Did the Army violate federal law by disbanding the local RAB?
Thursday, May 20, 1999
In the aftermath of last week''s announcement by the Army that it was disbanding the Fort Ord Restoration Advisory Board (RAB), critics of the decision charge that the Army may have violated federal law and seriously compromised the community''s right to meaningfully participate in the cleanup of the former Army base.
"This is the first time that we know of the Army unilaterally disbanding a functioning RAB, and the legality is questionable," says Saul Bloom, director of ArcEcology, a nonprofit public interest group that has been monitoring military base closures since 1987, and which serves as secretariat for the 250 RABs nationwide.
"There needs to be community concurrence [by law] on closure of a RAB and clearly this did not take place. Whether a court will take action has yet to be seen. Someone would have to challenge the decision."
The RABs were created by an act of Congress in 1986 as part of the Defense Environmental Restoration Program, which sought to reform Superfund law to force better compliance by the Army on base cleanup. Congress made RABs mandatory to empower communities to oversee every stage in the base cleanup process. The Fort Ord RAB was established in 1994.
In explaining its decision to disband the RAB, the Army claims that procedural problems and internal disputes among members rendered the RAB ineffective. While acknowledging many of the Army''s criticisms, RAB members nevertheless contend the Army disbanded the RAB precisely because it was effective in forcing the Army to provide better cleanup of the base.
A successful lawsuit last year against the Army by several RAB members and the watchdog organization Fort Ord Toxics Project (FOTP) over unexploded ordnance cleanup resulted in the U.S. Environmental Protection Agency adopting the principles outlined in the ruling for its national policy regarding the cleanup of abandoned firing ranges.
According to former RAB chair and environmental attorney Scott Allen, the Army''s decision to disband the RAB was primarily an act of retribution as a result of that lawsuit and its national implications.
"Some members of the RAB had been pushing the Army for years to do a better job cleaning up the base," says Allen. "The RAB had been successful in raising legal challenges and public awareness of the poor job the Army''s been doing on cleanup. I think the true explanation is the Army''s a sore loser."
"They''ve been angling to get rid of the RAB for some time," adds Bloom. "One of the big concerns is the impact [of the Army''s decision] on future cleanup. The Army is not supposed to set the agenda. The RAB was not there just to act as a sounding board to the military, but to give feedback and opinion whether the cleanup strategy met community acceptance and goals. The community will now get less access to information."
In a letter to RAB members from base commander Colonel Daniel D. Devlin dated May 12, informing them of the Army''s decision, Devlin indicated the Army would hold monthly public meetings on the progress of base cleanup. The first such meeting is scheduled for June 10.
However, such meetings are less than adequate and don''t comply with federal law, charges FOTP Director Curt Gandy.
"The RAB had the ability to set the agenda, to review documents and ask for specific things," explains Gandy. "The access to information is being cut off, and the Army''s not supposed to be able to control that."
Concern over the Army''s decision has already generated debate among the candidates for Seaside city council. When asked about the ramifications of the disbanding of the RAB at a candidates'' forum last Monday, former Seaside mayor Lance McClair was the only candidate to lash out at the Army.
"The citizens were vested to make community decisions on property disposal on principle," said McClair. "The Army abrogated the right of the community to be represented by the RAB, which had a right to be there. The Army has whacked away your rights, and if they get away with it, they can operate by fiat."
Whether the Army "gets away with it" will ultimately depend on whether anyone files a lawsuit to challenge the Army.
According to Gandy, FOTP is contemplating a lawsuit and Gandy indicated the national RAB caucus might also file suit.
"The Army is backing the insider track on Ord reuse and cleanup issues with local cities and FORA," says Gandy. "Categorically the Army is on the wrong side of the issue and this sets a dangerous precedent if the Army can unilaterally back out of community involvement in a process mandated by law."