Justice Dept. Says Pentagon Must Comply With EPA Cleanup Orders

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.

Maryland Attorney General Douglas F. Gansler announced plans in August to sue the Army to enforce the EPA cleanup order at Fort Meade.

For more than a decade, EPA officials have detected contaminants, some known to cause cancer and other health problems, at Fort Meade and other military sites. Army, EPA and Maryland officials have been working for years to clean up the pollution.

Shari Wilson, Maryland's environment secretary, said yesterday that the state intends to ahead with its legal action despite the findings of the Justice Department.

"We're hoping this will make the difference, but we are very intent on using whatever tools are available to us to get this resolved," Wilson said.

She said the Army has been negotiating with Maryland about cleanup efforts at Fort Meade for years but progress has been sporadic. Maryland officials want the Army to commit to a binding agreement to clean up Fort Meade and want the EPA to enforce it.

Congress established the Superfund program in 1980 to clean up the country's most contaminated places, and of the 1,255 sites on the list, the Pentagon has 129 -- the most of any entity. Other federal agencies with properties on the list include NASA and the Energy Department, but they have signed EPA cleanup agreements without protest.

The law was amended in 1986 to stipulate that polluting government agencies should be treated the same as any private entity. During the 2000 presidential campaign, George W. Bush pledged to direct all federal facilities to comply with environmental laws and "make them accountable."

In dealing with cleanup efforts, some military branches have been more cooperative than others. The Navy has signed cleanup agreements for all of its Superfund sites, whereas the Air Force has not signed one in 14 years.

Superfund sites are not the only Pentagon environmental problem. It has about 25,000 contaminated properties spread among all 50 states, and it will cost billions and take decades to clean them up.

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