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S. HRG. 110–1266 

OVERSIGHT HEARING ON CLEANUP 

EFFORTS AT FEDERAL FACILITIES 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 18, 2008 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

SEPTEMBER 18, 2008 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 2 

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 4 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 6 

Craig, Hon. Larry, U.S. Senator from the State of Idaho .................................... 8 

Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland .................... 100 

WITNESSES 

Bodine, Susa , Assistant Administrator, Office of Solid Waste And Emergency 

Response, U.S. Environmental Protection Agency ............................................ 9 

Prepared statement .......................................................................................... 12 

Arny, Wayne, Deputy Under Secretary of Defense for Installation and Environment, U.S. Department of Defense ............................................................... 19 

Prepared statement .......................................................................................... 21 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 31 

Senator Inhofe ........................................................................................... 47 

Senator Barrasso ....................................................................................... 49 

Marcinowski, Frank, Deputy Assistant Secretary for Regulatory Compliance, 

Office Of Environmental Management, U.S. Department of Energy .............. 52 

Prepared statement .......................................................................................... 54 

Responses to additional questions from Senator Boxer ................................ 59 

Response to an additional question from Senator Inhofe ............................. 91 

Hirsch, Dan, President, Committee to Bridge the Gap ........................................ 110 

Prepared statement .......................................................................................... 113 

Wilson, Shari T., Secretary of The Environment, Maryland Department of 

the Environment .................................................................................................. 128 

Prepared statement .......................................................................................... 131 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 135 

Senator Inhofe ........................................................................................... 136 

Buthker, Bonnie, Program Manager, Office of Federal Facilities Oversight, 

Ohio Environmental Protection Agency ............................................................. 138 

Prepared statement .......................................................................................... 140 

Limbrick, Elizabeth, Associate Project Manager, Langan Engineering and 

Environmental Services ....................................................................................... 145 

Prepared statement .......................................................................................... 147 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 152 

Senator Inhofe ........................................................................................... 153 

ADDITIONAL MATERIAL 

Status of DOD Federal Facility Superfund Sites Without CERCLA FFAs ........ 160 

ECOS Green Report ................................................................................................ 161 

EPA Nationla Priorities List (NPL) ....................................................................... 173 

Letters: 

Stephen L. Johnson, United States Protection Agency ................................. 175 

Maryland Department of the Environment .................................................... 183 

Page

IV 

—Continued 

Senators Menedez, Lautenberg, and Nelson to Gene Dodaro; Acting 

Comptroller General of the United States .................................................. 185 

Department of Toxic Substances Control ....................................................... 187 

(1) 

OVERSIGHT HEARING ON CLEANUP EFFORTS 

AT FEDERAL FACILITIES 

THURSDAY, SEPTEMBER 18, 2008 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The full committee met, pursuant to notice, at 10 a.m. in room 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the full committee) presiding. 

Present: Senators Boxer, Inhofe, Lautenberg, Craig, Cardin, 

Barrasso. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. The hearing will come to order. 

We are here today to conduct oversight on the cleanup of toxic 

wastes at Federal facilities. 

Federal facility sites are some of the most heavily contaminated 

sites in our Nation. They can be polluted with radioactive waste or 

dangerous chemicals such as arsenic, lead, benzine, which are 

known to cause cancer or harm the reproductive and nervous systems. Some Federal facilities have old, unexploded bombs or other 

ordnance that if not addressed could threaten human life with dangerous explosions or by slowly releasing toxins into the environment. 

The men and women who are serving their Country and living 

on bases, and in some cases their children, can be at greatest risk. 

These threats are not distant or in the future. They are here today 

and they must be addressed. In my own State of California, there 

are many Federal sites with serious contamination problems. I will 

highlight just two of them. 

The first is the Santa Susanna Federal Lab in Simi Valley, in the 

Los Angeles area. Since the 1950’s, Federal agencies, including 

DOE, and private contractors, did testing of experimental nuclear 

reactors and rockets and processing of nuclear fuel at the site. A 

partial reactor meltdown occurred there in 1959. The site is contaminated with radioactive and other toxic substances that can 

cause cancer, endanger the health of pregnant women and infants. 

Cleanup activities are ongoing, but a full-site investigation has yet 

to be completed for all radioactive and chemical contamination. 

I have worked for a long time with the community to intervene 

when DOE has failed to properly perform the work, which has happened over and over again. Today, we will hear from one of the 

2 

amazing leaders in the effort to ensure that this site is properly addressed. 

Another California site of concern is Lawrence Livermore National Labs, the Department of Energy Superfund site in Alameda 

County. This site has groundwater polluted with various contaminants including TCE and perchlorate. While cleanup at this site 

has been conducted for some time, almost 100 wells pumped 

groundwater from the site to remove underground contamination, 

and treatment facilities continue to remove contaminants. 

In March of this year, EPA raised serious concerns with DOE 

after a transfer of the site from one arm of DOE to another, and 

proceeded to shut down toxic waste treatment wells because the 

program to which cleanup responsibility was transferred claimed it 

did not have enough money to pay for all the needed cleanups. 

DOE finally reprogrammed money to help get the toxic waste 

cleanup wells at the site back on line, but DOE is planning on moving more sites into the same troubled and under-funded program 

next fiscal year, and I am very concerned about similar problems 

in the future. 

Several of my colleagues requested this hearing, one of them 

here now, Senator Lautenberg, because unfortunately this Administration has allowed Federal facilities to resist following cleanup 

orders. No Federal agency is above the law. DOD and DOE facilities must abide by cleanup standards that protect communities 

from toxic threats, and they cannot be allowed to escape their responsibilities. 

The DOD should not be able to place itself above the law by asking the White House Office of Management and Budget to tell EPA 

to back off. That is unacceptable in any circumstance, but especially when the health of our families are at risk. DOD, we all support it so strongly because they are our protectors, they are our 

protectors, and we praise them, but if they are endangering our 

people here at home because of toxics on their site, and they walk 

away from their responsibility, this is immoral and it cannot be allowed to continue. 

We need to ensure that Federal facilities live up to their obligation to clean up toxic sites that they have created in our communities. I look forward to hearing from my colleagues and I look forward to hearing from all of our witnesses. 

Senator Inhofe. 

OPENINT STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chairman. 

First of all, let me say that I have to leave briefly after my opening statement to serve on an energy panel, and then I will come 

right back. 

I believe we need to work together to have effective oversight, 

but I think what we are doing today is putting the cart before the 

horse. The result will be an incomplete and inconclusive attempt 

at oversight. This does not serve the American people in an effective and productive manner. 

The process that this Administration has put in place from its 

early days has continuously followed is that if there is an interVerDate Aug 31 2005 08:46 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88910.TXT VERN
3 

agency dispute, then the two agencies need to work out their differences. This oversight hearing is attempting to circumvent the 

process by becoming the jury, judge and executioner, rather than 

letting the agencies go through the correct process to negotiate a 

compromise. I believe when that is done, we should hold an oversight hearing. Hearing before that resolution doesn’t help the situation. It hurts it. 

I know we are coming up against the end of the year and we will 

be leaving here, so I know we are trying to get a lot of things done. 

I believe the EPA has done and will continue to do a fine job of 

cleaning up sites on the national priorities list. Of the 1,587 final 

and deleted sites on the Superfund national priority list, 95 percent 

have undergone construction activity, have been completed, or have 

been deleted from the NPL. 

I want to commend the Department of Defense for their cleanup 

efforts to date. DOD has 140 installations on the NPL, and 129 

have signed Federal facilities agreements, and 11 of the installations on the NPL have not reached an agreement with EPA and 

do not have an FFA. Through Fiscal Year 2000, DOD has spent 

over $650 million on cleanup efforts at these 11 installations, which 

have an aggregate estimated cost in excess of $1.3 billion. As we 

conduct this hearing today, DOD’s cleanup efforts at these sites are 

ongoing. 

I believe that the FFA is an important part of the cleanup process. However, I do not believe that it is an accurate tool to measure 

the pace of progress of cleanup at the NPL sites. I say this for two 

reasons. First, not all of NPL sites’ cleanup needs are captured by 

the FFA. Cleanup efforts at DOD sites without an FFA are ongoing 

and there are areas that require cleanup measures that are outside 

the FFA. Second, as we have done in DOE’s situation, an FFA 

lacks the flexibility to address changing circumstances, so the FFA 

needs to be redrafted instead of amended. 

The Department of Energy has done an outstanding job of cleaning up 83 of the 108 sites. All of the DOE NPL sites have their 

FFAs. However, most of these have been renegotiated recently due 

to the fact that DOE either did not request enough money originally when they signed the FFA, or they had unforeseen technical 

problems at the site. DOE sites are focused on the cleanup of radioactive waste and contamination generated by nuclear energy research and nuclear weapons production. DOE has been and is performing first of its kind cleanup tasks in highly hazardous working 

environments. 

It is important to note that comparing DOE sites to DOD sites 

is like comparing apples to oranges. That is not to say that DOE 

should not be commended for their cleanup efforts and progress to 

date. 

So I believe that there are some positive stories to tell in regards 

to the DOD and DOE. I believe that there is always room for improvement, but DOD and DOE have taken on larger and more costly sites and have been making positive strides. I do believe that 

should have waited until after these agencies have negotiated their 

differences with each other before getting into the oversight hearing, but perhaps there wasn’t time to do that. 

Thank you, and I look forward to the hearing. 

4 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

Good morning. Thank you, Chairman Boxer. Today’s hearing is an oversight hearing on clean-up efforts at Federal facilities. I believe we need to work together to 

have effective oversight. What we are doing today is putting the cart in front of the 

horse and the result will be an incomplete and inconclusive attempt at oversight. 

This does not serve the American people in an effective and productive manner. 

The process that this administration has put in place from its early days and has 

continuously followed is if there is an interagency dispute, then the two agencies 

need to work out their differences. This oversight hearing is attempting to circumvent the process by becoming the jury, judge, and executioner, rather than letting the agencies go through the correct process to negotiate a compromise. I believe 

when that is done then we should hold an oversight hearing. A hearing before resolution doesn’t help the situation; it hurts it. 

I believe that EPA has done and will continue to do a fine job of cleaning up sites 

on the National Priorities List. Of the 1,587 final or deleted sites on the Superfund 

National Priorities List (NPL), 95 percent have undergone construction activity, 

have been completed, or have been deleted from the NPL. 

I want to commend the Department of Defense for their cleanup efforts to date. 

DOD has 140 installations on the NPL. 129 have signed Federal Facilities Agreements (FFA’s). 11 of the installations on the NPL have not reached an agreement 

with EPA and do not have an FFA. Through fiscal year 2007, DOD has spent over 

$650 million on clean-up efforts at these 11 installations which have an aggregate 

estimated cost in excess of $1.3 billion. As we conduct this hearing today, DOD’s 

clean-up efforts at these sites are ongoing. 

I believe that an FFA is an important part of the clean-up process. However, I 

do not believe that it is an accurate tool to measure the pace or progress of cleanup at NPL sites. I say this for two reasons. First, not all of an NPL site’s cleanup needs are captured by an FFA. Clean-up efforts at DOD sites without an FFA 

are ongoing and there are areas that require clean-up measures that are outside of 

an FFA. Second, as we have seen in DOE’s situation, an FFA lacks the flexibility 

to address changing circumstances. So FFA’s need to be redrafted instead of amended. 

The Department of Energy has done an outstanding job of cleaning up 83 of their 

108 sites. All of the DOE NPL sites have FFA’s. However, most of these have been 

renegotiated recently due to the fact that DOE either did not request enough money 

originally when they signed the FFA’s, or they had unforeseen technical problems 

at the site. DOE sites are focused on the clean-up of radioactive waste and contamination generated by nuclear energy research and nuclear weapons production. DOE 

has been and is performing first-of-a-kind clean-up tasks in highly hazardous work 

environments. It is important to note that comparing DOE sites to DOD sites is like 

comparing apples to oranges. That’s not to say that DOE should not be commended 

for their clean-up efforts and progress to date. 

I believe that there are some positive stories to tell in regards to DOD and DOE. 

I believe that there is always room for improvement, but DOD and DOE have taken 

on larger and more costly sites and have been making positive strides. I do believe 

that we should have waited until after these agencies have negotiated their differences to have an oversight hearing on this topic. I also believe that using FFA’s 

to measure clean-up progress and pace is inaccurate. 

I look forward to hearing from our witnesses. 

Senator BOXER. Thank you, Senator. 

Senator Lautenberg. 

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM THE STATE OF NEW JERSEY 

Senator LAUTENBERG. Thank you for calling this hearing. We are 

looking at a serious problem that exists throughout the Country 

and particularly in our State. We have a site—— 

Senator BOXER. 

[Remarks made off microphone.] 

Senator LAUTENBERG. Unfortunately, yes. Thank you. 

5 

Anyway, Madam Chairman, we thank you very much for calling 

this hearing. There has been considerable neglect on the part of the 

Defense Department in dealing with this issue. Frankly, I am disappointed that it was necessary to call this hearing, but it is necessary. The EPA issued an order to the Pentagon, cleanup the 

Superfund sites where the Defense Department’s work put people 

and the environment in jeopardy. 

Now, I am concerned about the risks that are posed. The EPA 

was forced to take action after the Pentagon refused to take this 

action to reach an agreement between the agencies on a cleanup 

plan. 

Now, one of the Superfund sites, McGuire Air Force Base, is in 

my State of New Jersey. Instead of making an actual commitment 

to clean up the chemicals that are found throughout the base, the 

Defense Department has refused to do what EPA ordered. Now, I 

am concerned about the risks that it could pose for employees and 

military personnel at Fort McGuire and New Jersey’s nearby communities. In fact, EPA has found several pollutants which, I quote, 

‘‘present an imminent and substantial danger to the public health 

or welfare at these sites.’’ 

At McGuire Air Force Base, for instance, the ground and water 

have been found to contain pesticides, volatile compounds of petroleum and jet fuel. TCE has also been found on the site. When TCE 

seeps into drinking water, it can cause cancer, according to the National Academy of Sciences. 

While the Pentagon claims that it will cleanup the site, but on 

its own time line, we know the Pentagon is not doing enough. Even 

the EPA was quick to realize the Pentagon’s voluntary cleanup was 

simply a delaying tactic. We know that these are not new problems 

that require more study and more discussions. The Pentagon has 

known about these problems for more than 20 years. These sites 

have been listed as Superfund sites for almost 10 years. 

I remind you that out of 1,255 Superfund sites across the Country, that 129, 10 percent, are on DOD property. As soon as the 

news broke of the Pentagon’s defiance, Senator Menendez, my colleagues Senators Mikulski, Cardin and Nelson and I demanded answers from the DOD, but we haven’t received adequate response to 

our questions. 

We are also working with the GAO to investigate the Pentagon’s 

lack of action. But what concerns me more is the Pentagon’s attitude, that it should be above the laws that protect the health and 

well-being of Americans. Now, think about it. Last night, we 

passed authorization for the Pentagon for $612 billion, more than 

a half-trillion dollars. Not to be able to accelerate the pace of cleanup when in fact the Pentagon’s existence is to protect the health 

and well being of our citizens, and we are willing to do it in places 

far afield, places that put people in harm’s way. 

We ought to think about the people who live near these bases or 

the people who occupy these bases as part of their responsibilities. 

We think that their well being ought to be considered. 

So we are working with GAO to review the Pentagon’s lack of action. It is just not right to put the communities that surround these 

military bases at risk by ignoring longstanding environmental 

laws. The Pentagon needs to answer for its actions, and when we 

6 

talk about actions that bring about a solution in 25 years, that is 

not very comforting, I can tell you. 

Thank you, Madam Chairman. 

Senator BOXER. Senator Lautenberg, thank you. 

Senator Barrasso. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Thank you, Madam Chairman. 

We all support environmental restoration of Federal facilities. 

We support protecting our communities from harmful toxic chemicals and other pollutants. Some have been expressing concern 

about the pace of the cleanup at the Department of Defense facilities and the lack of a Federal facility agreement, an FFA, with the 

Environmental Protection Agency on 11 sites. Well, the men and 

women of the armed forces are the people who protect us from 

harm. They do it protecting us from harm overseas and they also 

protect us from harm here at home. They have taken an oath to 

protect us and the facts bear this out. 

The Department of Defense has done a commendable job in 

cleaning up their sites. According to the nonpartisan congressional 

Research Service, 69 percent of all of the Department of Defense 

sites have completed response actions. Certainly, more needs to be 

done, but these reports show that the Department of Defense is 

proceeding at a good pace and continues to clean up sites despite 

Federal facility agreements, FFAs, not being put into place. 

The fact is that the FFAs are not good indicators that a site is 

being cleaned up at all. Our goal should be completing the cleanups, not completing bureaucratic agreements. The Department of 

Energy has Federal facility agreements, FFAs, in place at all of 

their sites. However, the nonpartisan CRS states that the completion of an agreement alone is not necessarily an indicator of cleanup progress. Agreements have been revised multiple times as assumptions about the feasibility of cleanup actions changes over 

time, resulting in repeated extensions of regulatory deadlines. 

So to tell families with children across America that they are 

protected because a Federal agreement is in place is just giving 

them a false sense of security. That puts people’s lives at risk and 

that puts people’s children’s lives at risk. The best way we can give 

our communities the security they deserve is to clean up Federal 

facilities. I felt it was necessary to have the bipartisan congressional Research Service look at the numbers across the Department 

of Defense and see what the facts are with the progress of cleanups. The nonpartisan CRS study states in a recent memo that the 

absence of a final agreement for an entire installation does not preclude individual cleanup activities from proceeding at discrete sites 

within the boundary of that installation, and those cleanups have 

taken place. 

Cleanup is proceeding at all the 11 facilities that do not yet have 

an FFA in place. Some have proceeded at a relatively advanced 

stage. Over 51 percent of the sites on these 11 locations already 

have cleanup responses in place, despite no Federal facility agreement yet in place. Eight of the 11 locations are over 60 percent 

completed, factoring in the sites where no cleanup response is 

7 

needed. About 70 percent of the current inventory of contaminated 

sites at Department of Defense is complete and the money already 

spent on this is $28 billion. 

Finally, there are those who want to draw a comparison between 

the Department of Energy and the Department of Defense in their 

cleanup success rates by stating that the Department of Defense 

has not signed off on all of their Federal facility agreements, but 

the Department of Energy has. Whether intended or not, this comparison implies that our men and women in uniform are shirking 

their cleanup duties. Comparing Department of Defense’s cleanup 

to the Department of Energy’s cleanup is comparing apples to oranges. The nonpartisan CRS study states that ‘‘the technical challenges in cleanup of their respective facilities are quite different, 

making the efforts of the each department not well suited for comparison.’’ 

Further, the congressional Research Service states that comparing the Department of Energy’s signing all of their Federal facility agreements is not necessarily a measure of cleanup progress. 

For example, CRS states that the Department of Defense must 

cleanup former facilities over which it no longer has jurisdiction, 

requiring coordination with the current property owners just to 

gain access to the land. The Department of Energy still has jurisdiction over all of its facilities and does not face a similar problem. 

The Department of Defense facilities contain mostly non-radioactive waste. The Department of Energy contains wastes that are 

radiologic in nature. 

What families in Wyoming and the rest of the Country need to 

know is that the sites are being cleaned up. They do not need political posturing. They don’t need interagency squabbles. They don’t 

need bureaucratic red tape agreements, and they don’t need false 

hope. Let’s bring the facts to the table. 

Thank you, Madam Chairman. 

Senator BOXER. Thank you. Of course, that is what we want to 

do. 

I wanted to send a message to America’s children: 69 percent is 

not a good grade. It is a D-minus. So it is all in the eye of the beholder. 

Before I call on Senator Craig for his opening statement, and 

then we will get right to the panel, I want to ask unanimous consent to enter into the record a report by the Environmental Council 

of the States on DOD’s actions to restrict State enforcement; two, 

documents describing instances of DOD threatening to retaliate 

when State’s seek to enforce public health and environmental safeguards; three, a description of threats at Superfund sites where 

EPA has issued DOD cleanup orders; four, a list of DOD Federal 

facilities Superfund sites that do not have Federal facility agreements; and five, a National Governors Association policy position 

on Federal facilities. 

Without objection. 

[The referenced documents were not received at time of print.] 

Senator BOXER. Senator Craig. 

8 

OPENING STATEMENT OF HON. LARRY E. CRAIG, 

U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAIG. Well, thank you very much, Madam Chair. I will 

be brief. 

I do not have prepared opening remarks, but I do want to react 

to my experiences over the last 28 years in dealing with one of the 

Nation’s largest Superfund sites, the Coeur d’Alene mining district 

in North Idaho that had a legacy of substantial lead and lead materials as a result of old smelting that had gone on there for a nearcentury. Second, we have a national DOE laboratory in our State 

that has buried waste, most of it light radioactive transuranic 

waste, but still critically important to Idaho and to DOE because, 

Madam Chair, it was positioned over a very active and major aquifer for Idaho and one of Idaho’s primary water sources. The method 

by which it was put in the ground based on the technologies we 

know today certainly demanded that it be exhumed and treated appropriately. 

Having said that, what I have found in this period of time I 

think are two very important keys that I hope this Congress will 

attempt to implement and become involved in in the future, and 

that is with the States in which these problems exist or where they 

reside. Tragically enough, when you approach a cleanup in an adversarial way, when DOE comes in with muscles flexing or another 

agency comes in with muscles flexing, and they go after private 

sector or State interests, it becomes very adversarial and very litigious. Years and years and money and money is spent in a way 

that is, in my opinion, phenomenally nonproductive. 

Yes, there are winners and losers, and certainly the bad guys 

need to be found. But we also have had a significant change in 

public policy and public attitude over the last 30 years, and legacy 

wastes today which were once innocently placed, as we know, are 

now substantial problems. And we have to be honest and fair about 

it, and we ought to be realistic. 

In Idaho to resolve the Superfund site in the Coeur d’Alene basin 

that had gone on and on and on, and had cost hundreds of millions 

of dollars, I and the Idaho delegation insisted that we bring this 

to some degree of finality and understanding. I am very fearful, 

and I saw it happening. In fact, one time there was an EPA person 

on the ground who joked, if I can keep this going long enough, I 

can stay in this beautiful area of Idaho and put my kids through 

college. Now, while that was not intended, that was the expression. 

We developed a cooperative relationship between the environmental agencies of our State and EPA, and we began a process of 

State and Federal cooperation that brought this to conclusion, and 

is bringing it to conclusion. We feel the cleanup has gone on very 

well. We think it can be completed and will be completed. Why 

should a cleanup take 30 years or 20 years? Who loses? Attorneys 

don’t lose. Taxpayers lose. Some companies may lose. The State 

may lose, but the citizens of the area are oftentimes the dramatic 

losers. 

The blight, the economic blight that was placed over this beautiful region of Idaho is largely being lifted today because we 

brought it to conclusion. We changed an adversarial relationship 

into a cooperative relationship and it worked. Down at our laboraVerDate Aug 31 2005 08:46 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88910.TXT VERN
9 

tory where the wastes were as I have expressed them, we brought 

Idaho into the picture. Idaho and DOE became cooperating agencies setting the milestones, making those milestones, and completing the process, and it moves very, very well today, to the great 

satisfaction of nearly all of the critics. 

Change the adversarial relationship where at all possible and 

create cooperative entities. There are dual roles to be played here. 

When you have the satisfaction of State agencies looking over the 

shoulder of Federal agencies, in my opinion, Madam Chair, you oftentimes gain the confidence of the public who thinks that in the 

end, if all are watching everything, that the job gets done right. 

But we do have these legacy problems, whether they are DOD, 

whether they are DOE, or whether they are industrial in character, 

and the name of the game for so long has been turn it to the attorneys and you will solve the problem. No, you waste a hell of a lot 

of money and the problems simply go on year after year after year, 

and the citizen is the loser. 

Thank you for holding this hearing. 

Senator BOXER. Thank you so much. 

And you know, it is worth noting that there is a lot of litigation 

surrounding that site. Many times, courts rule that the U.S. was 

right and that the private sector, the polluters, had to come to the 

table. It is unfortunate, you are so right, that we sometimes have 

to do that, but eventually I think right does prevail. I mean, the 

easiest thing is for us to all say, well, let’s just have taxpayers 

cleanup the mess. But you know what? 

Senator CRAIG. Oh, no. 

Senator BOXER. Most of us believe polluters pay. 

Senator CRAIG. Well, they should, Madam Chair. That was not 

my point. My point was if we had started in a cooperative environment earlier instead of muscling in an adversarial relationship, 10 

years ago it would have been cleaned up. 

Senator BOXER. Of course. Unfortunately, there are parties, 

sometimes the Government, sometimes the private sector, sometimes the States, we don’t know, who don’t want to cooperate for 

one reason or another and it drags on. And you are so right. If we 

could do one thing in this Committee, it would be to say let’s have 

everyone sit down and do the right thing. You are so right. Then 

we wouldn’t be here today. 

Unfortunately in my State, I can’t tell so many pretty stories, so 

that is the purpose of the hearing, to focus on moments when this 

doesn’t happen. 

Senator CRAIG. Thank you. 

Senator BOXER. So it is my pleasure to introduce our first panel. 

We will start off with Susan Bodine, Assistant Administrator, Office of Solid Waste and Emergency Response. We will start with 

you and then we will move to our other witnesses. 

STATEMENT OF SUSAN BODINE, ASSISTANT ADMINISTRATOR, 

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. 

ENVIRONMENTAL PROTECTION AGENCY 

Ms. BODINE. Thank you, Madam Chair and members of the Committee. I am Susan Parker Bodine, Assistant Administrator for 

EPA’s Office of Solid Waste and Emergency Response. I would like 

10 

to thank you for inviting me here today to talk about EPA’s role 

in the cleanup and restoration of contaminated Federal facilities 

under CERCLA, the Comprehensive Environmental Response, 

Compensation and Liability Act. 

I am going to summarize my testimony, and I ask that my entire 

statement be put in the record. 

Senator BOXER. Without objection, so ordered. 

Ms. BODINE. EPA leads the Federal effort to reduce risks posed 

by contaminated property and takes other activities to protect 

human health and the environment and allow land to be returned 

to beneficial use. That is true at private sites. It is also true at Federal facilities. In fact, at Federal facilities across the country, EPA’s 

Federal Facilities Program has helped other Federal agencies return over 325,000 acres of land to beneficial use; we have taken action to help make that property available for its anticipated use. 

The statute sets up a unique relationship for Federal facilities. 

This is CERCLA section 120. It provides the framework for identifying contaminated sites that might pose risk to human health and 

the environment, and then assuring the cleanup and the other actions that need to be taken to protect human health and the environment. 

There are some provisions in there that apply to Federal facilities only. One of those is the requirement that EPA and agencies 

enter into an interagency agreement, which we commonly refer to 

as an FFA. In fact, I want to point out that Senator Craig’s remarks were a very compelling argument for why FFAs are so important. They in fact bring all the parties to the table. Typically, 

States also sign them. And when you have all of the entities at the 

table, you get cooperation, so you get the cleanup in a comprehensive and often expedited way. 

Federal facilities are charged with cleaning up the contamination 

that they cause. Trust Fund money is not available for cleanup of 

Federal facilities. Under the Executive Order 12580, Federal agencies are the lead agency for carrying out many CERCLA responsibilities at their own facilities, but at Federal facilities listed on 

the NPL, EPA by statute is given the final decision authority over 

cleanup. 

Specifically, section 120(e)(4) says that the Administrator and the 

head of the other Federal agency pick the remedy, but in the case 

of a dispute, the Agency, the EPA Administrator, is the final decisionmaker. 

So this sets up a situation where Federal agencies and EPA are 

partners, but ultimately Federal agencies are also regulated entities under the statute, under this 120 framework. It is a shared responsibility for implementation of the program. In many cases, in 

the majority of cases, that has worked very well. In fact, at the 

field level, the staff relationships are strong and the points that 

have been made about progress are right. We have made tremendous progress working cooperatively. There are 172 Federal sites 

that are listed on the NPL; 81 percent of these are DOD component 

sites. All but 11 have signed Federal facility agreements in place, 

which of course is required under section 120 of CERCLA. 

As I said, Federal facility agreements provide a framework to ensure that there is proper oversight by EPA and in many instances 

11 

the States sign, so you have everybody at the table in a cooperative 

way. But they are enforceable agreements, and that is important 

because we do treat Federal agencies under the statute the same 

as we treat private parties. So you need an enforceable mechanism 

to ensure that the cleanup happens. 

Again, this is what the statute calls for, but it has also proven 

very effective at sites across the Country to ensure cleanups take 

place that protect human health and the environment. 

I know statements have been made about progress. I want to reiterate that. Again, we have made tremendous progress. Most of 

these sites are under Federal facility agreements. Federal agencies 

are on pace across the board to reach construction completion at 

about 50 percent of the sites. Within these frameworks, we can 

work cooperatively and try and accelerate the process. We are also 

working cooperatively with DOD to develop tools to assist field 

staff in assessment, for example, reducing risks related to munitions. We are working with DOD to increase State involvement. In 

fact, we have a cooperative agreement with ECOS to re-start the 

Federal and State dialog with DOD on munitions issues. 

Again, I think the track record here is that when there is a 

framework, and what the statute requires is the FFA, an enforceable framework, that brings everyone to the table, then that is 

where you get success and that is where you are able to ensure 

that the cleanup is in fact going to be protective over the long term. 

I know that I have gone a little bit over time. I apologize, Madam 

Chair. I would be pleased to answer any questions. 

[The prepared statement of Ms. Bodine follows:] 

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Senator BOXER. Thank you very much. 

Wayne Arny, Deputy Under Secretary of Defense for Installation 

and Environment, United States Department of Defense, welcome, 

sir. 

STATEMENT OF WAYNE ARNY, DEPUTY UNDER SECRETARY OF 

DEFENSE FOR INSTALLATION AND ENVIRONMENT, U.S. DEPARTMENT OF DEFENSE 

Mr. ARNY. Thank you, ma’am. 

Madam Chair, Senator Inhofe, distinguished members of the 

Committee, I am honored to appear before you today to address 

your interest and concerns. I also have behind me representatives 

of our environmental restoration and compliance team from OSD, 

and the Navy, the Army, the Air Force, and of course the Navy representing the Marine Corps. 

With your permission, I will submit my written remarks for the 

record and make an oral statement. 

Senator BOXER. Without objection. 

Mr. ARNY. DOD has been conducting environmental cleanup efforts formally for more than 22 years. In that time, we have spent 

$28 billion at approximately 31,000 cleanup sites located on more 

than 1,600 active facilities, 200 BRAC facilities, and almost 10,000 

formerly used defense sites. We conduct environmental cleanup activities at these sites with the cooperation and assistance of Federal and State agencies, and with the involvement of and input 

from the public. 

The cleanup process reflects the requirements of CERCLA to include CERCLA’s implementing regulations, the NCP, and the 

DERP. EPA and State regulators are fully involved in cleanup investigations and remedy selection at our facilities at every step 

along the way. Annually, the department spends almost $2 billion 

in investigation and cleanup activities. We assess our performance 

by measuring progress in protecting human health and the environment, reducing risk to acceptable levels, and achieving remedy 

in place and response complete. 

We accomplish this while balancing our responsibility to be good 

stewards of the taxpayers’ dollars. Of DOD’s 31,000 cleanup sites 

on roughly 4,600 facilities, only 140 facilities are currently listed on 

the NPL. This represents 3 percent of our facilities, but they account for almost 50 percent of our annual expenditures. We manage our restoration program by prioritizing our efforts and resources on the most critical sites first, regardless of whether a site 

is on the NPL or not. 

At the local level, EPA and/or the State regulators are involved 

in our site selections and cleanup investigations, and they actively 

participate in remedy selection. DOD and EPA jointly select remedial actions with DOD facilities on the NPL, and by law, EPA 

makes the final selection if there is a disagreement between the 

two of us. 

We also actively seek State acceptance of the proposed remedy. 

The best measure of a successful program is achieving remedy in 

place or completing cleanup, or as we call it, response complete. As 

a result of our efforts, by the end of 2007, 69 percent of all out sites 

have achieved their cleanup objectives and are at response comVerDate Aug 31 2005 08:46 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88910.TXT VERN
20 

plete, and another 9 percent have remedy in place and approaching 

response complete for 78 percent. All of these sites are protective 

of human health and environment. 

The department will continue its longstanding commitment to 

perform environmental restoration at our facilities. We will continue our cleanup efforts using the statutory and regulatory cleanup framework provided by Congress and pushed forward with implementing final remedies in coordination with our regulatory partners. Be assured the safety and health of our uniformed men and 

women, their families, and the surrounding community is of the utmost importance to DOD. For me, this is also personal. I spent 17 

years on active duty and 13 years in the Reserves as a Navy fighter pilot, and both my sons are Naval aviators in fighters who fly 

from and live on military bases. Because of my older son—we won’t 

discuss my younger son—I have three beautiful grandchildren who 

live on-base at Naval Air Station Lemoore, California. 

Not only am I and all of the staff in DOD and the services concerned about the welfare of all our service members and their dependents, but as citizens we are equally concerned about the health 

and welfare of our fellow citizens and the environment. We especially understand the risks better than the people we serve. We 

take the responsibility extremely seriously to ensure that the department provides a safe and healthy environment for all our military families and our surrounding neighbors. 

Last, Madam Chair and Senator Inhofe, I encourage you and 

your fellow Senators, or any of your staffs, to please tour any of our 

facilities across the Nation. We would be happy for you to meet the 

dedicated environmental personnel who oversee this great enterprise and see personally what they are doing not only to clean up 

all of facilities, but also to ensure that our ongoing activities are 

conducted in an environmentally sensitive and responsible manner. 

Thank you again, Madam Chair, members. I am pleased to answer your questions. 

[The prepared statement of Mr. Arny follows:] 

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Senator BOXER. Thank you, so much. We are so grateful for your 

service and your family’s service. I absolutely believe that you want 

to clean it up. Unfortunately, the record is replete with information 

that just doesn’t square with what you said, so I am going to ask 

you questions specifically on those items. 

Last, but certainly not least: Frank Marcinowski, Deputy Assistant Secretary for Regulatory Compliance, Office of Environmental 

Management, U.S. Department of Energy. 

STATEMENT OF FRANK MARCINOWSKI, DEPUTY ASSISTANT 

SECRETARY FOR REGULATORY COMPLIANCE, OFFICE OF 

ENVIRONMENTAL MANAGEMENT, U.S. DEPARTMENT OF ENERGY 

Mr. MARCINOWSKI. Thank you. Good morning, Madam Chairman 

and members of the Committee. I am Frank Marcinowski, Deputy 

Assistant Secretary of Energy for Regulatory Compliance in the Office of Environmental Management. I am pleased to be here today 

to discuss how our program conducts cleanup at Federal facilities. 

First of all, I want to thank you for your support for the cleanup 

effort at Santa Susanna Field Laboratory outside L.A. You and 

your staff have been instrumental in bringing together the Department of Energy and the EPA to coordinate our work, and I can tell 

you that this work is proceeding expeditiously. 

The year 2009 will mark 20 years since the EM program was 

first established to clean up the legacy nuclear waste left by nearly 

30 years of nuclear weapons production and energy research. Our 

program has responsibility for cleanup at those federally owned facilities and others like Santa Susanna, where federally directed research-related activities have taken place. 

This is an enormous and complex responsibility. Funded at more than $5 billion annually, EM represents the largest environmental 

cleanup program in the world. We manage sites that together cover 

an area the size of Rhode Island and Delaware combined. 

Since our work began, we have closed 86 of more than 100 physical sites nationwide. The national footprint of DOE’s nuclear complex and its accompanying risks has been drastically reduced and 

eliminated altogether from 31 States. We have pioneered new technologies to allow us to retrieve and treat millions of gallons of liquid radioactive waste, stored in more than 200 underground tanks. 

We have opened the world’s only deep geologic repository in Carlsbad, New Mexico, to safely dispose of transuranic waste, materials 

contaminated with plutonium and similar elements, and we have 

consolidated and safely stored the Nation’s entire excess plutonium 

inventory. 

The work at many of our sites is governed by Federal Facility 

Agreements, or FFAs. An FFA sets forth schedules and processes 

for site cleanup under CERCLA, including enforcement provisions 

for noncompliance. The enforceable milestones contained in these 

FFAs have played a major role in EM’s planning, budgeting and 

the setting of priorities. Of EM’s currently active 19 cleanup sites, 

16 are Federal facilities. DOE now has in place FFAs for all nine 

of our sites that are listed by EPA on the national priority list. 

DOE considers stakeholder involvement to be a key component 

of the cleanup decisionmaking process, including the development 

53 

of FFAs. Thus, for example, stakeholder input during renegotiation 

of the Hanford FFA in the late 1990’s led DOE to change several 

critical aspects of that agreement. I mentioned the importance of 

milestones in planning and executing our work at sites where FFAs 

are in place. In fact, our program is responsible for meeting a total 

of more than 500 major enforceable future milestones. Of those, we 

estimate that only about 4 percent are considered to be at risk of 

being missed. 

However, not all milestones are created equal in terms of their 

value to advancing cleanup. There are hundreds of additional milestones that are routine, recurring or purely administrative, such as 

reports. At the Hanford site alone, we are responsible for more 

than 200 separate milestones of all types each year. 

I mentioned our success with closure sites. One in which we take 

great pride is the Rocky Flats site in Colorado. Rocky Flats was 

once responsible for manufacturing the plutonium triggers for the 

Nation’s entire nuclear arsenal. It is significant to note that while 

Rocky Flats was an exceptionally complicated cleanup challenge, it 

was governed by fewer than 20 milestones. This provided all parties with enough guidance to keep the cleanup on track, but also 

permitted crucial flexibility for us to direct resources most efficiently. The result was that we were able to close the site in 2005, 

a full 10 years earlier than planned. Today, Rocky Flats is a national wildlife preserve. 

In planning our cleanup, we seek to focus on the work that will 

produce the greatest environmental benefit at the earliest possible 

time, to the largest number of people. As I have said, in determining these priorities DOE works closely with regulators and 

seeks their active cooperation, particularly where doing so necessitates modification of cleanup milestones embodied in prior agreements. 

Madam Chairman, I am proud of the progress the EM program 

has made in recent years in terms of meeting the Nation’s cleanup 

priorities, working closely with stakeholders and building the foundation for future cleanup efforts. 

I appreciate your interest in our program and am pleased to answer your questions. 

[The prepared statement of Mr. Marcinowski follows:] 

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Senator BOXER. Thank you very much. 

I am going to start off the question period, and I have some questions for Mr. Arny. 

Mr. Arny, I am going to ask you about DOD using economic coercion in my State. Information provided to the Committee shows 

that in 2004, California’s Department of Toxic Substances Control 

issued DOD an enforcement order related to contamination at the 

Naval Information Research Foundation. Did DOD tell California 

to ‘‘revoke, withdraw, declare the order void, or offer another procedure that is equivalent to revocation, or else it would end DOD’s 

agreement to reimburse California for work related to cleaning up 

the department’s toxic waste sites in the State’’? 

Mr. ARNY. I don’t have any information on that. I will have to 

get it. 

Senator BOXER. Well, I have the information. 

Mr. ARNY. OK. 

Senator BOXER. And I have the information here from Rick Moss, 

Assistant Deputy Director of California’s Department of Toxics. He 

says the State was forced to revoke its enforcement order at the 

site. His is outrageous and you don’t know anything about it. 

Mr. ARNY. Ma’am, I have no idea. 

Senator BOXER. You don’t know anything about it. OK. 

Mr. ARNY. I will say, because I worked for the Navy for 6 years 

doing BRAC and installations, and we had a very, very good relationship with DTSR, and also with our DSMOA. As a matter of 

fact, we have gone beyond our DSMOA. 

Senator BOXER. Well, I am not asking you for generalizations. I 

am asking you, I have the document. 

Mr. ARNY. I will get you the answer. 

Senator BOXER. From my State, and it is very, very clear that 

they said they were threatened that you would pull out of the site. 

So why don’t we just put this aside, and you will look into it and 

get back to me within a week. 

Mr. ARNY. Absolutely, yes. 

Senator BOXER. And we have heard this from others. 

Now, Mr. Arny, do you believe that a Federal agency should immediately investigate and cleanup contamination from a Federal 

facility if combustible gas is detected just 100 feet away from a 

school, toxic gas threatens to seep into school rooms, and chemicals 

pollute a potential future drinking water source. Do you believe 

that a Federal agency should immediately investigate and cleanup 

such contamination that threatens children in a school? 

Mr. ARNY. Yes, ma’am. 

Senator BOXER. Then DOD should comply with EPA’s cleanup 

order at Fort Meade in Maryland and stop asking the White House 

to intervene in enforcement of the order. Now, why has DOD asked 

the White House to intervene in enforcement of this order? 

Mr. ARNY. There is a difference between the substance and the 

form of what is happening here. The site at Fort Meade was a site 

near the school and near housing. We went in when it was identified. It was identified during the construction of the housing. We 

went in an did immediate removals, put barriers around, and put 

up sensors and have done all the things that are required to. When 

EPA issued their order under RCRA, as opposed to CERCLA, there 

93 

was no—when you issue that order, you are supposed to identify 

some immediate and substantial endangerment. There was no immediate and substantial endangerment other than what we had 

seen years before, and we have been complying with that. 

Senator BOXER. OK. 

Mr. ARNY. I will explain why we have gone to OMB. When I took 

this job 6 months ago, and I did Navy and some similar stuff, the 

department in 2003 made a decision on FFAs to go down a dual 

track. The Air Force was looking to do streamlined—— 

Senator BOXER. Sir, excuse me. I don’t have much time, and the 

reason I am stopping you here is you are giving me a very bureaucratic answer. I am going to leave this Fort Meade for the Senator 

from Maryland. I am going to leave that. He will stew on what you 

said. 

Mr. ARNY. OK. 

Senator BOXER. I am going to go to my next question. 

Mr. Arny, do you believe that a Federal agency should immediately investigate and cleanup contamination from a Federal facility if high levels of DDT, a chemical that causes cancer and harm 

to the developmental and reproductive system, are found in areas 

that people use for fishing and recreation? 

Mr. ARNY. Yes, I do. 

Senator BOXER. Then DOD should comply with EPA’s cleanup 

order at Tyndall Air Force Base in Florida and stop asking the 

White House to intervene. DOD isn’t above the law. The department is legally required to protect public health, not delay or try 

to block safeguarding public health. So, I don’t understand. I mean, 

your answer is right. We should clean this up immediately when 

there are high levels of DDT. But then we find out at Tyndall Air 

Force Base in Florida, you are asking the White House to intervene 

again and not clean it up. 

Mr. ARNY. Not on the cleanup levels, ma’am. Absolutely not on 

the cleanup levels. 

Senator BOXER. Why are you asking them to intervene? 

Mr. ARNY. The procedures are in place. The citizens are protected 

from that. That is ongoing. We have gone to OMB because there 

was a dispute between DOD and EPA on procedures within the 

FFA. I worked at OMB in the 1980’s for two and a half years. If 

there is a dispute between two—and I got this dispute. It was laid 

in my lap. And I said, this is ridiculous. We can’t negotiate it. One 

department is not negotiating. They are not talking to each other. 

OMB is the avenue and DOJ to resolve disputes between agencies. 

And that is all it is. It is procedural. It is not substantive. 

Senator BOXER. Procedural, but meanwhile people are exposed to 

DDT. 

Mr. ARNY. No, they are not, ma’am. No, they are not. 

Senator BOXER. Let me just say something here. EPA is in 

charge of this, not OMB. 

Mr. ARNY. We agree. 

Senator BOXER. It is EPA’s job. They issue the order. You are not 

following it. 

Mr. ARNY. The order is under RCRA. 

Senator BOXER. DOD and OMB and EPA. 

Mr. ARNY. Yes, ma’am. I understand that. 

94 

Senator BOXER. So then why are you interfering and not doing 

it and going to the White House? 

Mr. ARNY. We are responding. At Tyndall, they asked us to test 

water. We went out and tested it. We found nothing. They agree 

with that. 

Senator BOXER. Well, the fact of the matter is, I can go on with 

example after example, where the DOD is trying to run away from 

its responsibility. 

Mr. ARNY. Absolutely not. 

Senator BOXER. Well, I will give you another one. I will give you 

another one. 

Mr. ARNY. OK. 

Senator BOXER. And then I have to stop because my time is running out. 

Mr. Arny, information given to EPA states that Alaska’s Department of Environmental Protection has withheld enforcement actions against DOD out of fear that DOD would withhold funding 

for State cleanup oversight work at DOD facilities. This information describes DOD contractors failing to report toxic chemical releases, failing to correctly characterize waste, improper waste disposal, and failing to properly address leaking storage tanks. 

This is another example. Are you familiar with the Alaska situation? 

Mr. ARNY. I find that incredible. I have no idea of what it is 

about. I will check into it. 

Senator BOXER. OK. We will give you all the information from 

Alaska, from Florida, from Maryland, from California, because is it 

one thing to sit here and say—and I believe you—you want to do 

everything right, but then you have these circumstances where 

EPA has been very clear and you are trying to run and get the 

OMB to—— 

Mr. ARNY. No, ma’am. That is a mischaracterization. 

Senator BOXER. Well, we will continue with this. 

Go ahead, Senator Inhofe. 

Senator INHOFE. All right. Let’s start with Ms. Bodine. I would 

like to have you kind of explain why the EPA has filed a lawsuit 

against Tronox to recoup $280 million for the site in New Jersey, 

and what impact has an ongoing Department of Justice corruption 

probe had on the $280 million figure? I guess what I am really asking here is, isn’t this premature to go ahead and do that before 

some of these determinations are made? 

Ms. BODINE. Senator, it is my understanding that EPA’s suit for 

cost recovery against Tronox is entirely separate from whatever investigation that DOJ may have with respect to contractors or bids 

on the Federal Creosote site, that they are completely separate. 

Of course, at Federal Creosote, the site is complete. It is now protective of human health and the environment. It is in a residential 

area. It has been cleaned up to residential standards. 

Senator INHOFE. It was cleaned up by the EPA. 

Ms. BODINE. EPA spent the money, but again as we all agree, 

responsible parties should pay for cleanup and there are responsible parties at the site, and EPA is now seeking cost recovery from 

those parties. 

95 

Senator INHOFE. What we are getting at now, I think, Ms. 

Bodine, is a rerun of some of the things we have been dealing with 

now for at least the years that I have been serving on this Committee, and that is that I have seen estimates that that cleanup 

could have been done for about 10 percent of what the cost is. Do 

you disagree with those estimates? 

Ms. BODINE. I haven’t seen those estimates, but you raised this 

issue a matter of months ago. 

Senator INHOFE. Yes. 

Ms. BODINE. After you raised it, I went back and I asked my 

staff about it because I was concerned about the issues you were 

raising. It is my understanding that because of the location of this 

site, because it is in a highly populated area, because it is a residential property use, that the alternatives that were being presented by the prps, who by the way didn’t step up to actually do 

the work, but those alternatives were not feasible at this site because you can’t leave the waste in place when it is a residential 

property. 

So yes, this site involved removing material, taking it offsite and 

treating it. It did not involve leaving it in place, but that is because 

it’s a highly populated residential area. In a different location, a 

different remedy might have been possible, but not at this location. 

Senator INHOFE. Yes. And I understand that. I anticipated that 

would be your answer, but you will remember, when you had a different position, and I remember sitting up here when we went 

through the same thing at a site down in Louisiana. In that case, 

we were able to let the responsible party go ahead and do it, and 

they cleaned it up, and the estimate of the EPA was again much, 

much greater than that. 

My concern is this, you have a company that is now I think in 

serious trouble. I have read some things. I haven’t talked to any 

of the principals of the company, but there has been some talk 

about going into chapter 11 and all that, just because of this. If it 

could have been done—and I have seen very responsible parties 

analyzing what could have been done and how they could have 

cleaned up the mess that they were responsible for—for something 

like $30 million. Then you come along and it just seems like there 

is no lid on this thing. I know you will say it is a unique situation, 

but it keeps coming up again and again. 

This is what does concern me. I know that this is ongoing. I 

know that there are serious problems in a corporation as a result 

of this. I think it is just another example of not handling it properly and allowing people in the private sector to take care of these 

things, as opposed to the Federal Government coming in through 

the EPA and just spending money that doesn’t really have to be 

spent. I suspect that is the case, but I don’t know that is the case. 

But I am concerned over what the result is in some of these companies. 

Secretary Arny, in my opening statement I talked a little bit 

about, let me go back and re-read it here. DOD has 140 installations on NPL, and 129 have signed Federal facilities agreements, 

11 of the installations on the NPL have not reached an agreement 

with EPA and do not have an FFA. Through Fiscal Year 2007, 

96 

DOD has spent over $650 million in cleanup at the 11 installations, 

which have aggregate total cost in excess of $1.3 billion. 

It sounds to me like when we look at what you have been doing, 

it has been a pretty good job in terms of the efforts that have been 

made by DOD. 

Mr. ARNY. We work very cooperatively, we believe, with the 

States and with EPA. Indeed, at Fort Meade, EPA is on our site. 

They have an office there. We have set the levels. We have worked 

with them. As I said, the sites that don’t have FFAs, we are working to—— 

Senator INHOFE. Are those the 11 sites? 

Mr. ARNY. Those are the 11 sites. Ironically, one of the sites is 

closed out at Hanscom. We have reached closure on all of the 

sites—— 

Senator INHOFE. But you are continuing this process in spite of 

the fact that FFAs were not in place? 

Mr. ARNY. Absolutely. And as I said before, when I took this job, 

we had a problem in that policy personnel and legal personnel on 

DOD staff felt that what was being required in the FFAs exceeded 

the law and regulation. I felt they had good reason. I can’t tell 

which side is right or wrong in it. There have been no negotiations 

of any meaningful stature with EPA for over a year. I said let’s 

break the logjam. As a former OMBer, OMB, one of their charges 

is to resolve interagency disputes. So I said, let’s take this up to 

get it resolved. Whatever OMB and DOJ tell us to do, we will comply with exactly. 

Senator INHOFE. Yes, I remember you used the term ‘‘when I 

took this job.’’ I remember when you took this job, and we had this 

discussion as to the difficulties it was. And quite frankly, I think 

it has to be said by someone on this Committee that I think you 

are doing a good job. 

Thank you, Madam Chairman. 

Senator BOXER. Thank you so much, Senator. 

Senator Lautenberg. 

Senator LAUTENBERG. Thank you, Madam Chairman. 

I want to ask a question of Mr. Arny. We know that other Federal agencies have signed cleanup agreements without protest, but 

the Air Force in particular has not signed cleanup agreements for 

its Superfund sites, and I include reference to McGuire Air Force 

Base particularly. Why is that? 

Mr. ARNY. There are a number of reasons. The Air Force, like I 

said, I spent the last previous 6 years working Navy issues and 

worked with my Air Force counterparts. 

Senator LAUTENBERG. Right, but your responsibility includes Air 

Force. 

Mr. ARNY. Right. It does not. I mentioned that just to say that 

I did see from the side, more or less. They were trying to reach a 

more streamlined process, rightfully or wrongfully, and there were 

some personality issues which we could go into. And so when 

this—— 

Senator LAUTENBERG. As brief as you can be, please. 

Mr. ARNY. The department chose to go down two paths. When it 

came to me, those two paths weren’t working. We needed to combine in a single—— 

97 

Senator LAUTENBERG. That we know. OK, so please, why is that 

happening? Just laziness on the part—— 

Mr. ARNY. Oh, no. Again, cleanup was being done heavily at all 

the facilities, and as you know, at McGuire, we all decided, EPA 

and Navy, that the BOMARC site was far more critical, even 

though it wasn’t part of the NPL designation, so that is where the 

Air Force has been putting their work at McGuire on the BOMARC 

site. 

Senator LAUTENBERG. So they don’t multi-task when it comes to 

these things? 

Mr. ARNY. No, they have protection in place at all the sites at 

McGuire. It is just that the actual cleanup efforts have been expended at BOMARC more than the others. 

Senator LAUTENBERG. McGuire has been on the top priority 

Superfund cleanup list since 1999. The Pentagon has reported that 

it won’t be cleaned up until 2032. Why must it take over 30 years 

to clean up a site that has been listed for a long time as a potential 

threat to the adjacent communities? 

Mr. ARNY. Sir, the groundwater there is not used. If there is any 

imminent danger, we go in and stop that instantly. This is a 

groundwater plume that is not used by us or the outside. Now, a 

lot of those long dates that you see, the 2030’s, 2040’s, most of 

those are long after we have a remedy in place. Those involve longterm monitoring for many years. 

Senator LAUTENBERG. But are they safe at that point? 

Mr. ARNY. They are safe before that. The population—— 

Senator LAUTENBERG. So your challenge is to whether or not it 

is a threat to the population? 

Mr. ARNY. Absolutely. We isolate it and then go in and clean it 

up. I am very frustrated at the fact that it takes sometimes many 

years to get these investigations done to decide what to do. 

Senator LAUTENBERG. Yes. The McGuire Air Force Base, located 

above the Atlantic coastal plain aquifer, and discrepancies in the 

levels of fuel stored in above-ground storage tanks there. The 

groundwater flow may be in the direction of a child care center. I 

mean, these things exist there, but it has not been characterized 

to determine whether children and day care workers are potentially 

exposed to contaminated groundwater or vapor intrusion. 

Mr. ARNY. Sir, I don’t know the specifics of that site, but I would 

be dumbfounded if we haven’t gone in to protect—— 

Senator LAUTENBERG. Well, I would like an answer. 

Mr. ARNY. Absolutely. And I encourage you to visit, because it is 

also—— 

Senator LAUTENBERG. I visit often, but I would ask you please 

to get me an answer to that question. 

Mr. ARNY. Yes, sir. 

Senator LAUTENBERG. When we think about a 30-year timetable, 

it is impossible to contemplate. Once again, we are spending $3 billion a week-plus appropriations on the war in Iraq, and we have 

to be able to protect our citizens who are on the ground in this 

Country, as well as our efforts to protect ourselves in places far 

away. 

Mr. ARNY. I agree with you completely, and if we had any imminent danger, we would instantly go in. 

98 

Senator LAUTENBERG. All right. I will look for your answer, Mr. 

Arny. 

Administrator Bodine, in 2001 the Defense Department challenged and brought to a halt EPA’s plans for stronger drinking 

water standards for trichloroethylene. In 2006, the National Research Council found the strongest evidence to date that TCE is 

linked to cancer. Now, given that evidence, does the Pentagon still 

claim that TCE doesn’t really present an imminent threat? 

Ms. BODINE. Was that directed to me? 

Senator LAUTENBERG. To you or Mr. Arny. 

Mr. ARNY. Yes, sir. TCE is one of our chemicals of great concern. 

We do believe that poses a hazard. As somebody who is old enough 

to have been using it when I was younger, we agree. I mean, it 

wasn’t back in the old days. We used it in great quantities as degreasers, and we are now paying the penalty going in and cleaning 

that up. 

Senator LAUTENBERG. So then the Defense Department is no 

longer challenging safeguards, and worked to rid ourselves of the 

exposure to TCE. 

Mr. ARNY. Absolutely not. We are not challenging. It is a danger 

and we need to take care of it. 

Senator LAUTENBERG. All right. 

Madam Chairman, I have—— 

Senator BOXER. [Remarks made off microphone.] 

Senator LAUTENBERG. OK. But the record, I assume, will be kept 

open. 

Senator BOXER. It will be kept open. 

Senator LAUTENBERG. Because there are questions that have to 

be answered that were not asked today. Thank you. 

Senator BOXER. Absolutely. 

Senator Barrasso. 

Senator BARRASSO. Thank you, Madam Chairman. 

Mr. Arny, I mentioned in my opening statement about this congressional Research Service report that has come up to take a look 

at the efforts that have been done by the Department of Defense. 

Look at this statement from the report. It says the Department of 

Defense has completed planned response actions with the concurrence of Federal and State regulators at 69 percent of the contaminated sites it has identified as being eligible for cleanup. That was 

given a low grade by Madam Chairman. 

But to re-grade the paper, if you look on this next chart, and the 

next line in the CRS report says further assessments indicated that 

no response action were expected or required at 12 percent of the 

sites because the potential risks of exposure were within an acceptable range based on applicable standards and other relevant criteria. So now you are up to an 81 percent in terms of what needs 

to be done. 

It goes on to say response actions were pending at the remaining 

19 percent of the site inventory, but there were varying stages of 

progress among those sites already completed, ranging from the assessment phase to the construction of cleanup remedies. 

So as we kind of re-grade this paper, getting now from 69 percent to 81 percent, and now we are looking at these last 19 percent, 

99 

I assume that you are along the line of progress at those. Those 

aren’t 19 percent where nothing has been done. From the report, 

it says you have been making progress. 

Would you like to speak to that to see what we really ought to 

get this grade up to? 

Mr. ARNY. As someone who has come to this late in his life, I 

think what you have to look at is where we know of something, we 

go in instantly. Let me give you a case at Fort Meade where we 

were constructing a building and dug in and found drums of hazardous material. So that was something that was not on anybody’s 

radar scope. So when we go in and we find it, we do immediate action. We work with EPA, what needs to be done to protect human 

life and the environment. 

But with all of our sites that we do know, we characterize them 

as what is the most critical, what is moving, what is not moving, 

what can we protect through other means to keep people off of it— 

doing things like that. Then we go through this long and sometimes painful work with EPA and our contractors to analyze what 

is there and decide what has to happen. 

But again, we go back to characterizing it. Just because something doesn’t have a remedy in place doesn’t mean we haven’t 

looked at it and made sure that the public and the environment is 

protected from that. If it starts to spread, if something changes, 

then we go in and move it up on our priority list. 

Senator BARRASSO. So looking at this, then, in addition to that, 

you are now at 69 percent plus 12 percent plus another 9 percent, 

and a number of these places you already have work being done 

on as well. 

Mr. ARNY. All of our places we have work being done or we have 

it on our list, and 100 percent of it we believe that the public and 

the environment is protected for now. We may have to go in and 

do something later, but for the meantime we are putting our 

money, again in cooperation with EPA and the State, we all decide 

what is the most hazardous, what do we need to address first, and 

we work out our priority. 

Senator BARRASSO. So in terms of re-grading the paper, we are 

now at 90 percent in terms of work being done. 

Mr. ARNY. Well, 100 percent in terms of what we have looked at. 

Now, you put a shovel in the ground and you dig something up, 

then, bam, that number may change. 

Senator BARRASSO. Great. In spite of FFAs not being in place, because my next statement is going to be: However, the absence of 

a final agreement for an entire installation does not preclude individual cleanup actions from proceeding at discrete sites within the 

boundary of that installation. So there are reasons that you 

wouldn’t want to sign a Federal facility agreement. 

Mr. ARNY. We would like to sign it, but there were what w believe substantive disagreements on policy between ourselves and 

EPA that we could not, apparently, get resolved, so we pushed 

those up. But in terms of the substance of the agreement—and I 

point to Hanscom up in Massachusetts, and I forget why, but there 

was no FFA signed and yet we have completed that site, in cooperation with EPA. 

100 

Senator BARRASSO. So the bottom line is you have two sons who 

are serving our Nation who are living on bases, three grandchildren living on bases, it would seem to me that you would be 

the perfect man to be in charge of this. 

Thank you. My time has expired. 

Thank you, Madam Chairman. 

Senator BOXER. I love having the student grade himself. I wish 

I had a teacher like that in school. Teacher, I deserve an A-plus. 

[Laughter.] 

Senator BOXER. We will go on. 

Senator BARRASSO. Yes, you do, Madam Chairman. 

Senator BOXER. Thank you. That was very sweet of you to say. 

[Laughter.] 

Senator BOXER. And I would suggest, I hope you can stay because we are going to go into how the States grade the DOD, and 

I think that is key. Let’s just put it this way, in some cases, some 

very red States giving very failing grades. 

But let’s get to our friend, Senator Cardin, because he really has 

a lot of questions. 

Go ahead, Senator. 

OPENING STATEMENT OF HON. BENJAMIN CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Madam Chair. 

Before I begin, I would ask unanimous consent that my opening 

statement, Senator Mikulski’s opening statement, Senator Nelson’s 

statement, and the documents relating to clean up of Fort Meade 

and Fort Detrick that I have here be included in the record. I ask 

unanimous consent that the record fact sheets from the Department of Health and Human Services Agency for Toxic Substances 

and Disease Registry detailing the health risks of some of the contaminants of these Superfund sites all be included in our record. 

Senator BOXER. Without objection. 

[The referenced documents follow:] 

STATEMENT OF HON BENJAMIN L. CARDIN, U.S. SENATOR

FROM THE STATE OF MARYLAND

Thank you, Madame Chair, for holding this hearing. 

Today, less than 30 miles north of here, soils and groundwater are contaminated 

with 

• metals, 

• chlorinated solvents, including TCE and PCE, 

• volatile organic compounds, 

• explosive compounds and 

• other pollutants 

all at levels above safe drinking water standards. Several of these contaminants 

are known or are suspected of causing cancer. 

This pollution is from historic activities at the Fort George G. Meade Army Base. 

And it is not new. The pollution dates back in some cases to decades ago. 

The Army, the Environmental Protection Agency, and the State of Maryland have 

been working to clean up the site since 1993. Because of the severity of the contamination, EPA listed Fort Meade on the National Priority List of Superfund sites in 

1998. Much clean-up work has occurred on the site, especially in the early years. 

But the pace of the cleanup has slowed. In recent years it has been especially difficult to get the Army to commit to additional actions. 

A Federal Facilities Agreement between EPA and DoD governing the cleanup of 

the site is required by Superfund law. In fact, it must, according to law, be signed 

within 180 days of the site being listed on the National Priorities List. 

101 

It is more than 9 years since Fort Meade was put on the Superfund list and there 

is still no Federal Facilities Agreement in place. 

The law is quite clear on this issue. In fact, in their written testimony, witnesses 

from EPA, the Department of Defense, and the Department of Energy all plainly 

say that under Section 120 of the Superfund statute, Federal facilities are required 

to comply with the law in the same manner, both substantively and procedurally, 

as private entities. 

The same holds true for the other major law governing waste, the Resource Conservation and Recovery Act, or RCRA. 

Madame Chairman, today soil and groundwater pollution remain at the site. Pollution is migrating offsite, too, through groundwater. 

Residential drinking water wells in Odenton, Maryland, show detectable levels of 

several of these pollutants. 

The Department of Defense has delayed taking the actions necessary to protect 

the health and welfare of my constituents. They include the brave men and women 

who serve our nation on the Fort Meade base and the Fort’s neighbors outside the 

gate. 

This situation is not confined to one military installation. This same refusal to 

comply with the Superfund statute has also occurred at McGuire Air Force Base in 

New Jersey and Tyndall Air Force Base in Florida. 

EPA decided it could wait no longer and issued a Unilateral Administrative Order 

1 year ago to the officials at Fort Meade, McGuire and Tyndall. 

The order requires the Army to conduct additional investigation and to take interim measures to protect human health. 

Astonishingly, at Fort Meade the Department of Defense remains unwilling to either comply with the cleanup requirements in the Unilateral Order or to commit 

to a specific timeline for entering into a Federal Facility Agreement with EPA. 

On May 15th of this year, the Department of Defense went so far as to ask the 

Department of Justice to find them a legal loophole so they would not have to comply with EPA’s order. 

Madame Chairman, the time for further delays is long over. Today, I want to hear 

from the Department of Defense that they will abide by the law. 

For the sake of those who work at Fort Meade, and McGuire Air Force Base and 

Tyndall Air Force Base and all their neighbors, we have one clear message for Secretary Arny: Clean it up and do it now. 

I look forward to the testimony of all our witnesses today and the opportunity to 

find out why the early years of progress at these Federal facilities has been replaced 

by a record of obstruction and non-compliance. 

Thank you, Madam Chairman. 

STATEMENT OF HON. BARBARA MIKULSKI, U.S. SENATOR

FROM THE STATE OF MARYLAND

Chairwoman Boxer I would like to express my gratitude for calling this important 

hearing today. In late June, the Washington Post ran an article describing the Department of Defense’s (DOD) neglect in cleaning up military bases around the country. The DOD has been negotiating unsuccessfully with the Environmental Protection Agency (EPA) on how this cleanup should progress. In 1988, EPA placed one 

of the bases mentioned in this article, Fort Meade, on its annual Superfund list. 

Fort Meade happens to be in my home State of Maryland and it is home to thousands of military officers and families. 

I am disappointed with DOD’s lack of response on this issue and would like DOD 

to take extra effort steps to cooperate with the EPA. The EPA issued an order to 

DOD last August setting a more aggressive timetable for the cleanup process and 

establishing fines for missed deadlines. This order asked Army to clean up 17 hazardous-waste sites at Fort Meade and the nearby Patuxent Research Refuge. DOD 

refused to sign EPA’s order and has argued there is ‘no imminent and substantial 

danger to health and human safety’. 

Well we know that there are all sorts of dangers when chemicals are involved. 

And sometimes you can’t see them. Spills and wastes from Army sites have leaked 

into groundwater into the past, contaminating water supplies for local communities. 

This issue affects not only Fort Meade, McGuire Air Force Base and Tyndall Air 

Force Base—but the thousands of people living, working, praying and playing on 

base and in nearby communities. We need to cut through the red tape and make 

sure that this cleanup is conducted in the sunshine. DOD should remove the 

chokepoints holding up this important process. 

DOD is not above the law and should follow the same requirements as anyone 

else. EPA has the regulatory authority to oversee the cleanup of toxic spills and 

102 

waste. If private companies and individuals must comply with EPA’s rules, then 

DOD should be no exception. If DOD is self-regulating its own pollution and cleanup 

efforts then this is a slap in the face to the law and the clear intent of Congress. 

I am grateful that Secretary Wilson from the Maryland Department of the Environment is also hear to discuss the work that Maryland has done on prioritizing 

and overseeing cleanup efforts at Fort Meade. It is important for DOD to work with 

EPA and start acting on this order immediately. Our military families make all 

sorts of sacrifices in the name of this country and we must make their health and 

safety a higher priority. I know that my colleagues care deeply about this issue. I 

look forward to working on this important issue with the Chairwoman, Senator 

Cardin, and my other colleagues. Thank you. 

Senator CARDIN. Thank you, Madam Chair. 

Mr. Arny, you have been spared some opening statements that 

were not, quite frankly, complimentary of DOD. 

Let me first start with Fort Detrick. Fort Detrick site B is well 

known. There is a process to start listing Fort Detrick on the national priority list under Superfund. I have a very simple question 

for you, and that is, will you commit to this committee today that 

the Department of Defense will comply with the 180-day time limit 

in the law for entering into a Federal facilities agreement as it relates to Fort Detrick? 

Mr. ARNY. I am not sure I understand, sir. 

Senator CARDIN. As I understand it, Fort Detrick site B is currently in the process of being listed on the national priority list 

under Superfund. That triggers the process for a Federal facilities 

agreement to be entered into between the Department of Defense 

and the Environmental Protection Agency. My question is pretty 

simple. Will you agree here today that you will enter into on behalf 

of the Department of Defense with the Environmental Protection 

Agency within that 180-day limit a Federal facilities agreement? 

Mr. ARNY. We will comply with the law, sir. We are glad to enter 

into an interagency agreement and we will comply with that. 

Senator CARDIN. Then why have you not complied with the law 

as it relates to Fort Meade? Fort Meade was listed on the national 

priority list in 1998, and we still do not have a Federal facilities 

agreement between EPA and DOD. 

Mr. ARNY. Sir, we are complying with the substance of CERCLA 

and the law of CERCLA. 

Senator CARDIN. Have you entered into an agreement? 

Mr. ARNY. No, we have not, sir. 

Senator CARDIN. Does the law require 180 days? 

Mr. ARNY. The law requires we enter into an interagency agreement and a ROD. It doesn’t require it from the time we start an 

investigation. It requires us to do an interagency agreement. It requires three things, and also a record of decision can be the equivalent of an interagency agreement. Our dispute is, we have no dispute over the substance of either Fort Detrick or Fort Meade of the 

cleanup, and we have worked very closely with EPA on both cleanup methods and cleanup schedules. Where we have a dispute is 

over what—— 

Senator CARDIN. Let me get Ms. Bodine in here for a second. Do 

you agree that there is a requirement in the 180 days to enter into 

an agreement? 

Ms. BODINE. The statute in section 120(e)(2) provides that the 

Administrator shall review the results of each investigation and 

study conducted, and then 180 days thereafter the head of the deVerDate Aug 31 2005 08:46 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88910.TXT VERN
103 

partment, agency or instrumentality concerned shall enter into an 

interagency agreement with the Administrator for the expeditious 

completion of the remedial action. 

Senator CARDIN. Do we have an agreement entered into with 

DOD in regards to Fort Meade? 

Mr. ARNY. No, we do not. 

Senator CARDIN. And has it been more than 180 days? Has it 

been more than 9 years? 

Mr. ARNY. Not since the investigations were complete. 

Senator CARDIN. Well, let me tell you what we understand, that 

the DOD is in an argument as to whether the land that was operated by the Department of Defense that is now part of the Patuxent Wildlife, that the DOD does not want to accept its responsibility in that regard, despite the findings. 

Mr. ARNY. That is not true, sir. 

Senator CARDIN. Then why haven’t you entered into an agreement? 

Mr. ARNY. That is different from that question on whether 

we—— 

Senator CARDIN. Why have you not entered into an agreement 

for 9 years, when the law says it should be within 180 days? And 

let me tell you something, you make broad statements about the 

safety of a community. In Maryland, we have a community known 

as Odenton. They are very concerned because there has been results shown that the pollutants from Fort Meade are coming down 

there. They are not only affecting the health of the people in Fort 

Meade, the military, but the surrounding communities. 

Mr. ARNY. Again I say, sir, we take that responsibility very sincerely and very seriously, and we believe that Odenton is protected. 

If we find that it is not, again working with EPA and the State, 

we will take other actions to stop that flow. 

Senator CARDIN. Madam Chairman, let me just point out, in response to Senator Lautenberg, you were talking about the monitoring that you are doing. At Fort Detrick, you didn’t do that. 

Senator BOXER. I am going to give you an additional 5 minutes 

because you didn’t have an opening statement. So continue. 

Senator CARDIN. I appreciate that. 

You didn’t do that. You only responded as a result of the efforts 

of other agencies. DOD was slow coming to the table in monitoring 

the risks at Fort Detrick. Do you dispute that? 

Mr. ARNY. I don’t know that. Let me check. Sir, I will have to 

get back to you on the specifics, but I know at Fort Detrick, where 

we did find that it was moving into the water system, we supplied 

drinking water and connected—— 

Senator CARDIN. Let me get the full record by Mrs. Bodine here, 

if I could, in regards to Fort Detrick and the DOD’s monitoring. 

Ms. BODINE. First of all, we have proposed Fort Detrick to the 

NPL. It was in the September listing package. It is Fort Detrick 

area B groundwater. The concern was to make sure that cleanup 

of the groundwater was under EPA’s oversight. Specifically, the 

contamination of TCE and PCE had been found in drinking water. 

The Army did provide alternative water supplies. The concern that 

EPA had, shared by the State of Maryland, was appropriate characterization of the groundwater. Again, as part of EPA’s oversight 

104 

responsibilities, we make sure that there is a full investigation and 

characterization of the site so that when we say we are done, we 

truly are done in protecting human health and the environment. 

So you don’t look at just TCE if you have a facility that was a 

former biological weapons facility, and you have disposal in unlined 

pits. 

Senator CARDIN. My point is that clearly DOD is making statements here that they do these monitoring things in order to protect 

the community, and they have not done that at Fort Detrick. It 

was as a result of the efforts of EPA and our State officials to try 

to get some remedial action. 

Mr. Arny, let me just ask you one more question about Fort 

Meade for a moment. Can you explain why on the RCRA order, the 

Army has missed six deadlines in regards to that order issued by 

the EPA regional director? I am going to quote from a letter dated 

May 22, where the regional director, Donald Welsh, says EPA’s 

views are unattainable under the Army’s attempt to establish the 

conditions under which the regulator can regulate. The Army seeks 

to dictate not only the circumstances under which it will comply 

with validly issued RCRA orders, but also the circumstances under 

which it will enter into CERCLA section 120 Federal facility agreements. 

My question to you is, I will go through the six States if you 

want me to, where the DOD did not respond to the RCRA order 

on the deadlines that were imposed. 

Mr. ARNY. So the RCRA order, when you issue that order, as I 

have learned, the EPA is required to list an imminent substantial 

danger and a remedy to put in place. Those orders were procedural 

orders. They did not do that. In one case at Tyndall, where they 

asked us to test—— 

Senator CARDIN. I am talking about Fort Meade. 

Mr. ARNY. I am talking about all of them. At Fort Meade, we—— 

Senator CARDIN. There are six States that you did not comply 

with—six specific starts of the order. 

Mr. ARNY. No, we have complied with that substantively under 

CERCLA, absolutely. 

Senator CARDIN. You have missed the deadlines under RCRA. 

Let me just read one more sentence from the Administrator’s findings: As a result of the Army’s noncompliance with the order, violations of the order may be enforced by citizens or States under 

RCRA section 7002. 

Do you disagree with that? 

Mr. ARNY. That is part of the dispute, sir. That is why we have 

gone to DOJ and to OMB to resolve this. 

Senator CARDIN. So I understand—— 

Mr. ARNY. We believe that substantively we have complied, 

working with EPA and the State, substantively complied to the 

issues that we have been under CERCLA there for years. 

Senator CARDIN. So you believe DOD has the authority to pick 

and choose which cleanup actions it takes at a site? 

Mr. ARNY. We are taking—there were no—— 

Senator CARDIN. Who makes the decision? If EPA says you have 

to do it, you say you don’t have to do it. 

105 

Mr. ARNY. EPA makes the decision. There were no extra cleanup 

actions requested in that order. 

Senator CARDIN. Well, the record will speak for itself. 

Mr. ARNY. Yes, sir. I agree. 

Senator CARDIN. The record will speak for itself. You know, we 

have an Environmental Protection Agency for a specific purpose. 

The Department of Defense has expertise. The Environmental Protection Agency has expertise. And the Superfund law is pretty clear 

as to who has the responsibility here to make determinations and 

DOD must comply. And when you wait 9 years to enter into a facility agreement, and you haven’t still done it, and you start picking 

and choosing what you are going to do, it doesn’t give me comfort 

that the men and women who are serving in our military and the 

surrounding community are safe. 

Thank you, Madam Chair. 

Senator BOXER. Thank you. 

What we are going to do is finish up, and I will hold to a 4- 

minute timeframe for the second round. 

Mr. Marcinowski, I have worked to make certain that the Santa 

Susanna field lab site in California is appropriately cleaned up. I 

have often been frustrated by DOE actions that go against this 

goal. Do I have DOE’s commitment today that it will strictly comply with California law and the Federal laws, including Superfund, 

in all of its cleanup actions at the site? 

Mr. MARCINOWSKI. Yes, you do, Madam Chair. 

Senator BOXER. That is a good answer, and I will hold you to it. 

Mr. MARCINOWSKI. OK. 

Senator BOXER. Do I also have DOE’s commitment that EPA can 

conduct in conjunction with DOE a comprehensive investigation of 

radioactive and chemical contamination at the site? 

Mr. MARCINOWSKI. Well, right now we have entered into an 

agreement with EPA that EPA would conduct the radiological assessment on area four of the site, which is not the entire site. 

Senator BOXER. Well, I am asking you a comprehensive investigation of radioactive and chemical contamination at the site. Do 

I have your commitment that EPA can conduct that investigation? 

Mr. MARCINOWSKI. The difficulty we have is that outside of area 

four, we don’t have responsibility for any of that site. 

Senator BOXER. Well, obviously only in the area you are responsible for. 

Mr. MARCINOWSKI. In the area we are responsible for, absolutely. 

Senator BOXER. Fine. 

And then, Ms. Bodine, I assume that you would take charge of 

the rest of the site and conduct those investigations? 

Ms. BODINE. The State has the lead currently on the rest of the 

site. 

Senator BOXER. Do you work with them on it at all? 

Ms. BODINE. We do work with them. 

Senator BOXER. Yes, and you will work cooperatively with them 

on it? 

Ms. BODINE. We will continue our practice of working cooperatively with the State at this site. 

Senator BOXER. OK. 

106 

Mr. Marcinowski, in 2008 did DOE temporarily shut down 13 

wells—and we are talking about Lawrence Livermore now—used to 

clean up contaminated groundwater at the Lawrence Livermore 

Superfund site in California and reduced staff because DOE moved 

management of the site to an under-funded program. Did you temporarily shut down 13 wells and reduce staff because you moved 

management of the site to an under-funded program? 

Mr. MARCINOWSKI. The site was transferred to the NNSA, and 

my understanding is that it was not funded this past year. I would 

have to take that for the record and get back to the NNSA and get 

an appropriate answer. 

Senator BOXER. Well, can I count on getting an answer, because 

I want to have your commitment that this gets done as well. We 

will work with you on that. 

Mr. MARCINOWSKI. We will work with the other part of the agency to get you an answer. 

Senator BOXER. OK. 

I am going to talk to the DOD right now, just from the heart, 

no questions. 

You know, your opening statement couldn’t have been more 

beautiful. But unfortunately, what is happening on the ground, and 

I thought Senator Cardin’s questioning proved it, does match your 

rhetoric. DOD is not above the law, and I don’t know if you are 

aware, so I am going to give you so you can study, the States have 

gotten together and, through a nonpartisan organization, they are 

complaining. I don’t care what grade you give yourself or what 

grade Senator Barrasso gives you, that is great. The two of you 

have a nice relationship. 

To me, I care about what the States are saying. I care about 

what Alabama is saying about DOD. I care about what Alaska is 

saying about DOD. California—I care a lot about that, 37 million 

people and they are my people. We are talking about Colorado, 

Ohio, South Carolina, Maine, Massachusetts, Montana, Michigan 

and Nebraska—all cited, and basically all saying that DOD has put 

themselves above the law. 

And when Senator Cardin questioned you on this point—180 

days—you just danced around it and conferred with your staff. 

There is a pattern here, and that pattern is documented in that 

study that I put into the record. 

What I would like to do is make sure, Mr. Arny, that you read 

that report from these States and you get back to me. 

Mr. ARNY. Absolutely, because we are not above the law. 

Senator BOXER. Good. I don’t think anyone is, not even the President, not a Senator—— 

Mr. ARNY. Absolutely. I agree with you entirely. 

Senator BOXER. Good. So I am really—— 

Mr. ARNY. We do have some disputes with the States over the 

DSMOA, which we are working out, if that is the issue. 

Senator BOXER. Well, it is one of the issues, but we want to see. 

Because here is the point, we know what the law says and we 

know that EPA is in charge. Look, I don’t want—— 

Mr. ARNY. We agree with you. 

Senator BOXER. Let me finish. I don’t want EPA making decisions on war strategy. Trust me, that would not be Ms. Bodine’s 

107 

expertise. I don’t want you making decisions on environmental 

cleanup because you have an interest in an easier way out. Let’s 

face it, you are a responsible party. That is life. That is truth. That 

is fact. 

Mr. ARNY. And Senator Boxer, we agree with you. When it 

comes—— 

Senator BOXER. You may agree with me—— 

Mr. ARNY. When it comes to remedy selection, EPA trumps us 

completely. 

Senator BOXER. Yes, well, it is not just about selection. It is follow-through. It is running around to the White House. It is threatening States. 

Mr. ARNY. We don’t threaten States. If we do, I will stop it. 

Senator BOXER. I have proof from my—— 

Mr. ARNY. If we threaten States, I will stop that. 

Senator BOXER. Fine, because you talked to my State and I have 

it in writing that they were threatened specifically if they didn’t 

back off, you would pull money out. Unacceptable. And you can, 

you know, give yourself any grade you want, but the fact is it is 

unacceptable. Abuse of power is unacceptable. 

Mr. ARNY. I agree with you entirely. 

Senator BOXER. Taking on powers of other agencies is unacceptable. But most of all what is unacceptable is delaying cleanup that 

affects children, pregnant women, the most vulnerable in our society. 

Mr. ARNY. We are not delaying cleanup. 

Senator BOXER. Well, I could say I think you are. 

Mr. ARNY. OK. 

Senator BOXER. And it has been proven by the States who are 

very articulate in this document that you will see. I hope you think 

in the next 10 days you can get back to me on each of those States’ 

complaints. Would you do that? 

Mr. ARNY. We would be happy to. 

Senator BOXER. Would you do that in writing? 

Mr. ARNY. Yes, ma’am. 

Senator BOXER. Good. 

OK, we will move to Senator Barrasso and see if he has any 

questions, and then we will move to Senator Cardin. 

Senator BARRASSO. Thank you very much, Madam Chairman. 

Getting back a little bit, we were talking about Federal facility 

agreements, Mr. Arny. I imagine there are some pretty good reasons why these are not a good measure of environmental cleanup 

at Department of Defense sites. Could you share some of those 

with us? 

Mr. ARNY. We believe that they contribute to it, but also we want 

to get a schedule, a document that is meaningful. Again, I am not 

the absolute judge, but our policy staff and our legal staff felt that 

what was being requested in the FFAs were improper legally and 

procedurally. They have been trying to negotiate that for a couple 

of years. We had a model agreement signed in I believe 1999 between EPA and DOD, and we have been willing to go back and 

sign any FFA that was in that format. But we were told no, that 

that format was null and void and we were not able to negotiate. 

108 

So consequently because of the experiences I had had, this wasn’t 

going to get resolved without an adjudication process, and that 

process, we are not going to OMB trying to seek to go around the 

law. We comply with the law. That is our requirement. But where 

there are lawyers on each side that disagree, as in many cases, you 

need to have somebody resolve that, where you have policy issues 

to decide. 

So we went to OMB and said, look, you guys and DOJ, you figure 

out who is right. You tell us, because again, the argument that was 

brought to me looked right, but I am not the final arbiter. So you 

tell us what it is; we will go in; we will comply with whatever you 

tell us to do. 

But as far as the substantive cleanup, in terms of determining 

the remedies that go in place, we have never debated that issue. 

This has nothing to do with the substance of the cleanup. This has 

to do with the form of an FFA. 

Senator BARRASSO. Mr. Marcinowski, if I could, you mentioned in 

your testimony that the Department of Energy often has to renegotiate the FFAs, this is following what we just heard on how FFAs 

work. 

Mr. MARCINOWSKI. Yes. 

Senator BARRASSO. But you are renegotiating an FFA, and I 

think you said some of the reasons are that milestones and obligations couldn’t be met, whether because of overly optimistic planning assumptions; whether because of contractor performance or 

even technological barriers. So do you think that the Federal facility agreements really are a full measure of someone’s success as an 

agency to be able to clean up sites and protect the public? 

Mr. MARCINOWSKI. Well, they are, in my opinion, living documents in that we do need to renegotiate them because some of 

these have been put in place a decade go, when we didn’t fully understand the highly complex technical work that the department is 

doing. So as we become more knowledgeable about those issues, 

sometimes that will bring changes about in the deadlines for when 

things have to be completed. The utility of these is that most of our 

agreements are tri-party agreements, that is, it is us, EPA, and the 

State regulators who negotiate these agreements. Among those 

three parties, there is an agreement about what the cleanup milestones are and a schedule for meeting those. Those agreements 

then go out for public comment. 

So what you are doing is you are socializing an agreement about 

what needs to be done on a particular site in order to facilitate 

cleanup. 

Senator BARRASSO. OK. But you described it as a living document, subject to change. 

Mr. MARCINOWSKI. Right. 

Senator BARRASSO. And Mr. Arny, a final question, in my earlier 

statement, I said there really are differences in terms of comparing 

Department of Defense from Department of Energy in terms of a 

cleanup process. Do you agree with that? 

Mr. ARNY. Yes. They have far different problems than we do. 

Senator BARRASSO. Thank you, Madam Chairman. 

Senator BOXER. Thank you so much. 

Senator Cardin. 

109 

Senator CARDIN. Administrator Bodine, what prompted EPA’s decision to use the Resource Conservation Recovery Act, RCRA, authority to issue cleanup at Fort Meade, Maryland? 

Ms. BODINE. As I mentioned in my opening statement, it is important, and I think it is acknowledged by everyone today, it is important to have a framework in place for EPA oversight of these 

cleanups at Federal facilities listed on the NPL. It is required by 

law, but it also is important for the confidence that Senator Craig 

was talking about, how bringing everyone to the table in agreement 

adds to the confidence. 

But it is also critically important substantively. There are disagreements over cleanups. 

Senator CARDIN. But in order to issue the order, there has to be 

an imminent and substantial endangerment to public health. What 

conditions existed at Fort Meade? 

Ms. BODINE. The statutory standard may present an imminent 

and substantial endangerment to public health or the environment. 

Senator CARDIN. And what were those conditions at Fort Meade? 

Ms. BODINE. At Fort Meade, it was the conditions that you described as well as those recorded in the order itself. The presence 

of the solvents, the presence of the PCBs, the presence of the 

VOCs, the vapor intrusion pathways that are there all meet the 

standard of may present imminent and substantial endangerment. 

You can cutoff a pathway in the short term, for example, at the 

Manor View parcel at Fort Meade. They relocated people. The 

school is still there. There is a system in place to blow out the 

vapor, but that is not a permanent solution. And so, vapor is an 

imminent and substantial endangerment and may present—it 

doesn’t have to be today, but the conditions are all there for that 

imminent substantial endangerment. That vapor intrusion is there. 

Senator CARDIN. Can you tell us in your view why the Department of Defense may not have wanted to enter into a facilities 

agreement? And why the law you pointed out in my first round of 

questions, the 180 days, this is now 9 years? I want to know from 

your position why this has not happened. 

Ms. BODINE. I would have to defer to the Assistant Secretary. I 

would point out that—— 

Senator CARDIN. I think your hesitation is a good enough answer 

for me. There is no reason why, other than trying to drag their feet 

on a specific cleanup plan. They have used band-aids, as you have 

pointed out, to perhaps deal with an immediate risk that is on the 

surface, but have not taken the actions necessary to provide the 

permanent cleanup that is envisioned under the Superfund law, 

that is envisioned under the RCRA statute, to protect the public. 

I think that is the concern. 

You spelled out very clearly the imminent risks, and they are 

very much contaminants that affect the public health, whether it 

is drinking water or the environment. They are present and at risk 

at Fort Meade, and they have been there for a substantial period 

of time. EPA took the right action to get the remedial plans in 

place, and the Department of Defense has done everything it can 

to deny its responsibility. If it was operating in good faith, it would 

have signed an agreement years ago and started a course to permanently fix it. But instead, they don what some businesses do at 

110 

times, put off maintenance, put off repair, because they would rather spend the money elsewhere. 

Thank you, Madam Chair. 

Senator BOXER. We thank our panel. We have a lot of work to 

do in the next 10 days getting back your answers. 

I would ask the second panel to come up quickly because I am 

due at another hearing 10 minutes ago, so Shari Wilson, Bonnie 

Buthker, Elizabeth Limbrick and Dan Hirsch. 

What we are going to do is, I am going to have Dan Hirsch go 

first because he is talking about a very important California site. 

I am going to ask him a couple of questions, and then I am going 

to hand the gavel over to Senator Cardin and he is going to hold 

the rest of the hearing. 

Thank you very much, panel one. 

So I am very proud that Dan Hirsch is here. He is the President 

of Committee to Bridge the Gap, and he has been on this Santa 

Susana site for as long as he and I know each other, and I don’t 

even want to tell you how long that is because it would—but it is 

interesting because Dan turned gray and I turned blond. 

[Laughter.] 

Senator BOXER. But I think it is just a miracle, isn’t it? But in 

any event, Dan, we welcome you. So I am going to use the personal 

privilege of the Chair to ask you to go first. I will ask you a couple 

of questions for the record, and then we will turn over the gavel 

to Senator Cardin. 

Please go ahead, Dan. 

STATEMENT OF DAN HIRSCH, PRESIDENT, 

COMMITTEE TO BRIDGE THE GAP 

Mr. HIRSCH. Thank you, Madam Chair and members of the Committee. I am very glad to be here, and particularly glad to be here 

because of you. 

We have heard a lot today about how great the agencies are. I 

am going to talk to you from the ground, from what people are 

really experiencing in these—— 

Senator BOXER. Is your mic on, just to make sure? 

Mr. HIRSCH. Maybe I should speak closer. Does that work? 

Senator BOXER. Is it turned on? The red light? 

Mr. HIRSCH. Oh, sorry. OK. I thought red means not. 

So I am very, very grateful to be here, because you have protected our community, whereas these agencies have been working 

at cross-purposes to the interests of this community. What we are 

talking about are cancers. We are talking about genetic effects, 

birth defects-these are very, very toxic materials, and they didn’t 

just get there by accident. It is not like all of a sudden these agencies are trying to clean something up that just got there by an act 

of God. It is because of misconduct by these very agencies that the 

contamination was produced in the first place. 

So I have a written statement. With your permission, I would 

just like to summarize it and then include it in the record. 

Senator BOXER. Without objection. 

Mr. HIRSCH. The Santa Susana Field Laboratory is a facility established in the late 1940’s, supposedly to get as far from populated 

areas as possible for this dangerous work. In the years since then, 

111 

we have now had Los Angeles mushroom all around it, so we have 

more than a half-million people living within 10 miles of the site. 

Over the years, the facility had 10 nuclear reactors, a plutonium 

fuel fabrication facility, a hot lab to cut up irradiated nuclear fuel, 

as well as 20,000 rocket tests, plus Star Wars laser work and munitions development. All of that resulted in an incredible legacy of 

contamination because of constant violation of the basic environmental rules by these agencies. 

Back in 1957, AEC promoted the fact that one of these reactors 

was the first reactor to light a town, the town of Moorpark, then 

about 3,000 people. They had Edward R. Murrow come out and do 

an hour special on television. Less than 2 years later, that reactor 

suffered a partial meltdown-one of the worst nuclear accidents in 

history. The AEC never got around to telling Murrow or anybody 

else about this accident. They covered it up. That accident involved 

one-third of the fuel experiencing melting, and they intentionally 

vented the radioactive gases for weeks into the atmosphere. 

This was an accident that occurred because they had huge 

amounts of radioactivity and other signs that something was going 

wrong and they kept operating the reactor anyway. When they 

eventually decided to shut it down, they found one-third of the core 

had experienced melting. 

They had three other reactors that experienced similar kinds of 

accidents. They ended up taking the radioactive waste and dumping it in the ocean off of Los Angeles. One-third of the barrels imploded before even hitting the bottom, the radioactivity getting out. 

They decided that was too much trouble, so they began to simply 

burn the contaminated waste onsite, taking barrels and barrels 

and barrels every month and igniting them by shooting at them 

with rifles. Sometimes they would explode and go high in the air 

and land on and crush a pickup truck. Huge plumes of contamination were released into the Los Angeles air basin by this. 

On the rocket tests, they washed off the rocket test stands with 

TCE, and 500,000 gallons of TCE have made their way into the 

groundwater and the soil at the site. We measure permissible concentrations in five parts per billion. They have a pump-and-treat 

program that has been getting 10 gallons out a year. At that rate, 

it will be 50,000 years before they are able to clean up the TCE, 

except they have stopped the pumping for the last decade. 

This is a site that because of all those activities ended up very, 

very contaminated. Dozens and dozens of violations of the pollution 

discharge requirements resulted in polluted surface water leaving 

the site into the neighboring communities in violation of the Clean 

Water Act as cited by our Water Board. 

This is a facility that ended up having a sodium burn pit where 

they took sodium-contaminated reactor components, put them in 

open pits, and let them bubble and bubble right over the town of 

Simi Valley. And then they pumped the contaminated water down 

onto a children’s camp, which ended up contaminated. 

So that is a history of how we got there. You would think that 

that was a long time ago and the agencies are behaving differently 

now. But they are not, they are behaving in exactly the same way. 

Twenty years ago they announced they were going to clean up the 

site, and 20 years later the chemical cleanup has not even begun. 

112 

They have done a few interim measures, but the final remedy is 

still years and years and years away. 

On the radioactive cleanup, the Department of Energy decided 

that they were going to leave 99 percent of the radioactively contaminated soil in place, and just walk away, without even an environmental impact statement. Senator, you urged them to do a full 

EIS, and they refused to do it. We, the city of Los Angeles, and 

NRDC had to go to Federal court and the judge has now ordered 

them to comply with the law to do an EIS. 

But we are still with the situation where that radioactively contaminated material is onsite, and no promise in fact to remove it 

or clean it up. You will recall that we found that they were taking 

radioactively contaminated building debris and taking it to three 

municipal landfills in Los Angeles to dump it in places where radioactive material is not licensed or permitted to go. They actually 

took contaminated trailers and sold them to a school. You had intervened to get those back and end up disposed of in a hazardous 

landfill. They took contaminated metals from the reactors and sold 

them as scrap, so the radioactive metals got melted down into the 

consumer metal supply. 

So that is our problem. It has not been getting cleaned up. And 

now we have a problem where the Department of Energy has said, 

and EPA have also indicated to the State that they are making 

strong signals that they will not comply with the State law. I was 

very glad that you were able to get a commitment from DOE that 

they will. I would like to see it. If not, we need congressional action 

to make sure they do, because they have indicated they intend to 

ignore that State law. 

EPA has now said they don’t want to do a full cleanup, that they 

want to simply look at surface soil, and not sub-surface soil, not the 

groundwater, not areas outside of Area Four. The radioactive material went far beyond Area Four. It is DOE’s responsibility and one 

needs to look at the whole thing. 

Let me end by saying that this is a microcosm of the problems 

throughout the whole DOE complex. We have created hundreds of 

billions of dollars of contamination through sloppy practices, reprocessing waste at Hanford in Washington State and Savannah 

River, meltdowns in Idaho, accident after accident throughout the 

complex. The agencies have by and large walked away. They have 

tried to accelerate cleanup by simply refusing to do the cleanup 

they are supposed to do. 

At the same time, we are now faced with a situation where there 

is a push to revive all things nuclear, without any memory of the 

mess that we made before and of the broken promises that have 

not been fulfilled. I have to remind us that those who forget the 

lessons of the past, repeat them and repeat them and repeat them. 

And we have to look very hard at the absolute disaster that was 

created the last time, and the failure of the government to live up 

to its promises to clean up the mess that it made. 

Thank you. 

[The prepared statement of Mr. Hirsch follows:] 

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Senator BOXER. Thank you, Dan. 

You know, just hearing you put into 5 minutes the nightmare 

that the community has experienced, and every time you said, and 

Senator, you came in and said this, it is just over such a long period of time. I guess looking ahead to a brighter future, if after all 

the experience you have had of working with EPA, with the State, 

with the DOE, and then we hear today that a certain portion of the 

site DOE is in charge of. The rest of the site, we thought EPA was, 

they said it is the State, working with EPA. 

How do you think we should, in fact, when we do have a brighter 

day, reorganize this cleanup in a way that would give the community comfort? Shall we put DOE in charge of the whole thing? 

Should we take them out, and put EPA? Should we make the State 

the lead, working with everyone else? What is your sense of it? 

Mr. HIRSCH. Well, clearly DOE can’t be placed in charge of it. 

DOE is the entity that made the problem. DOE is the one that was 

washing its vegetation samples to wash off the radioactivity before 

measuring and filtering the water, to filter the radioactivity out before measuring it. So you can’t trust them, and the community does 

not trust DOE. 

Our problem at the moment is that we had hoped EPA would in 

fact provide some leadership, but in recent months EPA has been 

sending signals to the State that if, in fact, they ever listed this as 

a Superfund site, they would take away the State’s authority to 

clean up the site, the chemicals, and that they would not obey the 

law that the State legislature passed last year. 

Senator BOXER. Do you have proof of that? 

Mr. HIRSCH. Yes. I will provide that to you, if you would like. 

Senator BOXER. So what you are saying is EPA is threatening 

the State not to list this as Superfund, or request it be listed? 

Mr. HIRSCH. They are telling the State that if the State concurs 

on listing, EPA would likely clean the site up to a standard much 

lower than the State law that was passed, and that EPA will not 

treat the State law as what is called an ARAR, an applicable requirement. 

Senator BOXER. Well, if you would send me that, I am going to 

send that to Ms. Bodine, because that is a pattern that we are seeing from the other agencies. 

Well, let me just say, we do have a new day coming. I want to 

send a message of hope to the people, because we are not only 

going to pursue this oversight for whether it is Fort Meade or 

Santa Susanna or the Lawrence Livermore Labs, or all these problems that we have in these States. We are going to pursue that. 

But we also are hoping and working toward a day that the new 

EPA understands that its mission is to protect the people, not to 

make matters worse, and not to work to the lowest common denominator. 

I just want to thank you publicly in this setting, in this room, 

in which our predecessors passed the Clean Water Act, the Safe 

Drinking Water Act, the Clean Air Act, the Endangered Species 

Act, Superfund—all of the landmark laws. As long as I am in this 

chair, and I have colleagues like Senator Cardin and many others, 

we are going to turn this thing around. 

128 

So just tell the folks back there that a new day is coming one 

way or the other, and we are going to not stand by silently as people in communities are just ignored. 

You have just been so eloquent. Thank you so much for being 

here. 

Mr. HIRSCH. Thank you. You are one of the few little bits of hope 

for this long-suffering community. 

Senator BOXER. Little bits of hope. 

[Laughter.] 

Mr. HIRSCH. You have large obstacles, as we do. 

Senator BOXER. Thank you so much. 

Senator, you are in charge. I thank you so much. 

Senator CARDIN. 

[Presiding.] Thank you. 

Let me thank Chairman Boxer. She is a great inspiration to all 

of us here, and we have seen over this Congress that she has taken 

the leadership on so many environmental issues that are going to 

be important for our Country and I think for the entire world. 

Senator BOXER. Thank you so much. 

Senator CARDIN. We thank you very much. 

We have made a lot of progress. We have a lot further to do. 

There is no question about that. 

We will now proceed with this full panel. 

I am first very pleased to welcome to the Committee my fellow 

Marylander, the Secretary of the Environment of the Maryland Department of the Environment. Shari Wilson is well known to those 

of us in Maryland for her continued fight for our environment. She 

also serves on the Governor’s cabinet, the BRAC sub-cabinet, the 

Chesapeake Bay sub-cabinet, the Smart Growth sub-cabinet. She 

comes from the City Solicitor’s Office in Baltimore where she was 

known for fighting for the right type of planning for our community. 

We also welcome Bonnie Buthker, the Program Manager, Office 

of Federal Facilities Oversight, Ohio Environmental Protection 

Agency, and Elizabeth Limbrick, who is the Associate Project Manager, Langan Engineering and Environmental Services. She serves 

the Greater New York City area as a Projects Manager in the environmental services industry. 

We welcome all of you. Your entire statements will be made part 

of the record. We will start with Secretary Wilson. 

STATEMENT OF SHARI T. WILSON, SECRETARY OF THE ENVIRONMENT, MARYLAND DEPARTMENT OF THE ENVIRONMENT 

Ms. WILSON. Thank you, Senator Cardin, and good morning. It 

is a pleasure to be here. We appreciate the opportunity to share 

Maryland’s perspective on environmental cleanups at DOD sites. 

Maryland enjoys many benefits from our 24 active DOD military 

installations. As you know, we are aggressively and enthusiastically preparing for base realignment and closure. We also have 

nine closed DOD facilities and, significantly, 114 sites previously 

owned by the Department of Defense, now transferred to private 

parties. 

129 

While we are a small State geographically, we have extensive experience in regulating cleanups at Federal facilities due to the long 

and varied history of activities at military bases in Maryland. 

At the outset, I must emphasize that over the past decade, Maryland has had a very positive and a very successful relationship 

with our DOD facilities. Maryland’s experience that I will discuss 

today related to two sites is decidedly not characteristic of our overall experience. At these two sites, Fort Detrick and Fort Meade, 

over the past 2 years we have encountered resistance. As you have 

already mentioned today, these two sites involve significant ongoing remediation requirements. 

At Fort Detrick, there is a portion of the site mentioned earlier 

known as area B where groundwater contamination exists in an 

aquifer that may potentially be used for potable purposes. In Maryland, 30 percent of our drinking water comes from groundwater. Its 

protection is our highest priority. This area of contamination is also 

extremely geologically complex. The Army’s technical cleanup approach did not account for that geological complexity and for the 

potential migration adequately. We were not successful over the 

past 2 years in negotiating a more thorough assessment and cleanup, and as a result pursued the NPL listing. 

We sensed the Department of Defense was at many levels resisting the placement of the site on the NPL. Earlier this summer, 

EPA committed to proceeding with the listing, and in fact, as Ms. 

Bodine mentioned, earlier this month the site was formally proposed. We are looking forward to a more thorough and protective 

assessment and cleanup approach as a result. 

At Fort Meade, while there is no immediate health risk at the 

site, there is the potential for an imminent and substantial 

endangerment in the future. This site, as you mentioned, is on the 

NPL and cleanup is ongoing. Significant technical work has been 

completed. There is significant technical work yet to be done, and 

that is our concern. To date, there is no Federal facilities agreement at the site, as you mentioned, and so there is no legally binding commitment for the time line and the cleanup activities. 

In 2007, EPA issued the RCRA administrative order to the 

Army. Compliance with the order remains outstanding. Maryland 

is concerned because there is no binding commitment. Over the 

past several months, we have been in communication with the Department of Defense. DOD communicated its commitment to enter 

into the agreement on several occasions, but for reasons that are 

unclear, we were unable to get a commitment to a timeframe, when 

we could see that agreement, when we could expect it, when we 

would know for certain that we had a legally enforceable remedy 

in place. As a result, the department, working with the Office of 

the Attorney General for Maryland, issued a citizen suit notice 

against the facility. Our hope is to secure a binding commitment 

for the cleanup in the future. 

Again, these two sites are not the norm. That being said, in conclusion, based on our experience with all of the DOD facilities, we 

would strongly advocate for your consideration four improvements 

to the process of working with DOD. First would be a significant 

increase in priority and funding for sites that DOD has transferred 

to third-party ownership. As I mentioned, in Maryland we have 114 

130 

of those, and just over 25 have been addressed, so there is much 

more work to do. 

We would also recommend careful review of the current practice 

of performance-based contracting to the actual cleanup selection 

phase of the process. We believe it is possible that the trend to use 

of performance-based contracting is resulting in inadequate cleanup proposals. We would also suggest increased use by the Army of 

the partnering approach. This is a tiered-management approach 

that has been used quite successfully, particularly by the Navy and 

the Air Force and at other facilities in Maryland. 

We also agree, as was mentioned earlier, that a significant effort 

and a time line for this effort to update the DSMOA process is in 

order. 

Thank you very much for the opportunity to discuss our experience. We appreciate the opportunity to be here. Thank you. 

[The prepared statement of Ms. Wilson follows:] 

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Senator CARDIN. Thank you very much for your testimony. 

Ms. Buthker. 

STATEMENT OF BONNIE BUTHKER, PROGRAM MANAGER, OFFICE OF FEDERAL FACILITIES OVERSIGHT, OHIO ENVIRONMENTAL PROTECTION AGENCY 

Ms. BUTHKER. Good morning. My name is Bonnie Buthker and 

I am the Department of Defense Program Manager for the Ohio 

Environmental Protection Agency. 

I would like to thank Chairwoman Boxer, Ranking Member 

Inhofe, and all the members of the Committee for the opportunity 

to discuss Ohio’s concerns regarding State involvement in the investigation and cleanup of Federal facilities. 

Though it made significant progress in Ohio in addressing contamination at Federal facilities, much more work remains to be 

done. The three major issues I would like to highlight are the Army 

Corps’ desire to investigate all potentially responsible parties before taking necessary action at formerly used defense sites contaminated with military munitions; the lack of funding to investigate 

and remediate known munitions-contaminate sites; and the problems with the Defense-State memorandum-of-agreement program. 

The first major issue concerns the Army Corps’ desire to investigate all potentially responsible parties before taking necessary actions at formerly used defense sites contaminated with military 

munitions, even though the Army Corps acknowledges that most of 

the contamination was caused by past military activities. One such 

example is the former Erie Army Depot site. This facility was used 

by the Army from 1918 until 1967 for the testing and proof-firing 

of live and inert rounds. Because of the potential hazards associated with the live rounds, in 2006 the Army Corps proposed a surface clearance of two former land ranges now used by a private 

club for hunting, fishing and tracking. However, they never did this 

work. Their position is that though the ordnance in these areas 

poses a safety hazard, they need to first determine if other parties 

may be liable for the costs to address this contamination. 

The Ohio EPA strongly believes that the Army Corps, in conjunction with DOD, should remove these explosive rounds from these 

areas due to the potential safety hazard they pose. Subsequently, 

since the dangerous rounds could only be from past DOD activities, 

DOD should be held liable. Conducting a liability investigation will 

only delay this necessary cleanup. 

The second major issue is the lack of necessary funding to investigate and cleanup munitions-contaminated sites. At Erie Army 

Depot, additional investigations are needed to determine the extent 

of ordnance present in Lake Erie and the surrounding areas. At the 

Ravenna Army Ammunition Plant, additional actions are needed to 

remove munitions that were dumped into a ravine and are now impacting the stream. In 2007, a white phosphorus round exploded in 

this area, and we are concerned additional rounds may explode. 

Both these sites were scored by DOD as a high priority for funding for additional work. However, since DOD’s priority is to first 

conduct preliminary investigations at all sites before funding additional work, there is no funding to conduct necessary actions at 

these two sites. 

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Because of sites such as Ravenna and Erie, Ohio EPA urges Congress to ensure adequate funding to DOD to address problems at 

priority sites, instead of using funding to only complete initial investigations onsites that may be less of a priority. 

The third major issue is the problems with the DSMOA program. 

State involvement is crucial to the success of any Federal facility 

cleanup. Without funding through DSMOA, many States, including 

Ohio, would not be involved with the investigation and cleanup of 

DOD facilities within their State. States should be allowed to use 

DSMOA funding to participate with DOD to develop policies on 

how to address contamination at their facilities. 

In addition, DOD should not be allowed to withhold funding to 

punish States when they take necessary actions, including enforcement, to protect their citizens. To correct the problems with 

DSMOA, Ohio EPA supports the amendments to 10 U.S.C. 2701(d) 

proposed by the Environmental Council of States. 

In conclusion, the effective cleanup of Federal facilities is critical 

to the health and welfare of the citizens living in the communities 

near these sites, as well as to the environmental health of these 

sites. State oversight is a key component of this program. Our citizens look to the State to ensure that the contamination from past 

DOD and Department of Energy activities is addressed in a protective, expedited manner. We ask Congress to remove the barriers to 

effective State oversight and to provide funding to meet critical or 

high-priority needs at these sites. 

Thank you for this opportunity to offer testimony. I would be 

pleased to answer any questions you may have. 

[The prepared statement of Ms. Buthker follows:] 

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Senator CARDIN. Thank you for your testimony. 

Ms. Limbrick. 

STATEMENT OF ELIZABETH LIMBRICK, ASSOCIATE PROJECT 

MANAGER, LANGAN ENGINEERING AND ENVIRONMENTAL 

SERVICES 

Ms. LIMBRICK. Good morning, Senator Cardin. 

First, I want to start by thanking you for this opportunity to testify here today. My name is Elizabeth Limbrick, and I am a member of the InterState Technology Regulatory Council. I have been 

employed in the environmental field since 1995 in various capacities as a consultant, as a regulator at the New Jersey Department 

of Environmental Protection, and also as a responsible party at a 

quasi-State agency. 

Through these positions, I have recognize that the pace of remediations at Federal facilities has actually greatly improved over the 

years and now often far exceeds what was common decades ago. 

The Federal partners have really embraced their duty and obligation to get their sites cleaned up. I attribute this to the DOE’s and 

the DOD’s use of innovative technologies and their motivation to 

bring these sites to a conclusion. 

The military has invested in creating comprehensive internal environmental programs to address environmental issues such as the 

Air Force’s Center for Engineering for the Environment and the 

Naval Facilities Engineering Command, the Army Environmental 

Center, and then of course, the Army Corps of Engineers. 

In fact, a partnership has been formed with the United States 

Environmental Protection Agency, the New Jersey Department of 

Environmental Protection, the InterState Technology Regulatory 

Council, the DOD, the DOE, and industry that has led to the development of an innovative environmental Triad approach. This approach has three main components. They are systematic planning, 

a flexible dynamic work plan, and real-time analytical methods. It 

is this emphasis on the real-time measurements and the flexible 

work plan that empowers the team to make decisions in the field 

and to be able to collect the necessary data to characterize areas 

of concern and specifically focus their additional samples in areas 

where there may be greater uncertainty or they may be getting 

some unexpected results. Because of that, when you are out in the 

field you may find areas of contamination that could have gone unidentified otherwise through the traditional types of methods. 

And then the final leg of the Triad approach, the systematic 

planning process, really requires a very high degree of cooperation 

among the stakeholders, and in particular between the regulator 

and the responsible party. 

The result is that when you implement Triad, you get better information in a shorter timeframe, and that allows the parties to 

make better decisions, which really that is the ultimate goal of 

Triad. By having this more data, we can really characterize the 

sites better. We can have a better understanding of impacts to 

groundwater, the size and extent of contaminant plumes, and the 

potential for offsite migration. And then once we have that information, we can really target our remediation activities. 

146 

The DOD and the DOE have recognized and embraced this concept and they have successfully applied it at dozens of Federal facilities. It has resulted in accelerated cleanups and saved millions 

of taxpayer dollars. I have included some examples in my written 

testimony, but I just want to highlight three here. 

The McGuire Air Force Base, which I know has come up several 

times throughout this hearing, at the C–17 hangar project, they 

saved 2 years and $1.3 million; the Vint Hill Farm Station, 2 years, 

$500,000; and at Camp Pendleton, they saved 3 years and $2.5 million. 

Because we talked so much about McGuire, I would really like 

to talk about the C–17 hangar project that was done there. That 

project was a rapid turnaround construction project. It began when 

there was solvent contamination that was identified during an excavation for the new hangar. They used the Triad approach out 

here, and through that they got 4,500 analytical results and between that and having the early involvement of the regulators, the 

Triad team was able to characterize the site and conduct their active remediation in just one mobilization. 

Between the investigation and the remedial excavation, it only 

took 3 weeks. And the entire Triad process, from the initial discovery of the contamination through the investigation and the active remediation, and then the institution of a natural remediation 

program, occurred in less than 5 months, and that really is a fraction of the typical timeframes you are looking at with standard investigations of a two-to 3-year timeframe. 

As a result of implementing the Triad approach, the C–17 hangar project was completed on schedule, and I think this is really a 

good success story. 

I would just like to conclude by saying that the Federal partners 

have shown a commitment to embracing innovative technologies for 

environmental remediations and investigations, such as the Triad 

approach, and by continuing to do this, they are going to accelerate 

the pace of cleanups and increase the confidence that sites are fully 

characterized, while also saving taxpayer dollars. 

The DOD, the DOE and the InterState Technology Regulatory 

Council, as well as this Congress, are very serious about tackling 

these environmental issues and protecting human health and the 

environment. 

I would like to thank you for your time, and I look forward to 

your questions. 

[The prepared statement of Ms. Limbrick follows:] 

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Senator CARDIN. I thank all of our witnesses. 

I think the point that has been made here by our State people 

is worth repeating. That is, the State of Maryland or the State of 

Ohio or the State of California, the States of New Jersey and New 

York, welcome Federal facilities. We want Federal facilities. We 

think it is important for our Country and for our local economy. So 

Maryland has reached out for important Federal installations and 

bases, and the same thing is true in Ohio. There were traditional 

training missions performed at Fort Meade which has its certain 

importance to our Country, but also understandable risks to a community. At Fort Detrick, we have some of the most sophisticated 

labs in the world that are there doing work that is extremely important for our national security, and the community understands 

that, and welcomes that facility being located in Frederick, Maryland. They accept that. 

So we understand the importance to our local economy. We understand the importance to our Country. As a result, in our State 

of Maryland we have been very aggressive on encroachment issues 

to make sure not only the facilities can operate today, but they can 

operate tomorrow. We are willing to make our own sacrifices at our 

own expense, put in the infrastructure, off-base infrastructure, because we know it is important to the facility and important to our 

economy. 

But we expect from the Department of Defense, as what we expect from any industry located in our community, and that is that 

they will adhere to the requirements for operating a clean environment. If there is damage that has been done, we expect remedial 

action. We have Federal ways to help you and guide you as to what 

needs to be done and accept responsibility. 

But we do not accept, and Ms. Buthker I thought your comments 

about the Department of Defense looking for every conceivable responsible party before they start. Well, let me tell you something, 

if you are a private company, you can’t do that. We know that. And 

the Department of Defense, particularly in Ohio where they are the 

principal user of that facility, trying to delay entering into an effective remedial plan to me is avoiding their moral responsibility and 

legal responsibility. We can do a lot better on that. 

Mr. Hirsch, I am very concerned, as the Chairman has pointed 

out, the use of a State law saying that it wouldn’t be included in 

a Superfund, to me makes no sense at all. So I think we are going 

to take a look at that and see what we can do. 

Secretary Wilson, let me just ask you a couple of questions, if I 

might. And that is, you pointed out the risk at Fort Meade, and 

the EPA pointing out the risk at Fort Meade. Can you tell us a little bit more as to why you think the DOD has not entered into a 

timely Federal facilities agreement, and what impact that is having 

on the predictability of the remedial work? You point out very 

clearly that there has been patchwork done, but not permanent remedial work, and there needs to be a game plan, a time schedule, 

and yet DOD has refused to give us any of the deadlines. What impact does that have? 

Ms. WILSON. The impact is two-fold. First, as you have mentioned, and there are long-term remediation issues at play here. 

While there is no immediate health risk, we want to have conVerDate Aug 31 2005 08:46 Jun 11, 2015 Jkt 000000 PO 00000 Frm 00160 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\88910.TXT VERN
157 

fidence that in moving forward the cleanup, the assessment, and 

the ultimate cleanup work itself will be done in a timely way. We 

want the residents of the area, the community, to have the same 

confidence. Without having that binding legal commitment, it is 

very difficult to say, yes, in fact we know it is there. So that is why 

we are taking the legal action that we are taking. 

As to why DOD has not entered into this agreement, Senator, I 

cannot answer the question. I have talked to them many times over 

the summer. They say they are committed to doing so. I take their 

representatives at their word, but when we pressed for a time line 

by which that would be done, we couldn’t get it. 

Senator CARDIN. The State of Maryland has done something 

which is kind of unusual, and that is the State issued its RCRA 

citizens suit notice on August 19, 2008. When was the last time 

that the State has been forced to use a citizens suit of this kind? 

And what has been the response that you have noticed as a result 

of this notification? 

Ms. WILSON. This is the first time the State of Maryland has 

used this legal tool. We have not yet received any formal response. 

Senator CARDIN. Beyond the immediate community at Fort 

Meade and Fort Detrick, is there a concern that the contaminants 

also present challenges for the Chesapeake Bay? As you know, the 

Federal Government has invested a considerable amount of resources in its Federal partnership on the Chesapeake Bay, including action in this Congress under the farm bill and under the water 

bill. Is there a concern that what is happening at these sites may 

also impact the watershed itself leading into the Chesapeake Bay? 

Ms. WILSON. Senator Cardin, that is a very good question. Typically, that is the case. We are very fortunate in these two sites that 

there is no direct impact to the Chesapeake Bay. The impact is to 

groundwater. As I mentioned earlier, that is a critical resource, 

particularly in the Fort Detrick area where, as you know, in that 

part of the State our groundwater supply is fairly tight. So we need 

to make sure that we protect every future water supply. 

Senator CARDIN. I appreciate that. 

Let me just ask Mr. Hirsch or Ms. Limbrick, on the FederalState relations, you deal with the private sector. I think you raise 

good points here. Here we see in Maryland a fight that has taken 

place between the State and, by the way, two Federal agencies 

fighting each other. How do we adjust the policy here so that we 

can have a more cooperative effort in working between the private 

sector and the different levels of governments so that we achieve 

the objectives of these laws more effectively? Do you have any suggestions, either one of you? 

Ms. LIMBRICK. I would suggest really an increased use of something like the Triad approach because that brings together the parties involved, all of the stakeholders. I refer mostly to bringing together the regulator and the regulated person, but it also brings to 

the table affected community members and anyone else who would 

have a stake in it. So the EPA has really been pushing for this 

Triad approach. I understand that they have set goals to have certain numbers of Triad cases brought into the department or the 

agency. I think by continuing to proceed down that path and continuing to publicize the successes they have had, that you can get 

158 

this really higher level cooperation among the different parties involved. 

Senator CARDIN. Mr. Hirsch? 

Mr. HIRSCH. If I may respond also, in California for example, the 

Secretary of CalEPA, our State Environmental Protection Agency, 

wrote to the U.S. EPA in January asking to be brought into the 

loop on being able to help with the design of this radiation survey 

for the site and requested other assistance. Despite the request 

from the Secretary of that agency, there has been no such involvement permitted to this date. 

So frankly, as someone who has observed this for a long time, the 

only solutions here are to have dramatic changes at EPA and DOE, 

and really strong oversight by the Congress, because it is not working on the ground. 

Senator CARDIN. And I think Chairman Boxer has indicated that 

she is prepared to followup on some of those suggestions. 

Ms. Buthker, in regards to the relationship between your agency, 

the State of Ohio, and the Department of Defense and EPA, how 

would you characterize that relationship in trying to get the remedial work at Erie or other facilities that you mentioned in Ohio? 

We heard about what has happened in Maryland and other States. 

Could you just clarify a little bit more? We understand the problems you see with the policy positions taken by DOE on cleanup, 

but how if your working relationship in trying to get remedial programs moving forward? 

Ms. BUTHKER. Our working relationship at the installation, or on 

the formerly used defense sites because they are not really installations, is very good and working with the people that are at the 

level. The problem is that a lot of the policies and procedures in 

place at DOD, they bind them and they can’t do creative things and 

try to come up with solutions to the problems that we are facing. 

That has affected probably our working relationship the most, is 

we just can’t get to the point where we can use something like the 

Triad approach and sit down and say what makes sense to do at 

this site. You know, we can come up with a great solution, but then 

it goes above the people that we are dealing with, and they are 

like, it is against a policy or against—in the case of the FUDS, it 

is against the FUDS regulations to do this, and then we can’t do 

anything. 

Senator CARDIN. Well, let me thank all of our witnesses from the 

States and local government. As Chairman Boxer said, and as the 

representatives from the Federal agencies indicated, we want to get 

this right, including DOD wants to get it right. I think quite frankly it is just the point that Chairman Boxer mentioned is that DOD 

does its work in defense, not in environmental cleanup. EPA provides the guidelines there, and DOD doesn’t want to spend the 

money, or won’t want to put the attention to it, so they look for 

shortcuts to try to deal with an immediate problem, rather than 

trying to remedy the underlying risks. If we were giving grades 

right now, I think we would all would give unacceptable grades to 

the efforts being made to clean up military facilities as aggressively 

as we would expect if it were a private company or if it were a different circumstance. 

159 

So I think we need to look at the problems that have been raised. 

I think Chairman Boxer intends to followup on that to figure out 

ways that we can get a better commitment from DOD, recognizing 

the lead role that EPA plays in this in complying with remedial 

programs under Federal laws, and to look for ways that have been 

suggested here to get a better cooperative approach using all of the 

stakeholders, so that we don’t have these long delays in dealing 

with the underlying environmental risks. 

I found the hearing extremely helpful. We thank you all for your 

participation. 

With that, the committee will stand adjourned. 

[Whereupon, at 12:20 p.m. the committee was adjourned.] 

[Additional material submitted for the record follows.] 

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