[CPEO-MEF] Dingell Letter to Horinko

[CPEO Moderator <cpeo@cpeo.org>]

The following letter was sent from Congressman John Dingell to Marianne
Horinko on Nov 19, 2002.

______________________________
November 19, 2002



Ms. Marianne Horinko
Assistant Administrator for the
Office of Solid Waste and Emergency Response
Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C.  20460

Dear Ms. Horinko:

        It has come to my attention that a number of cleanups at
Department of Defense (DOD) facilities listed on the Superfund National
Priorities List have been delayed or slowed down in FY 2002 because DOD
has challenged the Environmental Protection Agency's (EPA) oversight and
enforcement authorities.  It appears that more than 25 cleanup decisions
have been delayed (see Enclosure I) and at least 19 Interagency
Agreements (see Enclosure II) have been held up by this dispute.

        This unwarranted challenge by DOD to the EPA's post-record of
decision (ROD) authorities appears to be part of a broader pattern of
DOD recalcitrance and resistance to EPA and state regulatory authority
under our environmental laws.  For example, the Defense Department
continues its challenge to EPA penalty authority under the Clean Air Act
even after an Administrative Law Judge ruled against DOD.  I am also
aware that the Defense Department is contesting state authority to issue
penalties for violations of the leaking underground storage tank
regulations under the Solid Waste Disposal Act claiming that sovereign
immunity has not been clearly waived.  At the same time, the DOD is
seeking legislative exemptions from Congress from six of our major
environmental laws, including the Clean Air Act, the Solid Waste
Disposal Act, and Superfund.

        This conduct by the Defense Department clearly violates the
campaign promise made by President Bush on April 3, 2000, at Pittsburgh,
Pennsylvania, that he would "direct active federal facilities to comply
with all environmental protection laws and hold them accountable."  At
the same time, the President noted that "the federal government is
considered the nation's worst polluter."  Certainly, the Defense
Department with 137 Superfund sites qualifies as one of the nation's
worst polluters.

        In order to learn more about the delays caused by this dispute,
the status of cleanup at these sites, and the current legal positions of
the two agencies, I request answers to the attached questions no later
than Tuesday, December 3, 2002.

        Should you have any questions, please contact Richard A.
Frandsen, Committee on Energy and Commerce Minority Counsel, at (202)
225-3641.

                  Sincerely,
                  s/JOHN D. DINGELL
                  RANKING MEMBER

Attachment

cc:  The Honorable W.J. (Billy) Tauzin, Chairman
     Committee on Energy and Commerce

     Mr. Raymond Scheppach, Executive Director
     National Governors Association

     Ms. Lynne Ross, Executive Director\
     National Association of Attorneys General

QUESTIONS

(1)     Is it correct that EPA officials have documented incidents where
cleanup remedies at DOD facilities that rely on institutional controls
have been damaged or failed, including damaged or destroyed monitoring
wells, landfill caps that have been breached and agricultural crops
grown on contaminated lands?  If so, please identify the DOD facility
and the circumstances of each incident.

(2)     Is it correct that at Eglin Air Force Base in Florida, military
personnel conducted bulldozer practice on a landfill, severely damaging
the landfill cap?

(3)     Do all of the DOD records of decision (ROD) document and address
how institutional controls would be enforced or monitored?  If not,
please identify each of the ROD's which do not address or document such
enforcement or monitoring.

(4)     Does DOD consider institutional controls/land use controls
(ICs/LUCs) to be a remedy or part of remedy component that should be
documented in ROD or other decision document?  Does DOD agree that the
requirements related to the implementation, monitoring and reporting of
ICs/LUCs needed to maintain the integrity of a remedy be documented in a
ROD or other decision document?  If not, why not?  What is the EPA's
position?

(5)     Section 120(e)(4) provides that if the head of a federal agency
or department and the EPA Administrator are unable to reach agreement on
selection of a remedial action, then the Administrator has the ultimate
authority to select the remedy. Has the DOD proceeded forward with any
cleanups or remedy selections without the concurrence of Administrator
Whitman?  If so, please identify any such RODs that have been executed
or finalized without EPA concurrence or sites where cleanups have
proceeded forward without EPA concurrence?

(6)     This dispute between DOD and EPA has now existed for the better
part of a year, resulting in a slowdown in cleanups at DOD Superfund
sites.

        (a)     Why hasn't EPA exercised its statutory authority under a
section 120(e) of the Comprehensive Environmental Response Contamination
and Liability Act (CERCLA) and the National Contingency Plan and
selected the remedy, including institutional controls, at these DOD
sites?

        (b)     Why hasn't EPA referred the legal dispute to the Office
of Legal Counsel at the Department of Justice to obtain a further legal
interpretation of its statutory authority?

                     (7)     Is it correct that at privately-owned
sites, the EPA approach is to include the 5-year review report and the
institutional control implementation plan as enforceable documents so
that states and the EPA can evaluate the efficacy and protections of the
remedy?  Is DOD refusing to enter interagency agreements that include
enforceable requirements for maintaining and reviewing remedies?

                     (8)     In addition to the Superfund sites listed
in Enclosure I and II, are there any other remedy decisions which have
been delayed or interagency agreements held up by the post-ROD dispute?

(9)     Is it correct that EPA has increasingly allowed the Department
of Defense to leave contaminants onsite at levels that prohibit
unrestricted access to and use of the property?  If so, please explain
why.

(10)    In such cases where contaminants are left on site at levels
which prohibit unrestricted access and use, please explain why
enforceable institutional controls and other post-ROD activities are
necessary to ensure that human health and the environment is adequately
protected.

(11)    What does DOD represent to be EPA's role in the oversight and
enforcement of post-ROD remedy implementation activities at NPL
facilities?  In particular, what does DOD represent to be EPA's role in
remedial design, remedial actions, five year reviews, operations and
maintenance, remedy or construction completion, and monitoring and
enforcing institutional controls?

(12)    Please indicate how this dispute, and the DOD position, would
affect state authority, particularly when states are parties to
interagency agreements as well as the ability of states to use the
citizen suit provision to enforce and effectuate ROD's.

(13)    Please explain the current status of the disputes at each of the
Superfund sites identified in Enclosures I and II.

ENCLOSURE I - Remedy Decisions Delayed:
New Jersey            Picatinny Arsenal (1 ROD)

         Naval Weapons Station Earle (1 ROD)

         Plattsburg AFB (1 ROD)

         Griffis AFB (3 ROD's)

Virginia                Langley AFB (1 ROD)

         Little Creek (Navy) (5 ROD's)

Florida                 Whiting Field (Navy) (5 ROD's)

Florida                 Homestead AFB (5 ROD's)

Georgia         Robins AFB (1 ROD)

Louisiana       Army LA AAP

Wyoming         F.E. Warren AFB (1 ROD)

California              Hunters Point (Navy)

California              Moffet (Navy) (1 ROD)

California              Morton AFB (Feasibility Study)

California              March AFB (2 ROD's)

California              Mather AFB (1 ROD)

California              Tracy Defense Deport (Army) (ROD Amendment)

Arizona                 Williams AFB (1 ROD)

ENCLOSURE II - Interagency Agreements Held Up by Post-ROD Dispute:
MASSACHUSETTS

        1.  Hanscom Air Force Base in Massachusetts
        2.  Natick Laboratories in Massachusetts (Army)

NEW JERSEY

        1.  McGuire Air Force Base in New Jersey
        2.  Middlesex Supply Plan in New Jersey (Corps of Engineers)

VIRGINIA

        1.  Langley Air Force Base in Virginia (other half of NPL site
has IAG signed by NASA)
        2.  St. Juliens Creek Annex in Virginia (Navy)
        3.  Norfolk Navy Base in Virginia
        4.  Fort Eustis in Virginia (Army)
        5.  Naval Amphibious Base in Virginia
        6.  Yorktown Cheatham Annex in Virginia (Navy)

MARYLAND

        1.  Andrews Air Force Base in Maryland
        2.  Fort Meade in Maryland (Army)
        3.  Brandywine DRMO Salvage Yard in Maryland

PENNSYLVANIA

        1.  Willow Grove in Pennsylvania (Navy)
        2.  Naval Ship Parts Mechanicsburg in Pennsylvania

FLORIDA

        1.  U.S. Naval Air Station Whiting Field in Florida

NORTH CAROLINA

        1.  Cherry Point in North Carolina (Marines)

SOUTH CAROLINA

        1.  Parris Island Marine Corps Recruit Depot in South Carolina

WASHINGTON STATE

        1.  Jackson Park in Washington (Navy)

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