secretary Donald Rumsfeld. The Pentagon was battling the EPA over fines for pollution, arguing that the services should not be penalized as severely as private companies. So Whitman's top enforcement adviser, John Spinello, asked the EPA enforcement office for a briefing paper on the agency's position.

He got back a "guidance" memo that said the EPA recognized "no policy reason to treat federal agencies differently from any other entity." But Spinello, a Bush appointee, had a different view.

In an e-mail back to enforcement managers, Spinello criticized the EPA's stance as "high-handed and wrong." The message, obtained by USA TODAY, said "there is no consensus of opinion on this (approach). To state that 'there is no policy reason' is inflammatory, myopic and arrogant."

The decline in EPA inspections, enforcement actions and fines at military sites began in those early months of the Bush administration. And the services began challenging the agency more aggressively.

Last year, the Army fought off an unprecedented $16 million EPA fine for air pollution from coal-fired power plants at Fort Wainwright in Alaska. The Army seemed poised to lose after a federal judge rejected its argument that the military should not be penalized at the same rate as a private polluter. But the Army threatened more appeals, and the EPA settled for a $600,000 fine. The Army also agreed to put new emission controls on the Wainwright power plants and spend $1.7 million on other anti-pollution projects at the base.

David Kling, the EPA's head of federal facilities enforcement, says the agency remains committed to policing the military. "You need to look at more than just the enforcement numbers," he says. The EPA is putting more emphasis on cooperation to help the services heed environmental laws, Kling says, and their recent record of making current operations meet pollution-control rules "speaks to the success we're having."

Others familiar with the EPA's enforcement disagree.

"All the numbers are consistent with an overall trend," says Sylvia Lowrance, a 20-year EPA veteran who retired last year as its top enforcement official — and Kling's boss. "In the last two decades, you've had a general buildup of EPA's authority to ... take enforcement action against the Defense Department. That direction has changed in this administration."

State and local officials also are battling the Pentagon. Cities and states from Florida to California have taken the services to court in recent years for refusing to pay fines for environmental problems or failing to meet local demands for cleaning up pollution.

Among regulators "there's a frustration that the Defense Department has gotten tougher to deal with," says Christopher Jones, head of Ohio's Environmental Protection Agency and president of the Environmental Council of the States, a national body of state environmental chiefs. If the Pentagon "would allow base commanders and the local people who are dealing with (pollution) problems to get them resolved, I think we'd be able to work through these issues."

Daniel Miller, Colorado's assistant attorney general for environment, says the services "have become the most recalcitrant entities we deal with on cleanups. They think they're beyond accountability."

Money matters at Lowry

The fight over the asbestos cleanup in Amy Ford's Lowry neighborhood revolves around a question driving many of the military's clashes with regulators: How much public health risk is acceptable at a polluted site?

At the state's direction, workers have removed nearly all the tainted soil at Lowry, where the asbestos was left from building debris and an old steam pipeline bulldozed decades ago by the Air Force. But the Air Force says there wasn't enough danger to warrant the work.

The science on asbestos is evolving, and there are no federal or state limits on how much can safely remain in soil. New research suggests that inhaling even a few asbestos fibers may cause lung disease. Other studies say low levels of asbestos are a negligible risk.

An Air Force risk assessment for Lowry concluded in April that residents could have up to a 4-in-100,000 risk of cancer or lung disease linked to asbestos exposure. And it put the risk to construction workers at 2-in-10,000. Those figures are well above the one-in-a-million threshold that health agencies typically deem a significant risk. But absent any legal limits on asbestos contamination, the Air Force report concluded that the threats weren't great enough to warrant a cleanup.

Jeff Edson of the Colorado Department of Public Health and Environment says the study bolsters the state's cleanup demands. "Kids might play in that soil; people might garden in it," he says. Though there have been no signs of asbestos-related illness at Lowry, Edson says the prudent course is to remove the soil. "But the Air Force has basically said, 'How are you going to make us?' "

Pentagon officials say the big concern isn't the cost of cleaning up Lowry; it's the costs the services could face if they have to do similar cleanups elsewhere. Asbestos was a common building material for decades, and it would cost the Pentagon billions of dollars if the zero-tolerance cleanup demanded at Lowry became a precedent.

"We want them to develop a cleanup goal based on risk," says Doug Karas of the Air Force Real Property Agency. "The state says there's a risk, but we haven't seen data to support that."

The Air Force's refusal to meet a state order to clean the 22 acres it still owns at Lowry and to reimburse the redevelopment authority or builders for the $15 million cleanup of the rest of the community has left ill will.

"The Air Force seems to be able to blow off the state, but we certainly can't," redevelopment authority director Tom Markham says. "Regardless of the (cleanup) standard, it was the Air Force that left the contamination. They're responsible. We've filed demands for them to pay. They seem to be ignoring us."

Data analysis by Paul Overberg. Contributing: William Risser.

Military tries to exempt acres from environmental laws
By Peter Eisler, USA TODAY
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CAMP EDWARDS, Mass. — When soldiers from the Army National Guard show up here for artillery training, they fire their howitzers indoors — on simulators.

The EPA ordered a halt to live artillery training at Edwards in 1997 because munitions chemicals were leaching toward the aquifer that provides drinking water for all of Cape Cod — more than 500,000 people in summer.

Now the restrictions here are the Pentagon's Exhibit A in a controversial campaign for legislation that would exempt more than 20 million acres of military land from key facets of the Clean Air Act and the two federal laws governing hazardous-waste disposal and cleanup. (Related graphic: An in-depth look at military bases' cleanup efforts)

The top environmental officials of nearly every state oppose the legislation, as do 39 state attorneys general. And the Bush administration's own environmental officials have tried to limit the exemptions plan.

In a memo to White House officials last year on a draft of the legislation, the EPA complained that some provisions "could interfere with the ability of states to enforce air pollution and drinking water (rules) that protect public health."

The memo, obtained by USA TODAY, urged revisions so regulators could "address imminent and substantial endangerment" from military pollution. The White House refused, and the EPA had no choice but to endorse the legislation.

The Pentagon began its push for exemptions from environmental and conservation laws in 2002.

Since then, Congress has granted exemptions from five laws. For example, the armed services got leeway to train on military land that provides wildlife habitat protected by the Endangered Species Act. They also were freed to conduct sea exercises using equipment that might harm animals covered by the Marine Mammal Protection Act.

Three remaining exemption requests govern hazardous-waste disposal, hazardous-waste cleanups and air pollution.

So far, Congress has balked at the remaining waiver requests. But Republican leaders say they are committed to passing them. And the Pentagon still is pushing hard — with White House support.

"There are immediate and unquestionable (military) readiness risks associated with how these three environmental statutes are being interpreted," says Paul Mayberry, deputy undersecretary of Defense for readiness.

Yet regulators have never used the laws to limit military activities. Even the restrictions at Edwards, while cited by the Pentagon, were ordered under a drinking-water statute not covered by the waiver proposal.

Last year, then-EPA administrator Christie Whitman complained to Defense Secretary Donald Rumsfeld that Pentagon officials were misleading Congress in hearings on the exemptions legislation.

In a letter to Rumsfeld, obtained by USA TODAY, Whitman said she was "very concerned" that Defense officials were creating an "erroneous impression ... that EPA has prevented vital military training." (Related: Read Whitman's letter | Read Rumsfeld's response)

The three remaining requests for exemptions would reducestate and federal regulators' long-held power to force the military to deal with pollution on "operational" land — unless the contamination already had spread off site. That's too late, regulators say, to protect neighbors from health risks.

Pentagon officials say the exemptions are needed to ensure that regulators don't use hazardous-waste rules to demand cleanups on training ranges littered with used ordnance, which can leach chemicals such as TNT into soil and water. They also fear that clean-air rules could be used to block the transfer of aircraft to bases where air pollution from power plants and other sources already exceeds the Clean Air Act's emissions limits.

Even if environmental agencies continue to defer to military needs, Defense officials say, activists could sue to force regulatory action.

Regulators have a different concern: The military could use the exemptions to duck legitimate environmental orders.

Regulators also note that the president already can exempt military sites from the laws at issue. Last year, Deputy Defense Secretary Paul Wolfowitz directed the armed services to "give greater consideration to requesting such exemptions" to the laws if they hinder training. But no requests have been submitted.

Meanwhile, the military still cites the live-fire restrictions at Camp Edwards as proof that it needs relief from the clean-air and hazardous-waste laws. As far back as 2001, Maj. Gen. Robert Van Antwerp, then an Army assistant chief of staff, told Congress that the Army was "very concerned" about the Edwards precedent. "If applied to a major training installation" he said, "the results could be catastrophic."

But officers at Edwards say they have adapted to the restrictions, using the howitzer simulators and sending troops to other bases a few times a year for live fire exercises.

"I wouldn't say training has been curtailed," Capt. Winfield Danielson says. "Most of the training the units did before, they can still do."

Sides armed with science, studies in conflict over health risks

Christie Whitman's letter to Rumsfeld

Rumsfeld's reply to Whitman

Cleanup fights stall new uses for old bases