[CPEO-MEF] Lowry Privatization Proposal

[Lenny Siegel <lsiegel@cpeo.org>]

[The following letter was provided by Anne Callison
<Awbarbour@aol.com>.]


Signed by Members of the Lowry AFB 
Restoration Advisory Board
Denver, Colorado

November 2, 2000

Jimmy G. Dishner
Deputy Assistant Secretary, Air Force Installations
1660 Air Force Pentagon
Washington, DC  2330-1660

Dear Mr. Dishner:

Our Restoration Advisory Board (RAB) has spent our last two meetings,
plus a special meeting last night, discussing the proposal by the Lowry
Redevelopment Authority (LRA) to privatize the environmental remediation
of the former Lowry AFB. The undersigned members of the Lowry RAB have
significant concerns about the privatization proposal for Lowry until
the following questions have been addressed in writing. 

We want the decision to privatize to be made on the basis of what is
best for all concerned. We invite you or your appropriate staff to
attend our Wednesday, November 15 meeting to discuss the requested
written answers and to answer additional questions. 

For ease of reference, each question below has been numbered.

By way of background, a good number of our Restoration Advisory Board
(RAB) members have recently purchased new homes on Lowry, an almost
equal number are long-time residents in neighborhoods contiguous with
Lowry's borders. 

Perhaps the very essence of our concern about the proposed privatization
is the conflict of interests it poses. As one of our RAB members put it,
the LRA should not be responsible for the cleanup because their current
mission to conduct base redevelopment will take precedence over the
public health and safety. In their presentation to the RAB on October
11, neither Tom Markham of the LRA, nor Dr. Dorband of Cherokee
Environmental Risk Management, made any mention of "human health and the
environment" until prompted to do so during the question and answer
period.  This lack of attention to these two important details give the
undersigned pause.

(1) While it is clear to the RAB that the LRA wants to move the transfer
of property more   quickly to accomplish their mission, the RAB would
like to know why the AF chose   to entertain the privatization proposal?

(2) Given the disparity of missions, can the AF explain how the checks
and balances in the   current scenario will be continued under the
proposed privatization?

News of the proposed privatization effort by the LRA came to the RAB
only in July in the form of an attachment to the RAB read-ahead packet -
by way of an item in the April LRA Board of Directors minutes. We
understand the LRA and Cherokee have been discussing this with you and
others for many months.  We are not even sure the Cities of Denver and
Aurora were made aware of the move to negotiate privatization. It was
not formally presented to the RAB until the September 20 meeting. 

(3) What is the AF schedule or plan to communicate with the affected
communities, on and   off-base, of the progress and direction to
privatize the cleanup of Lowry and   surrounding areas? (4) When and how
will public input be accommodated?  (5) How will the RAB and the public
be involved in remedial technology identification and   selection?

If the RAB was not brought into this very important discussion in a
timely manner, why should we expect to be brought into the real cleanup
and technology selection discussions?

Tom Markham has not committed to keeping the current RAB involved,
though Larry Leehy of AFBCA has. While the RAB's involvement is not
established in law, clearly the Air Force has established clear guidance
on the role of the public and regulators in the BRAC cleanup process.
The LRA turning to a different committee of community members such as
the one the LRA now uses for development issues is problematic. 

(6) What role does the Air Force foresee for the existing Lowry RAB if
privatization is approved?

(7) Can the RAB and the community be guaranteed that the cleanup will
indeed be faster -   at the same time guaranteeing equal protection of
human health and the environment   under all applicable laws, i.e. RCRA,
CERCLA, etc? (8) Can the RAB, the community and all taxpayers be assured
that privatization will result   in a net savings of federal tax
dollars?

We have requested from Mr. Leehy the decision documents or cost-benefit
analysis which show the savings in months or years of privatized cleanup
versus continuing with the current Air Force action. Likewise, the RAB
wants to see how privatization will actually save net federal tax
dollars.

(9) What is the specific wording in the Environmental Response
Obligation Addendum   (EROA) that will assure the community that funding
will be allocated in accordance   with the timelines established by the
private contractor?

(10) How will the Air Force deliver funding in a timely manner? 

We do not believe that a contract between the Air Force and the LRA
should be executed until all necessary funds for the contract have been
allocated and authorized. While the protections of the Anti-Deficiency
Act are comforting, we also understand that vagaries and missteps occur
in the Congressional budget process. It would be comforting to see the
review comments of this contract by the appropriate staff of the AF's
Office of the Deputy Secretary for Procurement and by the Office of
Management and Budget.

The RAB wants proof of insurance to be held by the LRA and Cherokee
before a contract is let by the Air Force. 

(11a) Will the AF require this?  (11b) The RAB would also like to know
if this insurance   will protect Lowry property owners - both in the
present and in the future after they   sell their properties. (12) If
contamination is found after the sale of a home or business on Lowry
will the first   owners be protected by the insurers? (13) What are the
limits of liability? (14) Who are the additionally-insured? (15) What
types of policies will be carried to satisfy the AF and the community?
(16) Which entity - the LRA or Cherokee or both - purchase the insurance
policy?

There are already two lawsuits filed against the Air Force regarding the
remediation of the TCE plume which travels north off Lowry. One is by an
individual, one is a class-action suit filed by persons who live over
one of the off-base plumes. The community and the RAB deserve to know
the legal implications of the privatization. 

(17) Will the plaintiffs in the two current lawsuits have to refile
their cases to include the   LRA, Cherokee, and the insurers?  (18) How
will privatization affect the ability to sue, will all suits have to
come against the   LRA, Cherokee, and their insurers?  (19) Does the Air
Force think that privatization takes away their being named in a
lawsuit? (20)  Is the State of Colorado prevented from suing the Air
Force should they decide to   enforce our Natural Resource laws
regarding contamination of groundwater at Lowry?

It is unclear to the RAB who will actually hold legal responsibility for
the cleanup at Lowry. 

(21) Should the State of Colorado or EPA issue a compliance order or
consent decree   regarding obeying environmental statutes, to whom will
the order be issued - to the   LRA, to Cherokee, to the Air Force?  (22)
Or will the order be issued to the insurer, or all of the above? 

Without clear and definitive answers to questions like this, it appears
the privatization process is merely adding three more layers - the LRA,
Cherokee and the insurers - with no savings of time or money - and more
confusion of responsibility.

The RAB also wants to know the potential for future local taxpayer
liability should privatization not work out as envisioned. 

(23a) Suppose another contaminant, such as perchlorate, is discovered
after the privatization   contract is let? (23b) Does the insurance
policy cover such occurrences with no   limits? 

(24) How do we make sure that local taxes would not be sought to cover
what is, and what   will remain, Air Force responsibility?

The RAB finds it quite out-of-the-ordinary that Cherokee was provided
with the OU 5 Draft Feasibility Study (DFS) before either the regulators
or the RAB was provided copies. Mr. Leehy says this was to aid Cherokee
in preparing their scope of work for the LRA. Yet Mr. Leehy (letter to
Anne Callison, 10/5/00) says this DFS has not been reviewed by the
regulators. Since RAB members have also not seen this and we know at
least the CDPHE regulators and the City of Denver regulators have had
significant problems accepting the earlier OU 5 documents, it would seem
to us that Cherokee and the LRA are already starting off using
less-than-desirable information. Mr. Leehy says in his letter "to
determine a scope of work to privatize the cleanup at a fair cost...it
is essential that all site characterization data be made available to
the LRA." 

(25) The RAB asks why would Cherokee or the LRA base their bid on
incomplete data? 

Setting this kind of precedent does not give the RAB comfort. 

(26) We also ask why any environmental insurance company would complete
a policy with   incomplete data, and particularly data on which the
regulators have not signed off?

(27) The RAB wants to have a full seat at the consent agreement and the
cooperative   agreement negotiating tables. 

It is clear to the RAB that the most important issues at hand in terms
of protection of human health and the environment are the details in
these performance contracts.  Clearly under the natural resource laws of
the State of Colorado, remediating the source areas of the many plumes
on Lowry is essential. Protecting the landfill on Lowry from further
leaching is essential. Cleaning up contaminated soil where homes will be
built, or where children will dig or play, is essential. 

The details of the level of cleanup and the technologies to be used to
remediate contaminants are of great concern to the RAB and the
community. Plus, we fully understand that the details of these will be
outlined in the consent agreement and the cooperative agreement and will
be the basis for the amount of funds contracted for with the LRA.
Further these agreements will give clearer indications of where
liability and responsibility for remediating the contaminants on Lowry
lie. The lines of liability and responsibility for the LRA and for
Cherokee must be very clear.

(28) The RAB desires that funding be made available through the TAPP
process to allow   a technical advisor to accompany a RAB member or
members to these   negotiations?

(29) In addition, the RAB asks that appropriate representation from
other regulatory   agencies to include, but not limited to the EPA,
CDPHE, City of Aurora and City   of Denver, and the Tri-County Health
Department, be included in all negotiations   on the proposed
privatization. This will include circulation of all meeting   minutes,
draft contracts, and performance documents.

(28) The RAB asks for a clarification of the relationship between
Cherokee and the LRA. 

Neither Mr. Markham nor Mr. Dorband was able to give the RAB a
satisfactory answer on this. If Cherokee is a "partner" with the LRA in
this privatization, it has the appearance that Cherokee is receiving
some sort of equity position in this arrangement. If Cherokee is
receiving equity in the future development of Lowry property, we want
the details of this made very public? 

(30) Can the AF define the financial relationship between the LRA and
Cherokee?

It will not serve the community well to have Cherokee trying to change
the Lowry reuse and zoning plans to help meet losses incurred should the
cleanup take longer or be more complicated than Cherokee planned for.

In conclusion, the RAB understands the problems caused by personnel
turnover at Lowry AFB. Having had seven Base Environmental Coordinators
(BECs) in as many years has created turmoil on many decision-making
fronts. The services were advised by RAB members from across the country
many years ago to get a career path and outplacement system in place for
the BECs. We agree with the Ms. Wasserman-Goodman's Cleanup Program
Review: Best Practices for the Defense Environmental Restoration Program
that each BEC, each site manager, and the rest of the staff need to be
awarded or incentivized to stay with a cleanup schedule, get it done and
then move on. If more staff is needed, it should be provided until
cleanup is complete.

The RAB agrees with the LRA that the cleanup of Lowry AFB is taking what
seems like an inordinate amount of time. We know that personnel turnover
is playing a role in this and that situation must be fixed - both
through stabilization and incentivising the existing staff, and adding
to the staff, if necessary. 

In addition to the Air Force's answers to the questions posed above, the
RAB would like to have answers to the many questions posed at our
October 11 meeting answered in writing by the LRA. We feel both the RAB
(and the Air Force negotiators) will find value in seeing these answers.
Tom Markham would not agree to provide these answers when this was
requested at the October 11 meeting.

It will not be an acceptable situation to allow redevelopment to occur
only to find out that new homeowners, shoppers or business employees
must look at or be exposed to noxious or dangerous odors or excessive
noise coming from remediation systems which now must be placed close to
homes, shops, schools or businesses. We want the cleanup of the
groundwater plumes both on and off of Lowry AFB to commence sooner
rather than after a protracted negotiation over privatization which now
has not promised savings in time or taxpayer dollars.

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