Appeals Court Panel Rules EPA Must Regulate Perchlorate

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, today unanimously ruled that the U.S. Environmental Protection Agency’s (EPA) decision against regulating the toxic chemical perchlorate in drinking water was illegal.  The following is a reaction by Erik D. Olson, Senior Strategic Director for Health at NRDC (Natural Resources Defense Council):  “The court ruled that EPA must regulate perchlorate-contaminated drinking water because the agency had found that it poses a health risk to millions of Americans.  After more than a decade of delay and litigation, EPA now must issue a drinking water standard for this widespread and dangerous contaminant.   It’s about time." 

 

Judges [David B.] Sentelle and [David S.] Tatel issued a joint opinion striking down EPA’s decision not to regulate; Judge [Florence Y.] Pan issued a separate concurring opinion, rendering a unanimous ruling against the EPA.  Judges Sentelle and Tatel found that EPA lacked the authority to reverse the agency’s previous decision to regulate this toxic rocket fuel component.  Judge Pan agreed that EPA’s action must be struck down, but because EPA was “arbitrary and capricious” [pg. 30] in making its decision, not that the agency lacked the authority to do so.  She found that EPA’s refusal to regulate based on a finding that decreasing the average IQ of vulnerable children was not an adverse effect “did not meet the statutory standard.”  She also noted that EPA decision also “was based on a biased dataset” [pg. 17] on perchlorate occurrence in tap water “that was selectively updated.”         

~ Margie Kelly

   NRDC

   May 9, 2023

40 states manufacture or use perchlorate (EPA)

 

NRDC Argued EPA Failure to Regulate Perchlorate Was Unlawful
In arguments before the U.S. Court of Appeals for the District of Columbia Circuit, today lawyers for NRDC told a three-judge panel that the U.S. Environmental Protection Agency’s decision against regulating the toxic chemical perchlorate in drinking water was illegal.  The following is a reaction by Erik D. Olson, Senior Strategic Director for Health at NRDC:  “Today the court heard why EPA’s refusal to set a drinking water standard for the widespread toxic chemical perchlorate is unlawful and unsupported by science.  Doctors and health experts have long called for EPA to protect the public, especially fetuses, infants, and young children, from this brain-damaging toxic chemical.  We are hopeful that the court will rule that EPA erred and must move ahead with a perchlorate standard.”  

 

Last March, the EPA announced it would not revisit a decision to not regulate perchlorate, a toxic component of rocket fuel associated with brain damage in fetuses and infants, leaving millions of people unknowingly exposed to the chemical through their tap water.  The determination affirmed a Trump EPA decision to not regulate perchlorate in drinking water.  Perchlorate, widely used in rocket fuel and munitions ... is the first unregulated drinking water contaminant for which EPA has proposed a standard in more than 25 years under the provisions of the Safe Drinking Water Act Amendments of 1996.  The Defense Department (DOD) and its contractors are major users of perchlorate and there are innumerable DOD facilities where perchlorate pollution has been found. 

 

DOD has opposed strict controls on perchlorate, in an apparent attempt to minimize its cleanup costs.   Since perchlorate is unregulated, there is no federally required monitoring of tap water or requirement to inform a community of contamination.  In 2011, the EPA formally decided that perchlorate should be regulated because it is toxic and widespread, with the drinking water of as many as 16 million people contaminated by the chemical.  When the Agency failed to develop a standard by the deadline, NRDC sued, and then secured a court-approved consent decree requiring the EPA to issue a drinking water standard for perchlorate by 2019. 
~ Margie Kelly
   NRDC
   January 27, 2023

Elected Officials Grapple with Agency Inertia Over Poisoned Park

Congresswoman Eleanor Holmes Norton is working with the National Park Service [NPS] and the US Army Corps of Engineers [USACE] to determine the scope of further soil testing in Fort Totten Park.  Recall back in 2017, NPS officials informed the ANC [Advisory Neighborhood Commission] and elected officials in the city that a Metro contractor brought in soil from a toxic World War I munitions testing site in Spring Valley to rehabilitate NPS parkland on the west side of Ft. Totten Park.  That parkland had been used as a staging area for construction of Metro’s green line in the 1990s.  NPS stated that the contaminated soil had been removed from the park and that soil testing in that area did not show any cause for concern.  In July 2020, an unexploded ordnance was found on the east side of the park where a pedestrian trail was planned between Gallatin & Galloway streets.

EMS reports to Ft. Totten on April 18 (FOX5)

Residents expressed concern that NPS likely did not know the extent of where soil from Spring Valley was taken in the park.  Emails and concerns went unaddressed and residents simply received assurances that everything was okay.  In April 2023 two canisters [sic] were found on the west side of the park.  USACE is still testing those canisters [sic] and the area on the west side of the park remains closed.  The more recent discoveries of munitions in the park led Congresswoman Eleanor Holmes Norton, at the urging of residents and ANC Commissioner Zachary Ammerman (5A09), to start periodically requesting soil testing throughout the park.  Commissioner Ammerman has created a timeline of events at https://www.anc5a09.com/trackers/fort-circle-park-toxic-waste-timeline.  On April 26, ANC 5A passed a resolution supporting further testing in the park.  

DC Councilmember requests June 14 briefing

On May 10, 2023, Congresswoman Eleanor Holmes Norton sent another letter to NPS and USACE regarding soil testing ...  Ward 5 Councilmember Zachary Parker also sent to NPS a letter regarding soil testing ... [Norton's] office sent another letter on June 1.  It appears there will be some type of investigation to determine what NPS lands were impacted by Metro’s green line construction and where soil from Spring Valley may have been delivered by Metro’s contractor.  Congresswoman Norton’s office is still working with NPS, Metro, and District officials on the scope and timeline for getting all of this done.  Her office is also working on a couple of different strategies for getting to the bottom of this issue.  

Next Stop ... Riggs Park

June 6, 2023

Army Seeks to ID Unknown Liquid in WWI Munition at Fort Totten

The U.S. Army is still trying to identify an unknown liquid found inside one of two World War I-era weapons that were discovered three weeks ago, in Ft. Totten Park, in Northeast D.C., and whether there’s a connection to the chemical weapons found during the decadeslong cleanup of a former chemical weapons site near the American University campus.  U.S. Army Corps of Engineers [USACE] spokeswoman Cynthia Mitchell told WTOP a 75 mm shell discovered in mound of soil by a National Park Service [NPS] employee was empty, after analysis at Marine Corps Base Quantico.  However, “the 6-inch Livens projectile has a liquid fill that will require further analysis,” Mitchell said.  A Livens Projector was a simple mortar-like weapon that could throw large drums filled with toxic or flammable chemicals.  The weapons were used during World War I, specifically between 1916 through 1918.  Livens projectors were encountered often during the Ward 3 Spring Valley cleanup, at the former American University Experiment Station [AUES] used by the U.S. government for research and testing of chemical agents, equipment and munitions — once dubbed the “mother of all toxic dumps” ... Mitchell said the Army is “still analyzing its options for obtaining additional characterization data on the liquid fill within the Livens.  That action is complicated by the experimental nature of the work conducted in the 1920s by American University.”  

Soldiers load battery of Livens gas projectors (Wikimedia)

The temporary lack of clarity of whether the liquid poses a potential health or safety risk is pausing discussions of whether a major cleanup might be required in the park, located in a Ward 5 neighborhood, near the Ft. Totten Metro.  However, USACE has taken preliminary steps to facilitate additional cleanup, by installing erosion control matting.  “This matting provides stabilization of the site, protecting the berms against erosion and rainfall.”  “Fencing will also be installed this week and will remain in place during ongoing assessments which will help determine a path forward at Ft. Totten Park,” according to a USACE statement ... The possible link to Ft. Totten may have occurred years before the start of the Spring Valley cleanup.  Even before a contractor digging a utility trench in Spring Valley in 1993 uncovered a buried military ordnance, which prompted the USACE investigation that revealed homes on Glenbrook Road were built atop chemical weapon burial pits, contaminated soil from Glenbrook Road was trucked to a landscaping project at Ft. Totten Metro station.  Dan Noble, of USACE, and project manager for the ongoing Spring Valley Formerly Used Defense Site project told WTOP in a 2022 interview.

 

“What we know is that over at Ft. Totten, where the D.C. Metro project was underway, they had a need for soil, and on Glenbrook Road, where they were building the houses, they had excess soil,” Noble said.  “We know that an arrangement was made to transfer some soil, from Glenbrook Road, over to Ft. Totten.”  In 1992, the heavy equipment operator spreading Glenbrook Road soil at the Ft. Totten Metro site felt sickened from the fumes of the soil, and NPS ordered it be removed, Noble told the Spring Valley Restoration Advisory Board [pgs. 13 - 14].  The board holds regular meetings to advise community members on the cleanup ... D.C. Del. Eleanor Holmes Norton and ANC commissioners Zachary Ammerman and Gordon-Andrew Fletcher have been calling on the NPS to more fully search the Ward 5 park, to investigate a possible link to the Spring Valley cleanup of chemical weapons.  On Wednesday, Norton issued a follow-up letter to the NPS and USACE, seeking a thorough search throughout the park for other weapons, and soil and groundwater contamination.  “Given the fact that multiple munitions have been found over the years in different areas of Ft. Totten Park, I, once again, ask that you investigate ordnances and soil and groundwater contamination throughout the park,” wrote Norton.

Neal Augenstein

WTOP News

May 12, 2023

Two AUES Munitions Discovered on Western Edge of Civil War Fort

WTOP has learned two metal canisters [sic] discovered Tuesday in Fort Totten Park, in Northeast D.C., were World War I-era weapons, with physical similarities to chemical weapons found during a decades-long cleanup of a former chemical weapons site near the American University campus ... “We expect preliminary/unofficial results on content this week, and final confirmation next week,” [U.S. Army Corps of Engineers (USACE) spokesperson Cynthia] Mitchell wrote in an email.  This is not the first time a World War I-era weapon has been discovered in Ft. Totten — one of seven Northeast D.C. forts used by the Union Army to defend the nation’s capital during the Civil War.  In 2020, the National Park Service [NPS] discovered a World War I-era metal canister [sic] on the ground in a different area of Ft. Totten Park ... WTOP reported last year that the empty shell found in 2020 had been modified for use as a chemical weapon.  Mitchell said the canisters [sic] discovered Tuesday were very similar to chemical weapons found in Ward 3’s Spring Valley cleanup at the former American University Experiment Station [AUES] used by the U.S. government for research and testing of chemical agents, equipment and munitions — once dubbed the “mother of all toxic dumps.” 

New AUES rounds were found on west side of Ft. Totten

“Munition one is ‘Livens-like’ — it doesn’t fit the exact measurements of the Livens projectors we’ve encountered during the Spring Valley cleanup, but it is very similar,” said Mitchell.  A Livens Projector was a simple mortar-like weapon that could throw large drums filled with toxic or flammable chemicals ... “Munition two is a 75 mm ordinance with a hex plug burster adapter, and is very typical of past finds at Spring Valley,” said Mitchell.  In a February 2022 interview, Spring Valley cleanup project manager Dan Noble told WTOP the shell found in 2020 had been modified for use as a chemical weapon.  “When we looked at the X-rays, it was a 75-millimeter ordnance item that we encounter quite a bit at Spring Valley.  It had a hex plug burster adapter screwed into the nose, ... [which] would convert what was developed as a conventional munition into a chemical munition,” Noble said.  D.C. Del. Eleanor Holmes Norton and ANC commissioners Zachary Ammerman and Gordon-Andrew Fletcher have been calling on the NPS to more fully search the Ward 5 park, to investigate a possible link to the Spring Valley cleanup of chemical weapons.
Neal Augenstein

WTOP News

April 20, 2023
  
People who live around Ft. Totten Park said they weren’t surprised when someone found more mystery items buried beneath the soil there Tuesday afternoon.  The National Park Service [NPS] closed part of the park after one of its employees found two metal canisters [sic] in a mound of soil.  NPS subsequently urged locals to stay away from cordoned off part of the park east of Fort Totten Drive, south of Gallatin Street, & north of Brookland Avenue NE.  Metro trains even bypassed the nearby Ft. Totten station, for more than an hour, as federal authorities conducted their investigation.  NPS said the canisters [sic], which appeared to be pushed into the park from the road, will be analyzed by the U.S. Army at Marine Corps Base Quantico ...

This latest discovery comes after NPS found an empty, unfused World War I-era metal canister [sic] in Ft. Totten Park in July 2020.  Its discovery prompted locals to push NPS to further examine the park for similar canisters [sic] and possible WWI-era munitions ... Local Advisory Neighborhood Commissioner Zach Ammerman contacted Delegate Eleanor Holmes Norton about the issue.  She, in turn, wrote a letter to NPS Director Charles Sams to investigate ordnances and soil and groundwater contamination throughout Ft. Totten Park.  She specifically noted she was disappointed NPS only looked at parts of the park around Fort Totten Trail after she requested a “thorough investigation” following a meeting in 2020 with the service, the US Army Corps of Engineers and the Washington Metropolitan Area Transit Authority.  “I believe it is imperative that NPS conduct an investigation throughout Ft. Totten Park,” she said.  “This park is located in a residential neighborhood and is regularly used” ...

Spring Valley WMDs were unearthed at Ft. Totten

Ammerman believes the discoveries in Fort Totten Park are tied to weapons waste material, once found in DC’s Spring Valley neighborhood in Upper Northwest D.C., in 1993.  “I think we just need to do testing of the entire [Ft. Totten Park] and quit pretending like there’s not an issue when there clearly is,” he said.  According to the US Corps of Army Engineers, Baltimore District [USACE], during World War I, the US government used the American University Experiment Station [AUES], in Spring Valley, to research and test chemical agents, equipment, and munitions.  A remediation project at that site, located along the 4800 block of Glenbrook Road, concluded in August 2021 with the ultimate discovery of more than 550 munition items.  Officials said 23 of them had been filled with chemical agents.

The NPS said the source of the empty canister [sic] found in Ft. Totten Park has still not been determined.  However, during a meeting in January 2021, Dan Noble, the USACE’s Spring Valley Project Manager, said [pg. 7] it was possible the Ft. Totten canister [sic] did originate in Upper Northwest: “[D. Noble] explained that USACE inspected and obtained x-rays of the shell,” a meeting transcript reads.  “The shell was found to be a 75mm with a hex plug.  This type of munition was often found in Spring Valley” ... Ammerman said he wished the issues at Ft. Totten were treated with the same urgency as they were in Spring Valley.  “Why can’t we get – I think I know why – just an iota of attention that was given to the other side of D.C. where the richest people in D.C. live, here?” he said ... WUSA-9 reached out to NPS to see if it has any plans to examine the entirety of Ft. Totten Park for munitions, ordinances, or any other types of waste.  It said it is working to determine the next steps to evaluate the area and no other additional information on the park is available at this time.
John Henry

WUSA-9

April 19, 2023

NPS Stonewalls Congresswoman on "thorough" Testing at Fort Totten

I finally deduced how the NPS [National Park Service] can continue to play dumb about the WW I-era munition discovered in eastern Ft. Totten Park in July 2020.  The key is the Feb. 27 update [below] where they say: “WMATA can best speak to the material that was placed and removed from the site.”  That’s because in 1992, when the Park Service ordered the contaminated fill material from Glenbrook Road to be removed from the original western Ft. Totten dump site, it was WMATA contractors — not the NPS! — who actually hauled it to the narrow eastern arm of the park between Galloway & Gallatin streets.  That’s why, in another section of their update, the Park Service says: 

“The source of the munition [discovered in 2020] is unknown. Fort Totten was used by the Army only during the Civil War, and there is no record of military activity around Fort Totten that would explain why a WWI munition would be found at a site.”

I.e., if WMATA will just admit for the record that their contractors moved 60 cubic yards of toxic fill from west to east Ft. Totten in 1992, then the Park Service can finally justify conducting the broader search for munitions debris and laboratory waste (that we all want) on both sides of the original foot path. 

~ Allen Hengst

On Apr 10, 2023, at 2:19 PM, Truding, Bradley <bradley.truding@mail.house.gov> wrote:

NPS hasn’t yet responded.  We check in with NPS periodically on the status of the response.  It is not uncommon for NPS and other federal entities to take many months to respond to inquiries from members of Congress. 

~ Bradley Truding

   Office of Congresswoman Norton

   April 10, 2023

 

On Apr 10, 2023, at 2:12 PM, ALLEN HENGST <ahengst@verizon.net> wrote:

 

It’s now been over two months since Congresswoman Norton sent a letter to NPS Director Charles Sams about conducting a more “thorough” investigation of Ft. Totten Park.  As you may recall, she requested a response from them by February 28, 2023.  Can you please let me know if the Park Service ever answered the Congresswoman?  If so, can I please see a copy of the Director’s written response?

 

Thank you,

Allen

 Email to Norton's office (4/11/23)

In the 1980s, the NPS authorized the Washington Metropolitan Transit Authority (WMATA) to use two areas of Fort Totten Park for the construction of the Ft. Totten Metro Station and the Green Line. The area where the NPS is constructing the new Fort Totten trail (to the east of the Ft. Totten Metrorail Station, between Gallatin and Galloway Streets NE) was reportedly used for construction of the Green Line tunnel ... WMATA reports that no fill material from off-site was brought to the site.  WMATA was also authorized to use a separate portion of Fort Totten Park to the west of the Ft. Totten Metrorail Station to stage construction equipment.  A 0.75-acre portion of the park was cleared and compacted for the staging area ...  

In 1992, WMATA excavated the staging area and placed 60 cubic yards of uncompacted fill material in the park.  During the placement of the fill, workers complained of eye and respiratory irritation.  The fill also contained large amounts of various [munitions] debris.  The NPS required that WMATA remove the fill and replace it with clean fill [pg. 3].  In 2014, it was confirmed that the source of the original fill was 4825 [and 4835] Glenbrook Road NW [pgs. 13 - 14] within the Spring Valley Formerly Used Defense Site , a property ... impacted by the release of hazardous substances.  The U.S. Army Corps of Engineers is currently remediating the site.  Following the removal of contaminated soil from the staging area in 1992, there were reports suggesting the potential that a portion of the contaminated fill remained on the wooded slope.  In 2019, the NPS and WMATA performed additional soil testing to determine whether there was residual contamination ... WMATA can best speak to the material that was placed and removed from the site ... 

Excerpt from Ft. Totten "Toxic Waste Timeline"

In 2020, a contractor working for the NPS discovered a WWI-era empty metal canister [75mm artillery shell] on the surface of the ground while working on the Ft. Totten Trail.  At the time, the NPS thought that the canister could be an unexploded ordnance, and the canister was immediately removed from the site and inspected by the Department of Defense (DOD). The information provided by DOD indicates the munition was an unfused, unused, empty canister [modified with a hexagonal plug to accommodate poison gas], and it was safely disposed of.  The source of the munition [pg. 5] is unknown [sic]. Ft. Totten was used by the Army only during the Civil War, and there is no record [sic] of military activity around Ft. Totten that would explain why a WW-I munition would be found at a site ...

Work [on the trail] was paused again in early 2022, after the NPS uncovered a portion of Metrorail infrastructure during trail construction.  The NPS then conducted a thorough review, consulted with engineers and engaged with WMATA and determined that we will need to redesign the trail with a new alignment.  It is our intent to complete the trail design in 2023. 

National Park Service

Update on Ft. Totten

February 27, 2023

Norton Demands Answers from Park Service by End of February

There’s a new push to investigate Fort Totten Park in D.C. for the possible link between the 2020 discovery of an empty World War I shell and the decadeslong Spring Valley cleanup of chemical weapons.  Last year, D.C. Del. Eleanor Holmes Norton said she was assured no other evidence of weapons or safety concerns had been found.  “They assured they have done a very thorough search of the entire area,” Norton told WTOP in March 2022.  “That’s all I have to go on, and I’m going to have to hold them to it.”  Now, Norton has asked the director of the National Park Service to dig deeper — literally, and figuratively.  In a Feb. 7 letter to park service head Charles Sams III, Norton requests the agency to “investigate ordnances and soil and groundwater contamination throughout Fort Totten Park.” 

Last year, Norton was briefed by the Park Service, the U.S. Army Corps of Engineers [USACE] and the Washington Metropolitan Area Transit Authority [WMATA] about the scope of the NPS investigation.  Three decades ago, in 1993, a contractor digging a utility trench in Spring Valley in Northwest uncovered buried military ordnance, which prompted the USACE investigation that revealed homes on Glenbrook Road were built on top of chemical weapon burial pits.  The Spring Valley cleanup at the former American University Experiment Station — used by the U.S. government for research and testing of chemical agents, equipment and munitions — was once dubbed the “mother of all toxic dumps."  In July 2020, the National Park Service discovered an empty shell during construction of a paved trail through wooded parkland located east of Fort Totten station.  

Norton pushes for wider investigation at Ft. Totten 

As WTOP reported, the empty 75 mm shell had been modified for use as a chemical weapon and was similar to the weapons discovered in Spring Valley, according to Dan Noble of USACE, project manager of the Spring Valley cleanup.  The 2020 discovery of the shell paused construction of a trail that would let residents in the Michigan Park neighborhood walk to the Ft. Totten Metro, instead of using the informal trail through the woods that they’ve used in the past.  ANC commissioner Zachary Ammerman, representing Ft. Totten and North Michigan Park, has been pushing for more investigation.  He has compiled a Ft. Totten Toxic Waste Timeline.  Ammerman said only a small portion of the park, near where the construction was underway, has been searched. 

“Only a tiny segment of it has actually been tested so far.”  “They spent, I believe, around $300 million [slide #10] and spent about 28 years cleaning up the Spring Valley site,” Ammerman said.  “All I’m trying to get is a small amount of the attention that was given to Spring Valley, which is the wealthiest area of D.C.”  Neighboring ANC commissioner Gordon-Andrew Fletcher has also called for future investigation ... “Give the same attention to this area, which has had potentially toxic waste sitting in a neighborhood park for 30 years,” said Ammerman.  “I am committed to ensuring that residents across the District are safe from ordnance, chemical weapons and soil and groundwater contamination,” Norton said, while requesting a response from the park service by the end of the month.
Neal Augenstein
WTOP News
February 8, 2023

Ft. Totten ANC Wants More Testing in Vicinity of Toxic Dump Sites

So far, only limited areas around the trail and the original WMATA staging area [at Ft. Totten] have undergone any sort of testing.  There is very good reason to believe that the known toxic soil moved [pgs. 13 - 14] from the WMATA staging area in 1992 was used in the landscape restoration project ... a few hundred yards to the east — that's why the [AUES] soil was brought to the Ft. Totten area to begin with ... The vast majority of the area of concern — where landscape restoration took place [pg. 2] at the exact time and place a large portion of known toxic soil went missing, and in the exact location where a WWI-era chemical weapon was found 30 years later — remains completely untested ... 

Higher levels of chemicals found along trail (ANC 5A-09)

Spring Valley is the richest part of DC, and is overwhelmingly white.  Why, then, when that wealthy part of DC dumps its toxic waste in a majority black neighborhood park on the other side of town, do we have to wait thirty-plus years to get some simple tests conducted?  We know with certainty that at least some of the exact same toxic soil that caused a thirty-year cleanup project in the wealthiest part of DC ended up here, in a middle class black neighborhood, why hasn't there been even a fraction of the effort on this side of DC?  There is ample evidence to suggest that there may well be chemical weapons and/or dangerous levels of chemicals of concern in our neighborhood park — more testing needs to be done.  

Zachary Ammerman, ANC 5A-09
Ft. Totten "Toxic Waste Timeline"
January 16, 2023