Green Gridlock

“Business is a uniquely human response to a moral or cosmic crisis. Whether it's a tsunami or a sustained aerial bombardment, there's the same urgent call for urban renewal.” – Brand Hauser (John Cusack), War, Inc. (2008)

As some of you know, I work for an environmental consulting and engineering company located in western Massachusetts. I also work in Connecticut pretty regularly, and have undertaken some pretty heavy major projects south of the border in recent years. I have also been considering pursuing the state’s main environmental credential, the Licensed Environmental Professional certification, and to that end have recently taken a few one-day courses to expand my knowledge of the system and how it works. I shall confine my comments to those areas with which I have experience, so I will not be speaking to natural resources issues, wetlands, endangered species, etc.

The sad thing is, it really doesn’t work. The principal speaker at the last class I went to, John Wertham, is a lawyer who has been deeply involved in environmental legislation and legal practice since the early 1980s, and who actually wrote the Connecticut Environmental Law Handbook. As part of his closing comments, and in response to the frustrated mood of his audience, he threw out his arms in a gesture of frustration and exclaimed, “The real issue is that we’ve got to change the whole system, from soup to nuts.”

The ultimate problem with the Connecticut system is that it does not provide adequate incentive either to comply with regulations, or to undertake cleanups of polluted land. One of the sad consequences of this is that, even despite the relatively high cost of commercially developable land in Connecticut, it is generally cheaper to buy a parcel of raw land, such as an old tobacco farm, and construct a strip mall or plastics factory on it than it is to redevelop a ‘brownfield’ site, land which is vacant or underutilized due to environmental problems such as pollution. At the same time, some contaminated sites can go unattended for decades, endangering public health and the environment the whole while, simply because there is no regulatory mechanism to require their evaluation or cleanup.

In fact, the cumbersome, onerous, inflexible, and draconian nature of the system provides every incentive to try to stay out of the regulated universe if possible, or if that is not possible, to fight tooth and nail to limit one’s exposure to regulations, and to avoid doing any environmental work if it is not absolutely essential or immediately beneficial.

I am no babe in the woods or idealist here—I understand that the environmental business is exactly that, a business, and that we provide a commercial service to our clients in exchange for money. It offends my nature, however, to see things done badly. In more formal terms, the failure of the system violates the original intent of the legislation that created it, as well as of the broader federal legislation on the same subject.

More to the point, the problem is how the distinction between means and ends has become blurred. Ruled and processes are means, not ends. In this case, the ultimate desired end is protection of human health and the environment, and as a corollary doing so without imposing an unbearable economic burden on the responsible parties. The former is the goal—to protect human health and the environment from hazards. The latter corollary is simple pragmatism. If costs become too onerous, responsible parties can and do simply shut down the businesses and walk away from their responsibilities altogether, leaving toxic sites as they lie, endangering human health and the environment and becoming a drag on the economy. The result is properties like the Raymark Industries site in Stratford, which is now a federal Superfund site.

The end delivered by the current system, however, is gridlock, and a failure adequately to achieve the desired goal. As such, the means need to be changed. From a systemic design standpoint, the goal should be to structure the system so that it is easier or more beneficent for one to comply with the requirements than not to comply.

I frequently compare the Connecticut system with its’ Massachusetts counterpart, because I am familiar with both and think the Massachusetts system is much, much better, and because I am the unlucky soul who has to explain to a client based in one state how the other state’s system works. The common summary of the relative merits of the two systems is that Connecticut is stuck where Massachusetts was circa 1990, with a log-jammed system creating a nightmare for property owners and that wasn’t helping the environment. The Massachusetts response was the 1993 version of Massachusetts General Laws Chapter 21E (the Massachusetts Oil and Hazardous Material Release Prevention and Response Act), the partial privatization of the system through the creation of the LSP credential, and the adoption of a standard and flexible set of release reporting, assessment, remediation, and closure requirements for contaminated sites. Connecticut, on the other hand, never had that sort of comprehensive reform, and is still stuck, in many respects, in the late 1980s, with lots of regulations but no way easily to comply with them.

The following are some of my thoughts on a few salient points.

Who’s On First?

There is no single, unified regulatory and remediation program in Connecticut. In fact, there are eight separate but overlapping programs (plus the federal Superfund sites):

o The ‘Brownfields’ program - state and federal grant funding intended to encourage redevelopment of underutilized urban sites)

o The Property Transfer Program (CGS Sections 22a-134 through 22a-134e), better known as the infamous Transfer Act, which requires that parties wishing to sell a historic generator of hazardous waste arrange for cleaning up any messes they made.

o The Voluntary Remediation Program (CGS Section 22a-133y, aka the Y Program) for properties owned by municipalities. You essentially have to meet the same requirements of a Transfer Act project.

o The Other Voluntary Remediation Program (CGS Section 22a-133x, aka the “X Program”) for private properties located in urban areas with already degraded groundwater. It’s basically the Transfer Act without a property transfer and, again, you essentially have to meet the same onerous requirements of a Transfer Act project.

o The State Superfund Program (CGS Section 22a-133d) This program handles major polluted sites, where the CTDEP Remediation Division staff directs the remediation and the State Attorney General’s Office recovers costs from the responsible parties.

o RCRA Corrective Action (CGS Section 22a-449(c)-105(h)) - RCRA is a federal statute and program regulating the handling, storage, and disposal of hazardous waste, and the RCRA Corrective Action component directs the cleanup of hazardous waste treatment, storage, and disposal facilities. In most states, and since 2002 in Connecticut, the day-to-day management of RCRA is delegated by the EPA to the state environmental agency.

o Leaking Underground Storage Tank (LUST) Program (CGS 22a-449(d)-1) – This program governs the remediation of releases from leaking underground storage tanks such as those at gasoline stations, and incorporates a trust fund funded by the legislature out of a tax on gasoline and other products, intended to ensure that money is available for remediation in the event that the property becomes abandoned or insolvent, and is used to reimburse cleanup costs.

o Significant Environmental Hazard Program (CGS Section 22a-6 (u) – Established in 1998, this program requires reporting and elimination of severe hazards to public health or the environment when they are discovered, including (unlike the ERSP program below) historic releases where the degree of contamination is indicated by concentrations in a sample.

o The Emergency Response and Spill Prevention program (Section 22a-450) – This is a call center and emergency response unit within the Remediation Division, which receives notification of the approximately 8,000 sudden spills (such as gasoline spills from car accidents) that happen each year, and directs the emergency cleanups of about 1,800 of them. This does not include contamination resulting from historic releases or in a sample.

o The Potable Water Program – This program ensures that individuals whose private or public drinking water supply wells are or are at risk of being contaminated have access to safe drinking water. Approximately one-third of the population of Connecticut, including most of the populations of rural areas, obtains potable water through public or private water supply wells, so protection of the water supply is understandably essential.

At best, this multiplicity is an egregious waste of resources, and at worst it contributes to the logjam by creating overlapping requirements, redundancy, and confusion over what a responsible party’s actual responsibilities are. It’s possible for one site to be juggling responsibilities to four of the eight programs at the same time—for example, spill response and Significant Hazard responsibilities at a Transfer Act site where one of the releases was from an underground tank regulated under the LUST program.

There isn’t even a single master list of all the contaminated sites in the state—each of the programs has its own list.

By contrast, Massachusetts has a single, integrated remediation program that oversees pretty much everything. The various Connecticut programs generally handle the same spectrum of contaminated sites as the MADEP’s Bureau of Waste Site Cleanup, but the Massachusetts system does it far more efficiently and thoroughly, using a single set of regulations with clear requirements and deadlines, and with far fewer opportunities for a site to fall into limbo, where contamination is known to exist but nothing is being done about it. I know of at least or forty Connecticut ‘limbo’ sites in the few towns closest to me, but only two in an equivalent area on the Massachusetts side of the border.

In the most conspicuous such example that comes to mind, I performed work at an old mill in Stafford, CT in the summer and fall of 2006. The site had been listed as a Suspected Hazardous Waste Site in 1989, after a shipment of hazardous waste being transported from the site caught fire, but as of 2009 there has never been a formal evaluation of the site by the CTDEP.

Trapped.

Once a site gets into a regulatory inbox, it’s virtually impossible to get it out and be ‘done.’ One of the most beloved terms of environmental consultants, property owners, realtors, lawyers, and other concerned parties is ‘regulatory closure,’ which in its various synonyms and permutations essentially means that the cleanup is complete, the state or other regulatory body has signed off, and that the whole affair is effectively over and done with. One of the biggest shocks I had when I started working in Connecticut is that regulatory closure in the usual sense just doesn’t really exist, and that environmental liabilities are effectively eternal, even when the contamination has been completely removed. An LEP Verification is not really a counterpart to a Massachusetts Response Action Outcome; it’s a milestone, rather than the end of the line.

There are two reasons for this. The first is that the Remediation Standard Regulations had extremely stringent groundwater standards, which are very difficult to meet even under ideal circumstances, and ‘complying’ with the RSRs basically means reducing all contaminants to nil. This is an extremely difficult process, particularly since the RSRs require a certain number of consecutive quarterly or biennial sampling rounds that come back ‘clean,’ and the regulatory clock for the post-remedial or compliance monitoring effectively resets whenever a small blip of contamination comes back in any sample. This monitoring can go on for over a decade before an LEP can even think about preparing a Verification, and there is no guarantee that the RSRs will ever be met. In such cases, since the Transfer Act specifies that releases must be identified before sale but sets no real timeline for cleaning them up, it’s easier to simply transfer the responsibility continuing Transfer Act requirements to the property buyer. The property goes on operating, the water periodically gets tested as the environmental consulting company treats the project as a financial annuity, but there is no way to (or incentive to) reach a final solution and closure.

The second reason is that the CTDEP is understaffed, inefficient, and unwilling to let go of sites. Nobody wants to be the DEP case officer who signs off on a site as clean, only to have it turn into the next Love Canal.

The ultimate result is that there is little incentive to report or remediate releases for which the cost of reporting it and being saddled with long-term cleanup costs outweighs the likely consequences of not reporting.

What are the rules?

The current regulatory process relies too heavily on legislative statute and CTDEP departmental guidance, resulting in a very disorganized, confusing, and contradictory set of rules which must be followed. Many of the state’s primary environmental statutes, such as the Connecticut Transfer Act, have no corresponding and implementing regulations. The CTDEP lacks the regulatory machinery to promulgate comprehensive regulations like the Massachusetts Contingency Plan, so the only ways to effect even limited reforms is to amend statutes, or for the CTDEP to issue ‘guidance’ documents which, in addition to specifying technical or procedures to be followed by consultants (e.g. how to collect groundwater samples or to design an engineered cover), stretch the definition of ‘guidance’ by prescribing specific interpretations of statute, imposing financial surety requirements, and defining the standard of practice over a broad spectrum rather than on a specific issue. The guidance is resented as being arbitrary and capricious, the statues are mercurial and change with each legislative session (often through riders attached to other bills), and it’s all but impossible to keep up to date with either.

The other effect of relying so heavily on statute instead of regulations is that the lawyers can get involved in interpreting statute to an extent that they generally can’t in regulations, and the technical aspects of assessment and cleanup become subordinated to the processes of civil and administrative law. This does absolutely nothing to speed up or streamline the process, especially since some of the statutes allow for transfers of responsibility in a way that other states regulations generally do not- for example, allowing the participants in a transaction to designate the buyer of a property the Certifying Party (the one responsible for arranging cleanup) for a Transfer Act project, rather than the historic occupant and seller.

There are, in fact, only two sets of regulations in the remediation sphere—the LEP professional conduct regulations, and the Remediation Standard Regulations, or RSRs. The former provides for professional licensure of LEPs, individuals licensed by the state for the purposes of issuing Verifications of Transfer Act and voluntary remediation sites, and sets professional standards of conduct. The RSRs (together with the supplementary List of Additional Polluting Substances) prescribe numerical standards to which contamination must be reduced, and protocols for demonstrating that contamination has been adequately reduced.

Each of these regulations is, in the original intent, of decidedly limited scope. Due in part to the lack of other available structures, one of the current general trends in Connecticut is the attempt by the CTDEP to use the Licensed Environmental Professionals and the RSRs for purposes for which they were never intended. The scope of matters for which the LEP stamp could be used is extremely limited, and at one point the CTDEP only recognized the credential when used in the context of a Transfer Act or Voluntary Remediation Verification, and the credential was not necessary for doing most of the other types of work commonly performed, such as LUST remediation. By contrast, the Massachusetts LSP credential is required for all MCP filings.

The RSRs currently apply only to Transfer Act sites, voluntary remediation sites, or sites subject to a CTDEP order requiring cleanup, although the RSR numerical standards are also frequently used as a guideline for other types of cleanup work, such as residential heating oil spills or for business risk decisions based on due-diligence testing.

The matter of groundwater in the RSRs is particularly sensitive since, as discussed above, the RSRs require at least three years of quarterly monitoring following the completion of any remediation work in order to prove that the contamination has been reduced or eliminated. This makes any RSR project an inherently long-term affair. The RSRs are also frequently criticized for having too many separate criteria to meet: Direct Exposure Criteria, Pollutant Mobility Criteria, Volatization Criteria, separate Groundwater and Surface Water Protection Criteria, etc. Many of these numerical standards have very low thresholds, to the point where they are often criticized as unrealistic.

Part of the reasoning for the strict groundwater standards is that the CTDEP, the CT Department of Health, and other regulatory agencies deliberately chose to apply the most stringent (GA classification) standards to all parts of the state where groundwater was not known to be too degraded to drink. The reasoning is that one should be able to go almost anywhere in the state and use the water for consumption. Massachusetts, on the other hand, only applies the most stringent standards in areas physically or hydraulically adjacent to existing water supply points.

The CTDEP is currently attempting to extend formal RSR requirements to other types of work, including Significant Environmental Hazards and some emergency spills. The apparent objective is to eventually use the RSRs as a uniform set of remediation criteria for all types of sites and releases, and the reasoning for this ‘back alley’ approach is likely due to the inability of the Department or Legislature to enact any new comprehensive regulations.

While this would create a better means of ensuring follow-up and a degree of closure for sudden releases and Significant Environmental Hazards, many of which fall off the radar screen, a healthy degree of praxis is required. The requirement for long-term groundwater monitoring, for example, is warranted when dealing with an industrial site where there may or may not be a groundwater plume, but it would certainly be superfluous when addressing a sudden release of material when other means can be used to demonstrate that groundwater has not been impacted.

The consultant community has reservations about this new applicability will limit their flexibility in handling such situations, as they currently have a wider decision-making latitude in handling them than on projects where the RSRs are a factor, especially since strictly applying the RSRs as they currently are to all releases will extend and complicate the process, as well as driving costs up, thus increasing the existing disincentive to report and remediate the release.

Many LEPs, for their part, are also concerned about how the CTDEP is now extending the utility of the LEP credential to types of work that many LEPs had never expected it to cover, such as certification of LUST reimbursement work summaries or certification of remedial wastewater discharges, a role that had historically been restricted to registered professional engineers. One of the more common concerns is that LEPs will be pressured to take on work outside their professional comfort zones. The environmental field is very competitive, and if the use of an LEP to fill these new roles at, for example, a gasoline station remediation project, would save the client the cost of retaining a PE and ensure a faster turnaround on the LUST reimbursement, the nature of the market will likely make it de rigueur for LEPs to take on these roles.

This lack of coherence, comprehensiveness, and clarity in the regulations feeds directly into the next problem, which I have titled:

The War Over ‘Professional Judgment.’

The Connecticut DEP is the ultimate arbiter of the ‘standard of care’ for environmental assessment and remediation. It does not, however, do much in the way of direct oversight of remediation work, and these sites consist primarily of State Superfund, X and Y programs, and some Transfer Act sites. The other programs, including the LUST cleanups and most Transfer Act sites, generally receive Departmental review and input only when a report, work plan or Verification is filed. Most of the quotidian environmental work is, however, done by private consultants working on behalf of property owners, and who are expected to use their professional judgment in conducting their work.

In the tangle of regulations, statute, guidance, and differing programs, however, there is no clear and invariant standard for what constitutes a healthy professional judgment.

The Department wants a uniform standard of care in order to ensure that work is done properly, in order to protect human health and the environment, while the consultant community fears both the lack of options this will leave for them in serving their clients, and any possible increase in costs.

This climate also produces a vicious circle problem—the CTDEP argues that consultants are expected to use their “professional judgment” in conducting projects, but many consultants are reluctant to propound such judgments in print for fear that the CTDEP will countermand them, or for fear of legal action by the state or the client (or both!) if the work is found to be inadequate, and attempt to defer decision-making to the Remediation Division case officer, who in many cases is loath to exceed his authority by making such decisions, and who may well see them as the consultant asking the CTDEP to do the consultant’s job for him.

As is the case in most states, consultants see the CTDEP staff as faceless, out-of-touch bureaucrats who wouldn’t last a minute in the private sector, while the DEP is aware that consultants are in business to make money, and has constantly to worry about consultants putting money over quality of work, or being paid to make problems disappear. Many veteran engineers or hydrogeologists also resent regulatory review as an opportunity for their work to be nitpicked by inexperienced junior analysts in a Hartford office building, and many younger professionals also worry that their seniors haven’t kept up to date on recent regulatory or technical developments.

There are distinct elements of truth to all of these stereotypes.

Remediation Division staff often don’t visit many of the sites they’re notionally overseeing, since a staff analyst may have dozens of sites on his desk at any given time, many of which are in limbo. Consultants, for their part, are constantly under immense pressure to deliver results beneficent to the client for as little cost as possible, and the temptation to fudge the facts or numbers to get over a regulatory hurdle can be extremely strong.

The more subtle question is, to what extent ought professional judgment be a simple implementation of a standard of care? Is meeting the regulatory requirements all that is required to meet a standard of care? Once again, it’s a question of means and ends. The CTDEP has a tendency to conflate the two, seeing compliance with the RSRs or other guidance as the essential standard of care, in that if the RSRs are met, the CTDEP can presume that human health and the environment are adequately protected. The RSRs, however, are the ends, rather than the means. What is entirely missing from them is the ‘how do we get there from here’ component. Decisions such as whether to excavate contaminated soil or to treat it in-situ are still by and large at the discretion of the consultant, and those are the means by which the RSRs can be met. The means should be left up to the consultants, so long as they can prove that the means selected won’t make the problem worse rather than better.

It is readily apparent, however, that eliciting a unity of thought from the consulting community is only slightly easier than herding cats. I have often remarked after professional development classes that God must be glad there were no engineers present at the creation of the universe, because the Almighty would have got no further than “let there be light” before being interrupted with questions such as: ‘what color light?’ or ‘what about prisms?’ or ‘ does ultraviolet count?’ or the inevitable ‘who’s going to pay for all this light?’

Consultants are, essentially, paid to think and ask questions and depending on their background and inclination, two experienced consultants may well take entirely different but equally valid approaches to the same problem, and no two sites are ever exactly the same. Sometimes it is the best thing possible for a project to have a recent Ph.D. in toxicology review a report prepared by a grizzled civil engineer, just because the toxicologist will bring a new pair of eyes and a fresh perspective to the site, the work, and the potential impacts to human health and the environment.

This is, in a nutshell, the nature of the means-versus-ends issue, and why the standard of care should not be reduced to a cookbook of methods or a punch-list of decisions. There is already an unfortunate tendency to do this on certain types of sites which recur frequently, such as gasoline stations, where the nature of the release, the contaminants of concern, and remediation options are generally well-known from the outset, and when the project has a generous but finite budget in the form of LUST fund reimbursement payments.

It is in resenting this tendency to reduce matters to punch-lists and cookbooks that consultants particularly rankle at what they can sometimes rightly see as unreasonable technical mandates that dictate the standard of care. For example, consider a hypothetical situation involving an area of soil contaminated with waste oil. An LEP or other consultant’s ‘professional judgment’ might suggest collecting four samples, but the CTDEP could well argue that the acceptable standard of care for the same issue should include twelve samples rather than four, as well as analysis for volatile organics, PCBs, and heavy metals in addition to petroleum hydrocarbons. In this situation, the consultant is essentially locked into doing what the CTDEP deems appropriate, regardless of whether a consultant in his professional judgment may consider it excessive. The consultant might also be faced with the need to evaluate possible natural interferences—for example, heavy metals such as arsenic, chromium, and lead occur naturally in soil (sometimes at concentrations exceeding RSR criteria), but are also commonly found in waste oil. The consultant would thus have to incur additional costs determining how much of the chromium or arsenic was due to the waste oil as opposed to a natural background level of the element, for fear of having his work rejected by the CTDEP. At the same time, waste oil can very well contain PCBs, VOCs, and metals, and petroleum testing may well not be enough to evaluate all the potential hazards associated with the release—the oil might contain a dangerous concentration of PCBs, which don’t show up on a total petroleum hydrocarbon analysis.

Ultimately, however, the consultant is put in the awkward position of explaining the significantly greater costs to the frustrated and frequently cash-strapped client, who may accuse the consultant of milking the job for more money.

Once again, neither side is wholly right nor wrong, (and some consultants do milk jobs for every cent they can get) but it is for reasons like this that CTDEP ‘guidance’ is frequently resented as meddlesome short-circuiting of the idea of professional judgment at best and at worst as just one more club with which to browbeat the consultant. More to the point, regulations such as the Massachusetts Contingency Plan are no sovereign cure for incompetence or chicanery, so there must always be regulators watching the watchmen.

As a brief aside, given that continuing education is generally at the bottom of an environmental professional’s list of priorities, a new rule or procedure can be guaranteed to be almost automatically resented, just because it triggers the consultant’s automatic “oh God, one more damn thing I can get sued for forgetting” reaction.

The Infamous Transfer Act

Of the eight CTDEP remediation programs, the Transfer Act is easily the most notorious, primarily because it is so onerous, and because its statutory ‘footprint’ extends to potentially every property in the state of Connecticut. It is no secret that the Transfer Act was a badly-written law when it was enacted in 1985, the ramifications had not been adequately considered, and that that it now consists of a crazy-quilt of amendments. One of the peculiar hurdles of the Transfer Act is that the applicability of it to a property is a legal and statutory question rather than a technical and regulatory question, and the decision needs to be rendered by an attorney rather than an environmental consultant.

What is less obvious is the applicability—the Transfer Act applies to a property by virtue of historic use (e.g., as a dry cleaner) or by virtue of the historic generation of hazardous waste on the site. In either case, the site is presumed to be contaminated until it can be proven not to be contaminated, and for which proof there is a very high standard. In essence, properties that qualify as ‘establishments’ subject to the Transfer Act are presumed ‘guilty’ until proven innocent.

There is also an entire legal and technical industry devoted to keeping properties ‘out’ of the Transfer Act envelope. This industry functions in large part by parsing and rationalizing hazardous waste generation, since the threshold for waste generation is 100 kilograms of RCRA, Connecticut-regulated, or PCB waste in any one month, or in pettifogging the historical details of a site as to whether the historic use as a woodworking shop during the 1970s included use as a furniture stripping facility. In the absence of incontrovertible proof that the Transfer Act does apply to a site, whether it is known to be contaminated or not, legal counsel can make an argument from silence that since no proof that the Act applies to the site could be found, that the Act does not apply. Violations of the Transfer Act, if discovered, can result in severe civil and criminal penalties.

One of the most common tactics is, in the case of a facility closure or other event where a large amount of waste was removed at once, is to divide the quantity of waste shipped by the number of months over which it was allegedly generated, so that on paper, a site which shipped 900kg of waste in one month supposedly only ‘generated’ 90kg of waste per month over ten months. This is, however, based on a disingenuous and semantic conflation between ‘shipping’ waste and ‘generating’ it, and is a very risky argument to make because it violates both the spirit and the letter of the Transfer Act statute’s “generated in any one month” language. This interpretation also violates the spirit and letter of the original RCRA statute (which is incorporated by reference into the Connecticut Hazardous Waste Management Regulations), which defines a ‘generator’ of waste as “any person, by site, whose act or process produces hazardous waste identified or listed in part 261 of this chapter or whose act first causes a hazardous waste to become subject to regulation.” The crux of this definition is the creation of the waste, rather than the shipping of the waste, but the loophole depends on the administrative reality that waste frequently does not become a matter of public or intramural record until it is shipped under a hazardous waste manifest, which documents (or the absence of such documents) promptly become valued data sources for use in Transfer Act decisions.

As an aside, 100kg of waste is equivalent to 220 pounds, or approximately one-half of a 55-gallon drum if the density of the material is similar to water.

At the same time, stockpiling waste on a site and shipping it off in rationed 80kg increments per month is risky because it can easily lead to a firm having excessive quantities of hazardous waste on-site or to holding waste on the site in excess of the allowed timeframes, in either case violating the site’s CTDEP or RCRA hazardous waste storage and handling permit. A RCRA inspector who discovers ten tons of waste in your warehouse will not care about your potential Transfer Act obligations; he will likely order the waste to be removed and your facility returned to compliance immediately. If you are a RCRA Small Quantity Generator, in order to return to compliance you would have to ship 3.4 tons or more of waste in order to meet the 13,200-pound (6.6 tons) waste storage allowance for a Small Quantity Generator, which would put you well over the Transfer Act threshold. In view of the potentially onerous burden of the Transfer Act, many business owners may in a cost/benefit analysis consider it to be worthwhile to violate RCRA (where the notionally random nature of inspections is mistaken for toothlessness) in order to avoid tripping a Transfer Act threshold.

By way of a brief digression, one of the odd features of the Act is that it makes no allowance in the waste generation threshold for the type or characteristics of the hazardous waste generated. For example, it does not distinguish between hazardous waste and ‘acutely hazardous’ waste. This is an essential distinction in RCRA statute and regulations, since the Small Quantity Generator requirements, apply to generators of one kilogram of acutely hazardous waste (such as arsenic, pesticides, or mercury, or other substances included on the “U List” at 40 CFR 261.33 (f)) as well as to 1,000 kilograms of non-acute hazardous waste. The result is that a facility which generated 50 kilograms of extremely toxic, environmentally persistent arsenic compounds as a waste stream would not exceed the Transfer Act thresholds, while a dairy which generated 200 kilos of comparatively harmless, environmentally non-persistent sodium hydroxide cleaning solution waste (hazardous by being characteristically corrosive) would trip the threshold and be subject to the Transfer Act.

Other avenues, particularly in the sphere of large corporate transactions, can include extremely convoluted contracts, leases, or purchase and sale agreements which defer, share, or duck the Transfer Act requirements by structuring the transaction to take advantage of the exemptions for certain types of transactions which are periodically added to the Act.

The sad irony is that while the Transfer Act was initially conceived as a means of regulating major industrial polluters, the worst sufferers are generally the small businessmen who don’t know about Transfer Act thresholds until it is too late, while major industrial corporations can afford legal and technical help to proactively avoid triggering a threshold through careful waste management, pre-transfer voluntary remediation, or legal structuring.

Suggestions

Since I do not wish to be considered one of those who presumes to criticize while not knowing what to suggest, I offer the following as suggestions for what would be, to my own mind, a wish-list of things to be included in a set of reforms:

• Integrate the numerous existing cleanup systems, perhaps combining them into two programs, one to handle sudden releases and immediate hazard situations, and the other to handle the larger, long-term problem. In addition to saving a great deal of time and money, it would also provide the opportunity to streamline and homogenize the requirements for different types of sites, e.g. a site that is subject to Significant Hazard, LUST, and Transfer Act requirements.

• Establish a standard system of timelines for managing remediation projects.

• Establish a uniform system for reporting and tracking releases of oil or hazardous material. The current system of multiple lists maintained by different divisions of the CTDEP is awkward and makes it hard to manage sites effectively.

• Prepare some formal standards less stringent than the RSRs, for use in situations where regulatory standards are needed but where the nature and extent of the release do not warrant a need to meet the RSRs as a whole, e.g. a residential heating oil release or a surficial spill.

• The CTDEP should provide more advance notice of the publication of guidance documents, and ideally could provide a brief seminar on the new requirements before they go into effect.

• Allow for more risk-based decisions on cleanup criteria, as opposed to blind adherence to numerical standards. There is very little sense in putting the effort into remediating a site to drinking water standards if is located in an urban industrial area where there is virtually no chance of a potable water supply source ever being installed on the site.

• The CTDEP should issue a formal statement of policy describing the extent to which compliance with CTDEP guidance is mandatory or optional, and also the extent to which full compliance with CTDEP guidance guarantees (or does not guarantee) CTDEP approval of sampling methodologies, engineered cover designs, and the like. A master list of all the currently valid guidance documents would also be extremely useful.

• The two suggestions above would, ideally, help reduce the current antagonism between the CTDEP and the consultant community. If both sides are on the same page, perhaps the CTDEP will be more willing to trust consultants to do things properly, and the consultants will not feel like they are lining up to be raked over the coals.

• Disentangle the legal and financial issues from the regulatory and technical ones, ideally by putting into effect a set of comprehensive regulations analogous to (though not necessarily mirroring) the Massachusetts Contingency Plan, and running the remediation requirements on regulations as opposed to statutes. and statutory or regulatory requirements for remedial action necessary to protect human health and the environment. should not be forced (or allowed) to wait for legal issues to be resolved. I don’t wish to suggest coarsely that we should lock the lawyers out of the business, since the responsible parties and other property owners have a genuine need of legal counsel to look after their interests. Legal counsel and technical consultants should, however, be free to operate within separate spheres.

Most of these suggestions are concerned with changes to the CTDEP, but I have several suggestions made with consultants in mind:

• Respect your own professional judgment, but remain open to the possibility that there might be more to a problem than what you see.

• Though it flies in the face of the increasing corporatization of the field—witness the recent ascendancy of the leviathans known as GZA GeoEnvironmental, AECOMM, and Arcadis—remember that your work is not a commodity that can be provided off-the-shelf, but is an individualized professional service, each instance of which requires great thought and scrutiny. One of the great problems of the last few years is that the business and financial opportunities afforded by the real estate boom came to influence the internal workings and decision-making processed of consulting companies.
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• It is no secret that times are hard and that work is scarce, but be cautious in the projects you take on and the promises you make. There is a definite incentive these days to try to grab preferred services or exclusive vendor contracts, but be careful lest you get drawn in over your head.

• Don’t skimp on a Phase I assessment, since it sets the foundation for everything else.
  
  

“When you grow up on a farm in Georgia, your first girlfriend is a mule."

“When you grow up on a farm in Georgia, your first girlfriend is a mule."


Neal Horsley, a 65-year-old resident of Bremen, Georgia had sex with a mule when he was eleven years old. You can read about it here. God forgave him.
























Fortunately for Neal, that is not his most significant accomplishment. Born and raised on a farm in rural Georgia, Neal served in the US Air Force, did a stint as a hippie in San Francisco followed by a stint in jail for narcotics possession, was ‘born again,’ graduated from the Presbyterian-run Westminster Theological Seminary in 1985, and became deeply involved in the antiabortion movement. Neal was a longtime friend of Paul Jennings Hill, the former Presbyterian pastor who was executed in 2003 after killing two people at an abortion clinic in 1994. From 1995 until 2002, Horsley ran a website, The Nuremberg Files, that published addresses and other information for abortion providers in Washington State. This website likened doctors who provided abortions to Nazi war criminals, and kept track of doctors who were murdered, injured, or driven out of business.

Neal, a born-again fundamentalist Christian, is now once again running for the office of Governor in the State of Georgia, under the banner of the Creator’s Rights Party, which he founded. He does not think the mule incident, or the subsequent watermelon incident, will get in his way. He’s more concerned about religion and politics.

Partly due to his connections to controversial figures like Paul Jennings Hill and the militant organization calling itself the Army of God (which advocates violence as a means to end abortion), and partly due to his repeated campaigns for elected office, Horsley appeared on a number of right-wing talk shows during the Bush years, including Hannity & Colmes and The Big Story. During the course of these interviews he held forth about his religious and political views, including how useful it would be if states retained the right to secede from the country or, at least, to nullify federal laws, in order to force the federal government to recognize Christian principles in criminalizing abortion.

Horsley also talked about the mule incident in a 2005 appearance on Hannity & Colmes, summing it up with the immortal line "You experiment with anything that moves when you are growing up sexually. You're naive. You know better than that... If it's warm and it's damp and it vibrates you might in fact have sex with it." Many politicians would use the genteel euphemism ‘youthful indiscretion,’ but Neal beats them on forthright honesty there. He also claimed that Jesus cleansed him of the sin.

One of the questions Neal’s story (the big picture, not just the mule thing) raised for me was the issue of antinomianism. It’s a big and elaborate-sounding word, but the essential theological issue it addresses is whether or not the supposed divine law totally supersedes human law, to the extent that obedience to human law isn’t necessary for one’s salvation since (in the view of most Protestant churches) salvation is by faith alone, or sola fide.

The original case studies on antinomianism come from the Old and New Testaments of the Bible, including the Book of Daniel, in which the Jews refused to acknowledge Hellenic law imposed by the regional-overlords-of-the-week, and the Acts of the Apostles, when the apostles disputed whether or not it was necessary for Christians to follow Jewish religious laws for food, circumcision, the Sabbath, and so on. This ‘Council of Jerusalem’ was probably one of the most important points in splitting and distinguishing Christianity from Judaism. It should be no surprise, then, that the apostle who was most influential in Protestant traditions, Paul of Tarsus, was one of those who fought most strongly against requiring Christians to obey Jewish law, arguing that the new covenant issued through Jesus superseded all that Torah stuff.

Breaking a civil or criminal law usually (in most Christian traditions, at least) equates to some sort of sin, in the usual litany of ‘thou shalt not kill, steal, covet, lie, etc.’ If you come from a religious tradition where certain things which are illegal are not sins, or where sin can be voided or rendered moot by divine grace, however (for example, killing an adulteress [Leviticus 20:10], traitor [1 Kings 21:13], witch [Exodus 22:1], or someone of another religion [Exodus 22:19]), things can be different. Obedience to God’s law over other law (whether the decrees of Antiochus Epiphanes, Roman law, or the United States Code), in fact, became one of the quicker roads to martyrdom.

In the case of Paul Jennings Hill, he asserted that he was perfectly justified (in both senses) in killing two people because God’s law (which in Hill’s mind endorsed killing abortion providers) supposedly superseded civil and criminal law that forbid murder. Horsley and many of the more militant people in the Army of God and other similar organizations accordingly treat Hill as a martyr to the cause, a role Hill apparently enjoyed.

By contrast to Hill, Horsley’s exorcising of his pubescent hormones at the expense of a mule (in exchange for an ear of corn) is small change, though the mule may well have thought differently at the time. Pulling a knife on his own son during a discussion as to whether or not abortion should, like slavery, be the cause of secession and civil war…well, that’s a different matter.

This is a familiar enough idiom—after all, the United States has seen any number of public figures, many of them religious, first exalt themselves as God’s favorite (holier-than-thou antinomianism) and then wrap themselves in the fleece of the lamb in a theatrical auto da fe of repentance. In the former case, the idea is that God’s chosen are (or should be) exempt from the laws of man (including those pesky laws about fraud and embezzling), and that forgiveness by God should somehow count in the courts of law and public opinion.

A short list of these could include Jimmy Swaggart, James Bakker, Ted Haggard, Pope Alexander VI, and George W. Bush, all of whom at one point believed (or at least acted as if) the law did not apply to them. Bakker and Swaggart both embezzled vast sums from their congregations, as well as carrying on torrid affairs and hiring prostitutes. Ted Haggard apparently had no difficulty functioning in the dual roles of outspoken religious figure and methamphetamine-addicted patron of male prostitutes. Pope Alexander VI almost destroyed the Catholic Church singlehandedly, through sheer venality on an unprecedented scale. The most egregious of the lot, the former President Bush, is on record as having claimed that ‘God wants me to be President,’ starting on false premises a war that has killed hundreds of thousands of people, and ordering abhorrent acts of torture and domestic espionage in the name of national interests. Nor is this a uniquely Christian phenomenon—Michael Jackson, for instance, publicly embraced the Nation of Islam during his pedophilia troubles.

Speaking as one who is an outsider looking in, this sort of example is the root of the stereotype of the outspoken Christian (or whatever faith) as a sanctimonious hypocrite, a stereotype which has a significant degree of currency among people who take their religion with more equanimity. The antinomian self-exaltation is perceived as sheer arrogance or a rationalization of greed, and the repentance appears as a shallow and laughable publicity stunt, regardless of whether another Christian might take it at face value. Embezzling, soliciting a prostitute, or sex with a mule—it’s all the same.

The more serious problem is that this antinomian idea that the divine law supersedes civil law (and that, for example, militant Presbyterians are governed only by the will of God, who apparently says that murdering abortionists is perfectly legitimate) is, shall we say, at odds with the law of the land. Whether or not God gave you permission to do it or wiped out the sin of it, the 9th Circuit Court is still going to put you in jail for a very long time. This is not the Ottoman Empire, where the sultans let Jews and Christians live under their own laws, for all that there is a sizeable fringe element in this country, such as the Army of God and the Westboro Baptist Church, who apparently wish to dispense with civil law altogether and make divine revelation the law of the land.

Religion does not make one exempt from civil or criminal law. Richard Nixon earned the eternal contempt of the western world for suggesting that “when the President does it, it’s not illegal.” Now mentally replace “President” with the words Christian, Muslim, Orthodox Jew, Rasta, pastor, imam, locksmith, bishop, or civil engineer and revel in the cognitive dissonance. Should it be legal for a Presbyterian to kill a Unitarian, or a Muslim to rob a Catholic, or for a Baptist pharmacist to refuse to perform his duties in filling a morning-after pill prescription for a college student who was date-raped? Each faith could certainly find scriptural justification and historical precedent for these actions.

There are any number of reasons for this irrelevance of religious belief to law—the separation of church and state, centuries of legal precedent, and the inherent intangibility and unquantifiability of religion. How can you prove beyond a reasonable doubt that God really does give you the freedom to kill people whose actions offend you? Religion's outward manifestation is the testimony of those who believe it--it cannot be empirically proven, which is what makes it a matter of faith and religion in the first place, rather than geology and astrophysics-- and therefore the Abrahamic god has as the same legal standing as The Flying Spaghetti Monster, Cthulhu, Optimus Prime, and Scientology. If we accept that the Abrahamic god exists, based on the testimony of a Christian, then the testimony of a Pastafarian as to the existence of the Flying Spaghetti Monster meets the same standard of proof and we must also accept Pastafarianism as a legal truth.

We are a nation of laws, not of men, and always have been, and the divine law of whichever God or sect is popular at a time should not be allowed to inform the civil law which governs those in our boundlessly diverse society who do not espouse the dominant religion—e.g. the awkward position of Roman Catholics living under the state-run Church of England. That basic argument extends back at least to 1689 and John Locke’s A Letter Concerning Toleration.


One of my favorite summaries of the relationship between religion and politics in the post-Depression United States comes from the science fiction writer Robert A. Heinlein, best known for Starship Troopers and Stranger In A Strange Land. It was published as a postscript to his story If This Goes On, which discusses the overthrow of a theocratic tyranny in the United States in the year 2100.

As for the second notion, the idea that we could lose our freedom by succumbing to a wave of religious hysteria, I am sorry to say that I consider it possible. I hope that it is not probable. But there is a latent deep strain of religious fanaticism in this, our culture; it is rooted in our history and it has broken out many times in the past. It is with us now; there has been a sharp rise in strongly evangelical sects in this country in recent years, some of which hold beliefs theocratic in the extreme, anti-intellectual, anti-scientific, and anti-libertarian.

It is a truism that almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so, and will follow it by suppressing opposition, subverting all education to seize early the minds of the young, and by killing, locking up, or driving underground all heretics. This is equally true whether the faith is Communism or Holy-Rollerism; indeed it is the bounden duty of the faithful to do so. The custodians of the True Faith cannot logically admit tolerance of heresy to be a virtue.

Nevertheless this business of legislating religious beliefs into law has never been more than sporadically successful in this country – Sunday closing laws here and there, birth control legislation in spots, the Prohibition experiment, temporary enclaves of theocracy such as Voliva’s Zion, Smith’s Nauvoo, a few others. The country is split up into such a variety of faiths and sects that a degree of uneasy tolerance now exists from expedient compromise; the minorities constitute a majority of opposition against each other.

Could it be otherwise here? Could any one sect obtain a working majority at the polls and take over the country? Perhaps not – but a combination of a dynamic evangelist, television, enough money, and modern techniques of advertising and propaganda might make Billy Sunday’s efforts look like a corner store compared to Sears Roebuck. Throw in a depression for good measure, promise a material heaven here on earth, add a dash of anti-Semitism, anti-Catholicism, anti-Negroism, and a good large dose of anti-“furriners” in general and anti-intellectuals here at home and the result might be something quite frightening – particularly when one recalls that our voting system is such that a minority distributed as pluralities in enough states can constitute a working majority in Washington.

From Concerning Stories Never Written: Postscript in Revolt in 2100
Robert A. Heinlein
Colorado Springs, Colorado
October 1952

And with that, I should end this post because it’s already four pages long.

The Littoral Combat Ship

In view of Secretary of Defense Gates’ announced plans to reallocate a large chunk of the Pentagon’s procurement budget, as well as the pirate attack on MV Maersk Alabama off the Somali coast earlier this week, I thought I would discuss a matter I’ve been following for some time. The US Navy wants (for a certain value of ‘wants’) a new small, relatively expensive ship for use in low-intensity operations like pirate-hunting, known as the Littoral Combat Ship. It’s certainly a worthwhile project, when weighed against some of the Cold War dinosaur projects that are still carried on the books, but the important question is, will the Navy actually get what it needs? On the other hand, are the defense contractors telling the Pentagon what weapons the military needs?

The current defense procurement system is thick with economic and intellectual hazards. Almost fifty years ago, President Eisenhower delivered a farewell speech that coined the phrase “military-industrial complex,” presciently warning that the US was in danger of developing a symbiotic relationship between the manufacturers of weapons and the consumers of them. Actually, one of the little-known secrets of that speech is that Ike’s original draft read ‘military-industrial-Congressional complex,’ in reference to the practice of Congressmen treating military bases and projects as pork-barrel products for their home districts. For example, why were so many US Navy ships built in Pascagoula, MS during the 1980s and 1990s? The answer is: powerhouse Republican Senator Trent Lott of Mississippi.

It is no secret that military hardware is big, big money, and loaded with waste, inefficiency, cost overruns, cronyism, and peculation.

Defense procurement has changed markedly over the past century. Until the Second World War, much of the actual design and bench-testing work for developing new weapons, whether rifles or battleships, was done in government labs by government employees, such as the Springfield Armory in Massachusetts (where most of the Army’s small arms were developed until the late 1950s) the Navy’s various design bureaus. The Bureau of Ships would, for example, prepare a design and specifications in-house, solicit bids from private shipyards to build the ship, and rigorously test the ship before accepting it for service. Since the Second World War, however, matters have steadily grown more privatized, a process which may have been driven by the increasing technological complexity of weapons such as jet fighters, radars, or ballistic missiles. One of the hallmarks of this privatization was the closing of the Springfield Armory by order of Secretary of Defense Robert S. McNamara in 1966.

The weapons design and procurement branch of the military-industrial-congressional congress currently depends on an ever-shrinking pool of firms—for example, in the 1950s, over a dozen aircraft manufacturers would present designs to the Air Force for a new type of fighter plane. There are currently only three major suppliers for military aircraft—Lockheed-Martin, Boeing, and Northrop-Grumman. Due to the shrunken ‘gene pool,’ there is very little competition or incentive to keep prices down and schedules on-time, especially when both firms can mobilize high-echelon political help like Senator John McCain to keep evil foreign competitors like Airbus out of the bidding pool for US defense contracts.

More to the point, Lockheed-Martin is the largest defense contractor in the world, with a 2007 annual revenue of over $38 billion, 92% of which came from defense contracts from the US government. The second-largest defense conglomerate, Boeing, earned $32 billion in the same year, 48% of which was from defense contracts, while the fourth, fifth, and sixth largest contractors, Northrop-Grumman, General Dynamics, and Raytheon, each derived 75%-93% of their income from defense contracts. The third largest contractor, BAE Systems, is based in the United Kingdom and works mostly in European-oriented markets. While a hundred billion dollars might seem small in comparison to the vast amount of money shoveled into the banking and financial service industry over the past year, it is still serious money, and is even more serious when it’s shared among only four competitors. All major defense contractors, including Boeing, Lockheed-Martin, and General Dynamics, make a practice of hiring large numbers of retired high-ranking officers, including many of the people who, while in uniform, oversaw defense procurement.

Many projects are fought over like children screaming over the last cookie, or handed off to ‘joint ventures’ set up by a couple of conglomerates working together to share the pie. Whatever benefits there might be of having all the production concentrated in one place, political meddling (uniformed and otherwise) ensures that any project is spread piecemeal over the whole country. Fabrication, assembly, and testing of the F-22 Raptor fighter plane, for example, is currently parceled out over 44 of the 50 states. In the particularly egregious case of the forthcoming $3.3-billion dollar Zumwalt-class guided-missile destroyers, the largest single line item in the US Navy’s budget, virtually every major defense contractor in the United States has carved out a slice of the pie.

The primary economic hazard is that, tor all that the business community touts itself as the manifestation of the benefits of capitalism, in reality, there is very little of the principal capitalist virtues of thrift, efficiency, and incentive to innovate about it. Rather than capitalism, the whole system reeks of the sort of bloated graft, inefficiency, and cronyism that strangled the Soviet Union’s entire economy during the latter decades of the Cold War. Even when Raytheon loses a bid to design a new warship, the odds are very good that it will receive some piece of the pie eventually—a ship designed by General Dynamics will likely be armed with missiles manufactured by Raytheon. In the case of the Zumwalt class, BAE Systems designed the weapons, General Dynamics and Northrop Grumman collaborated on hull design and machinery, L-3 Communications designed the electronics, and Raytheon is charge with ‘systems integration,’ meaning that it gets to make sure all the innovative and unproven technologies going into the Zumwalt cooperate with each other. Of the two ships under construction, Lockheed Martin is building one at Bath Iron Works in Maine, and Northrop-Grumman is building the other in Pascagoula, Mississippi.

The increased privatization of the US military’s service and support functions during the late 1990s and early 2000s essentially poured ever-increasing amounts of money into a black hole that produced ever-decreasing returns. In the case of the Coast Guard’s ‘Deepwater’ program, which was supposed to provide replacements for elderly ships and aircraft as part of the post-9/11 Homeland Security boom, private contractors such as Lockheed Martin were given the freedom to make purchasing and design decisions on behalf of the federal government—in short, Lockheed could write checks on Washington’s bank account. It is thus no surprise at all that the Deepwater program’s price tag exploded from $17 billion to $26 billion over just four years (2002-2006), and made so little progress that by 2007 the Coast Guard had dropped most of the planned acquisitions from the program. Even that left the Coast Guard with fewer ships than it started with, because eight ships rebuilt under the program turned out not to be safe to operate, and had to be taken out of service. The Coast Guard, which typically gets by on a miniscule fraction of the resources afforded to most government agencies or services, is currently suing several shipyards and defense contractors in an attempt to recover costs and damages.

The current paradigm is a design/build contract, where a firm such as Lockheed presents a conceptual design to the Pentagon, wins out over its competitors, and is then awarded the contract to prepare a final design and ultimately build the ship, vehicle, or whatever. In theory, this model works. The reality is that projects tend to get stuck somewhere between the awarding of a contract for a final design, and the construction of the ship—this is how the Raptor and the Boeing V-22 Osprey tiltrotor transport aircraft ($110 million per aircraft) came to exist only on the drawing board or prototype stage for over a decade and a half.

The problem is, there is little oversight over construction to verify that the contractor is doing his job properly and on schedule, which is why budgets and timelines both stretch far beyond the expected limits. Quality can suffer, too—the two Coast Guard cutters launched under the Lockheed-run Deepwater program were found to have been built with vulnerable unshielded electrical wiring instead of the shielded wiring which Lockheed’s own design required, and whistleblowers asserted that Lockheed’s project manager knew about the substitution but did nothing about it. The difference is crucial—unshielded wiring would have left the ship vulnerable to electromagnetic effects that could have shut down her electronics and left her blind, deaf, and dumb, or left her unable to use her radios because of the interference created by her own radar.

The ultimate result of this privatization and deregulation is that twenty-three years after the program was launched, the F-22 Raptor has just barely entered production, the Air Force has only 135 of them as yet, and the program as a whole has cost over $65 billion dollars, an order of magnitude higher than the original worst-case cost estimates. A significant chunk of that money has gone into periodically redesigning the prototype to keep pace with the new aircraft that have entered operational service during the Raptor’s quarter-century gestation period. That’s right. Stuff designed after the Raptor project started has entered full-scale service before the Raptor got past the prototype stage, and Lockheed had to redesign the thing because the new stuff (for example, the Saab Gripen or Eurofighter 2000) outclassed that iteration of the Raptor design.

As vast and bloated as the Raptor project is, however, there are only a few projects of that type going on at any one time, so the military is forced effectively to subsidize contractors by padding contracts to tide their suppliers through lean times in order to keep the machinery running, so to speak. After all, if Boeing should go under, where would the Air Force get cargo planes? This is part of the reason that projects like the Raptor and the Osprey are spread out in small-batch production over many years—the Osprey is currently rolling off the assembly line at the rate of eleven aircraft per year, although the military hopes to see a rate of 48 per year by 2012. The eventual requirement is for about 460 Ospreys.

The attempts by Secretary of Defense Rumsfeld to transform the military into a leaner and more streamlined entity by privatizing progressively larger chunks of the military’s traditional sphere of needs (to the point of using Chilean mercenaries as security personnel for US government officials and Pakistani peasants as truck drivers and cooks) foundered on the sclerotic, complacent, and corrupt nature of the system which it tried to capitalize (no pun intended) upon. It’s anyone’s guess as to whether contractors supplied by Halliburton can peel potatoes cheaper than an Army private fresh out of basic training—privates are expensive to train and equip, yes, but they don’t expect to maximize quarterly earnings the way Halliburton does. Businesses exist to make money. Admittedly, privates are in short supply, but that might be because they are paid so little—many military families rely on food stamps to survive. What would be the cost/benefit analysis of better-paid privates peeling potatoes on salary versus Halliburton, who expects to turn a profit on the arrangement.


The primary economic and technical hazard created by the procurement system is that it doesn’t always deliver to the military what it needs at a particular moment—Secretary Rumsfeld’s bon mot that “you go to war with the Army you have, not the Army you want” resonates here. As the US military found to its’ distress during the Iraq occupation, under the current system it can take years to get an urgently-needed item into production even when using proven and relatively off-the shelf technology such as mine-resistant trucks, which are old hat in South Africa and the Third World. Regardless of how badly the military needs life-saving but mundane goods like body armor or mine-resistant trucks, however, it is essentially locked into spending money on gear like the Raptor, which was originally designed with the Cold War in mind, and which is almost completely useless in the ‘war on terror,’ and the allotment for the Raptor takes precedence over the allotment for body armor.

Asymmetrical warfare is the most common type of warfare in the modern world (well, all warfare is asymmetrical, really), but it’s the least ‘fun.’ It’s not fighter pilots trading shots with Soviet jets over central Germany—it’s leg infantry doing foot patrols out of a base in the Sunni Triangle or the Pamir Mountains. It’s not glamorous, doesn’t make the news unless something goes horribly wrong, and generally requires a dusty mine-resistant truck and a mundane assault rifle instead of flashy, high-tech, expensive, and therefore prestigious toys like the F-22 Raptor, which even earned an appearance in the 2007 ‘Iron Man’ movie.

The Raptor is unfortunately not unique, but emblematic of a long-standing problem. Defense dollars are consistently misspent by funding expensive and possibly unnecessary things like the Raptor at the expense of unglamorous but necessary stuff like body armor for soldiers. If you’re hunting the Taliban in the Afghan mountains, you don’t need a supersonic jet plane that’s invisible to radar, because the Taliban don’t have radar. You need two guys in a Piper Cub to FIND the Taliban, at which point basically anything with wings can drop a bomb on them. Unfortunately there isn’t much money in manufacturing Piper Cubs, so they get little attention, political wooing, or money. Raptors, however, have put any number of Lockheed employees’ children through college since the program was initiated in 1986.

The Navy has its own, similar procurement problem. Right now the US Navy has more big ships than anyone else on the planet—at last count, 11 aircraft carriers, 22 cruisers, 53 destroyers, 53 attack submarines, 18 ballistic-missile submarines, about thirty frigates, a dozen amphibious assault ships, and a horde of supply ships, landing ships, and others. Our smallest aircraft carrier is still 50% bigger than anyone else’s, and tremendously more powerful.

The problem is that we have lots of $100 bills but no small change; it’s like when you need two bucks for a cup of coffee the smallest you have is a $50 bill. Most of the ships in Reagan’s ‘600 ship navy’ at the end of the Cold War were aging, second-rate destroyers and frigates kept around because they would be useful as convoy escorts in the event of World War III, or for ‘showing the flag’ in low-priority areas. With the reductions in strength during the 1990s, the older and smaller ships were the first to go, so that by 2000 we had a much smaller fleet composed overwhelmingly of modern ships.

The problem is, now we need what we haven’t got-- a lot of small, cheap ships suitable for gofer duties, hunting submarines in shallow water like the Persian Gulf, and running down Somali pirates. During WWII, a destroyer was a 2,000-ton, relatively expendable ship that could be built by the dozen. These days, an Arleigh Burke class destroyer like the USS Bainbridge, which participated in the Maersk Alabama incident, is a 9,000-ton major fleet warship, one not to be risked without serious consideration of career prospects and budgets. Given the reduced size of the fleet compared to a decade ago, each task given a ship must be weighed against other needs for that same ship.

The Navy’s situation is partly an intellectual hazard like that mentioned above. For most of the last sixty years, the Navy has been run mostly by men wedded to the idea of the aircraft carrier as the ultimate Big Stick, to such an extent that virtually every other kind of ship in the fleet was conceptualized as a way of supporting the aircraft carrier—cruisers became air-defense ships that shot down enemy airplanes or cruise missiles, and destroyers and frigates became ships that sank enemy submarines. Either type was basically a defensive auxiliary to the aircraft carrier, and were ill-equipped for operating out of their intended roles, or even for the task of simply fighting other surface ships.

It was almost thirty years into the missile age that the US even had a purpose-designed antiship missile (the Harpoon), which is prima facie evidence that nobody expected surface warships to slug it out themselves, rather than protecting an aircraft carrier. Technically speaking, you could hit a ship with a surface-to-air missile like the Standard or the lumbering 1960s-vintage Talos, but that was a pretty weak sauce—you generally couldn’t hit anything that was over the radar horizon. By contrast, when the Russians (who didn’t have any aircraft carriers until the 1980s) started putting missiles on their warships, the first kind of missile they developed was an antiship missile, and they put them on LOTS of ships, as well as on airplanes, submarines, and bunkers on beaches.

Even the Aegis radar system was originally conceived as a means of protecting aircraft carriers from the Russians as part of a Butter Battle Book evolution. To the Soviet admirals, the best way to even the odds when you didn’t have aircraft carriers of your own (as was the case for the Soviet navy) was to use long-range missiles. The US Navy responded with missiles to shoot down the Soviet missiles. The Soviets simply one-upped and decided to use LOTS of missiles. The US responded with systems to shoot down LOTS of missiles, namely Aegis, which is essentially a radar and computer system designed to track lots of targets and guide lots of outgoing missiles simultaneously.

As a corollary to the emphasis on aircraft carriers, for many years the carrier-dominated Navy simply detested the idea of small ships, a category which came to include virtually everything smaller than a 5,000-ton guided-missile destroyer. The Navy complained that they were too limited in their abilities, couldn’t be upgraded with new weapons, required too many men and too much money, and so on, and that the money would be better spent on a smaller number of big ships. When the last Perry-class frigates were launched in the 1970s, a number of senior naval officers and defense analysts said that they would be the last frigates the US Navy would build. They had something of a point, especially after the end of the Cold War—without the need to perhaps send convoys across the Atlantic to Europe again, you didn’t need a swarm of small antisubmarine warships. Most of the US Navy’s frigates were accordingly sold or scrapped during the 1990s—of the 51 Perry-class ships, about half have been disposed of and the rest are being taken out of service a few at a time.


From a military perspective, the major intellectual (and ultimately tactical and strategic) hazard in structuring one’s military and planning for future wars or other needs lies in focusing so narrowly on your own strengths that you overlook your enemy’s strengths or leave yourself vulnerable to them. You could also wind up in a situation that you had never anticipated, and for which you were neither trained nor equipped. The classic modern example of this type of situation is the 1982 Falklands War between the United Kingdom and Argentina. The Royal Navy had, since the 1950s, steadily retracted from its imperial power-projection operation into the role of antisubmarine warfare in the North Atlantic. When faced with the entirely unexpected need to launch an amphibious assault on a defended shore on the other side of the planet, the Royal Navy was faced with the grim fact that its resources were entirely inadequate, and that it would have to deal with a tactical and strategic situation that was entirely out of its core competencies. This extended from the macrocosm of the nature of the war to, in microcosm, the discovery that the Royal Navy’s Sea Dart surface to air missile, designed to cope with Soviet missiles on ballistic trajectories, was unable to track low-flying French-built Exocets like that which sank HMS Sheffield. The fact that the British triumphed at all is due primarily to their ability to improvise and adapt, rather than to any innate material advantage.

As a tactical hazard, if all your hitting power is concentrated in your dozen or so aircraft carriers, you’ve really put your eggs in one basket, and no matter how well-defended they are, aircraft carriers are big targets. Case in point—back during the 1990s, the US Navy was holding joint exercises with some Canadian warships, one of whom somehow managed to sneak past the carrier’s escorts and ‘hit’ the carrier with a missile before anyone knew the Canadian ship was there. This was a rather notorious incident in naval circles. Sure, the Red Banner Northern Fleet would have lost a number of ships knocking out one carrier, but their ships were cheaper and more numerous to start with—trade three or four submarines, destroyers, frigates, etc. or even cruisers for a carrier and you’d come out ahead.

Likewise, a crowded and cluttered area like the Persian Gulf would be ideal conditions for a frigate or a submarine to sneak in close to a carrier and land a shot on it. Submarines still make surface captains break out in a cold sweat, and two guys in a speedboat full of explosives blew a hole in the USS Cole in October 2000, killing 17 and wounding 39.

As powerful as they are, however, there are certain things aircraft carrier groups aren’t very good at, such as littoral operations involving confined spaces (launching and recovering aircraft requires lots of sea room), or anything involving being unobtrusive. For example, it’s a simple matter for Iran to find out how many US aircraft carriers are in the Persian Gulf or Arabian Sea. A Nimitz-class carrier is big enough to show up like a sore thumb on a satellite photo, and such photos are commercially available to anyone with cash. The ‘littoral’ is, in this context, the part of the sea which is within about 100 miles of the coast.

Now, I am not in the Navy or any other branch of the military, but it seems to me that if you want to use naval means to affect things on or close to land, be that D-Day scale assaults, battalion-strength Marine landings, interdicting coastal traffic or pirates, reconnaissance, or shoot-and-scoot artillery raids, this most likely involves being relatively close to the shore…..

So now we’re back to having a navy with a lot of big expensive ships, but very few small and cheap ones, going shopping while carrying nothing smaller than thousand-dollar bills in a mall where none of the stores give change.

Many of the environments in which the Navy is likely to be fighting in the next twenty years are coastal environments facing asymmetrical enemies, rather like what the US encountered in the Tanker War back in the 1980s, when the Iran-Iraq war spilled over into attacking oil tankers in the Persian Gulf. What do you do when you have an asymmetric enemy fighting you in an adverse environment, and most of your own strengths are hindered? An Aegis-equipped guided missile cruiser isn’t going to do you much good in the cramped Straits of Hormuz, and all those nasty little mines and cheap Chinese-made antiship missiles leave an admiral disinclined to send expensive ships into confined spaces. The Perry class wouldn’t be much better—they were designed mostly as convoy escorts, and have really good antisubmarine capabilities and an outdated but usable air defense, but that’s about it—not a whole lot of slugging power.

A 1994 white paper from the US Navy, titled ‘Forward…From The Sea” identified the littoral environment as the most likely sphere for future naval operations in the post-Cold War world. Although the Navy was to an extent aware of the littoral warfare issue on an intellectual level, in a material respect the fleet is at least twenty years behind the times. Most of the littoral warfare programs the Navy embarked on during the 1980s or 1990s simply never materialized, or evolved into attempts to make existing assets such as special forces or helicopter units do double-duty.

Over the past five to seven years, however, the erstwhile Global War On Terror prompted the admirals to rediscover many jobs that the Navy either de-emphasized or simply forgot about during the Cold War, much like the Army and Marine Corps allegedly forgot everything learned in Vietnam and had to rediscover counterinsurgency and peacekeeping operations in Iraq and Afghanistan.

So what is needed is a ship you could use for all those things for which a cruiser or destroyer is overkill, too big, or just not suited to the mission. Chasing pirates off Somalia, landing Special Forces or peacekeepers in Haiti, or running down Pasdaran speedboats in the event of a war with Iran are rather silly things to try and do with a 9,000 ship designed to kill airplanes, missiles, and submarines from thirty miles away.

So the Navy clearly has a need to fill, and in the apparent absence of other means to fill it, the answer is something new, or rather something old with a new name. In this case, the old-but-new thing is a small warship, but the new name is the Littoral Combat Ship or LCS, probably because the traditional naval designations for smaller warships, such as ‘frigate’ or ‘corvette,’ don’t sound sufficiently technological. There are a few other concepts floating around in the prototype stage, such as the small but ultra-fast Sea Fighter, but the LCS is (or perhaps was) the most immediately workable concept.

The LCS would be, to quote Robert Fripp, a ‘small, mobile, intelligent unit,’ conceived as a fairly inexpensive (both to build and to operate) and versatile ship with a lot of teeth, and roughly a third the size of an Arleigh Burke-class destroyer. The overall concept is pretty clever—fast, shallow draft, capable of carrying and landing a detachment of Marines, and capable of being fitted out with modular weapons and gear depending on what mission it’s for. The Danes developed this approach back in the 1980s, a number of NATO countries have adopted it wholly or in part, and it’s a proven technology. It’s also probably the best single idea for a ship the Navy has produced since the fall of the Soviet Union.

If you need a ship-killer, you pull the LCS up to a naval base on Diego Garcia and load a module of Harpoon missiles. If you need a minesweeper, remove the Harpoons and install the minesweeping gear, etc. etc. The upshot is that for the price of a dozen ships plus the extra equipment modules, you get a dozen minesweepers, a dozen frigates, and a dozen fast commando carriers without having to build, man, and maintain three dozen ships, and foot the bill for frigates when all you need at the moment is minesweepers.

The basic problem is that the Pentagon—like any organ of government these days-- can’t seem to produce anything that is small, inexpensive, and easy to implement. There’s too much money for Lockheed and General Dynamics to gobble up simply through the inertia of the R&D and purchasing system. The last eight years of Republican misrule, pork, War On Terra, and Homeland Security paranoia has meant there is plenty of slop in the trough, and even in relatively lean times the Pentagon’s funding is lavish compared to most European countries. Rather than pick a simple design and go with it, the Pentagon spent years soliciting bids, eventually winding up with two designs, one by Lockheed Martin (who have never built ships of any sort before, but who bought out companies that did) and the other by General Dynamics.

Rather than pick one builder and upset the other, out of what could be either Solomonic wisdom or Republican profligacy, the Pentagon decided to build a couple of each design as prototypes, to be named USS Freedom (the Lockheed design) and USS Independence (the General Dynamics design). Both designs turned out to be bigger, fancier, and more expensive than initially desired, and in each case the Navy realized halfway through that as initially conceived, the ships would be too fragile and required extensive redesign work. Each also and took almost four years to build (announced in 2001, ordered in 2004, launched in 2006, and still not finished) even though the Pentagon fast-tracked the project (they wanted it in six years, rather than the usual twelve).



USS Freedom (General Dynamics design, planing monohull)


USS Independence (Lockheed Martin design, trimaran)

The last time the Congressional Research Service weighed in on the matter (late 2008), the cost of one LCS had bloated to more than twice the original projected cost. The final cost per ship will likely be in the range of 600 million dollars, three times the original budget. Although less than a fifth the cost of a Zumwalt, this is hardly the cheap and efficient ship the Navy wanted. I am very familiar with this trick— the contractor lowballs the original estimate in order to undercut the competition and get the project approved, and then runs up the bill with change orders and unforeseen costs. There’s no incentive not to, since the contracts for the projects stipulated that the government would reimburse General Dynamics and Lockheed Martin for any cost overruns.

The LCS project finally became so sclerotic that the Navy canceled the third and fourth ships in November 2007; part of the reason was that Lockheed would not agree to a new contract which would cut the government’s responsibility for cost overruns. The Navy currently plans a new bidding process with the for fiscal year 2010 for the next three littoral combat ships, assuming that Lockheed and General Dynamics will stay in the race, and with the winner building two ships and the loser only one ship. The new Democratic administration has also set a $460 million per ship spending cap.

At this point, the world being the way it is, we probably won’t get either design into serial production. At the same time, the Navy is still pouring money into new aircraft carriers, a new class of four-billion-dollar-each destroyers packed with experimental gear, and more submarines.

It’s really too bad that it’s so hard to get something we actually need.

Anna Nicole Smith vs Iraq

A woman named Anna Nicole Smith died on Thursday, February 8. She was a 39 year old former stripper, playboy centerfold, ‘actress,’ gold-digging trophy wife, and famous for being famous. Ms. Smith’s loud, pointless, and generally disastrous lifestyle went on to the point that her dispute over her late husband’s will went all the way to the Supreme Court of the United States. Fancy clothes, fake breasts, troweled-on makeup, bleached teeth and a hairstylist who must have a MS in structural engineering are apparently an acceptable replacement these days for brains, integrity, effort and talent because they can be more easily wrapped around an overweight drug addict with the maturity level of a high school sophomore and marketed. You can buy a dress like hers or wear the same perfume or tote around the same horrible little armpit dog, while you can’t buy (or sell at a profit) honesty or a work ethic.

Robert A. Heinlein was right—America has become a place where entertainers and high-paid athletes mistaken for important leaders of public opinion. She is, in a sense, the epitome of modern American culture— she was an engineered product of the media and advertising industry, who become important because people were constantly being told that she WAS important. That’s right, America—the media doesn’t show you what you need to know or what you think is important, they show you what they want you to think is important. What a colossal waste of space. All we need now is Elton John to write another song about a dead blonde.

In case you hadn’t noticed, there’s still a war going on. Between 3PM EST on Thursday and 1PM EST on Friday, these major news networks aired the following numbers of segments on the death of Anna Nicole Smith and the ongoing war in Iraq:

NETWORK ANNA NICOLE IRAQ
CNN 141 27
FOX NEWS 112 33
MSNBC 170 24

The average length of segments devoted to the relative topics:

NETWORK ANNA NICOLE IRAQ
NBC 3:13 0:14
CBS 2:00 2:17
ABC 2:21 2:58

You read that right. NBC spent 3:13 minutes in each half-hour broadcast on Anna Nicole Smith, and fourteen seconds on Iraq. Figures are from www.thinkprogress.org. I can only conclude that national priorities here are seriously misplaced.

Furthermore, while all of this red-carpet garment-rending over a dead stripper was going on, a sixth US helicopter was shot down, an Iraqi government minister was accused of supporting a Shi’a militia, and four more US Marines were killed in action. That must have been one jam-packed fourteen seconds on NBC. Our president continues to demand that we support his policies, for which ‘stupid and disastrous’ is not a strong enough term, with unthinking and blind obedience, howling like a certain mustachioed Great War veteran that unity is strength and any deviations from the party platform is tantamount to treason.

Today is Friday, February 9. Thirty-three US soldiers were killed in Iraq between February 1 and today, in addition to two Britons and one Pole.

The published names of the dead include:

US Tarryl Hill

US Corporal Jennifer M. Parcell

POL Lance Corporal Piotr Nita

US Hospital Corpsman 1st Class Gilbert Minjares Jr.

US Manuel Ruiz

US Sergeant Travis Pfister

US Sergeant Joshua J. Frazier

US Lance Corporal Brandon J. Van Parys

UK 2nd Lieutenant Jonathan Bracho-Cooke

US Sergeant Randy J. Matheny

US Staff Sergeant Ronnie L. Sanders

US Captain Kevin C. Landeck

US Staff Sergeant Terrence D. Dunn

US Specialist Alan E. McPeek

US Private Matthew T. Zeimer

US Chief Warrant Officer Officer Keith Yoakum

US Chief Warrant Officer Jason Garth DeFrenn

US Corporal Richard O. Quill III

US Sergeant Major Michael C. Mettille

US Hospitalman Matthew G. Conte

US Gunnery Sergeant Terry J. Elliott

US Specialist Eric R. Sieger

US Private 1st Class Tyler Butler

US Private 1st Class David C. Armstrong

In addition, there are ten Americans and one Briton killed during the first nine days of February whose names have not yet been released by their governments. Total US casualties in the Iraqi war now number 3,118 killed, and 54,910 wounded (data and names from www.icasualties.org).

Please remember that the United States federal government currently forbids media coverage of the return of killed or wounded soldiers from Iraq, in an attempt to disguise the cost of the war. Please also note that the conservative media and Bush Administration figures, including the Vice President, routinely deny proven facts and accuse reporters of concentrating on just the bad news from Iraq. Why haven’t you heard more about this? Major news organizations routinely bury stories on antiwar protests, casualties, and other ‘politically sensitive’ matters. If someone gives their life for their country, it should not be swept under the rug in an attempt to keep the president from being embarrassed by the consequences of his own stupidity and stubbornness. That is an absolute disgrace to the entire country.

When Ted Koppel read a list of 721 dead American soldiers (then the current total) on the April 30, 2004 ABC News program Nightline —it took 40 minutes-- Sinclair Broadcast Group, which owns more than 60 television affiliate stations across the country, and many other media corporations chose to black out the program or air something else instead, and many ‘patriotic’ right-wing talking heads castigated Koppel for doing such a thing. Sinclair’s official statement on the matter concluded that "The action appears to be motivated by a political agenda designed to undermine the efforts of the United States in Iraq.” Welcome to the land of the First Amendment and broadcast media deregulation; even Pravda had more interest in presenting the truth than Sinclair does. No national news program has been allowed to do the Koppel-type thing since then. Incidentally, 98% of Sinclair Broadcast Group’s political donations go to the Republican Party.

I wrote this myself, except for what I cited from thinkprogress.org and icasualties.org. If it sounds a little like Keith Olbermann, well, let’s just say I have good role models these days.

Good night. Good Luck. January 20, 2009 - Hang in there, America.