WASHINGTON, DC--As it prepares for the biggest round of base closures in its history, the Pentagon stands as the principal beneficiary of a new Environmental Protection Agency ruling that allows PCB-laden buildings to be sold without a cleanup. Under an August 14, 2003 memo issued by outgoing EPA General Counsel Robert Fabricant, the Defense Department may transfer thousands of contaminated buildings and tons of PCB-containing equipment to schools, hospitals and other civilian users free from any legal liability, according to Public Employees for Environmental Responsibility (PEER).
Polychlorinated biphenyls (PCBs) are classified as a possible carcinogen that has been banned from commerce since 1978. For the past 20 years, EPA has interpreted that ban to include sale of PCB-contaminated real estate. Many of the older buildings on Defense bases contain liquid PCBs in their heating and lighting systems as well as in the surrounding soil from years of spills and residue buildup.
Under the ruling put forth by Mr. Fabricant in one of his last official acts, EPA is dropping completely its regulatory oversight of real estate transfers of PCB-contaminated real estate. As a result, the Pentagon is now permitted to
Sell or give away buildings without disclosing the existence or extent of PCB contamination;
Escape any financial responsibility for cleanup after the transfer occurs; and
Transfer contaminated buildings knowing the buildings will go into reuse by civilians without any rehabilitation or safeguards.
The Fabricant memo states that the previous PCB ban was "an unnecessary barrier to economic development" but the only cases cited by the memo involved military facilities at the Naval Warfare Center in Indiana and the Mare Island ship repair facility in California. In both of those cases, EPA allowed the transfers to occur once there were assurances that cleanup would take place. Under the new interpretation, EPA loses any discretion over real estate transactions so that these transfers could occur with no promise of cleanup.
"Now the Pentagon can dump contaminated properties on hard-pressed communities and walk away without a dime of financial responsibility," stated PEER Executive Director Jeff Ruch, whose organization has highlighted Pentagon attempts to immunize itself from federal anti-pollution laws. "The Pentagon has been pressuring EPA for a blanket exemption and EPA complied in the most gutless way possible--with an unannounced, internal ruling by a resigning mid-level official."
Senator Barbara Boxer (D-CA) has introduced legislation to reverse Fabricant's ruling and environmental groups are preparing suit, but Pentagon transfers may begin occurring immediately unless these actions are successful and apply retroactively.