[CPEO-MEF] EPA Letter to DOD 1-14-2000

[CPEO Moderator <cpeo@cpeo.org>]

U.S. EPA sent the following letter regarding the cleanup order at the 
Massachusetts Military Reservation to the Pentagon last week:

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460

January 14, 2000

Ms. Sherri W. Goodman
Deputy Under Secretary of Defense
(Environmental Security)
3000 Defense Pentagon
Washington, D.C. 20301-3000

Dear Ms. Goodman:

Thank you for your January 12, 2000, letter expressing your concerns 
about EPA Region I's order issued under the Safe Drinking Water Act 
(SDWA) against the National Guard Bureau and the Massachusetts National 
Guard at the Massachusetts Military Reservation (MMR) on Cape Cod.

We have carefully reviewed your concerns and the issues you raise and we 
do not believe the order should be withdrawn or modified as you have 
requested. The order is effective today, January 14, 2000.  As you know, 
this order follows two previously issued SDWA orders covering the Camp 
Edwards portion of MMR.  The order is based on information resulting 
from the initial SDWA order, and other additional information.  These 
orders have been issued to protect Cape Cod's aquifer, which is the sole 
drinking water source for the 200,000 year round and 500,000 seasonal 
residents.  Substantial portions of the aquifer are seriously 
contaminated already from past military practices at Otis Air Force Base 
at the southern end of MMR. That portion of the aquifer directly 
underneath Camp Edwards' training ranges and impact area, the so-called 
Sagamore Lens, is the intended future water supply for the Upper Cape 
Cod communities.  There is now ample evidence that military munitions 
used and disposed of during training at Camp Edwards have contaminated 
parts of the Sagamore Lens with RDX and other toxic compounds--evidence 
that DoD, in its objection to EPA's April 1997 SDWA order restricting 
training at Camp Edwards, asserted would not be found.  In fact, 10 
percent of the monitoring wells installed as part of the groundwater 
study conducted pursuant to the February 1997 SDWA order show RDX 
concentrations above EPA?s health advisory.

Cleaning up and preventing any further contamination of the
Sagamore Lens is crucial to Cape Cod's future, in terms of both public 
health and economic well being.   It is EPA's mission and statutory 
mandate to protect the public health with its most effective tools 
available. The Safe Drinking Water Act is a unique authority that 
Congress gave EPA to use in a preventative and prospective manner to 
protect underground supplies of drinking water. It is used to treat or 
reduce contamination, or to prevent harmful conditions from 
materializing. It is the most effective and appropriate tool EPA has to 
deal with this matter.  We trust you would agree that it is EPA's 
responsibility, not the Department of Defense's, to determine how best 
to apply the statutes it is charged with administering.

Given the historic military activities that have already contaminated 
over 66 billion gallons of this sole source aquifer, it is critical that 
preventative measures, as well as remedial measures, be taken now to 
preserve the quality of Cape Cod's drinking water.  It is the precise 
purpose of SDWA Section 1431 to protect an underground source of 
drinking water (USDW) from contaminants which are present, or which are 
likely to enter the USDW.  The authority to act to prevent contamination 
which may present a threat to a drinking water supply in the future from 
becoming a reality is well established by the legislative history of 
Section 1431 and court decisions.

The DoD position that any and all work at Camp Edwards should be
done under the Federal Facilities Agreement established under CERCLA at 
MMR pointedly ignores a fundamental disagreement between EPA and DoD's 
how to address the thousands of  rounds of unexploded ordnance (UXO) at 
Camp Edwards.  DoD has stated that it will not clean up UXO at active 
ranges until it actually causes harm.  DoD claims that UXO has not 
caused harm at MMR.  EPA has determined that the UXO needs to be dealt 
with before further harm is caused at this site. Again, this is why the 
Safe Drinking Water Act, with its focus on preventing harm, is the most 
appropriate tool to use in this situation. DoD would wait until the 
range became closed (the term of its lease with MMR expires in 2026) or 
until the aquifer is proven to have been already contaminated by UXO, 
before beginning to address UXO under CERCLA.  The Safe Drinking Water 
Act provides clear authority to address contamination of this sole 
source aquifer, or the potential of future harm, caused by the presence 
of UXO.  Section 1401 (6) of the SDWA defines "contaminant" broadly to 
include any "physical, chemical, or radiological substance or matter in 
water."  This applies even when the contaminant is not yet present in 
the underground source of drinking water.  The use of the term "likely
to enter" in section 1431 of the SDWA means that this section of the act 
can be used to issue orders early enough to prevent the potential harm 
from reaching the USDW.  Moreover, the definition of USSDW at 40
CFR section 144.3 includes aquifers that currently supply a public water 
system and those that simply have the potential to supply such a public 
water system.

This fundamental disagreement between EPA and DoD over the handling
of UXO at Camp Edwards is further illustrated by the following facts.
Significant numbers of live unexploded ordnance have been uncovered
through DoD's sampling efforts conducted pursuant to the previous SDWA 
order.  In addition, more than 1,100 mortar rounds were discovered 
buried at the only range where a comprehensive survey for unexploded 
ordnance has been conducted to date.  There are more than 30 ranges 
where unexploded ordnance surveys have not taken place, but which will 
be investigated and cleaned up as a result of Region I's SDWA order 
issued last Friday, January 7.  In addition, there is sound evidence 
that UXO at MMR may contaminate groundwater at levels exceeding health 
advisories established under the SDWA.  The ongoing groundwater study 
provides clear evidence that UXO that was disposed of at MMR has already 
caused soil and groundwater contamination.  Data from soil sampling at 
known disposal locations, including CS-19, Demolition Area 1, the 
Armored Personnel Carrier and the steel lined pit, all show high levels 
of contamination by explosives
and other compounds.  Groundwater sampling downgradient of three of the 
UXO disposal sites also contain levels of explosives that exceed the 
Health Advisory of 2 ppb for RDX.

As noted above,  the Department of Defense has denied the potential
for environmental degradation associated with UXO that remains where it 
has landed. For example, in discussions in connection with  EPA's second 
administrative order restricting training activities, Col. Wright, then 
Chairman of the Department of Defense Explosives Safety Board, 
unequivocally stated to EPA Region I in 1997 that the potential for 
contamination from broken or leaking UXO is "virtually zero."

For example, according to several DoD documents which are cited in
Region I's order:
1. Propellant, explosive and pyrotechnic compounds may be released into 
the environment when the munitions casing is damaged or
deteriorated.  See Range Rule at 62 Fed Reg. At 50800.
2.  UXO that had remained in the ground at the J Range at MMR
were "extremely corroded."   Note that while these munitions had been
underground for an estimated thirty years, the ranges at MMR have been 
in use for close to 90 years and presumably contain UXO that are even 
more heavily corroded than those found at the J Ranges.  June 1998 
Report to Deputy Assistant Secretary of the Army from U.S. Army Defense 
Ammunition Center.
3.  Some munitions undergo a low order detonation and produce high 
explosives residues in or on munitions fragments.  One such low
order detonated shell at the J Range was confirmed to be contaminated
with RDX.  See 1998 Report for USADAC.
4. Munitions may leak TNT, even when stored under the controlled 
conditions of an above ground ammunition supply point.
5. Explosives contamination from UXO may occur as a result of
low order detonations, corrosion, or fragmentation of munitions.  We now 
know that this statement is incorrect, and EPA musttake appropriate 
action.

Moreover, the groundwater study has revealed explosives in groundwater 
downgradient of a number of the high use target areas in
the impact range. There are only two plausible sources of this
contamination: explosives resulting from live firing or explosives from 
UXO.  NGB has steadfastly maintained that explosives from live firing is 
not the source of explosives contamination in the aquifer. If  that is 
the case, UXO is the only other plausible source of explosives 
contamination in groundwater.

Just as EPA would be authorized to act if it had knowledge that
underground storage tanks or corroding drums containing toxic materials 
threatened a potential drinking water supply, so too is EPA authorized 
to require remediation of UXO which are subject to fragmentation and 
corrosion and which contain explosives.

Ultimately, the Region's choice to use EPA's authority under the
SDWA, rather than EPA's authority under the (CERCLA), is a matter within 
the enforcement discretion of EPA as an independent regulatory agency. 
Region I's use of it's authority under the SDWA  was carefully 
considered with due consideration for both its practical necessity and 
legal appropriateness under the facts of this case.  Given the course of 
the negotiations between EPA Region I and DoD over four months, the 
Region determined that the issuance of this SDWA order was a necessary 
exercise of its authority and in the best interest of the public.

As you know, Region I had hoped to come to an agreement with the
National Guard Bureau to proceed with the work under an administrative 
order by consent. Regretfully, that did not occur.  Region I originally 
notified the NGB of its intent to order response actions at MMR four 
months ago.  Meetings were held that included Raymond Fatz of your 
office, General Squier of the NGB, Tad McCall of the Air Force, and 
others.  Region I made its view clear that the Safe Drinking Water Act 
was the most appropriate and expeditious mechanism to deal with the 
cleanup of Camp Edwards and to prevent further degradation of the sole 
source aquifer and Region I provided a draft order on consent along 
these lines. The DoD's response to Region I failed adequately to respond 
to EPA's order on consent.  The DoD response did not include the actions 
the Region stated were necessary to prevent damage to the Cape Cod 
Aquifer, and to protect the health of persons.  The DoD response 
completely failed to address the time frames set out in the Scope of 
Work attached to the order.  Rather, DoDs "compromise" was to strike the 
Scope of Work entirely.  The DoD compromise eliminated the Region's 
requirement for a feasibility study for remediation of surface and 
subsurface UXO., and contemplated only an agreement to discuss matters 
with EPA, with no agreement for DoD to undertake any actions.

It also should be noted that your letter states incorrectly that
the Massachusetts National Guard was prepared to act to take remedial
action, and that the National Guard Bureau was "waiting permission" to 
undertake rapid response actions.   In fact, the Region has not received 
any proposal for a removal or response action from either Respondent to 
the order.

We also strongly disagree that Region I's actions are at odds with
the ongoing discussions between EPA and DoD now taking place for
addressing unexploded ordnance  at DoD's closed, transferred, and
transferring ranges (CTT Principles Discussion) and the discussions over 
the pending Range Rule.  The Region I order is aimed at a situation at 
an active range which is not addressed in, and is entirely separate 
from, the ongoing discussions. Furthermore, as you know, even with 
respect to CTT ranges, EPA has expressly reserved its right to use its  
imminent and substantial endangerment enforcement authorities, including 
those under the Safe Drinking Water Act.

Some of the same individuals on your staff and from the military
services now participating in the ongoing CTT Principles Discussion and 
Range Rule talks have also participated in discussions with EPA at the 
Regional and Headquarters level over the last few months regarding the 
matters addressed in the Region I SDWA order. Region I's use of its SDWA 
authority at Camp Edwards should come as no surprise.

Finally, your letter also suggests that by proceeding under the
Safe Drinking Water Act, Region I is somehow abandoning EPA's commitment 
to work in a collaborative process with full public participation.  This 
is not the case. EPA remains committed to working with a full and open 
public process.  The order requires all remedial decisions to undergo a 
public participation process, including public meetings and comment, as 
extensive as under CERCLA. In addition, EPA and the NGB already meet 
every four to six weeks with community members in the Impact Area Review 
Team.  If there are improvements that can be made to the public process, 
EPA is more than willing to make those changes.

EPA continues to remain committed to building a collaborative,
cooperative, and effective approach toward addressing environmental
risks that EPA and DoD both are well aware exist at a significant number 
of DoD sites throughout the United States. We look forward to our 
continued efforts together to build that relationship of trust and 
accountability through which we will make even further progress in 
addressing the many complex problems we both face in protecting public 
health and the environment.


Sincerely,


/s/

Steven A. Herman

Assistant Administrator

Office of Enforcement and Compliance Assurance


/s/

Timothy Fields, Jr.

Assistant Administrator

Office of Solid Waste and Emergency Response



cc:

Senator Edward M. Kennedy

Senator John F. Kerry

Representative William D. Delahunt

Michael McCabe, Acting Deputy Administrator, Environmental Protection
Agency

Mindy Lubber, Acting Regional Administrator, Environmental Protection
Agency Region I

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