LEGAL GROUNDS

Justice Dept. Says Pentagon Must Follow EPA Orders to Clean Contaminated Sites

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By Lyndsey Layton
Washington Post Staff Writer
Friday, December 5, 2008

The Justice Department dealt a blow to the Pentagon this week, saying it has no legal authority to resist orders from the Environmental Protection Agency to clean up Fort Meade in Maryland and two other military sites that have been contaminated by chemicals.

In a Dec. 1 letter obtained by The Washington Post, Steven G. Bradbury, principal deputy assistant attorney general at Justice, said that the Pentagon had no legal grounds to resist the cleanup orders from the EPA.

The cleanup agreements drafted by the EPA for nine other sites contain "extensive provisions" that Pentagon officials said were unacceptable. But Bradbury wrote that the EPA had the legal authority to demand additional terms.

The letter was celebrated by critics of the Pentagon, the nation's largest polluter.

"Even the Bush Department of Justice is now telling the Department of Defense that it is not above the law and it cannot flaunt EPA's final orders," said Rep. John D. Dingell (D-Mich.), chairman of the House Energy and Commerce Committee, in a statement yesterday. "If this were a private polluter, they probably would have been hauled into court by now. "

The EPA issued "final orders" to the Pentagon more than a year ago to clean up Fort Meade, McGuire Air Force Base in New Jersey and Tyndall Air Force Base in Florida. Final orders are the agency's most potent enforcement tool. If a polluter does not comply, the agency usually can go to court to force action and can impose fines up to $28,000 a day.

But the Pentagon questioned whether the EPA had legal authority to require and oversee the mitigation. Defense officials also declined to sign legally required agreements with the EPA covering nine other military sites on the Superfund list of the most polluted places in the country. The contracts would spell out a remediation plan, set schedules, and allow the EPA to oversee the work and assess penalties if milestones are missed.

The EPA declined to take legal action against another department within the Bush administration, so the standoff created a kind of regulatory limbo. Outraged Democrats on Capitol Hill accused the Defense Department of flouting environmental regulations and the EPA of failing to enforce those laws.

"The bottom line is that somebody needs to make sure the ground and the groundwater is clean in those areas, and as long as the Pentagon ignores the Environmental Protection Agency, it will continue to be delayed," said Sen. Robert Menendez (D-N.J.).

EPA officials said yesterday that they were pleased with the backing from the Justice Department and expected the Pentagon to move "quickly" to clean up the three bases and sign agreements to fix the other nine military sites.

Cmdr. Darryn James, a Pentagon spokesman, said the Defense Department was "still evaluating the letter, but let there be no doubt that the DOD is committed to protecting the environment and signing interagency agreements . . . at each of these sites."

But some are skeptical that the Pentagon will sign the agreements with the EPA and comply anytime soon.


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