April 30, 2003
The Honorable Christine Todd Whitman Dear Administrator Whitman: There is a strong and growing body of evidence that perchlorate has become a contaminant of serious concern with respect to groundwater. Salts of perchlorate are used as an oxidizer and are the primary ingredient in solid propellant for rockets, missiles, fireworks, and munitions. It has been identified in the groundwater at Massachusetts Military Reservation on Cape Cod, at Aberdeen Proving Ground in Maryland, and at a number of other Department of Defense (DOD) facilities. The Environmental Protection Agency (EPA) has also found that women of childbearing age and the developing fetus are the most sensitive receptors for perchlorate exposures. In a recent briefing, the staff of the EPA indicated that in 1999 they requested that the DOD provide the EPA with any information concerning perchlorate contamination, including groundwater contamination, at DOD facilities. Today, more than three years later, we are shocked to learn that the DOD has failed to provide the EPA with the comprehensive information requested concerning the occurrence of perchlorate at DOD facilities. This includes the 131 DOD facilities listed on the Superfund National Priorities List (NPL). Yet, at the same time DOD is refusing to provide EPA with the requested information, it is seeking legislative exemptions to remove perchlorate and other munitions-related contaminants from the definition of "release" under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the definition of "solid waste" under the Resource Conservation and Recovery Act (RCRA). Such proposals would seriously curtail state and federal authorities to protect the public health and the environment from perchlorate contamination. Further, the DOD is vigorously contesting the reference dose levels established by the EPA for perchlorate. Our federal environmental laws clearly provide that federal agencies should be treated in the same manner and held to the same standards as private industry and state and local governments. In the case of private industry, the EPA routinely uses the information gathering authorities provided by Section 3007 of RCRA and Section 104 of CERCLA to obtain information. We urge you to act immediately and issue orders as necessary to obtain comprehensive information from DOD concerning the occurrence of perchlorate in groundwater or surfacewater at its facilities. In addition, we request a response to the attached questions no later than Friday, May 9, 2003, to assist us in evaluating EPA’s implementation of these important environmental laws as well as the effect of the DOD legislative proposals on existing statutory authorities. Sincerely, JOHN D. DINGELL HILDA SOLIS cc: The Honorable W. J. "Billy"
Tauzin, Chairman The Honorable Paul E. Gillmor, Chairman QUESTIONS
FOR 1. Please identify each DOD facility where the EPA has information indicating the existence of perchlorate in the groundwater underneath or adjacent to the facility. For each facility, indicate the maximum concentration levels detected and the date they were first detected. 2. At Aberdeen Proving Ground, Maryland, four production wells that provide drinking water for the City of Aberdeen, Maryland, which are located on an operational range on the base have been closed because of perchlorate contamination. Aberdeen Proving Ground is a Superfund NPL site. What action, if any, has the EPA taken to require DOD to address the perchlorate contamination so the four production wells can be used to provide drinking water to the City of Aberdeen? 3. We understand that perchlorate contamination has been discovered at other DOD facilities that are listed on the Superfund NPL, including Redstone Arsenal Missile Plant (Alabama); Edwards Air Force Base, Jet Propulsion Lab, North Base (California); Naval Surface Warfare Center (Maryland); Lake City Army Ammunition Facility (Missouri). For each of these facilities, please describe the maximum concentration levels detected in the groundwater and describe the remedial action, if any, that has been taken. 4. Is it correct that if "explosives, unexploded ordinance, munitions, munitions fragments, or constituents thereof" are excluded from the definition of "release" as proposed by DOD’s Readiness and Range Preservation Initiative (RRPI), then the EPA would lose its ability to collect samples and conduct inspections under Section 104(e)(3) and (4) of CERCLA on an operational range? 5. Is it correct that if "explosives, unexploded ordnance, munitions, munitions fragments, or constituents thereof" are excluded from the definition of "solid waste" under RCRA as proposed by the DOD in Section 2019(a) of the RRPI, then the EPA information gathering authorities in Section 3007 that flow from the term "hazardous waste" would be curtailed or limited? 6. What statutory authority, if any, requires the DOD to perform routine groundwater monitoring or routine soil sampling for perchlorate, Royal Demolition Explosive (RDX), or other munitions-related constituents on an operational range? 7. Has the EPA ever issued a unilateral administrative order pursuant to Section 106 of CERCLA to a DOD facility? If so, please identify the date of the order and location of the facility, and provide a copy of each such order. 8. Has the EPA ever issued a unilateral administrative order pursuant to Section 7003 of RCRA to a DOD facility? If so, please identify the date of the order and location of the facility and provide a copy of each such order. 9. Has the EPA ever issued a unilateral administrative order pursuant to Section 1431 of the Safe Drinking Water Act to a DOD facility? If so, please identify the date of the order and location of the facility and provide a copy of each such order. 10. The term "operational range" appears in the amendments to both RCRA and CERCLA in Section 2019 of the Readiness and Range Preservation Initiative. Please identify all of the "operational ranges" that are covered by these amendments and list the location of each such "operational range" and the date it was last used for training activities. How many of these "operational ranges" are currently part of a Superfund NPL facility? Please identify each such range and facility. 11. In the amendments submitted by the DOD to Congress, the definition of an "operational range" can include a "range that is used for range activities." Are there ranges owned by private companies or defense contractors that fall within this definition? If so, please identify each such range, the owner, and the location of the range. 12. In the amendments submitted by the DOD to Congress the definition of an "operational range" also includes a "range that is not currently being used for range activities, but that is still considered by the Secretary concerned to be a range, is under the jurisdiction, custody, or control of the Secretary concerned, and has not been put to a new use that is incompatible with range activities." Does the term "jurisdiction, custody, or control of the Secretary" mean that the range must be owned by the Federal Government? If not, please explain the meaning of the terms: (1) "jurisdiction," (2) "custody," and (3) "control." 13. Please also give actual examples of ranges that are not owned by the Federal Government but fall within the terms "jurisdiction, custody, or control." If there are such ranges would the owner of a range not owned by the government remain fully liable for a release of hazardous substances or pollutants and contaminants under CERCLA with respect to "explosives, unexploded ordnance, munitions, munition fragments, or constituents thereof" under the amendments submitted by the DOD to Congress? | |
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