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The result of the perchlorate battle was a win for the Pentagon, and Ray DuBois, the former Deputy Under Secretary of Defense for Installations and Environment, found the process useful for downplaying the dangers of other potentially problematic chemicals. NAS’ stamp of approval was again sought after a draft EPA assessment was released on trichloroethylene (TCE), a degreasing solvent used for decades to clean military vehicles. The 2001 draft deemed TCE “highly likely to produce cancer in humans,” a ruling that would have had tremendous liability consequences for DOD.
Before that draft finding could be finalized, DuBois asked NAS to conduct an extensive appraisal of the evidence, a process that finally began in September 2004 and lasted 18 months. The length of time involved in such reviews, which are often costly because of the expertise and manpower involved, was once derided by Georgetown law professor David Vladeck as “paralysis by analysis,” an issue long highlighted by activists who object to the years-long regulatory limbo it often entails. The Public Education Center, DCBureau.org’s parent organization, helped the Los Angeles Times prepare a three-part series in March 2006 examining the scope of TCE contamination and the regulatory battles behind it.
The Academy finally released a report in July 2006 indicating that EPA should “finalize [its] risk assessment with currently available data so that risk management decisions can be made expeditiously,” without offering its own specific recommended standard. However, to date, EPA has not revised its pre-existing TCE standard of 5 ppb in water and has never established a breathable limit for vapor intrusion, which is a common issue at Superfund cleanup sites where airborne contaminants can seep into buildings through small cracks. For DuBois, despite the time and expense, it was the right process to follow. “It was initially on perchlorate, but I said, ladies and gentlemen, this is setting the standard by which we come to an agreement for public policy purposes, right? I didn’t want anybody to hide. I was willing to put my department’s reputation on the line, but [on perchlorate] I wasn’t willing to accept what two or three scientists who arguably might have been biased [had concluded]. I wanted the peer-reviewed NAS. Impeccable, unimpeachable.”
Not everyone finds NAS impeccable. If Dr. Richard Bull and Dr. Charles Capen, who were on the NAS perchlorate panel, brought these results into question because of their financial ties to interested parties, NAS’ response did little to help. In a March 1, 2004, New York Times article on the chemical, Dr. James Reisa, NAS director of environmental studies and toxicology, was quoted as saying, “We eliminate conflicts of interest. . . . We don’t try to eliminate bias. We try to balance it.” Many NAS panels over the years have faced similar charges of allowing industry-friendly members to review issues in which their clients have financial investment. In one high-profile instance, NAS appointed George Weyerhaeuser, Jr., a vice president of Weyerhaeuser Company, one of the largest paper and lumber firms in the world, to the 2006 Hydrologic Impacts of Forest Management Committee.
Conflicts of interest were not the only public concern with the perchlorate review process. What about the fact that state-level regulators — as Sen. Barbara Boxer and others have argued — are often unable to determine safety and cleanup levels without EPA input? “That was the criticism of the position that I was taking, that it’s going to take too long, people will die,” DuBois said. “States especially wanted to jump on that interim [1 ppb perchlorate assessment] and say, ‘That’s the standard.’ And I said, first of all, you can’t establish a standard on the basis of an interim report. You want to use this until you get further science, that’s up to you, but we’re going to get further science, and if it shows the interim dose was far too low, are you going to change?” At the end of the day, he said, concerns over the pace of state-level regulation “were overblown, weren’t they?”
Not according to lawmakers in California, where perchlorate is a common water contaminant. In a March 30, 2003, editorial in the Riverside Press-Enterprise, Sen. Dianne Feinstein cited a “recent report” by the California Department of Health Services showing that “perchlorate has been detected in 292 groundwater wells operated by 80 different agencies throughout the state. Collectively, these agencies serve 24.8 million people, or 71 percent of the total [state] population.” Feinstein noted that the then-recent decision to refer the perchlorate issue to NAS “could greatly delay efforts by the EPA to set a national drinking-water standard for the chemical,” which, indeed, still has not been done. Three years later, with no forward progress in the interim, Feinstein joined forces with then-House Resources Committee Chairman Rep. Richard Pombo, a stalwart California Republican, to introduce legislation that would have appropriated $50 million to the state specifically to address perchlorate contamination. In her press release, she said, “So far, both the Defense Department and the EPA have failed to recognize the gravity of perchlorate contamination. In the meantime, communities in California have been forced to suffer the financial burden of trying to provide safe drinking water for their residents. This $50 million will help our communities pay for perchlorate contamination cleanup and ensure access to water that is safe and clean. Continued delay [plays] games with the health of thousands of Americans.”
Nothing was done. The $50 million Senate bill was referred to the Environment and Public Works Committee and quietly dropped. DuBois said of the issue, “I remember telling the state of California, if you’re so concerned, you can put out a health advisory and give out bottled water to pregnant women because we know we’re only talking about pregnant women even in this preliminary so-called scientific analysis, and oh, maybe someone who’s over 95 and infants.”
Nor was it overblown for Massachusetts regulators, who in March 2006 announced the establishment at 2 ppb of the nation’s first enforceable perchlorate drinking water and cleanup standard, officially called a maximum contaminant level (MCL) — more than 10 times stronger than the unenforceable 24.5 ppb EPA recommendation. In response to public comments on its draft proposal, which was ultimately finalized unchanged, the state noted a distinct lack of EPA responsiveness, writing, “Given the acute nature of the potential health effects associated with this contaminant, it was no longer prudent to wait for federal action.”
The military, perhaps because of perchlorate contamination at the Massachusetts Military Reservation near the town of Bourne, did not let the rule go unnoticed. Robert Muhly of the Defense Department and Andrew Stackpole of the Department of the Navy strenuously opposed a stringent standard in public comments, with Stackpole lodging a total of 16 separate objections. One involved the highlighting of a reported study conducted by “Snow, et al.” in Chile that, according to Stackpole, “concludes no health effects for humans (including pregnant women and their offspring) at levels up to 200 ppb in drinking water.” In its response, the state noted, “Despite contacting the U.S. Department of Defense scientists working on this issue, the Snow, et al. paper referenced here has not been located.” Ultimately, neither the military nor any other commenter persuaded the state to reverse its draft decision to set a rigid limit, which remains in effect today. California is so far the only state to follow suit, establishing a 6 ppb MCL in October 2007.
For his part, DuBois dismissed any notion that he ever brought heavy-handed pressure to bear after the initial 1 ppb draft came out. “It was big brother, the five-sided behemoth, that was putting its thumb on these poor little scientists at EPA who are struggling to demonstrate that public health is at risk,” he recalled with a shake of his head. “I never denigrated the scientists at EPA. I did call into question some of the EPA careerists who were depending on science, quote-unquote, that didn’t really give us the full picture.” He himself pointed out, however, that “if we had accepted [the perchlorate draft] right then and there, the implications were enormously expensive.”
There was no reason, he said, that the draft or his reaction to it should have caused such an outcry. However, he said, he understood why some people were worried. “It is true that as science advanced in terms of its ability to detect and determine whether a given chemical compound was deleterious to health, you had individuals who became understandably concerned that if there were more parts per billion in the water supply that, by virtue of testing on lab rats, you might then have a deleterious effect on small children and pregnant women,” he said.
He also conceded that EPA officials no doubt had their reasons to feel unfairly cut out of the environmental regulatory arena they had so long occupied. “The Defense Department is huge. It has a lot of money,” he said. “It has enormous power in terms of what the Congress is willing to appropriate to it. If you’re in EPA you can rhetorically say, ‘My god, all we get are the crumbs and DOD gets the wedding cake.’ That affects the psychology. If I had been a long-time scientific career civil servant in EPA, I could imagine being frustrated and thinking DOD always gets it way.” On the other hand, he argued, “To only allow EPA to dictate public policies that have implications, strong and direct implications, for other federal departments and agencies, was by definition unbalanced.” Indeed, he said, “To allow only EPA [to set policy], arguably with some bias, is understandable — if you’re an environmentalist.”
Environmentalists are a group with whom he particularly disagrees. He cited, as only one example, a Center for Biological Diversity lawsuit filed in December 2000 over Navy bombing maneuvers at Farallon de Medinilla, a small island in the Pacific Ocean, which the group argued violated the Migratory Bird Treaty Act (MBTA). The Navy had asked the Fish and Wildlife Service for a permit to conduct bombing training in 1996 but was refused; the lawsuit was filed because the service decided to continue bombing anyway, arguing that the bird law did not apply to federal agencies. “That’s an example, in my view, of the absurd ends that a number of radical environmental groups would go to try to promote what I would view as an anti-militaristic agenda,” DuBois said. Whatever its agenda, the group persuaded the U.S. District Court for the District of Columbia in March 2002 that DOD and the Navy violated the law and won a court order halting any further bombing activities on the island. In response, the Republican-controlled Congress in 2003 granted the military an express exemption from the bird treaty “during military readiness activities,” essentially nullifying the court’s decision.
It was not the only time the military, under DuBois, sought to bypass or amend environmental laws. “The Democratic administration under President Clinton had attempted to deal with the issue of [civilian property] encroachment [at military bases] and the issue of endangered and threatened species on installations and ranges,” he recalled. “The Joint Chiefs asked me if there was any way to deal with this problem since the Democrats were unsuccessful in pursuing any dialogue with the Congress that would eventually lead to amending some of these pieces of legislation: the ESA, the MBTA, the Marine Mammal Protection Act (MMPA), Clean Water Act, Clean Air Act, et cetera. So I began to ask some questions, talk to some folks on the Hill, to some biologists in the Defense Department.” After these conversations, he put a plan into action that would shape environmental regulation for years to come.
Adam Sarvana writes about environmental and political issues for Natural Resources News Service. He formerly covered military environmental programs and the Environmental Protection Agency for more than two years at Inside Washington Publishers. Adam is a Former reporter for NRNS.
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