[CPEO-MEF] Part 2 PRESS RELEASE Fort Ord RAB Lawsuit Notice Filed

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Curt Gandy
FOTP Director 

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TEXT OF THE NOTICE FOLLOWS:  (e-Mail, part 2 of 2 parts)
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August 7, 2000

Via Registered Mail, Return Receipt Requested

Louis Caldera
Secretary, United States Department of the Army
110 Army Pentagon, Room 3E, Sp. 700
Washington, DC 20310

    Re: Notice of Intent to Sue, Fort Ord, California
        [42 U.S.C. § 9659(a)(1)]

Dear Secretary Caldera:

Our offices represent the Fort Ord Toxics Project, Curt Gandy, Patricia 
Huth, Richard Bailey, Michael Weaver, Edward Oberweiser, Linda 
Millerick, and the National Caucus of Restoration Advisory Board 
Community Members (collectively 'Plaintiffs').  The purpose of this 
letter is to inform you that Plaintiffs intend to file suit against the 
U.S. Department of the Army, the U.S. Department of Defense, and William 
Cohen in his capacity as Secretary of Defense (collectively the 'Army') 
as more fully discussed below.

    Plaintiffs' suit will allege that the Army has violated, and 
continues to violate, the Comprehensive Environmental Response, 
Compensation and Liability Act, 42 U.S.C. § 9601 et seq. ('CERCLA') and 
the Federal Facility Agreement for Fort Ord (the 'FFA').  Plaintiffs' 
suit will be brought pursuant to the authority of CERCLA section 
310(a)(1), 42 U.S.C. § 9659(a)(1).

ILLEGAL DISSOLUTION OF FORT ORD RESTORATION ADVISORY BOARD.

    In about 1994, the Army established a Restoration Advisory Board 
('RAB') at Fort Ord pursuant to the authority of 10 U.S.C. § 2705(d).  
The RAB served as an important and effective forum for public education 
and public participation regarding the environmental restoration 
activities conducted by the Army at Fort Ord.  In about May of 1999, 
however, the Army unilaterally disbanded the RAB.  For the reasons 
discussed below, the Army's decision to disband the Fort Ord RAB was 
unlawful and a violation of both CERCLA and the FFA.

    I   The Army's Revised Community Relations Plan Is Unlawful.

    The Army has now formalized its unilateral decision to disband the 
RAB by publishing and adopting a document entitled 'Community Relations 
Plan Update Number 1" (the 'Revised CRP').  The Revised CRP states that 
the Fort Ord RAB has been disbanded and that the Army will no longer 
support or maintain the RAB.
    
    Both the FFA and CERCLA require the Army to develop and implement a 
community relations plan as a means of involving the community near Fort 
Ord in process of selecting response actions at the Base.  Paragraph 
26.2 of the FFA requires the Army to 'develop and implement' a community 
relations plan (hereinafter 'CRP').  The National Contingency Plan 
('NCP') also requires that the Army prepare a formal CRP specifying the 
community relations activities to be undertaken by the Army during its 
response actions.  40 C.F.R. §§ 300.415(n)(3)(i) and 
300.420(c)(2)(ii).  The Revised CRP was adopted by the Army as required 
by these provision of the FFA and CERCLA.  The Revised CRP is thus an 
integral part of the Army's selection of response actions at Fort Ord, 
and is subject to judicial review under CERCLA's citizen suit provision, 
42 U.S.C. § 9659(a)(1).

    A court will overturn a decision made by a federal agency in the 
course of selecting a response action under CERCLA if the decision 'was 
arbitrary and capricious or otherwise not in accordance with law.'  42 
U.S.C. § 9613(j)(2).

    Plaintiffs will allege that the Army's adoption of the Revised CRP 
was 'arbitrary and capricious or otherwise not in accordance with law' 
for at two reasons.

        A.  Violation Of Department Of Defense Guidance.

    An agency action is considered arbitrary and capricious or otherwise 
not in accordance with law if the action fails to comply with the 
agency's own rules as set forth in the agency's internal guidance.  
Plaintiffs' suit will allege that the Army's Revised CRP is arbitrary 
and capricious and otherwise not in accordance with law because it fails 
to comply with the Department of Defense's 'Management Guidance for the 
Defense Environmental Restoration Program' ('DERP Guidance') in several 
respects.

    First, the Army's decision to disband the Fort Ord RAB, as set 
formalized in the Revised CRP, violated section L.2.1 of the DERP 
Guidance because the decision was made unilaterally by the Army.  
Section L.2.l states that a decision to disband (or 'adjourn') a RAB 
cannot be the unilateral decision of the DoD; and that '[t]he 
installation must make the decision to adjourn a RAB with general 
agreement from the RAB members and in consultation with the community as 
a whole.'  Here, the Army's decision to disband the RAB, as formalized 
in the Revised CRP, was unilateral.  The Army did not seek, nor did it 
receive, the general agreement of the RAB members for disbanding the 
RAB.  Furthermore, the Army's decision to disband the RAB was not made 
in consultation with the community as a whole.  The Army never consulted 
the community as a whole on the question of whether the Fort Ord RAB 
should be disbanded.

    Second, section L.2.l of the DERP Guidance specifies three 
circumstances under which RAB disbandment is appropriate: (1) where an 
installation has completed all of its environmental restoration actions; 
(2) where all remedies are in place and operating properly and 
successfully at the installation; and (3) there is no longer sufficient, 
sustained community interest in the restoration activities at the 
installation.  None of these circumstances is present at Fort Ord, and 
the decision to disband the Fort Ord RAB, as formalized in the Revised 
CRP, was therefore improper.   

    With respect specifically to subsection (3) of section L.2.l, there 
remains at Fort Ord sufficient and sustained community interest in the 
restoration activities at Fort Ord to justify a RAB.  Criteria for 
determining 'sufficient and sustained [community] interest' include: (1) 
the closure of an installation that involves the transfer of property to 
the community; or (2) at least 50 local citizens petition for an 
advisory board.  DERP Guidance at sections L.2.a(1) and L.2.a(2).  Both 
of the secriteria are satisfied at Fort Ord.  Fort Ord is a closed 
installation that will be transferring property to the community.  In 
addition, on September 24, 1999, the installation commander for Fort Ord 
was presented with a petition signed by more than 50 local citizens 
demanding re-establishment of the Fort Ord RAB.  As a result, there is 
sufficient, sustained community interest in the restoration activities 
at Fort Ord to justify continuation of the RAB.

        B.  Retaliation For Prior Lawsuit.

    In early 1998, the Fort Ord Toxics Project, along with several 
community members of Fort Ord RAB, filed suit against the Army alleging 
that the Army was in violation of CERCLA because it (the Army) had 
failed to perform a Remedial Investigation/Feasibility Study ('RI/FS') 
to address the serious dangers posed by unexploded ordnance on Fort Ord. 
 FOTP and the RAB community members prevailed in that suit.  After 
United States District Court Judge Jeremy Fogel announced his intention 
to issue judgment in favor of the plaintiffs, the Army agreed to 
commence an RI/FS to address unexploded ordnance.  Based on the Army's 
agreement to begin an RI/FS, the plaintiffs and the Army entered final 
settlement of that case in early 1999.

    Almost immediately after the plaintiffs and the Army agreed to 
settle that previous case, the Army's installation command at Fort Ord 
took action to disband the Fort Ord RAB.

    Plaintiffs will allege that the Army's act of disbanding the RAB was 
done in retaliation for the previous lawsuit filed by FOTP and several 
RAB community members.

    II  Failure To Properly Implement Ordnance And Explosives Community 
Relations Plan.

    Plaintiffs will also allege that between May of 1999 and the 
present, the Army has violated CERCLA and the FFA by failing to comply 
with the provisions of an adopted community relations plan entitled, 
'Community Relations Plan Ordnance and Explosives Program Fort Ord, 
California, Final March 1998 (hereinafter the 'OE CRP').'

    The Army published and adopted the OE CRP in March of 1998 in 
accordance with its obligations under paragraph 26.4 of the FFA and 
CERCLA (see, 40 C.F.R. §§ 300.415(n)(3)(i) and 300.420(c)(2)(ii)).

    Numerous provisions in the OE CRP require the Army to maintain and 
support the RAB as a forum for public involvement in the Fort Ord 
ordnance and explosives program.  Examples of such requirements include, 
without limitation, a requirement that the Army:

        [p]rovide regular updates to the Fort Ord RAB.  The RAB will 
provide a forum for discussion and exchange of information between the 
Army and other community members.  These for[a] will include technical 
presentations and informal discussions regarding OE investigations, 
removal actions, and plans and techniques for further study.

OE CRP at p. 5-2.

    The OE CRP also contains a list of specific community relations 
activities that are required to take place prior to and during OE 
investigations and removal actions.  OE CRP at p. 6-2.  The following is 
included in that list:

    Restoration Advisory Board (RAB)
    . . . The DENR staff attends scheduled meetings and provides updates 
on various topical OE subjects or as requested by community members 
through the RAB agenda committee.  Members of the RAB may be provided OE 
maps, reuse overlays, safety briefings, examples of inert OE, a field 
office visit, and various other materials to assist them in their 
mission.  The RAB review committees are provided with updates on OE 
activities.

OE CRP at p. 6-6.  Other provisions in the OE CRP also require the Army 
to maintain and support the RAB.  

    Ever since it unilaterally disbanded the Fort Ord RAB in May of 
1999, the Army has failed to maintain and support the Fort Ord RAB as a 
forum for public participation in the Fort Ord ordnance and explosives 
program. Such failure violates the above-referenced provisions of the OE 
CRP.

    Since both the FFA and CERCLA require the Army to develop and 
implement a CRP, the Army's failure to comply with the OE CRP also 
constitutes a violation of the FFA and CERCLA.

    This is not an exhaustive list of the claims that the Plaintiffs 
will assert in their lawsuit.  For example, Plaintiffs will also allege 
that, because the Army discontinued the Fort Ord RAB in violation of the 
DERP Guidance, the Army's discontinuance of the RAB is subject to 
injunction pursuant to the Administrative Procedures Act.  Plaintiffs 
may also allege that the Army is currently holding meetings of the Fort 
Ord Technical Review Committee in violation of the Federal Advisory 
Committee Act, 5 U.S.C. Appendix 2.  Finally, the Plaintiffs may also 
allege that the Secretary of Defense has unlawfully failed to prescribe 
regulations regarding the establishment, characteristics, composition, 
and funding of restoration advisory boards as required 10 U.S.C. § 
2705(d)(2)(A).

    Please direct any questions regarding this notice letter to me.

                Respectfully submitted,
                Cox & Moyer

                SCOTT J. ALLEN
                Attorneys for Plaintiffs

The address and telephone of each plaintiff is as follows:

                Fort Ord Toxics Project
                2160 California Avenue, Suite B-219
                Sand City, CA  93955-3172
                (831) 641-5353

                Curt Gandy
                P.O. Box 3115
                Carmel, CA  93921-3115
                (831) 375-9464

                Patricia Huth
                1275 Harrisen Street
                Salinas, CA  93901
                (831) 771-5226

                Richard Bailey
                440 Ramona, #16
                Monterey, CA  93940
                (831) 372-0792

                Michael Weaver
                56 Corral de Tierra Road
                Salinas, CA 93908
                (831) 484-2243

                Edward Oberweiser
                2080 Seventh Avenue
                Santa Cruz, CA  95062
                (831) 479-9107

                Linda Millerick
                751 Monterey-Salinas Highway
                Salinas, CA 93908-8953
                (831) 484-2834

                National Caucus of Restoration Advisory Board            
     Community Members
                833 Market Street, Suite 1107
                San Francisco, CA 94103
                (415) 495-1786

 Cc (Via Registered Mail, Return Receipt Requested):

Carol Browner                   Janet Reno
Administrator, U.S. EPA     Attorney General, United States of America
401 'M' Street, S.W. (A-100)    Department of Justice
Washington, DC 20460            10th and Pennsylvania Avenue, N.W.
                                Washington, DC 20530

Felicia Marcus                  Attorney General, State of California
Regional Administrator          The Honorable William Lockyer
United States Environmental     Office of the Attorney General
Protection Agency, Region IX    1300 I Street
75 Hawthorne Street             Sacramento, CA 95814
San Francisco, CA 94105

The Honorable Gray Davis        Edward Lowry
Governor, State of California   Director, California Department of    
State Capitol Building          Toxic Substances Control 
Sacramento, CA 95814            400 P Street, 4th Floor
                                Sacramento, CA 95814
                        

Winston H. Hickox
Secretary, California EPA
555 Capitol Mall, Suite 525
Sacramento, CA 95814

William Cohen
Secretary, United State Department of Defense
The Pentagon
Washington, DC 20301-1155

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