[CPEO-MEF] Transfer Prior To Operating Properly And Successfully

Dear Mr. William Muno:

I am writing this letter regarding the DOD plan to transfer the property surrounding, and including, Landfills 6 and 7 to Forest City Military Communities LLC (Forest City) without the statutorily required US EPA determination, under section 120(h)(3) of CERCLA and section 2905(b)(4) of the Defense Base Closure and Realignment Act of 1990, that the remedy selected for Landfill 7 is ?operating properly and successfully? (OPS).

The DOD has the non-discretionary duty to demonstrate, and the US EPA has a non-discretionary duty to evaluate for certification of a deed warranty, that a remedial design is completed and has been ?demonstrated to the [EPA] Administrator to be operating properly and successfully?[1] prior to the deed transfer of such property.

The transfer of this property to a redevelopment authority such as Forest City under the umbrella of realignment from one department to another[2] requires such a section 120(h) OPS determination[3]. Forest City is a redevelopment authority because it is tasked with both developing and directing the redevelopment effort for this property.[4]

Because Landfill 7 is not subject the final remedial action, however, it would be improper for US EPA to make such a determination. While US EPA recognizes that ?response actions that historically were thought of as remedial actions (such as?landfill caps) are being conducted as removal actions, ?given the intent of CERFA amendments to 120(h)(3)?it is reasonable to consider parcels with ongoing removal actions?eligible for transfer?[5], but only ?if that removal action?is the sole or final response for a particular site.?[6] The responses to public comments for the interim action at Landfill 7 made clear that the cap, as designed, is not the final remedy selection because it was intended only to address the then ongoing uncontrolled release of leachate into Lake Michigan.

The capping remedy may or may not be the final remedy selected for the final Record of Decision so it cannot be considered a final remedial action for purposes of OPS certification. Furthermore, even if the cap is considered the final remedial action, without completion of the Operation and Maintenance documents the US EPA will have no way to make an OPS determination.

As administrator of CERCLA, US EPA has a duty to stop this transfer of real property without making an OPS determination as required under section 120(h) of that legislation. It is irrelevant that the FORSCOM environmental lawyer and the Environmental Law Division at HQDA have self-defined regulatory closure to not require such covenants for the Navy and the Reserve or an OPS certification by US EPA.[7]

Finally, because the Army created the above definition for regulatory closure rather than for the more limited purpose of pre-final remedy deed transfer, it is unclear if the Army intends to finish out the CERCLA process with a final proposed Record of Decision. Please comment on your understanding of their CERCLA obligations at this point.

Thank you,

Steven Pollack

Chicago Environmental Law Clinic

[1] Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully Under CERCLA Section 120(h)(3), Section 2.0 (quoting CERFA Amendment to section 120(h)(3)), US EPA (August 1996)

[2] Section 2905(b)(4)(C)(i) of the Defense Base Closure and Realignment Act of 1990

[3] 2905(b)(4)(E) of the Defense Base Closure and Realignment Act of 1990

[4] 2910(9) of the Defense Base Closure and Realignment Act of 1990

[5] Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully Under CERCLA Section 120(h)(3), Section 4.0 (quoting CERFA Amendment to section 120(h)(3)), US EPA (August 1996)

[6] id

[7] Victor Bonilla, Forces Command, BRAC Division. Letter to Brian Conrath, IEPA and Owen Thompson, US EPA September 24, 2002.

From:	Steven Pollack <pollacksteve@yahoo.com>
Date:	10 Aug 2005 05:01:01 -0000
Reply:	cpeo-military
Subject:	[CPEO-MEF] Transfer Prior To Operating Properly And Successfully

Has anyone on the list been involved in a situation where the DOD, pre-ROD, tried to transfer property without receiving an OPS determination as required under CERCLA 120(h)(3)? The BEC at Fort Sheridan has detemined that regulatory closure requires that the interim remedy be "in place and working" but that a deed covenant with an OPS determination is not required prior to transfer for re-development. The issue involves Landfill 7, a superfund caliber site created in a former ravine, inside the eroding 50 ft bluff on the shore of Lake Michigan. The Army transferred the landfill and surrounding property to the Navy who is now transferring it to a private developer to develop into Navy housing. The RCRA modified cap was selected for the interim remedy but the Army has not proposed it yet as the final remedy. Below is a letter I am writing to the EPA Region V administrator. Please comment. Thanks, Steven Pollack Dear Mr. William Muno: I am writing this letter regarding the DOD plan to transfer the property surrounding, and including, Landfills 6 and 7 to Forest City Military Communities LLC (Forest City) without the statutorily required US EPA determination, under section 120(h)(3) of CERCLA and section 2905(b)(4) of the Defense Base Closure and Realignment Act of 1990, that the remedy selected for Landfill 7 is ?operating properly and successfully? (OPS). The DOD has the non-discretionary duty to demonstrate, and the US EPA has a non-discretionary duty to evaluate for certification of a deed warranty, that a remedial design is completed and has been ?demonstrated to the [EPA] Administrator to be operating properly and successfully?[1] prior to the deed transfer of such property. The transfer of this property to a redevelopment authority such as Forest City under the umbrella of realignment from one department to another[2] requires such a section 120(h) OPS determination[3]. Forest City is a redevelopment authority because it is tasked with both developing and directing the redevelopment effort for this property.[4] Because Landfill 7 is not subject the final remedial action, however, it would be improper for US EPA to make such a determination. While US EPA recognizes that ?response actions that historically were thought of as remedial actions (such as?landfill caps) are being conducted as removal actions, ?given the intent of CERFA amendments to 120(h)(3)?it is reasonable to consider parcels with ongoing removal actions?eligible for transfer?[5], but only ?if that removal action?is the sole or final response for a particular site.?[6] The responses to public comments for the interim action at Landfill 7 made clear that the cap, as designed, is not the final remedy selection because it was intended only to address the then ongoing uncontrolled release of leachate into Lake Michigan. The capping remedy may or may not be the final remedy selected for the final Record of Decision so it cannot be considered a final remedial action for purposes of OPS certification. Furthermore, even if the cap is considered the final remedial action, without completion of the Operation and Maintenance documents the US EPA will have no way to make an OPS determination. As administrator of CERCLA, US EPA has a duty to stop this transfer of real property without making an OPS determination as required under section 120(h) of that legislation. It is irrelevant that the FORSCOM environmental lawyer and the Environmental Law Division at HQDA have self-defined regulatory closure to not require such covenants for the Navy and the Reserve or an OPS certification by US EPA.[7] Finally, because the Army created the above definition for regulatory closure rather than for the more limited purpose of pre-final remedy deed transfer, it is unclear if the Army intends to finish out the CERCLA process with a final proposed Record of Decision. Please comment on your understanding of their CERCLA obligations at this point. Thank you, Steven Pollack Chicago Environmental Law Clinic [1] Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully Under CERCLA Section 120(h)(3), Section 2.0 (quoting CERFA Amendment to section 120(h)(3)), US EPA (August 1996) [2] Section 2905(b)(4)(C)(i) of the Defense Base Closure and Realignment Act of 1990 [3] 2905(b)(4)(E) of the Defense Base Closure and Realignment Act of 1990 [4] 2910(9) of the Defense Base Closure and Realignment Act of 1990 [5] Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully Under CERCLA Section 120(h)(3), Section 4.0 (quoting CERFA Amendment to section 120(h)(3)), US EPA (August 1996) [6] id [7] Victor Bonilla, Forces Command, BRAC Division. Letter to Brian Conrath, IEPA and Owen Thompson, US EPA September 24, 2002. 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