From Death Valley to Spring Valley: A Case Study of Contamination in Washington, D.C.
| Author | Marguerite E. McLamb |
| Position | J.D. Candidate, Georgetown University Law Center, 2003; B.A., Yale University, 1994. |
| Pages | 02 |
J.D. Candidate, Georgetown University Law Center, 2003; B.A., Yale University, 1994. The author thanks Professor Lisa Heinzerling for her continued support.
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Spring Valley today is an enclave of well-to-do Washingtonians, a neighborhood of prestige and stateliness. Tucked away from the incessant din of traffic and commerce in Northwest Washington, the neighborhood offers elegant, shady respite. Broad, tree-lined streets wind about gently rolling hills; million-dollar mansions beckon from spacious homesites. Home to ambassadors and senators, famed lawyers and doctors, and other pillars of the city, Spring Valley is one of Washington's most affluent communities.
Yet today's Spring Valley was yesteryear's "Death Valley," the world's second largest chemical weapons testing and manufacturing site during World War I. Consequences of this past have haunted Spring Valley for decades. Buried munitions and toxic chemicals hide in Spring Valley's manicured lawns. Status exempts no resident; the home of the South Korean Ambassador is one of the most contaminated sites.
Further problems increase the physical hazards of the contamination. From the start of the saga, the federal government, responsible for cleaning the land, mishandled the cleanup and failed to communicate with the public. The community's resulting distrust of the federal government runs deep. A court of law found the Army Corps of Engineers ("Corps") guilty of failure to warn private citizens about the buried munitions. The court of public opinion has found the Corps guilty of much broader offenses throughout the Corps' responses to contamination.
Throughout the controversy a central issue has been the federal government's refusal to fully investigate the contamination and disclose its findings to private landowners. As a result, the Corps prolonged residents' exposure to dangerous ordnance and toxic chemicals such as arsenic. The contentious investigation and cleanup has inspired widespread distrust, anxiety and fear. Residents speculate that contamination may be the cause of rare diseases and cancers appearing in the community. Public outrage over the government's responses to the contamination fueled two Congressional hearings in July 2001 and June 2002.1
The saga of Spring Valley merits attention because of its unique status - the site is the first known formerly used defense site that involves chemical contamination and weapons in a residential neighborhood.2 Thus, examination of the experience at Spring Valley may be instructive for similar, future cleanups. As the nation continues to extensively develop and reuse land, more conflicts at sites involving chemicals, weapons and residents are likely to appear. Even for residential sites solely involving conventional munitions, the experience offers lessons for federal, state and local governments and for their citizens.
This paper examines how poor information handling by the federal government contributed to the chemical contamination and cleanup problems in Spring Valley and how better communication within and between federal agencies, with local governments, and with the public could have produced results more quickly and with less animosity. Part I introduces the saga of Spring Valley. Part II discusses the history of the Spring Valley area, the Formerly Used Defense Sites program, legal controversies, and the legal framework implicated. Part III identifies problems that plagued the decades-long affair and resulted from the federal government's mishandling of the contamination. Part IV outlines solutions for these issues and discusses their importance in democratic societies and Part V concludes the case study.
Spring Valley's character is deceptive from its surface; sylvan prestige lies atop pits of toxic debris. The unknown dangers lurking in the beauty of Spring Valley have fueled fear and lawsuits. This section explores Spring Valley's past and explains its current status as a "formerly used defense site." The section then outlines tort-inspired legal controversies and Page 4 provides the statutory context of the cleanup and related activities such as public participation.
Residents and other users of Spring Valley's land have always prized its tranquil character. A brief, and later forgotten, stint as the world's second largest chemical weapon testing facility did not initially impact the area's attractiveness. Since the reemergence of the neighborhood's past, however, infamy and controversy mar the area's idyllic character.
Spring Valley's known history begins innocuously in the early eighteenth century, as meadow and farmland.3 During the nineteenth century, the area was used for farming, a water system for the District, and for Civil War fortifications.4 Earnest development of the area began after the Civil War, as developers and speculators became interested in the rural area.5 Residential developments, private institutions such as American University ("AU"), and a public training school for girls arose in the area.6
The government's use of the Spring Valley area for a chemical weapons facility during World War I irreversibly changed the land. To support the war effort, AU offered use of its campus, with its winding paths and tree-lined streets, to the federal government.7 The government also leased hundreds of acres of neighboring private farmland and the site of a girls' training school.8
On the site, the government established the American University Experimental Station ("AUES"), a large-scale research, development and testing center for chemical weapons.9 By 1918, AUES housed nearly 1000 of the 1200 chemical-weapons researchers in the United States10 and was the world's second- largest poison gas production facility.11 Chemists and engineers researched and tested hundreds of toxic chemicals, such as mustard gas, lewisite, cyanogen chloride and arsine gases, for chemical warfare.12 On the property, the Army constructed facilities including laboratories, chemical storehouses and underground concrete pits to explode chemical bombs, and trenches.13 The Army conducted open-air and trench testing of toxic weapons, gas masks and explosive chemical munitions.14 In their experiments, scientists remotely detonated these chemical weapons and measured their effects on animals.15
Confident in the Army's ability to contain hazards from the chemical munitions testing, local residents mostly kept their homes.16 Then, as today, many of these homeowners were wealthy Washingtonians.17 A few hazardous incidents occurred, however - portents of land use conflicts to escalate in the future. In one instance, a cloud of gas escaped from a testing station across the street from the home of former Senator Nathan Scott's residence and gassed the Senator and his family.18Due to this occurrence and others, the D.C. Board of Commissioners requested that AUES conduct tests farther from residential areas. The Army did not directly address the problem in its response to the local government.19
Activities at Camp Leach and AUES ceased by 1920, and land salvage began. Federal agreements with the leaseholders and AU required that the grounds be restored to their original condition as much as practicable.20 Salvage efforts included boarding up and fencing off permanent structures, such as the concrete pits, and disposing of other structures.21 Army regulations required burial of chemical weapons in soil at a depth of three to three-and-one-half feet and prohibited their disposal in water.22 The government considered buying the AU campus to use as a permanent chemical weapons research station but decided against the purchase.23 Little need existed to test chemical weapons since the war was over and the Army believed that the property was overvalued.24
Extensive residential development soon followed. In the 1920s, the W.C. & A.N. Miller Company, a locally-owned and prestigious development company, purchased the vast bulk of land in the area and began creating high-priced subdivisions.25One of these developments, Spring Valley, featured custom- built homes and preservation of the rolling topography.26
American University resumed its campus activities after the Army "cleaned up" the chemical weapons facility.27 AU continued to build its campus, placing a fraternity house on the site of an AUES former trench, which was razed and replaced by a child-care center in 1992. AU sold land on its borders to neighborhood developers, who then sold land to other developers.28 Even current concern over contamination has not stopped development; in July, 2001, the D.C. Zoning Board approved AU's ten-year construction plan, which starts before the ongoing remediation is complete.29
Remarkably, AUES' status as a major chemical weapons production and testing facility quickly faded from memory of those in Spring Valley. For more than sixty years, the issue remained mostly buried. In 1986, the past surfaced, but involved parties overlooked and hid suspicious findings. Thus, discoveries of munitions in Spring Valley in 1993 surprised residents. These discoveries triggered a series of removal and remediation operations that are still ongoing.
In 1986, a surprise alarmed AU officials who had requested a pre-construction study of potential sports complex site. Campus publications uncovered in the study referred to the area's history as a chemical weapons testing and disposal site.30 A 1921 article in AU's student newspaper reported the burial of chemical munitions on the land and stated, "'Permission was given to go far back on the university acres, to dig a pit ... bury the munitions there, and cover them up to wait until the elements shall melt with fervent heat.'"31 A later AU publication reported that construction of a radio station on campus in the early 1950s was stopped because a bomb was unearthed.32
AU historians, commissioned to examine the university's World War I past, concluded that chemical and explosive weapons were probably buried on campus.33Concerned, AU asked the Army to investigate reports of buried munitions.34 The Army, through the Corps, focused its search on the discovery of munitions, however, rather than chemical contamination.35 AU and a division of the Army which specialized in dealing with hazardous materials36 reviewed historic records to locate and evaluate areas that contained unexploded ordnance or that were potentially hazardous.37Additionally, the Corps contracted with the Environmental Page 5 Photographic Interpretation Center ("EPIC"), a division of EPA, to analyze historical aerial photos.38 EPIC flagged potential chemical weapon burial spots on the AU campus and in the surrounding area and informed the Corps of its findings in 1986.39
The Corps, however, did not dig for munitions or take soil samples, despite these flagged, potential weapons burial sites. To justify its decision, the Corps noted that (1) extensive development had not unearthed hazardous materials and (2) documents indicated that AUES's materials had been moved to a site in Maryland.40 The Corps officially concluded that no suspicious items were present at the AU construction site, after using metal detectors with limited capabilities to scope the site.41
EPA and AU accepted the Corps' position that no munitions were present with little review or interest in publicly disclosing the issue. Deciding that only actual discovery of munitions issue would resolve the issue, the Corps stopped its investigation in 1986.42 The Corps admitted the existence of records containing information regarding the burial of some toxic chemicals and conceded that the agency "could not disprove the burial of some materials and ... and [that] subsurface ordnance could still exist."43
During the Corps' investigation, AU informed EPA of the University's suspicions and investigative activities.44 In response, EPA told AU that the Department of Defense ("DOD") was the cleanup authority at formerly used defense sites and that EPA had no first-hand knowledge of toxic substances on the campus.45 EPA accepted this information, though its own photographic department, EPIC, had marked sites for further investigation while contracted by the Corps.
AU deliberately chose not to disclose information to the public that chemical weapons were possibly buried on and around the campus. Despite heated argument within AU's leadership that the University and the Corps should reveal the findings,46 AU decided not to publicize the information and used the "no munitions present" conclusion to justify its silence.47
The buried material had not vanished, though the Army had officially closed its investigation. In 1992 symptoms of the buried problem surfaced. While grading a residential driveway, construction workers excavated and broke a glass bottle and had to receive emergency room treatment for eye pain and burning skin.48 Yet no one realized the nature or scope of the problem, much less the struggle that would ensue.
Spring Valley's chemical munitions surprise was sprung in 1993. In January, a contractor digging a utility trench unearthed live World War I munitions.49 Though alarmed by the recovery of obvious explosives, no one present realized the chemical nature of the ordnance.50 Specialists quickly determined the munitions' chemical character, and Operation Safe Removal Phase I began an initial three-week investigation and removal action for the immediate area. The investigation yielded forty-three chemical weapons,51 a sign marked "Danger - Poison Gas,"52 and temporarily uprooted residents from seventy-two nearby homes.53
Operation Safe Removal Phase II, the remedial stage, followed the immediate response action. The area officially designated as a formerly used defense site expanded to encompass more than 600 acres and thousands of private homes,54 and the Corps began an investigation to determine if explosive or chemical munitions were present and posed adverse health risks. 55 As the investigation continued into 1994, residents had to temporarily evacuate 130 homes.56
Charged with uncovering the weapons and the health risks posed by the munitions, the Corps searched for metallic objects and enlisted EPA to help conduct soil sampling.57 The Corps tested for break-down products of lewisite, a highly toxic chemical made with arsenic and produced at AUES; however, the Corps did not test for arsenic, because arsenic occurs naturally, and other chemicals could more specifically indicate lewisite.58 Neither agency detected chemical or explosive materials, though elevated levels of several heavy metals were present.59 The Corps officially found no presence of chemical warfare or explosive agents or their breakdown compounds60 and no presence of health hazards.61 EPA did test for arsenic and discovered some locations with high arsenic levels, but the agency decided the sites were anomalies that did not pose a health risk.62 EPA's focus at the time was buried munitions, not chemicals.63
In June 1995, the Army issued its Record of Decision final report determining that "no further remedial action is necessary ... to protect human health and the environment" in Spring Valley.64 The District of Columbia did not contest the Army's determination, and Operation Safe Removal ceased on June 2, 1995.65
Despite the Corps' official position that no contamination was present, the Corps possessed evidence that called for closer scrutiny of its findings. The Corps obtained a photo of an AUES soldier standing beside a trench, with carboys known to contain chemical weapons.66 The photo's caption read, "Death Valley - the Hole of Hades."67 Like EPIC's photographically-derived suspicions in 1986, however, the Corps overlooked the red flags.
Though the District of Columbia officially approved the Corps' decision, the District of Columbia Department of Health ("D.C. Department of Health"), still not satisfied with the investigation, spurred further and contentious studies that uncovered the true nature and seriousness of the contamination. In its review of the Corps' 1993-95 investigation, the D.C. Department of Health was troubled by the Corps' methodology, its failure to conduct a survey for health effects, and its failure to conduct a risk assessment for arsenic despite significantly elevated concentrations.68
The Corps agreed to let the D.C. Department of Health review the investigation of Spring Valley.69 In the review, D.C. Department of Health environmental scientists realized that the Corps miscalculated the location of a significant potential burial spot and thus neglected to investigate the spot. The D.C. Department of Health requested the Army to re- investigate the suspect area in discussions that lasted from 1997 to 1998. Though the Corps maintained that all bombs were accounted for and removed, the D.C. Department of Health Page 6 by that time had obtained suspicious aerial photos70 and discovered that the Corps possessed the "Death Valley" photo since 1994 71 - evidence that supported the D.C. Department of Health's call for a re-investigation.72
Controversy heightened when landscapers working at AU President Ladner's Spring Valley home broke bottles and were burned by fumes escaping from the soil.73 An environmental consultant found that the laboratory glassware contained chemical agents.74 Soil samples revealed extremely elevated arsenic levels, as high as 1200 parts per million ("ppm") - nearly thirty times the EPA's emergency removal limit of forty-three ppm.75 The Corps, however, alleged that the chemicals came from a photo or science lab or were pesticides under the EPA's jurisdiction.76
The D.C. Department of Health also requested additional human-health studies. EPA conducted these and focused its analysis on carcinogens, concluding that no exposure to unacceptable levels of carcinogenic or noncarcinogenic substances occurred.77 The Agency for Toxic Substances and Disease Registry ("ATSDR") also participated and found no adverse health effects.78 ATSDR did note that the Corps failed to include in its analysis chemicals that would result from degradation of chemical weapons.79
The Corps finally conceded in 1998 that it had miscalculated the contested point of interest, the backyard of the South Korean Ambassador's residence.80 Preliminary investigation revealed two large metallic areas, presumably weapons burial pits, and soil samples yielded elevated levels of arsenic.81 Both discoveries accelerated community anxiety.
In March 1999, the Corps began Operation Safe Removal Phase III, excavation of the backyard of the South Korean Ambassador's home. The site appeared to be a dumping ground for AUES's chemical laboratories.82 After finding two burial pits, the Corps removed glass and metal scraps including bomb parts, metal drums, contaminated debris and glassware.83 In July, excavators reached soil that smoked for two days.84 In all, the Corps removed more than 600 items, almost half of which were munitions and a small fraction of which still contained chemical agents.85 Some bombs were intact and still had fuses.86
The Corps found elevated levels of arsenic at the site and adjacent properties,87 though it maintained AUES was not definitively the source of contamination.88 The Corps decided to expand its investigation to include sixty-one private residences and fourteen acres of AU - possibly the area known at AUES as "Arsenic Valley."89 Throughout this period, the Army held public meetings to address the contamination hazards.90
On a reporter's tip, the D.C. Department of Health requested the Corps to conduct soil sampling at AU's Child Development Center, located in possible "Arsenic Valley."91The sampling yielded significantly elevated levels of arsenic92and triggered great community concern.93 Excavation began at the Child Development Center and two other campus sites. Under pressure from residents, the Corps began community- wide soil testing, which yielded a small number of homesites with elevated arsenic levels.94 These properties are currently undergoing time-critical removal actions.95
The need for outside involvement was clear. To assess the contamination threat, Washington Mayor Anthony Williams created an independent group, the Mayor's Spring Valley Scientific Advisory Panel, in 2001.96 The Panel comprises epidemiologists, toxicologists, specialists in environmental health, and a scientifically-oriented community representative appointed by the Chairperson of the Panel.97 The Panel holds an advisory role to the D.C. Department of Health, though it offers recommendations to all involved agencies.98
Simultaneously, Spring Valley citizens formed a Residential Advisory Board ("RAB"), sponsored by the DOD.99The RAB serves an advisory function and provides an outlet for community concerns.100 Spring Valley's RAB consists of fourteen community members and representatives from the Corps, EPA, AU, a local school, and the business community, and other parties are often present, such as representatives from the D.C. Department of Health and ATSDR.101
Meanwhile, EPA conducted a criminal investigation of the Corps' 1986 failure to disclose information about the hazards; the agency planned to conclude that investigation in May 2002, though results are not yet known.102 Additionally, recent discovery of additional historical records and increased review of old records have located new points of interest and expanded the operation.103 The Corps plans further intrusive investigations of sites showing anomalies.104
Concerned by the stunted progress and finger-pointing, in July 2001 the Subcommittee on the District of Columbia, Committee on Government Reform, held a congressional hearing and requested a General Accounting Office ("GAO") investigation to examine the past conduct of the Army, EPA, and other agencies and to assess the current contamination threat.105 The GAO presented its report to Congress on June 26, 2002.106 The report did not allocate blame for the past but instead focused on the current status of the restoration and changes implemented to assist the cleanup.107 Uncertainty about total safety and costs, however, characterized the proceedings. When asked if residents are safe, a senior GAO official testified, "I don't have an answer."108 Indeed, as one congresswoman stated, "We are still in search of many answers."109
Spring Valley's status as a Formerly Used Defense Site ("FUDS") determines significant aspects of its remediation - the parties responsible for the cleanup and the funding it receives.110 FUDS are properties that belong to private parties or local governments but were once under the control and jurisdiction of the DOD.111 As such, they are subject to DOD cleanup authority.112 FUDS range from weapons testing areas, such as Spring Valley, to former airfields and missile sites.113 In spring 2002, total known FUDS in the United States numbered 9,184.114 Properties with hidden pasts whose nature as a FUDS emerges to community surprise, such as Spring Valley, are not entirely rare. A similar situation occurred near Marietta, Georgia at a former artillery range abandoned after World War I.115The area, now occupied by residences, highways, and a landfill, was not a concern because no documented incidents involving ordnance had occurred despite extensive construction.116Acquisition and disposal records and other documentation were lost or destroyed, and knowledge of the site's past was limited to community rumor about an ammunition round unearthed years ago.117 The Corps conducted an archives search and Page 7 produced a recommendation of "no further action."118 Spring Valley's tale started similarly and includes a similar recommendation, yet the story did not end at that point. Though Spring Valley's situation is unique in that it is the first known residential FUDS involving chemical weapons; hopefully its complete story will not be one that repeats.
In Spring Valley, the hazardous nature of the contaminants, the values of the affected properties, and the dangers to human life have sparked legal disputes that are still ongoing. These controversies illustrate the multiple types of impacts and concerns - physical, financial and emotional - caused by the Spring Valley fiasco.
During the second phase of the remediation caused by the construction workers' munitions discovery, the W.C. & A.N. Miller Companies ("Miller Companies") submitted an Administrative Tort Claim to the Department of the Army, seeking over $15 million in damages.119 Miller Companies, the major developer of the Spring Valley area, claimed the contamination delayed closings on Spring Valley sales and triggered a chain of negative financial effects.120 The Army's audit agency reviewed both Miller Companies' administrative claim against the Army and the remedial actions taken by the Army. Though the audit agency initially thought the Army acted illegally by failing to notify local authorities and third parties about the potentially buried chemical munitions, the audit agency reversed its position.121 The agency concluded that that the Army had no legal or regulatory requirement to disclose because the presence of chemical weapons in Spring Valley could not be conclusively determined.122 As a result, the Army denied Miller Companies' claim.123
Miller Companies then brought its grievance to court and charged the Army with public and private nuisance, negligence and trespass.124 Miller Companies alleged wrongful disposal of chemical and explosive weapons and glassware; failure to warn of buried munitions and glassware; negligence in the Army's 1986 investigation; and failure to remove the weapons and glassware prior to 1993.125 Though the claim was later settled, the court ruled that the Army had breached its duty to warn subsequent occupiers of the property about buried munitions in 1986.126
"When it buried live munitions, the Army had in effect 'booby-trapped' the land....It had to be obvious to the Army...that any subsequent user of the land may well need to excavate below the surface for subsequent construction. It should have been recognized that such a reasonable use of the land obviously would have exposed the subsequent user to serious bodily harm or possibly even death if one of the unexploded munitions was discharged inadvertently.127
American University, which has been acutely affected by the contamination and cleanup, also harbors grievances against the Army. In July 2001, AU filed an Administrative Tort Claim with the Army.128 AU requested $86.6 million to cover expenses related to the contamination. AU claimed expenses including reimbursement for costs of relocation of its admissions center, child care facility, and classes; tests of students and workers for toxic exposure; environmental testing; public relations; and legal counsel. These claims also include less quantifiable costs, such as loss of use of the athletic field; damage to AU's reputation; and potential loss of donations. The amount also includes anticipated payments in potential lawsuits naming AU a defendant.129
Outraged residents have also joined the courtroom controversies. In February 1997, three homeowners filed claims against Miller Companies and the Army and alleged negligence, breach of duty and other torts. The court dismissed these suits, however, because the statute of limitations had expired and because the court declined to exercise supplemental jurisdiction.130
In January 2001, former Spring Valley residents Thomas and Kathi Loughlin, outraged over the long-term handling of the contamination, began an ongoing series of legal complaints. Prior to and during the Loughlins' ownership of their home, construction and excavation teams unearthed laboratory equipment containing chemicals, projectiles containing mustard gas, and other hazardous items from land near their property, and studies revealed high levels of arsenic.131During their residence in the home, Ms. Loughlin was diagnosed with a brain tumor, and the family's live-in nanny was diagnosed with actinic keratosis, which may indicate arsenic exposure and increased risk of cancer.132 The Loughlins filed an unsuccessful administrative claim with the Army in 2001, requesting over $2 million in damages.133 One year later, the Loughlins filed a claim in United States District Court against the Army, AU, and the developers of their former homesite. The Loughlins charged negligence, failure to warn, deceit and misrepresentation, outrageous conduct, and fraud, for selling a private home to them on an extremely toxic chemical and munitions dump.134
By the end of February 2002, two additional former residents had filed suits against the Army, AU, and the developers and alleged negligent failure to warn of the contamination.135The Laughlins' former nanny brought one of these suits.136 A childhood resident of Spring Valley, who lived there from 1947 to 1964, brought the other suit.137 Autoimmune and blood- related illnesses have afflicted her since childhood, including pernicious anemia, renal stenosis, multiple myelona, aplastic anemia and actinic keratosis.138 These residents are all awaiting resolution of their cases.
Federal laws, such as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") and the Defense Environmental Restoration Program ("DERP"), require DOD to perform the response and remediation activities at Spring Valley. Under these laws, the federal government interacts with states and localities regarding funding and review of cleanup plans. These laws also affected citizens' abilities to participate in the restoration process.
As Spring Valley's toxic legacy illustrates, careless disposal of hazardous materials produced unforeseen or overlooked consequences. To address this growing, grave and national problem, Congress enacted CERCLA.139 CERCLA is a liability and financing scheme intended to ensure that cleanups Page 8 occur.140 The statute imposes joint and several "strict" liability for cleanup costs on public or private parties responsible for creating hazardous waste sites.141 Under CERCLA, owners and operators of storage, treatment or disposal facilities must report the presence and releases of designated hazardous substances to EPA.142 When releases occur, federal authorities may respond through both immediate removal actions and long-term remedial actions.143
CERCLA applies to the Spring Valley cleanup, because the weapons and chemicals present at Spring Valley constitute a "release" of a "hazardous substance" from a "facility."144AUES, as the disposal site of the hazardous substances, is a facility,145 and the disposal and abandonment of the munitions and chemicals qualify as releases.146 Because of their reactivity, the munitions at Spring Valley are considered a hazardous waste.147 Articles that contain mustard gas or lewisite are deemed hazardous substances on account of their toxic contents.148Thus, CERCLA governs cleanup activities at Spring Valley.149Spring Valley is not on the National Priorities List ("NPL").150
Under CERCLA, DOD, not EPA, assumes cleanup responsibility and liability at defense sites.151 Congress squarely addressed contamination related to defense activities by implementing the DERP152 in the 1986 amendments to CERCLA.153 DOD must comply with CERCLA and DERP in all immediate responses to releases of hazardous substances from military facilities or facilities that were owned or leased by the United States at the time of the release.154 Further, DOD must handle responses to incidents involving DOD military weapons and munitions or weapons and munitions under the jurisdiction, custody or control of DOD.155 Each branch of the armed services is responsible for cleanup of their facilities.156The Army designates the Corps to assume cleanup tasks.157
Under DERP, DOD must interact with EPA, states and localities regarding cleanup plans.158 DOD must notify EPA about proposed plans and each time a cleanup phase begins, with enough time for EPA to review the plan if desired.159 States and localities can participate in remedial cleanup plans by reviewing data used by the DOD.160
Funding is also a source of interaction between DOD, states and localities. As part of DERP, Congress established funding to enable DOD to pursue cleanups - the Defense Environmental Restoration Account.161 The District of Columbia received a grant via this special account in 1993 to pay for its removal expenses related to Spring Valley.162 The DOD and a state may sign an agreement under the Defense State Memorandum of Agreement program ("DSMOA"), which allows the state to act and be paid as a regulator, while DOD takes cleanup actions and hires contractors.163 Under the DSMOA program, DC and the Corps signed a Defense District Memorandum of Agreement for Spring Valley's remediation.164
CERCLA and DERP also provide opportunities for citizen education and participation. For cleanup plans, CERCLA requires publication of advance notice and analysis in a major area newspaper, a comment period, a public meeting, publication of the final plan with explanations for changes and responses to significant comments, and notice and explanations of changes made while the cleanup occurs.165 To fully participate in such cleanup decisions communities must be able to understand technical issues involved in cleanup decisions and processes. CERCLA thus incorporates Technical Assistance Grants ("TAGs"), which allow communities to hire qualified outside technical assistance.166 These grants are only available at National Priorities List ("NPL") sites,167 and are generally limited to $50,000, of which the receiving community must pay 20%.168
DERP emphasizes citizen participation more vigorously with specific, statutory structures organized around citizens. DERP strongly encourages DOD to establish Technical Review Committees ("TRCs")169 or Residential Advisory Boards ("RABs") to review and comment on DOD restoration activities.170 The primary purpose of TRCs, to review restoration plans, is more limited than the main thrust of RABs, to provide a forum for stakeholders representing diverse community interests to communicate and review cleanup strategies with DOD, EPA and other decision-making governmental agencies.171 These groups can request technical assistance to understand issues involved in the restoration process.172 Funding for assistance is available through Technical Assistance for Public Participation ("TAPP") grants and covers activities such as document interpretation, technology assessment, risk evaluation participation, understanding health risks and technical training.173 These grants come from the same DERA funds that finance other restoration activities, and thus may affect the amount of funding available for study, cleanup and other activities of the RAB.174
Various problems beset Spring Valley and prolonged the cleanup fiasco. Failures to communicate both within and between government agencies, due to statutory deference, posturing and lack of accountability, contributed to the delay. These breakdowns in communication aggravated an endeavor that is intrinsically difficult to handle, due to the hazardous nature of the material and its unique ability to inspire fear and distrust. Poor handling of information by the government, bias of the media, and lack of early public participation in the restoration process exacerbated the public's fear and distrust. As a result, regulators at Spring Valley must confront two challenges: physical cleanup and public suspicion.
Within the federal government, critically involved agencies, such as EPA, did not share information within their own operations. These failures to communicate information prevented EPA from fully addressing the scope of the munitions and chemical contamination in Spring Valley and thus from protecting the community.
EPA's complete deferral of responsibility for Spring Valley to DOD in 1986 enabled a major communication failure within EPA. EPA surrendered cleanup responsibility;175 with that deferral, however, EPA washed its hands of the problem. Though EPA's photographic division, EPIC, had flagged potential sites of concern, EPA surrendered cleanup responsibility to the Corps and thus did not review EPIC's findings. When AU notified EPA of the contamination situation, Page 9 EPA deferred to the Corps' efforts. EPA did not pursue investigation beyond the Corps' findings or significantly review those findings. Years later, EPA defended its lack of internal communication by analogizing EPIC to a party contracting with another separate party in a private agreement; this arrangement, by EPA's logic, did not require EPIC's findings to be communicated within EPA.176
Inter-agency communication occurred but had little effect. Communication between the Corps and EPA failed to identify Spring Valley as a serious problem. Though the Corps provided results to EPA, this communication was more of a "check-box" requirement than a serious review and discussion.
In other inter-agency failures to effectively communicate, agencies that questioned the review failed to raise red flags. For example, the Agency for Toxic Substances and Disease Registry ("ATSDR") performed human health analyses at the request of the D.C. Department of Health, who was suspicious of the Corps' 1995 declaration that no chemical contamination existed. ATSDR also found no presence of adverse health effects. ATSDR, however, used the Corps' samples - the very samples that the D.C. Department of Health questioned - and remarked that the Corps did not test for the range of potentially degraded chemicals. ATSDR's communication was ineffective for the ultimate goal, protecting human health, because the agency merely communicated in a cursory manner rather than require more inquiry about questions raised.
Inter-agency communication was also often contentious. The Corps' refusal to listen to another governmental agency, the D.C. Department of Health, extended the cleanup process by years. The Corps repeatedly dismissed the suspicions of the D.C. Department of Health and its calls for expanded testing with different methodologies. The lack of formal means for communication between the experts from the Corps, EPA, local government and the public regarding the cleanup effort extended the contamination problem unnecessarily.
Federal law allowed EPA to cede responsibility to the Corps for cleanup efforts and thus not scrutinize the Corps' findings and methodologies or EPA's internal departmental warnings.177 Because of statutory deference, EPA lightly reviewed the Corps' decision that no hazards were present in 1986, though EPIC had flagged sites as potential burial sites and communicated these to the Corps.
Similar statutory deference allowed the Corps to use the hierarchy of authority as a shield for its decisions. For example, in 1996 the Corps, as the lead agency, was able to refuse to investigate the D.C. Department of Health's legitimate concerns - and did so for two years, thus prolonging the contamination.
Focus on positions, rather than solutions, impeded earlier and more successful results in Spring Valley. The Spring Valley cleanup suffered from repeated, defensive posturing by the Corps in reaction to accusations from the D.C. Department of Health and to potential liability to other parties. This entrenched posturing frustrated effective solutions, damaged the possibility of a consensus-based solution that would generate overall acceptance, and destroyed community trust in public institutions. Broad scientific input should have dominated the Corps' actions. Situations involving contamination are extremely complex; they pose problems for experts trying to determine hazards and appropriate responses. Because of the Corps' posturing, the Corps and the D.C. Department of Health were unable to effectively share experts' information and work toward solutions. Meetings held over two years were necessary to persuade the Corps to act on the Department's concerns. Less focus on who had control and more focus on solutions would have increased the rate and success of cleanup at Spring Valley.
The Corps' lack of accountability for cleanup actions before a stringent oversight authority allowed ineffective self- monitoring at Spring Valley. Allowing the agency that caused the problem to dictate cleanup prevents an objective third party from ensuring the action is conducted thoroughly and effectively. Fear of liability may drive the responsible agency to minimally investigate the problem and thus perform an inadequate cleanup. The agency lacks incentive to go beyond necessary actions.
DOD oversees cleanup of contamination that the Department caused through AUES.178 With only itself as a monitor, the Corps did not fully investigate contamination issues at Spring Valley in both 1986 and 1995. In both situations, the Corps concluded its reviews prematurely despite lingering suspicions of AU in 1986 and the D.C. Department of Health in 1995.
Lack of self-monitoring also allowed EPA to defer responsibility. When EPIC located possible contamination sites and raised concerns to the Corps in 1986, the Corps chose to ignore the findings. Told then of the findings, EPA had no reaction. Years later, EPA defended its lack of internal communication by arguing that EPA was not required to monitor actions of its departments contracted to other agencies.179 EPA's intra-departmental lack of accountability partially allowed this failure of communication.
Lack of accountability also contributed to information mismanagement; mediocre searching by officials and losses of records have affected the physical success of and the public's trust in the cleanup. Competent management of historical records is crucial in situations such as Spring Valley, where contamination occurred eighty years ago. Recently, a small group of RAB members located records and photographs that have dramatically expanded the scope of the investigation and cleanup and altered the conceptual approach to the project, from searching for pits to new types of searches.180 These amateurs found the records at the National Archives during their spare time, when expert Corps and Army archivists, whose full-time charge has been finding AUES information, had not located the documents. Meanwhile, records about Spring Valley that the Corps possessed five years ago are now lost181 or inaccessible.182
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Toxic contamination sparks intense public fear and distrust in institutions.183 Residents of Spring Valley suffer from this fear and distrust, caused by the nature of the hazard, its resulting effects on risk perception, and the way agencies and the media have addressed the situation.
Toxic substances trigger fear because they are a "new species of trouble"; they are not natural but rather are manmade, often technological, and thus preventable.184 Toxins contaminate and infiltrate; they usually act insidiously rather than directly.185The dread they create remains long after an incident is declared over by an official, for contamination incidents have no demarcated beginnings and endings - for victims, the incident may never be "over."186 The damage may continue, invisible and unknown.187 Contaminated land becomes "alive with dangers, a terrain in which fresh air and sunshine and all the other benevolences of creation are to be feared as sources of toxic infection."188 Toxic invasion of homes, whose security has been integral to American culture, has violative effect.189
Laypeople often differ from experts in their evaluation of risks in toxic contamination situations.190 Though experts criticize the public as perceiving risk under the influence of cognitive errors, heuristics and factual misunderstandings, the public often derives its perceptions from a legitimate, though different, framework of values.191 Experts and government agencies are more likely to employ risk assessment and characterize risks in terms of annual mortality and morbidity, whereas laypeople base their perceptions on a range of features which focus on the nature of the harm.192 Perceived risk increases if the danger is involuntary, is unobservable, is new, inspires dread, inequitably distributes risks and benefits among generations, has catastrophic potential, has fatal consequences, has delayed harmful effects or allows unknowing exposure.193Toxic and nuclear hazards, which particularly possess these features, register the greatest differences on the layperson's versus the expert's perceptions of risk.
Spring Valley residents suffer this dread and fear, caused by buried explosives and chemicals, substances which for the residents are invisible, involuntary and seemingly random. Adding to the residents' fear is outrage that this harm was preventable, and now a remedy is not in citizens' control. Homeowners' attitudes have changed since 1993, when residents trusted the Corps and possessed greater concern for their property values than for the cleanup process.194 Now residents cycle between a "creeping fear," marked by hypochondria and concern for the soil and water, and "reality checks," instigated by the fact that residents have no tangible evidence to cause fear or reassurance.195
Rather than a place of refuge, homes in Spring Valley have become a source of fear. Residents voice concerns about the health and safety for themselves and their children.196 These worries grow as the Corps requests homeowners not to blow leaves or mow grass and to avoid stirring up dust,197 while the Department of Health advises residents to minimize contact with soil, avoid wading in creeks, and avoid eating home-grown vegetables - usually the epitome of health.198 Spring Valley "[p]arents wonder if their gardens are safe for their children to play in and if their home-grown vegetables are safe to eat."199Some residents may pay thousands of dollars for soil testing.200Findings of elevated arsenic levels at AU's Child Development Center, where children play outside in the soil, added to these fears. Indeed, children may be at greater risk because their bodies are less efficient at converting arsenic into less harmful organic forms.201 AU students share the sense of fear as well.202"Mostly, people worry: When will it all be over? When will we feel secure again?"203
A related feature of toxic incidents is a loss of trust in institutions. Toxic contamination may cause loss of confidence in officials and experts, who may either not tell the truth or who may not be scientifically able to tell the truth.204 Trust is fragile; it is difficult to achieve yet easy to lose.205 Several factors lead to this fragility: (1) negative incidents have a greater impact than positive occurrences because negative incidents are usually more discrete and visible; (2) negative news events have a greater, negative impact on public trust than positive events;206 (3) sources of negative news are perceived as more credible than positive news; and (4) distrust reinforces distrust, by causing the public to avoid interaction with those they distrust and by affecting the publics' views of events.207
Such loss has occurred in Spring Valley. Trust in government's ability to act eroded quickly after the start of Operation Safe Removal. In the initial phase, the head of a local real estate company stated, "'I think it's temporary, and they'll correct it.... It will be gone and forgotten within a month.'"208 Two years later, however, residents were asking, "'Will we ever be sure this place is totally clear of munitions?'"209
Trust has not returned. This stems from the government's inability to solve the problem and from the public's realization that the government concealed the problem. Even a district court found that "[t]he Army in this case created the hazard and literally 'covered it up.'"210 An outraged RAB member recently professed he "has suspicions about the Corps' integrity and honesty - that's not expected from an arm of the U.S. government, and I don't think the Corps is trying to remedy the distrust."211 In 2001, residents testified to Congress about their distrust in the Army's ability to fully disclose contamination problems and to detect buried munitions and chemical material.212 The suspicion is so deeply rooted that Spring Valley residents are requesting both an official government certificate of clearance of hazards that would convey with the deed to each property and provide indemnification for each property owner and insurance for liability for the work of government contractors.213
Ironically, though trust in the Corps has faltered, trust in other institutions such as the judicial system remains. This faith harks back to the expert/lay distinction. Residents of Spring Valley are largely familiar with and comfortable assuming control of situations; they are expert politicians, lawyers, doctors and other powerful figures. The plethora of past and pending lawsuits can be attributed to an odd combination of "expertise" and thus trust in their realms, plus a layperson's desire to obtain control over an involuntary situation, the contamination. Bringing suits enables residents to use their expertise to seize Page 17 control over a situation they feel violated by and powerless to effect.
The media play an important role in the public's perception of risk.214 The media tend to report more negative, trust-destroying news than positive events.215 Bias, combined with the greater impact of negative news over positive news, the increased credibility of negative news sources, the greater ability of interest groups to manipulate the media, and the inherent fragility of trust, is likely to breed distrust.216
Multiple media have covered the affairs at Spring Valley. National and local newspapers, television broadcasts and magazines have informed the public about the ongoing hazards and cleanup efforts, often with a sensationalist slant.217Until 2001, this bias may have been warranted, for the federal agencies involved were ineffective in handling the contamination. Since then, the bias has increased the atmosphere of distrust. Some members of the community are dismayed about the negative bias of national newspaper coverage now that cleanup is in a new phase;218 they feel that many articles emphasize views of residents who are not representative of the community, omit positive information about the cleanup, and focus on more pessimistic aspects.219 Such negative press may be detrimental to residents who have concern about property values and who focus on the future rather than the past.220
Inability to participate in cleanup decisions, which affect present and future health and property, exacerbates affected citizens' senses of fear and distrust. Thus, authorities handling toxic contamination must consider impact on the public. Unfortunately, Spring Valley residents long lacked a formal voice in the Corps' handling of the remediation, an absence that eroded trust in the Corps and its efforts. In the 1993 to 1995 cleanup, a technical review committee ("TRC") existed but included only one member of the community.221 Not until April 2001, eight years after the public became aware of the contamination, did the Corps institute a RAB for the area.222Though the RAB included more members of the community, the group was not empowering. Participating residents felt that it functioned as a retroactive sounding board, rather than a heeded forum for opinions of appointed neighborhood representatives.223 For example, the Corps completed soil sampling before the RAB could discuss the plan and offer input.224 The RAB itself has been uncertain about its role; members cite their lack of experts and wonder if it should function as an independent overseer or should bring in outside expert overseers.225 Some of the RAB's uncertainty stems from its advisory status.226 The Corps has told the RAB that "the Corps has no obligation to ... respond to a RAB request."227The RAB's powerless status in the Spring Valley cleanup erodes confidence about its role. Repeated failure by the Army to cure the contamination problem, compounded by the Army's false reassurances of successful remediation, caused citizens' distrust of government.228 The RAB, with its lack of proactive power, cannot cure this distrust.
Financing cleanup is a major problem confronting remediation at all formerly used defense sites ("FUDS").
Budgets for FUDS restoration, already meager, will be reduced as defense spending priorities shift to counter-terrorism measures.229 FUDS often pose dual threats, toxic chemicals and unexploded ordnance ("UXO"), munitions that fail to detonate on firing ranges and pose hazards to later users of the land. Both threats are present in Spring Valley. Approximately 2000 formerly used defense sites require UXO remediation, and treatment is necessary at many active ranges as well. Costs for remediation are prohibitive, making the process delayed and uncertain.230 Most funds go to cleaning or closing active bases, rather than remediating former defense sites; of the $1.5 billion that the DOD spends to clean up defense sites, only $200 million is designated to FUDS.231 The quality of remediation is uncertain as well. Though advanced technology to locate UXO is available, lack of funding prevents the Corps from employing such technology.232 Additionally, unexpected discoveries, such as those being unearthed at Spring Valley, can significantly escalate costs; since 1997, the Corps' estimate for the Spring Valley cleanup has increased by nearly 600%, from $21 million to $125.1 million.233 In spring 2002, the Army designated an additional allocation of $5.2 million to the Corps' Spring Valley effort.234 Spring Valley, however, already receives more funding than other sites in its region. Spring Valley receives 86% of its region's funds - 8% of the national FUDS budget.235 Other projects are on hold or shut down because funds have been diverted to Spring Valley.236Still, the Spring Valley cleanup will take years and require more funding. Other sources of funding are not viable. EPA does not typically contribute funds to cleanups already receiving money designated by Congress to the Army,237 and the D.C. Department of Health, whose budget is minimal, already relies on funds from DOD to perform some functions.238 Though a shorter timeline increases the amount of funding needed, Spring Valley citizens' motto is "Finish in four years."239
The problems at Spring Valley - the government's failures and refusals to interact and communicate on various levels; the public fear and distrust created by the nature of the danger, the government's and media's handling of the situation, the lack of public participation, and inadequate funding - are complex. These problems, however, are endemic to bureaucracies and hazardous contamination situations. New approaches and solutions may help communities such as Spring Valley achieve more timely and successful results in the restoration process.
New approaches and structures may alleviate some of the problems that have continually plagued Spring Valley's cleanup. To increase interaction and oversight both within agencies and between agencies, statutory provisions and formal communication forums may be effective. Emphasis on the role of local governments may also boost successful cleanup endeavors, because local governments are privy to both citizens' concerns and special community knowledge such as health effects. Employing a group of experts to work together and make consensus-based decisions may reduce posturing and increase communication, thus producing effective cleanup strategies. Finally, cleanup strategies must embrace early and empowered public participation. Page 18
A system intended to protect the environment and public health would require levels of close review by an outside and more experienced agency. Currently, the law only requires DOD to consult with EPA and to notify EPA of final plans and work action in a timely manner.240 No requirement of review is specified. Because EPA has more expertise restoring the environment and contaminated residential communities, EPA should be required to exercise oversight in DOD cleanup actions. This could be accomplished by a change in the requirements of CERCLA and DERP or by formal agreements.241
At residential FUDS such as Spring Valley, a relationship that designates DOD as the lead authority and gives EPA more stringent oversight would allow each agency to exercise its expertise. Spring Valley's remediation involves two particular aspects: community health and munitions recovery. For sites involving ordnance cleanup, DOD, through agencies such as the Corps, should propose and undertake cleanup; the Corps is more qualified to review munitions and related concerns than EPA. EPA, however, draws from broader experience regarding community cleanups and is more skilled at investigating chemical hazards and interacting with the public. This expertise is particularly pertinent regarding contamination in communities, where human health is at risk and fear may be prevalent. The human element is often absent in DOD-driven cleanups, which primarily involve land with no specified future residential use or FUDS that do not contain chemical weapons. EPA can draw on its community cleanup experience to help DOD formulate successful approaches to such situations, from developing non-disruptive logistical plans to maintaining public trust.
Closer EPA review of DOD-sponsored cleanup actions could also help prevent ineffective self-monitoring by those DOD agencies. Outside, attentive review of cleanup plans and progress would motivate DOD to fully investigate and address the range of possible contamination and the public's concerns.
Amending the language of CERCLA and DERP to incorporate a requirement that EPA fully review and approve DOD cleanup actions in residential communities, while still allowing DOD primary cleanup and decision-making authority, could address this problem. Statutory changes, however, are subject to the inertia of Congress and may be difficult to achieve in a timely fashion.
A less onerous approach to EPA oversight is necessary. Formal agreements between EPA and DOD for cleanups of residential communities may create effective EPA review. These agreements would allow parties to have flexibility regarding the level of oversight and thus devise effective cleanup plans more quickly.242 Such agreements could be similar to those in the DSMOA program that states sign with the DOD or EPA for funding in cleanup situations.243
The failed inter- and intra-agency interactions at Spring Valley strengthen this proposition of close EPA review. At Spring Valley, a statutory requirement for EPA examination of Corps' actions in residential defense sites may have prevented EPA's deference to the DOD and the resulting approval of the Corps' 1986 "issue closed" finding. As seen in Spring Valley, land use over time can be multiple, unforeseen, and forgotten. Expansion of residential communities, however, is certain; as populations increase and suburbs expand, conflicts in land uses will increase. Though Spring Valley is the first known chemically contaminated FUDS in a residential area, other similar sites may either be created unknowingly or currently exist. Moreover, current, non-residential, chemically contaminated FUDS need to be properly remediated for future community use. In such community-oriented remediation plans, close EPA review would help achieve successful results for protecting human health and the environment.
In addition to formal agreements, formal partnerships or communication forums between and within agencies could foster successful cleanups through more communication, less posturing and more accountability. Agencies involved in a residential FUDS cleanup could be required by law to meet on a regular basis to exchange information and ideas. These meetings, which would involve all parties early in the process, may also reduce the posturing that becomes entrenched by time. Such forums would encourage accountability to other agencies; agencies would find it more difficult to deflect responsibility to another party or ignore findings when that agency must report regularly to others. A requirement for consensual decisions prior to action would strengthen the respect of the agencies for each other's positions and the public's respect for the agencies.
At Spring Valley, this requirement may have reduced the Corps' posturing and refusal to heed the D.C. Department of Health's concerns. Similarly, EPA would not have been able to ignore the findings of EPIC, either within its own organization or before the other agencies.
Local governments have a particular role to play in such partnerships and should not be omitted. Local governments often hear citizens' concerns first. Thus, local governments can voice concerns about which federal agencies lack knowledge or interest. Because they are better positioned to perceive their citizens' interests, local governments are better able to protect those concerns, such as contamination or property values.
Similarly, local communities and governments may possess special knowledge, such as colloquial information about health problems, that federal agencies lack. Without receiving input from local governments and seriously considering that information, federal agencies compromise their ability to create efficient and comprehensive solutions. Though local governments often can contribute positively to the cleanup process, they also often lack funding or stature to make their voices heard. Thus, agencies must ensure an active role for local governments in the decision-making process.
Increased, mandatory attention to local concerns and information would have assisted the timely and efficient cleanup of Spring Valley. The Corps now admits that the "D.C. Department of Health has a little bit better perspective on [information]," because "[t]hey've received more anecdotal information from the community than we have."244 In Spring Valley, the community and local government possessed Page 19 information that seemed suspicious but no formal communication forum existed to share these concerns. Though the D.C. Department of Health questioned human health effects based partly on its awareness of mysterious illnesses in the area, the federal government ignored these concerns. For example, though family members who formerly lived at one of the most highly contaminated sites died of cancers and suffered from debilitating rashes, the Corps treated the situation as an isolated incident and told the family that the site contained no elevated levels of chemicals.245 If the federal government had treated local government more seriously and considered its information about local health problems, the Corps may have detected the arsenic problem that it found years later - notably, a discovery prompted by repeated prodding of a local government agency, the D.C. Department of Health. Likewise, the Corps' refusal to acknowledge the concerns of and information possessed by the D.C. Department of Health regarding the Corps' 1995 investigation and conclusion delayed cleanup. Giving local governments more active roles and taking municipalities' concerns and knowledge seriously could aid successful results.
A local government's obligation and ability to perceive citizens' concerns depends on how successfully citizens make those concerns known. In these respects, Spring Valley's protests and the subsequent local and federal government responses may be anomalous. Spring Valley's upper-class status makes its residents a politically powerful population. One of D.C.'s major employers and taxpayers, AU, also has a stake in the action. These citizens, well-educated and comfortable with institutions, are fully able to voice their concerns, and the D.C. government has great incentive to represent these citizens' interests. Even the federal government responded to AU; President Reagan and the Secretary of Defense granted the university a private audience and granted its request that the Army bear remediation costs despite waivers for liability and indemnification in the 1917 and 1918 leases.246
Situations involving less affluent residents, however, may not yield the same result. Communities suffering from toxic contamination are often poor and composed of minorities, who usually have minimal political clout.247 A requirement for local governments to be more active in developing cleanup solutions could force unresponsive local governments to consider citizens' concerns in order to present them to federal agencies.
Formal creation of a neutral group of experts charged with reaching consensus may help achieve successful cleanups and alleviate the public's loss of trust. To be sure experts address all angles of the problem and that the solution receives general support, federal agencies with primary authority could employ such working groups of experts. This group of experts would focus on science, and their scope would include community concerns. Such a group, with an emphasis on solutions rather than agency agendas, could also introduce additional expertise and prevent posturing. Such a group may actually achieve cleanup solutions and rebuild residents' trust in the government's ability to solve the problem.
This consensus-based, group approach has been successfully employed in other contamination cleanup situations, notably in the Massachusetts Military Reservation ("MMR") remediation efforts in the 1990s.248 At this contaminated former military base seventy miles south of Boston, a group of detached experts developed a workable cleanup plan in two months, when DOD could not do so for years.249 For more than fifty years, the military disposed of hazardous wastes such as toxic fuels, acids and laboratory chemicals at MMR by pouring them on the ground or into unlined pits.250 Though these disposal methods were acceptable at the time, the wastes leached into the water supplies of surrounding communities.251Eventually, EPA placed the site on the National Priorities List.252
DOD generated multiple cleanup plans which were plagued by new discoveries of contamination and intense public disapproval.253 As a result, the local government and citizens, who had participated in advisory boards and waited over a decade for a solution, lost trust in the federal government's ability to solve the problem.254 To develop an acceptable cleanup plan, DOD, EPA, and the Massachusetts Department of Environmental Protection created the Technical Review and Evaluation Team ("TRET"), an "ad hoc think tank" composed of scientists from various agencies and from disciplines absent in the original plan, such as ecology and risk assessment.255Though its focus was science-based solutions, the TRET sought input from public representatives, regulatory agencies, the military, the public, contractors, and local government throughout the evaluation and analysis process.256 This inclusion in the decision-making process increased the decision's legitimacy.257 The ability of each member to interact personally within the group also minimized position-staking and helped resolve inter-group conflicts.258 As a result, the TRET's solutions were comprehensive, accepted by all parties, and achieved quickly.259
In the Spring Valley cleanup effort, a neutral expert group that required consensus and included scientists from involved agencies and outside experts could have positively impacted the cleanup effort. Pooling experts from the Corps, EPA and local government, and involving the public and contractors could have produced more efficient results by increasing available information, reducing posturing and encouraging public acceptance. The group could have addressed concerns, such as those of the D.C. Department of Health, from a scientific perspective rather than adversarial political or legal standpoints. By interacting on the same level and sharing the same goal, the group's members would not be able to avoid issues by referring to hierarchical schemes of authority. Tasking these experts with the same goal of determining a solution as a group rather than defending their institutions' agendas could unite these experts and thus yield better results.
Communities should be integrally involved in remediation processes to ensure acceptance of outcomes, foster trust in the results, and avoid later costs spent defending decisions.260 Our nation's history and spirit support this notion. Our country was founded as a participatory democracy, and our culture emphasizes our ability to influence law and outcomes.261 Charges of "democratic elitism" may afflict bureaucracies that make decisions without considering the affected citizens.262 Decision-making structures that circumvent democratic processes and fail to consider concerns and risks Page 20 held by stakeholders are likely to fail,263 while structures that empower citizens with decision-making power and educate the public about present hazards enable successful outcomes. Such strategies are more likely to produce results that the public accepts, that increase trust in officials, and that increase overall cultural well-being. Effective participation returns to the public some sense of control over their destinies that toxic contamination strips away.264 Moreover, long-term cultural costs from toxic incidents when the public does not accept the outcome may far exceed monetary amounts for damages and numbers of immediate deaths.265 Thus, groups who seek to devise and implement cleanup strategies for hazardous contamination situations should seek extensive public participation, ideally through both structural inclusion and educational programs.
The experience at MMR provides some examples of public participation, which could be expanded and supplemented by other solutions. The TRET, the expert group at MMR, employed strategies of citizen participation and education in its search for a cleanup solution.266 While focusing on a science-based solution that would ultimately solve the public's frustrations, the TRET incorporated significant public participation and education.267 The TRET sought community opinion in weekly outreach meetings, allowing the group to consider and incorporate local citizens' concerns and special knowledge into feasible solutions.268 In public hearings, experts sought to both learn from and educate the public.269 This interaction altered the public's conventional views of scientists as unapproachable authorities270 and perhaps also the public's perception of risk, by narrowing the expert/layperson gap.271
The TRET recognized that input from the public is crucial to acceptance of outcomes.272 Public participation in decisions about risk should be more expansive and include more decision-making authority. For successful democratic participation, the group should: (1) share power in the decision- making process;273 (2) encompass a diverse set of viewpoints;274(3) be open;275 (4) employ fair procedures;276 and (5) possess a clear mission.277 Selection criteria should be statutory, relevant to the cleanup at issue, and publicly known.278 The RAB at Spring Valley possesses several of these characteristics279 but lacks decision-making power. Even the RAB's name indicates its mere advisory function.280 For the RAB to feel truly empowered and like a full participant, it should share decision- making authority, at least on a consensus-oriented basis.281
Citizens cannot fully participate in democratic structures unless they understand the issues before them.282 Education reduces the threat of decisions based on factual misunderstandings, faulty heuristics, cognitive errors or other factors that affect the public's perception of risk.283 Instituting a program that seeks to educate private citizens could boost democratic participation and enable local citizens' trust in solutions. For educational endeavors to be effective, the public must trust the information provider; thus, risk communication by government entities who the public already distrusts may fail.284 On the other hand, providing educational opportunities to citizens may empower them and increase trust in government. Moreover, education can increase timeliness and efficiency of solutions. By enabling citizens' shifts in risk perception through exposure to other, more objective views of risk, education may change residents' requirements for a "successful" remediation; local citizens may decide that a zero-contamination level of remediation is not necessary. Thus, a timelier and more economically efficient, yet acceptable, outcome is possible.
Spring Valley residents want to be educated and involved in the cleanup proceedings.285 Increased interaction with scientists, such as in the TRET, could shift local residents' understanding of risk. Education of scientists, government representatives and local citizens about each groups' views of the problem would aid understanding of each position and assist creation of outcomes that are agreeable to all. Government grants for outside technical assistance for education are another avenue to increase public participation.286Such grants allow objective review of data that may be provided by self-interested industries yet used by agencies in deciding their cleanup plans.287 Thus, outside scientific assistance can help counteract past secrecy or distrust by providing citizens with objective views.288
From a statutory stance, funding for outside technical assistance should be simplified and expanded. Applications for federal grants such as TAPP or TAG289 should be made easier to complete and understand, so all communities - not just well-educated neighborhoods - can receive grants. Limits on the grants' monetary ceilings should be raised as well. For TAPP grants, available funds should be increased from the current $25,000 limit or the requirement that the funding come from the same pool as that for other RAB activities eliminated.290TAG grants are particularly restrictive, and their waivers should thus be emphasized. These grants have a ceiling of $50,000, and the community must bear 20% of the cost of assistance.291Achieving these grants may be particularly challenging to low- income communities, who may not understand how to apply for waivers of these requirements. Moreover, the grants are limited to residents of sites on the National Priority List; these funds would not apply to Spring Valley, which is not listed.
United States citizens have other avenues for active participation, such as directly lobbying legislators, conducting grassroots campaigns and pursuing litigation. Spring Valley citizens have pursued most of these options. In addition to lobbying that has generated two congressional hearings, the RAB is seeking additional congressional funding to reduce the restoration time through292 actions such as numerous visits to Congress and individual letters, targeted lobbying of select committees and their chairpersons, and a press event.293 At the grass-roots level, the RAB is currently planning community outreach activities, such as targeting sympathetic non-profit organizations.294
The last option, litigation, creates social friction, distrust and transaction costs and should be avoided. Citizens who feel they have an informed and heeded voice in democratic decision-making structures may accept outcomes as legitimate without resort to the judicial system. Overall, an active role for citizens in learning about and developing future outcomes, rather than merely assessing proposed solutions, gives local residents a more active stake in remediation. This role could help legitimize outcomes and increase citizens' trust in government. Page 21
Since the 2001 congressional hearing, agencies involved in Spring Valley have created several organizations to jointly share information and devise solutions, and the parties have bolstered the roles of older organizations such as the RAB. A formal partnership now exists between the main players in the cleanup, the Corps, EPA and the D.C. Department of Health.295Representatives actively involved in Spring Valley's remediation from each partner agency generally meet monthly to confront issues together,296 and their decisions require consensus. The partners also hear and respect opinions of non-members, such as the Mayor's Scientific Advisory Panel and the RAB. The agencies and the community are very positive about the partnership. DOD sees it as a "model for regulatory relationships" at site cleanups,297 and the RAB supports the partnership's cooperation, openness and consensus. "What matters most to residents," according to the RAB, "is that plans have the unanimous endorsement of the three partners."298
Agency relationships have been clarified and coordination improved. EPA now proclaims oversight of the Corps' data pertaining to Spring Valley.299 EPA also has declared oversight of its own division, EPIC.300 EPA testified that the "obvious failure to communicate within EPA offices has been rectified," by refusing to allow EPIC to perform contract work and by requiring EPIC to report on its projects to EPA headquarters offices.301
The Agency for Toxic Substances and Disease Registry ("ATSDR") and the D.C. Department of Health have started collaborating closely to produce health analyses.302 In another collaboration, the D.C. Department of Health is responding to the Mayor's Scientific Advisory Panel's request to implement a data reporting system to track illnesses that may be related to contamination and evaluate new and existing data geographically against known hazards.303
Many of the changes implemented, however, such as the creation of the partnership, EPA's new relationship with the Corps regarding data, and EPA's relationship with EPIC, are ad hoc responses. Such partnerships need to be required at the start of a cleanup, regardless of scale. As seen in Spring Valley, the initial determination of a project's scale does not always match reality.
EPA oversight needs to be further clarified. EPA has not addressed whether its oversight of the Corps is site- specific.304 It should not be; such oversight should be required for reasons discussed earlier, such as self-monitoring.305Similarly, EPA oversight of its contractor-type divisions is unclear. EPA only addressed control over EPIC.306 All divisions within EPA with the ability to contract out services should meet the same reporting requirements, to prevent analogs of the miscommunication at Spring Valley between EPA and EPIC.
Other organizations that promote interaction gained louder voices within the year. The Mayor's Scientific Advisory Panel provides a forum for exchanging information and ideas and is well respected; the D.C. Department of Health follows the Panel's recommendations, while the Corps and ATSDR report developments to the Panel and seek its approval for their actions.307
The RAB has also increased its presence and activity. Recent meetings reveal the growing knowledge and power of the RAB; its members have seized opportunities to gain knowledge, obtain additional funds, and lobby Capital Hill.308The RAB is currently requesting a TAPP grant for outside advice regarding sampled contaminants, the geophysical investigation and health issues related to arsenic.309 As the RAB has become more organized, the group has become more respected; the Panel's executive director cites the RAB's "loud voice" and "influential" input.310
However, the Panel and RAB still lack power-sharing authority with decision makers. Both organizations still perform solely an advisory role. For citizen participation, such as in the RAB, such authority lends legitimacy to and acceptance of outcomes.311 In his written testimony, the chairperson of the Panel stated that involved agencies "have 'complied' with its recommendations" effectively - using "complied" in quotations, for the agencies have no duty to comply at all.312Allowing too many parties to share decision-making power may hinder timeliness of results, but granting that power when appropriate aids success of those results.
The cleanup at Spring Valley has long suffered from refusals and failures to effectively communicate at and within multiple levels of pertinent government agencies. Statutory deference, posturing and lack of accountability contributed to these failures. These issues, coupled with the fear and distrust triggered by toxic contamination and aggravated by information mishandling and late, powerless public forums, resulted in failed cleanups, suspicion and lack of public confidence in any resolution. New approaches may assist cleanup plans' success in the realms of both science and public opinion. Increasing interaction and oversight within agencies and between agencies is crucial. Statutory provisions and formal communication forums are two routes to ensuring increased and effective interaction. Increasing the role of local governments may also aid successful plans, by providing a closer link to local concerns and unique knowledge that federal agencies may lack. Creation of a consensus-based group of experts may reduce posturing, increase communication and derive solid and informed cleanup strategies. Finally, community participation must be emphasized early, increased and empowered, whether through statutory programs, educational strategies or other avenues.
The spotlight Congress placed on Spring Valley in the 2001 congressional hearing focused attention on problems and solutions. Agencies have implemented positive changes, but many problems still exist. Moreover, issues that caused or contributed to the contamination problem in Spring Valley and other sites are still outstanding, such as inadequate funding for the cleanup of FUDS and ignorance of other potentially contaminated sites.
Though Spring Valley is the first discovered residential FUDS with chemical and explosive hazards in the United States, other such sites are likely to surface in coming years. Increasing populations, suburban expansion and absence of land-use records are contributing factors. Cleanup of FUDS exhausts significant time and monetary resources,313 and the addition of a residential element increases the complexity and urgency of the cleanup.
Implementation of measures outlined earlier can reduce costs of time, money and social goodwill, and this opportunity is present in the Washington, D.C. area. Experts Page 22 have identified fifty-nine FUDS in the District.314 Though many are known sites of Civil War forts, others are more suspicious and currently under investigation.315 Numerous other D.C. sites may be at issue as well, as renewed scrutiny of historic aerial photographs yields indications that areas previously considered "no risk" may actually be sites of former trenches and bunkers.316 Meanwhile, surprises continue to surface in Spring Valley. Newly discovered historical records and elevated levels of arsenic in soil at other residential FUDS in the District caused the D.C. Department of Health to request expanded munitions searches and testing.317
Citizens of the District of Columbia are already skittish about the interest and ability of the federal government to solve chemical contamination situations. These potential sites are an opportunity for the federal government to revamp its approach to its responsibilities. Through improved internal and external communication at all levels of government, expert groups with non-partisan, common interests in results, and more proactive and empowered roles for both local citizens and governments, the federal government may be able to reduce costs and build its most basic wealth, public trust.
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[1] Hearing on Spring Valley - Toxic Contamination in the Nation's Capital Before the House Subcommittee on the District of Columbia, Committee on Government Reform, 107th Cong. (2001) [hereinafter 2001 Hearing]; Spring Valley Revisited - The Status of the Clean-Up of Contaminated Sites in Spring Valley Before the House Subcommittee on the District of Columbia, Committee on Government Reform, 107th Cong. (2002) [hereinafter 2002 Hearing].
[2] 2001 Hearing, supra note 1 (statement of Raymond Fatz, Deputy Assistant Secretary, Army - Environment, Safety and Occupational Health, at 3) [hereinafter Fatz 2001].
[3] MARTIN GORDON ET AL., A BRIEF HISTORY OF THE AMERICAN UNIVERSITY EXPERIMENTAL STATION AND U.S. NAVY BOMB DISPOSAL SCHOOL 7 (1994).
[4] Id. at 8.
[5] Id.
[6] Id. at 8-9.
[7] Id. at 15, 32-38.
[8] GORDON, supra note 3, at 11, 23.
[9] GORDON, supra note 3, at 16-18. Two, separate government installations arose in the Spring Valley area: Camp American University (later called Camp Leach), a school to train engineer officers and not involved in the contamination problem, and AUES, which was run by the Bureau of Mines. Id. at 15-17. In 1918, control of AUES shifted from the Bureau of Mines to the newly-created Gas Service within the War Department, which later became the Chemical Warfare Service. Id. at 19.
[10] Id. at 20.
[11] Harry Jaffe, Ground Zero, WASHINGTONIAN, December 2000, at 83.
[12] GORDON, supra note 3, at 21-28.
[13] Id. at 21-23.
[14] Id. at 24-28.
[15] Jaffe, supra note 11, at 81. See also 2001 Hearing, supra note 1 (statement of Ivan C. Walks, M.D., Chief Health Officer of the District of Columbia, at 6) [hereinafter Walks 2001].
[16] GORDON, supra note 3, at 11.
[17] Id. These dwellers had primary residences elsewhere and leased the property that was then outside the city. Id.
[18] Id. at 12.
[19] Id.
[20] Id. at 35-36.
[21] Id.
[22] Memorandum from U.S. Army Audit Agency to U.S. Army Claims Service, Subject: Review of Claim Against the U.S. Army - Spring Valley, Audit Report No. SR 95-774, at 5 (July 27, 1995) [hereinafter SR 95-774] (citing American Expeditionary Force Regulation No. 253, Nov. 1917).
[23] GORDON, supra note 3, at 32-33.
[24] Id.
[25] 2001 Hearing, supra note 1 (statement of Edward J. Miller, President, W.C.& A.N. Miller Development Company, at 1-2) [hereinafter Miller]; GORDON, supra note 3, at 39-40. Another early residential subdivision offered moderately-priced, identical brick homes. Shell holes and dugouts initially marked yards of these popular homes built in the 1920s, according to oral tradition. GORDON, supra note 3, at 40.
[26] GORDON, supra note 3, at 42.
[27] AU's patriotism continued; at the start of World War II, AU again offered its campus to the federal government, and the Navy installed facilities that conducted nominally hazardous activity. Id. at 39, 44-46.
[28] 2001 Hearing, supra note 1 (testimony of Dr. Benjamin Ladner, President, American University).
[29] 2001 Hearing, supra note 1 (statement of William Harrop, President of Spring Valley-Wesley Heights Citizens Association, at 10).
[30] 2001 Hearing, supra note 1 (statement of Dr. Benjamin Ladner, President, American University) [hereinafter Ladner].
[31] Steve Vogel, Evidence of D.C. Toxins Unheeded, WASH. POST, July 9, 2001.
[32] SR 95-774, supra note 22, at 5; Jaffe, supra note 11, at 126.
[33] Record of Decision for the Operation Safe Removal Formerly Used Defense Site, Executive Summary 3-8 (June 2, 1995) [hereinafter ROD].
[34] SR 95-774, supra note 22, at 3; Fatz 2001, supra note 2, at 3.
[35] 2001 Hearing, supra note 1 (testimony of Rear Admiral Robert Williams, Director, Division of Health Assessment & Consultation, Agency for Toxic Substances and Disease Registry) [hereinafter Williams].
[36] U.S. Army Toxic and Hazardous Materials Agency (USATHMA).
[37] SR 95-774, supra note 22, at 3; U.S. Army Corps of Engineers, CORPS'PONDENT, at 1, July 2001, Special Issue, at http://www.nab.usace.army.mil/projects/WashingtonDC/springvalley/ newsletter.htm [hereinafter CORPS'PONDENT, July 2001].
[38] 2001 Hearing, supra note 1 (statement of Thomas Voltaggio, Acting Regional Director, Mid- Atlantic Region, EPA, at 1) [hereinafter Voltaggio 2001].
[39] Id. Voltaggio stated that EPIC's findings about the potential burial sites went to EPA Headquarters in Philadelphia and was not reviewed at EPA Region III headquarters in January, 1993.
[40] CORPS'PONDENT, July 2001, supra note 37, at 1; 2001 Hearing, supra note 1 (testimony of Col. Charles Fiala, Commander, Baltimore District, U.S. Army Corps of Engineers, at 3) [hereinafter Fiala 2001].
[41] SR 95-774, supra note 22, at 3.
[42] Id. The Corps did support AU in the construction project. Id. The Corps concluded that the student newspaper sources were not credible, that all munitions were probably moved to the Maryland site, and that any buried materials in Spring Valley would only be small amounts of laboratory or experimental materials. ROD, supra note 33, citing Memorandum for Record, Dept. of the Army, U.S. Army and Military Police Centers & Fort McClellan (Oct. 29, 1986).
[43] SR 95-774, supra note 22, at 3.
[44] Ladner, supra note 30, at 1.
[45] Id. at 2.
[46] Vogel, supra note 31. AU Vice President and counsel Sandra Grosso advocated disclosure of the findings. Id.
[47] Ladner, supra note 30, at 2.
[48] Spring Valley Investigation (Fox 5 WTTG-DC broadcast, May 19, 2002); Jaffe, supra note 11, at 83, 121.
[49] CORPS'PONDENT, July 2001, supra note 37, at 1.
[50] Others had an idea, however. The next day a former AU archivist read a Washington Post article about the find and realized the potentially hazardous character of the munitions. " 'Oh boy, [the archivist] said to his wife, 'this is going to be big.'" Sally Acharya, Digging up the Dirt From World War I, What's News at AU at http://garamond.univpubs.american.edu/weeklypast/1112800/ story_6.html.
[51] ROD, supra note 33, at 5-6.
[52] SR 95-774, supra note 22, at 5.
[53] ROD, supra note 33, at 6.
[54] Id.
[55] Id.
[56] Id. at 5.
[57] The Corps employed two testing methods: geophysical surveys to detect ordnance and environmental sampling to identify chemical contamination.. Fiala 2001, supra note 40, at 2-4. To conduct the environmental sampling, the Corps and EPA worked together. Id. The Corps tested for unique compounds that would indicate the presence of chemical weapons agents, while EPA tested for a wider array of hazardous substances. Id. at 6-7.
[58] Fiala 2001, supra note 40.
[59] Voltaggio 2001, supra note 38.
[60] ROD, supra note 33, at 9; Fiala 2001, supra note 40, at 4.
[61] ROD, supra note 33, at 9-10. EPA's Risk Assessment Guidance for Superfund was the basis for the analysis. Id. at 15. The Corps and EPA conducted risk assessments if test samples contained chemicals or metals that exceeded EPA's risk-based concentrations and the area's background levels. Levels of arsenic found in the samples did not meet these criteria and thus no risk assessment was performed for arsenic. Id. at 9; Fiala 2001, supra note 40, at 4.
[62] Voltaggio 2001, supra note 38, at 1-2. Elevated arsenic levels were found at three of 150 sampled locations. Id.
[63] Williams, supra note 35.
[64] ROD, supra note 33, at 1-2. This report excluded one property from the "no further action" decision, because the Army did not have data from that property.
[65] Id.
[66] Jaffe, supra note 11, at 122.
[67] Id.
[68] Walks 2001, supra note 15, at 9-10. The Dept. of Health alleged that the Corps (1) only tested for a few of the chemicals used at AUES; (2) took soil samples in isolated locations, at the surface level, and did not use a random grid; (3) used metal detection equipment not adequate to detect individual munitions and failed to excavate many found objects. Jaffe, supra note 11, at 121.
[69] The D.C. Department of Health and the Corps signed a Cooperative Agreement for the D.C. Department of Health to review the Army's investigation of Spring Valley. Walks 2001, supra note 15, at 9-10.
[70] Id. at 11.
[71] Jaffe, supra note 11, at 122.
[72] The D.C. Department of Health requested the Corps to test for arsenic and three other heavy metals, and for EPA and ATSDR to conduct human-health-risk analyses. Id.
[73] Id. at 83.
[74] Id.
[75] Walks 2001, supra note 15, at 10.
[76] Jaffe, supra note 11, at 83.
[77] Id. at 122. This finding excluded the Korean ambassador's property and the adjacent AU property.
[78] Id.
[79] Id.
[80] Fiala 2001, supra note 40, at 5.
[81] Id. at 7.
[82] Id.
[83] Jaffe, supra note 11, at 122.
[84] Id.
[85] Fiala 2001, supra note 40, at 6.
[86] Jaffe, supra note 11, at 122.
[87] Fiala 2001, supra note 40, at 7. EPA sampled thirty areas near Spring Valley and outside the FUDS boundary to assess background arsenic levels, which were used in comparison with the point of interest-area samples. Walks 2001, supra note 15.
[88] Jaffe, supra note 11, at 123.
[89] Fiala 2001, supra note 40, at 7-8.
[90] See Minutes, Community Meetings (1999), at http://www.nab.usace.army.mil/projects/ WashingtonDC/springvalley/Minutes/Community.htm.
[91] Walks 2001, supra note 15, at 13.
[92] Id. In some spots at the CDC, the levels reached 498 ppm (compared to a background level of 13 ppm and EPA's standard for immediate soil removal at 43 ppm). Steve Vogel & Amy Argetsinger, More Arsenic Found in Day Care Soil, WASH. POST, Jan. 23, 2001, at B01.
[93] Id.
[94] Fiala 2001, supra note 40, at 9; Minutes, Spring Valley Partnering Meeting, May 22, 2002, at http:/ /www.nab.usace.army.mil/projects/WashingtonDC/springvalley/Minutes/Partnering.htm [hereinafter Partnering Meeting, May 2002].
[95] Minutes, Spring Valley Restoration Advisory Board Meeting, Apr. 9, 2002, at www.nab.usace.army.mil/projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter RAB Meeting, Apr. 2002].
[96] Interview with Deitra Lee, Executive Director, Spring Valley Scientific Advisory Panel (June 25, 2002) [hereinafter Lee Interview]. The Panel was created under Mayor's Order No. 2001-32 (Mar. 2001). Id.
[97] D.C. Department of Health, Environmental Health Administration, Hazardous Waste Division, Spring Valley Newsletter (Fall/Winter 2001), at http://dchealth.dc.gov/services/ administration_offices/environmental/services2/waste/index.shtm; Lee Interview, supra note 96.
[98] Lee Interview, supra note 96.
[99] Letter from Maj. Brian Plaisted, Project Manager for Spring Valley, Baltimore District, U.S. Corps of Engineers, to Community Members, Subject: Spring Valley Restoration Advisory Board Letter of Invitation (April 4, 2001).
[100] 10 U.S.C. 2705(d), (f).
[101] Minutes, Spring Valley Restoration Advisory Board Meeting, Mar. 12, 2002, at www.nab.usace.army.mil/projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter RAB Meeting, Mar. 2002].
[102] Interview with Sarah Shapley, RAB Co-Chairperson (June 23, 2002) [hereinafter Shapley Interview].
[103] Interview with Richard Albright, D.C. Department of Health (Aug. 7, 2001) [hereinafter Albright Interview]; Fiala 2001, supra note 40, at 9.
[104] Fiala 2001, supra note 40, at 10.
[105] 2001 Hearing, supra note 1.
[106] 2002 Hearing, supra note 1.
[107] Id. See also 2002 Hearing, supra note 1 (statement of Rep. Constance Morella); Steve Vogel, Arsenic Cleanup Questions Linger, WASH. POST, June 27, 2002, at B1.
[109] 2002 Hearing, supra note 1 (statement of Rep. Constance Morella, at 1).
[110] See discussion infra at Part II (D) and Part V(D)(1).
[111] Fatz 2001, supra note 2, at 1-2.
[112] See 42 U.S.C. 9620; 10 U.S.C. 2701(c)(1)(B).
[113] Mary Beth Thompson, Baltimore District in North Atlantic Division Manages $200 Million Program, available at http://www.hq.usace.army.mil/cepa/pubs/apr01/story7.htm.
[114] US Army Corps of Engineers, FUDS Site Inventory, at http://hq.environmental.usace.army.mil/ programs/fuds/fudsinv/fudsinv.html.
[115] Restoration Information Management System, Formerly Used Defense Sites (FUDS) Project Fact Sheet, at http://www.hnd.usace.army.mil/oew/factshts/factshts/gordon.pdf.
[116] Id.
[117] Id.
[118] Id.
[119] See Complaint at 14, W.C. & A.N. Miller Cos. v. United States, 963 F. Supp. 1231 (D.D.C. 1997) (1:96CV00453); 2001 Hearing, supra note 1 (statement of Francis E. Reardon, Auditor General of the Army, at 1) [hereinafter Reardon].
[120] Miller Companies claimed it had to sell other property in Maryland at slashed prices to generate capital to cover the shortage of capital and claimed monetary losses from its potential future development of the sold MD land.
[121] Reardon, supra note 119, at 4.
[122] SR 95-774, supra note 22. Reardon, supra note 119, at 1.
[123] Reardon, supra note 119, at 1; complaint at 14, W.C. & A.N. Miller Cos. v. United States, 963 F. Supp. 1231 (D.D.C. 1997) (No. 1:96CV00453).
[124] Id. at 14-17. Miller Companies claimed approximately $14 million in damages.
[125] Id. at 1-2.
[126] W.C. & A.N. Miller Cos. v. United States, 963 F. Supp. 1231 (D.D.C. 1997).
[127] Id. at 1243.
[128] Claim for Damage, Injury, or Death, submitted to Claims Judge Advocate, Military District of Washington, United States Army, from American University (July 13, 2001).
[129] In August, 2001, AU had received fifty complaints from private individuals. Albright Interview, supra note 103.
[130] W.C. & A.N. Miller Companies v. United States, 1997 U.S. Dist. LEXIS 6361 (D.D.C. 1997).
[131] Loughlin v. United States, No. 1:02CV00152, 2002 U.S. Dist. LEXIS 10100, at 5-6 (D.D.C 2002).
[132] Id. at 6-7.
[133] Id. at 3.
[134] Id.
[135] Gillum v. Am. Univ., No. 1:02CV00294; Saum v. Am. Univ., No. 1:02CV00349; see also In Brief, WASH. POST, Feb. 21, 2002, at B3.
[136] Gillum, No. 1:02CV00294.
[137] Saum, No. 1:02CV00349.
[138] Loughlin, 2002 U.S. Dist. LEXIS 10100, at 5-6; Spring Valley Investigation (Fox 5 WTTG-DC broadcast, May 19, 2002).
[139] 42 U.S.C. ǧ 9601-9675 (2002).
[140] See id. With CERCLA, Congress created a "Superfund" to finance federal cleanup actions and provide reimbursement to private and public parties for qualified actions. EPA maintains a National Priorities List ("NPL") that ranks sites by their threat to public health and environment. Only sites on the NPL can receive Superfund money; these sites must be supervised by EPA, unless otherwise designated. See id.
[141] See 42 U.S.C. 9607.
[142] 9603.
[143] 9604. See also 40 C.F.R. 300.5.
[144] For more discussion, see Stuart W. Risch, The National Environmental Committee: A Proposal to Relieve Regulatory Gridlock at Federal Facility Superfund Sites, 151 MIL. L. REV. 1 (1996).
[145] See 9601(9).
[146] See 9601(22); 40 C.F.R. 300.5. A "release" includes spilling or disposing hazardous substances in the environment, abandoned hazardous materials, and the threat of a release.
[147] See 40 C.F.R. 261.23. The munitions qualify as a hazardous waste under RCRA and thus under CERCLA as well. See 42 U.S.C. 9601(14).
[148] See 40 C.F.R. pt. 261.
[149] As a generator, storer, transporter, and disposer of a hazardous waste, the Corps also must comply with the Resource Conservation and Recovery Act of 1976 ("RCRA") for the waste now being extracted. See 42 U.S.C. ǧ 6901-6992k.
[150] EPA, Washington, D.C. Chemical Munitions: Current Site Information, at http://www.epa.gov/ reg3hwmd/super/DC/wash-dc-chem/pad.htm.
[151] 9620.
[152] Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (1986).
[153] 10 U.S.C. 2701-2710 (2002).
[154] 2701(c)(1).
[155] 40 C.F.R. 300.120(c).
[156] 10 U.S.C. 2703(a), (b).
[157] Fatz 2001, supra note 2, at 6. The Baltimore District of the Corps handles Spring Valley's cleanup. Id.
[158] See 10 U.S.C. 2701(a)(3); 42 U.S.C. 9620(f).
[159] See 10 U.S.C. 2705.
[160] 42 U.S.C. ǧ 9620(f), 9621.
[161] 10 U.S.C. 2703(b). Federal facilities generally cannot receive Superfund financing. See 40 C.F.R. 300.425(b).
[162] Warren G. Foote, Operation Safe Removal: Cleanup Of World War I Era Munitions in Washington, D.C. 1994 ARMY LAW. 34, 40.
[163] See 10 U.S.C. 2701(d); Department of Defense Instruction No. 4715.7 (April 22, 1996), at http:// www.dtic.mil/envirodod/Policies/DodInst/dodi47157_1.htm; Final Department of Defense State Memorandum of Agreement (DSMOA) (July 18, 1989), at http://www.epa.gov/swerffrr/documents/ swp789.htm.
[164] Albright Interview, supra note 103. DC and DOD signed a separate, similar agreement in 1994 to cover DC's expenses for police, ambulance, and HAZMAT services and for personnel overtime, which D.C. officials jokingly call the "Donut Curtain." Id.
[165] 42 U.S.C. 9617. EPA independently implements other programs, such as Community Advisory Groups, to allow affected citizens at Superfund sites to share their concerns in the decision- making process. See U.S. EPA, OSWER Directive 9230.0-28, Guidance for Community Advisory Groups at Superfund Sites, at http://www.epa.gov/superfund/tools/cag/resource/guidance/index.htm. The Superfund Reform Act, if passed, would have bolstered statutory public participation at Superfund sites, by implementing Citizen Working Groups. The groups would include local residents comprising at least fifty percent of the group, plus certain health and technical experts. Though the group would aim for consensus-based decisions, the group had no decision-making power. See S. 1834, 103, HR 3800, 103d Cong, (1994) (proposing to amend 42 U.S.C. 961).
[166] 42 U.S.C. 9617. Some commentators argue the grant application's complexity causes unfairness in grant distribution, as better-educated communities are able to apply for and thus receive the grants, whereas poorer communities remain disadvantaged. See Deeohn Ferris, Communities of Color and Hazardous Waste Cleanup: Expanding Public Participation in the Federal Superfund Program, 21 FORDHAM URB. L.J. 671, 679-80 (1994); John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in Environmental Decisionmaking, 73 IND. L.J. 901, 922 (1998).
[167] 9617(e)(1). Other programs, such as Technical Outreach Services to Communities (TOSC), provide for technical assistance, not limited to NPL sites. Through TOSC, university faculty, as part of nationwide hazardous substance research centers, provide information and training to communities and RABs. See HSRC Outreach Programs for Communities, TOSC Overview, at http://www.hsrc.org/hsrc/html/tosc/ustosc.html.
[168] 9617(e)(2). The ceiling and community payment may be adjusted via waivers. Id.
[169] 10 U.S.C. 2705(c)
[170] 10 U.S.C. 2705(d).
[171] See id.; see also 32 C.F.R. Pt. 203.3. RAB selection criteria include representation from different areas affected by the contamination, proximity to points of interest, socio-economic and minority considerations, hobbies such as gardening, years in the neighborhood, and many others. See U.S. EPA, Federal Facilities - Restoration Advisory Board Implementation Guidelines, at http://www.epa.gov/ swerffrr/documents/rab.htm. Many Spring Valley RAB members possess skills enabling their contribution to and participation in the RAB; for instance, one member is a toxicologist with training in epidemiology who has worked on Superfund sites for thirty years; another is an economist who specializes in environmental , contamination, and compensation issues. RAB Meeting, Mar. 2002, supra note 101. Members participate in activities such as investigation of unexploded ordnance. RAB Meeting, Apr. 2002, supra note 95.
[172] 10 U.S.C. 2705(e).
[173] 32 C.F.R. ǧ 203.10, 203.3. Funding for outside assistance is available only when federal, state, or local authorities lack necessary expertise or when outside assistance will aid in the efficiency, effectiveness, or timeliness and will increase community acceptance of the activities.
[174] See 10 U.S.C. 2705(g)(1).
[175] See 42 U.S.C. 9620; 10 U.S.C. 2701.
[176] See Voltaggio 2001, supra note 38.
[177] See 42 U.S.C. 9620; 10 U.S.C. 2701.
[178] 42 U.S.C. 9620.
[179] See Voltaggio 2001, supra note 38.
[180] Spring Valley Residential Advisory Board Meeting, July 9, 2002, at http:// www.nab.usace.army.mil/projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter RAB Meeting, July 2002].
[181] Id.
[182] Id. Boxes of AUES documents have been located in an Army library in Missouri but cannot be reviewed, because the electronic shelf storing system is broken and funding for repairs must be found. Id.
[183] See, e.g., Paul Slovic, Perceived Risk, Trust, and Democracy, 13 Risk Analysis 675, 676 (1993) [hereinafter Slovic, Risk, Trust, and Democracy]; Kai Erikson, Toxic Reckoning: Business Faces a New Kind of Fear, HARVARD BUS. REV. 118, 119-20 (Jan.-Feb. 1990); Paul Slovic, Perception of Risk, 236 Science 280 (1987) [hereinafter Slovic, Perception of Risk].
[184] Erikson, supra note 183, at 119-20.
[185] Id.
[186] Id. at 121.
[187] Id.
[188] Id. at 124.
[189] MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS IN TOXIC AND NUCLEAR WASTE SITING, 1994, 103, quoting U.S. CONST. amend. IV (guaranteeing "[t]he right of people to be secure in their ... houses").
[190] See Slovic, Perception of Risk, supra note 183, at 280.
[191] Cass Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 60; see also Slovic, Perception of Risk, supra note 183, at 285.
[192] Sunstein, supra note 191, at 57; see also Slovic, Perception of Risk, supra note 183, at 280; Slovic, Risk, Trust, and Democracy, supra note 183, at 676.
[193] Slovic, Perception of Risk, supra note 183, at 283.
[194] Interview with Ginny Durrin, Spring Valley resident (Aug. 15, 2001).
[195] Id.
[196] 2001 Hearing, supra note 1 (statement of Sarah Shapely, Co-Chairperson, Spring Valley Restoration Advisory Board) [hereinafter Shapley 2001].
[197] Steve Vogel, EPA Urges Quicker Pace in NW Probe for Arsenic, WASH. POST, Feb. 9, 2001, at B3.
[198] Id.
[199] Id.
[200] See Minutes, U.S. Army Corps of Engineers, Baltimore District, Spring Valley Project Public Meeting, Feb. 19, 2002, at http://www.nab.usace.army.mil/projects/WashingtonDC/springvalley/ Minutes/Community.htm [hereinafter Public Meeting, Feb. 2002].
[201] ATSDR, Healthy Children - Toxic Environments: Acting on the Unique Vulnerability of Children Who Dwell Near Hazardous Waste Sites, at http://www.atsdr.cdc.gov/child/chw497.html.
[202] "Did you know that there are bombs all over campus? Chemical bombs! Conversation overheard between two American University students, during 2001 Hearing, supra note 1.
[203] Shapley 2001, supra note 196, at 1.
[204] Erikson, supra note 183, at 123, 125.
[205] Slovic, Risk, Trust, and Democracy, supra note 183, at 677.
[206] The exception Slovic notes is an increase in trust from specific news that an advisory panel of citizens and environmentalists was formed that would be able to monitor and shut down a nuclear plant. Id. at 677-78. This positive impact of an such news, however, would not apply to Spring Valley, for the citizens' advisory group there does not posses such authority.
[207] Sunstein, supra note 191, at 41; Slovic, Risk, Trust, and Democracy, supra note 183, at 677-79.
[208] Wesley Long, quoted in Brooke Masters, Liquids Found in Spring Valley Shells May Be Toxic, WASH. POST, Jan. 8, 1993, at B6.
[209] Edward Stevens, evacuated resident, quoted in Avis Thomas-Lester & Brooke Masters, 25 Houses Evacuated as WWI Shells Examined, WASH. POST, Jan. 7, 1993, at B1.
[210] W.C. & A.N. Miller Cos, 963 F. Supp. at 1243.
[211] RAB Meeting, supra note 180.
[212] Shapley 2001, supra note 196; 2001 Hearing (statement of William Harrop, President, Spring- Valley-Wesley Heights Citizens Association) [hereinafter Harrop 2001]; see also Minutes, Spring Valley Residential Advisory Board Meeting, Feb. 12, 2002, at http://www.nab.usace.army.mil/ projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter RAB Meeting, Feb. 2002].
[213] Shapley 2001, supra note 196; Harrop 2001, supra note 211; see also RAB Meeting, Feb. 2002, supra note 212.
[214] Slovic, Risk, Trust, and Democracy, supra note 183, at 677-79; Slovic, Perception of Risk, supra note 183, at 285.
[215] Slovic, Risk, Trust, and Democracy, supra note 183, at 679. See also GERRARD, supra note 189, at 132.
[216] Slovic, Risk, Trust, and Democracy, supra note 183, at 677-79.
[217] See, e.g., Spring Valley Investigation (Fox 5 WTTG-DC broadcast, May 19, 2002); Steve Vogel, Evidence of D.C. Toxins Unheeded, WASH. POST, July 9, 2001; Harry Jaffe, Ground Zero, WASHINGTONIAN, December 2000.
[218] Shapley Interview, supra note 102.
[219] Id.
[220] 2002 Hearing (statement of Sarah Shapely, Co-Chairperson, Spring Valley Restoration Advisory Board) [hereinafter Shapley 2002].
[221] Fatz 2001, supra note 2, at 5.
[222] Letter from Maj. Brian Plaisted, Project Manager for Spring Valley, Baltimore District, U.S. Corps of Engineers, to Community Members, Subject: Spring Valley Restoration Advisory Board Letter of Invitation (April 4, 2001).
[223] As discussed infra, DERP allows formation of a Residential Advisory Board (RAB), composed of representatives from the military, EPA, local government, and private citizens. Spring Valley's RAB consists of fourteen community members chosen by a selection committee, representatives from the Corps, EPA, AU, a local school, and the business community, including Miller Companies. Minutes. Other representatives are often present, such as representatives from the D.C. Department of Health and ATSDR. RAB Meeting, Mar. 2002, supra note 101.
[224] Public Meeting, Feb. 2002, supra note 200.
[225] RAB Meeting, Feb. 2002, supra note 212.
[226] See 10 U.S.C. 2705.
[227] Public Meeting, Feb. 2002, supra note 200.
[228] RAB Meeting, Feb. 2002, supra note 212.
[229] RAB Meeting, Apr. 2002, supra note 95.
[230] Estimates range as high as $100 billion to clean up UXO on training ranges. 2002 Hearing, supra note 1 (statement of Rep. Earl Blumenauer, at 1). No organized solution or legal requirements exist to address this widespread issue, which is outside the scope of this paper. The Range Rule, proposed to deal with munitions disposal, is not in force. To effectively handle munitions cleanup situations in a non-patchwork manner and protect human safety, Congress and DOD need to address the UXO problem facing both active and former defense sites, such as Spring Valley.
[231] Sherri Goodman, The Bombs Beneath Us, WASH. POST, Aug. 5, 2001, at B07.
[232] Id.
[233] GAO, Environmental Contamination: Many Uncertainties Affect the Progress of the Spring Valley Cleanup, Report to the Subcommittee on the District of Columbia, Committee on Government Reform, House of Representatives, GAO-02-556, at 22 (June 2002) [hereinafter GAO Report].
[234] 2002 Hearing, supra note 1 (statement of Raymond Fatz, Deputy Assistant Secretary, Army - Environment, Safety and Occupational Health, at 4) [hereinafter Fatz 2002]. See also Press Release, Norton Gets $5.2 Million for Spring Valley Cleanup, Apr.11, 2002, at http://www.house.gov.norton/ 20020411a.htm.
[235] GAO Report, supra note 222, at 26.
[236] RAB Meeting, Mar. 2002, supra note 101.
[237] Id.
[238] Id.
[239] Shapley 2002, supra note 220, at 2.
[240] See 10 U.S.C. 2701(a)(3); 42 U.S.C. 9620(f).
[241] See id.
[242] This flexibility may be a hazard if EPA abdicates the role as overseer either by allowing standards to be too lax or by not checking plans and progress in a regular and timely manner.
[243] See discussion supra at Part (II)(D)(2).
[244] Public Meeting, Feb. 2002, supra note 200.
[245] Jaffe, supra note 11, at 15-16.
[246] Albright Interview, supra note 103.
[247] For example, a 1987 study found that three out of every five African Americans and Hispanic Americans live in communities with uncontrolled toxic contamination. See Kentucky Environmental Foundation, Chemical Weapons Disposal and Environmental Justice, at http:// www.cwwg.org/EJ.html.
[248] See Edward Scher, Negotiating Superfund Cleanup at the Massachusetts Military Reservation, in LAWRENCE SUSSKIND ET AL., THE CONSENSUS BUILDING HANDBOOK: A COMPREHENSIVE GUIDE TO REACHING AGREEMENT 859 (Sage Publications, 1999). Though MMR remediation is still ongoing, the success of the TRET in quickly achieving a sound and accepted plan is notable.
[249] Id. at 876.
[250] Id. at 859.
[251] Id. at 859-60.
[252] Id. at 860.
[253] Id. at 861-64.
[254] See id.
[255] Id. at 865-66.
[256] Id. at 865-68.
[257] See id.
[258] Id. at 868. A Steering Committee addressed problems such as scientists' uncertainty about balancing their roles as agency representatives and detached experts as well as the revolving-door nature of the panel.
[259] Id. at 866.
[260] See Applegate, supra note 166, at 924.
[261] See Slovic, Risk, Trust, and Democracy, supra note 183, at 680.
[262] Sunstein, supra note 191, at 39, 42.
[263] See NATIONAL RESEARCH COUNCIL, UNDERSTANDING RISK: INFORMING DECISIONS IN A DEMOCRATIC SOCIETY (Paul C. Stern & Harvey V. Fineberg, eds., 1996), which uses EPA's assessments of the health risks of dioxin and the use of Yucca Mountain, Nevada, as a nuclear waste repository, as examples to illustrate the failures of risk-based decisions that omit stakeholders' concerns.
[264] See discussion supra at Part III(B). See also Sunstein, supra note 188, at 41.
[265] See Sunstein, supra note 191, at 61-61. See also Paul Slovic's discussion of "signal potential" and associated costs, in Slovic, Perception of Risk, supra note 183, at 283.
[266] Scher, supra note 248, at 873.
[267] Id.
[268] Id.
[269] Id. at 875.
[270] Id. at 873.
[271] See discussion supra at Part III(B)(1).
[272] Numerous scholars share this view. See, e.g., Sunstein, supra note 191, at 39-62; Slovic, Risk, Trust, and Democracy, supra note 183, at 680; Bradford C. Mank, Reforming State Brownfield Programs to Comply with Title VI, 24 HARV. ENVTL. L.REV. 115 (2000); Joel B. Eisen, Brownfields Policies for Sustainable Cities, 9 DUKE ENVTL. L. & POL'Y F.187 (199); Applegate, supra note 166. But see Kevin M. Young, Superfund Reform - Where Less Is More, 4 ALBANY L. ENVT'L OUTLOOK 24, 27 (1999) (arguing that public participation should not be mandatory and allowed only where necessary).
[273] Slovic, Risk, Trust, and Democracy, supra note 183, at 680; Mank, supra note 252, at 177; Eisen, supra note 252, at 225; Applegate, supra note 167, at 952.
[274] Mank, supra note 272, at 177.
[275] Slovic, Risk, Trust, and Democracy, supra note 166, at 680; Applegate, supra note 167, at 952
[276] Applegate, supra note 166, at 952. But see Mank, supra note 272, at 181 (noting that fair procedural may still result in unfairness, due to cultural and socioeconomic biases).
[277] Applegate, supra note 166, at 932.
[278] See Mank , supra note 272, at 181.
[279] Spring Valley's RAB consists of fourteen community members chosen by a selection committee, representatives from the Corps, EPA, AU, Horace Mann School, and the business community, including Miller Companies. RAB Meeting, Mar. 2002, supra note 101. Other representatives are often present, such as representatives from the D.C. Department of Health and ATSDR. RAB Meeting, Mar. 2002, supra note 101.
[280] See 10 U.S.C. 2705(d).
[281] This lack of authority was also a main criticism of the Citizens' Working Groups featured in the unsuccessful 1994 CERCLA amendments. See supra note 165.
[282] Mank expands the notion of education about issues; he suggests classes to teach citizens how to publicly participate. Mank, supra note 272, at 177. Ferris, on the other hand, slightly contracts the notion of broad public education; she discusses the possibility of a "Technologies Clearinghouse," which would evaluate latest technologies and make proposals to citizen boards, thus circumventing perhaps unnecessary grappling with highly technical and difficult information. Ferris, supra note 166, at 684.
[283] See discussion supra at Part III(B)(1).
[284] See Slovic, Risk, Trust, and Democracy, supra note 191, at 676-77; see also Sunstein, supra note 188, at 41.
[285] Shapley 2001, supra note 196; Harrop 2001, supra note 212; see also RAB Meeting, Feb. 2002, supra note 212.
[286] See discussion supra at Part II(D)(3).
[287] Mank, supra note 272, at 167.
[288] See Applegate, supra note 166, at 927-30 (discussing a Citizens' Advisory Board implemented at Fernauld, a nuclear weapons site with a history of distrust and use of an independent technical consultant for citizen education).
[289] See discussion supra at Part II(D)(3).
[290] See 10 U.S.C. 2705(g)(1).
[291] See 42 U.S.C. 9617(e)(2).
[292] RAB Meeting, Mar. 2002, supra note 101; RAB Meeting, Apr. 2002, supra note 95.
[293] RAB Meeting, Apr. 2002, supra note 95; RAB Meeting, July 2002, supra note 211. The RAB Chair expects to meet with the DOD's senior budget official for full briefing on portions of the President's budget. RAB Meeting, Mar. 2002, supra note 101.
[294] RAB Meeting, Apr. 2002, supra note 95.
[295] GAO Report, supra note 233, at 3. Additionally, executive officials of the partner agencies have formed a separate, formal group, the Senior Executive Review Group, to review information and make cleanup decisions. This group has invited the RAB chairperson to attend meetings as well. Public Meeting, Feb. 2002, supra note 200.
[296] See Partnering Meeting Minutes, at http://www.nab.usace.army.mil/projects/WashingtonDC/ springvalley/Minutes/Partnering.htm.
[297] Fatz 2002, supra note 234, at 6.
[298] Shapley 2002, supra note 220, at 1.
[299] 2002 Hearing, supra note 1 (statement of Thomas Voltaggio, Regional Administrator -EPA Region III) [hereinafter Voltaggio 2002].
[300] Id, at 5.
[301] Id.
[302] 2002 Hearing, supra note 1 (statement of James A. Buford, Interim Director, D.C. Department of Health, at 3-4, 9) [hereinafter Buford 2002]; 2002 Hearing, supra note 1 (statement of Rear Admiral Robert C. Williams, Director - Division of Health Assessment & Consultation, ATSDR, at 3-4) [hereinafter Williams 2002].
[303] Report of the District of Columbia Mayor's Spring Valley Scientific Advisory Panel, at 4, May 29, 2002, at http://dchealth.dc.gov/services/administration_offices/environmental/services2/ waste/index.shtm; see also Steve Vogel, D.C. Arsenic Panel Wants Illness Facts, WASH. POST, May 30, 2002, at B1.
[304] Voltaggio 2002, supra note 299, at 5.
[305] See discussion supra at Part III(A)(5).
[306] Voltaggio 2002, supra note 299, at 5.
[307] U.S. Ar my Corps of Engineers, CORPS'PONDENT, at 3, May-June 2002, http:// www.nab.usace.army.mil/projects/WashingtonDC/springvalley/newsletter.htm. For example, the Corps waited to begin soil excavation until the Mayor's Scientific Advisory Panel approved the final standard of twenty parts per million. Steve Vogel, D.C. Arsenic Panel Wants Illness Facts, WASH. POST, May 30, 2002, at B1.
[308] See Shapley 2002, supra note 220.
[309] RAB Meeting, Apr. 2002, supra note 95. See discussion supra at Part II(D)(3).
[310] Lee Interview, supra note 96.
[311] See discussion supra at Part IV(D).
[312] 2002 Hearing, supra note 1 (statement of Dr. Bailus Walker, Jr., Chairman, District of Columbia Mayor's Spring Valley Scientific Advisory Panel, at 7) [hereinafter Walker 2002].
[313] FUDS clean-up includes removal of ordnance, hazardous waste, or building demolition and debris removal. Congress allocates funding for FUDS cleanup annually and can add funding as special projects arise, such as Spring Valley. The total cost for all FUDS cleanups is estimated at $12 billion; at current funding levels, cleanup will require fifty years to complete. Fatz 2001, supra note 2, at 2, 4.
[314] 2002 Hearing, supra note 1 (testimony of Col. Charles Fiala, Commander, Baltimore District, U.S. Army Corps of Engineers, at 14).
[315] Voltaggio 2002, supra note 299, at 8-9. Areas to be investigated or under investigation include: Navy Yard, the sole Superfund site in D.C., Walks 2001, supra note 15; Catholic University, where researchers developed extremely toxic chemical weapons during World War I, id. ; the former site of the Bureau of Printing and Engraving, id.; Camp Simms, a site used as a small-arms target range until 1959 and now partially a park, id.; the University of D.C., the site of a fuse laboratory operated by the National Bureau of Standards and later by the Department of Defense, Steve Vogel, Expanded D.C. Toxin Searches Requested, WASH. POST, Aug. 2, 2001,p at B1; the Chain Bridge area of the C&O Canal on the Potomac River, In Brief, WASH. POST, Mar. 4, 2002, at B3; and the Carderock Division of the Naval Surface Warfare Center in nearby Bethesda, Steve Vogel, Carderock Area Eyed As WWI Chemical Test Site, WASH. POST, Mar. 21, 2002, at B3.
[316] Partnering Meeting, May 2002, supra note 94.
[317] Partnering Meeting, May 2002, supra note 94; Steve Vogel, D.C. Wants Expanded Tests in NW for Arsenic, WASH. POST, May 29, 2002, at B1.
