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Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully Under CERCLA Section 120(h)(3)

(Interim) August 1996

Office of Solid Waste and Emergency Response

United States Environmental Protection Agency
Washington, DC 20460

Federal Facilities Restoration and Reuse Office


Introduction

This guidance is intended to provide direction to Environmental Protection Agency (EPA) Regional Federal Facility programs concerning the implementation of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 120(h)(3). Specifically, it addresses the approach EPA should use in evaluating a federal agency's demonstration that a remedial action is "operating properly and successfully" as a precondition to the deed transfer of federally-owned property, as required in section 120(h)(3).

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Background

As part of the 1986 Superfund and Reauthorization Amendments (SARA) to CERCLA, Congress added section 120(h), which placed certain requirements on the deed transfer of U.S. Government owned property to other parties. The primary purpose of section 120(h) was to ensure that property contaminated by the federal government is environmentally restored by the federal government before being conveyed outside the federal government. CERCLA section 120(h)(3) was included to ensure that end by requiring that deeds transferring property where hazardous substances had been stored, released or disposed of shall contain a covenant warranting that:

"all remedial action necessary to protect human health and the environment with respect to any [hazardous] substance remaining on the property has been taken before the date of such transfer."

In October, 1992, Congress enacted the Community Environmental Response Facilitation Act (CERFA), which, among other things, amended CERCLA section 120(h)(3) to clarify when all remedial action is deemed to have been taken. Specifically, the amendment added language stating that all necessary actions have been taken,

"if the construction and installation of an approved remedial design has been completed and the remedy has been demonstrated to the [EPA] Administrator to be operating properly and successfully."

Congress intended the CERFA amendment to section 120 (h)(3), along with the Act's other provisions, to alleviate the impact of military base closure on the economies of local communities by expediting property transfers. Congress also intended, however, to continue to ensure that contaminated properties be successfully remediated by giving to the Administrator the decision of whether constructed remedies are operating properly and successfully.

Based on the amended language of CERCLA section 120 (h)(3), EPA concludes that a federal agency may provide the required deed covenant once a remedial action has been completely constructed and installed, but before the cleanup objectives have been met, provided that the federal agency can demonstrate to the Administrator that the remedial action is "operating properly and successfully." Although there are some explicit aspects of a remedial action (e.g., completion of an approved design) that must be completed prior to EPA's approval of a federal agency's demonstration, the basis for determination that an action is operating properly and successfully has been left largely to the discretion of the Administrator.

The Administrator's authority for evaluating these demonstrations has been delegated to EPA's Regional offices (see "Evaluation of Approved Remedial Design," Delegation 14-40). Each Regional office has designated an official with the authority to approve such demonstrations in support of the federal agency's Section 120(h)(3) covenants. Delegation 14-40 requires Regional Administrators or their delegatees to notify the Assistant Administrator for Solid Waste and Emergency Response or his/her designee after exercising this authority. Allison Abernathy, in the Federal Facilities Restoration and Reuse Office, is the designee for such notifications.

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"Operating Properly and Successfully" Defined

The phrase "operating properly and successfully" involves two separate concepts. A remedial action is operating "properly" if it is operating as designed. That same system is operating "successfully" if its operation will achieve the cleanup levels or performance goals delineated in the decision document. Additionally, in order to be successful," that remedy must be protective of human health and the environment. For instance, a pump and treat system may be operating properly according to its design for pumping and extracting groundwater, but not operating successfully because one or more contaminant level has not been reduced in the aquifer. The success of a particular remedial action will be evaluated based on whether it successfully addresses the particular contaminant(s) it was designed to remediate. Where more than one remedial action is required for a parcel, all such actions must operate properly and successfully, and EPA must evaluate the suite of actions comprehensively prior to transfer to determine that all remedial actions have been taken. Thus, EPA interprets the term "operating properly and successfully" to mean that the remedial action is functioning in such a manner that it is expected to adequately protect human health and the environment when completed.

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Applicability

The CERFA amendment to section 120(h)(3) did not distinguish between property on the Superfund National Priorities List (NPL) and non-NPL property, or between base closure and non-base closure properties. Thus, EPA believes that, with the exceptions listed below, the demonstration to the Administrator must be made for all federal deed transfers of real property that has been contaminated with hazardous substances which exceed the threshold requirements in the regulations at 40 CFR Part 373. Sections 1 through 8 of this guidance apply to all such transfers, while Appendix A of this guidance pertains specifically to groundwater remedies.

The purpose of the CERFA amendment to CERCLA was to allow properties with ongoing remedial actions to be transferred, while at the same time ensuring that "all [emphasis added] remedial action necessary to protect human health and the environment with respect to [hazardous substances] has been taken." For this reason, EPA believes that only parcels where final (not interim) remedial actions have been taken are eligible for transfer by deed.

Federal agencies, with the support of EPA, are making increasing use of removal actions, and response actions that historically were thought of as remedial actions (such as pump and treat systems and landfill caps) are being conducted as removal actions. Moreover, parcels are also being cleaned up as part of RCRA corrective actions. Given the intent of the CERFA amendments to (120(h)(3), EPA believes that it is reasonable to consider parcels with ongoing removal actions or RCRA corrective actions eligible for transfer if that removal action or RCRA corrective action is the sole or final response for a particular site, and addresses all pathways and contaminants of concern. Demonstrations for such removal actions or RCRA corrective actions must meet the same requirements as remedial actions.

The demonstration that a remedy is operating properly and successfully is only applicable where the federal agency is implementing an ongoing remedial action (or removal action or RCRA corrective action, as specified above) and desires to transfer the property before the remedial objectives have been met. This guidance is not intended to apply in situations where a federal agency is in position to make the 120 (h)(3) covenant that all necessary remedial action has been taken because:

  1. Hazardous substances were stored and not released and have been removed from the property;

  2. A final documented decision of no remedial action has been made with the concurrence of the appropriate regulator with respect to any hazardous substances that were released or disposed of on the property;

  3. An approved remedial or removal action has achieved its objective which is documented in a close-out (or similar report) approved by the appropriate regulator.

EPA believes that requiring an "operating properly and successfully" demonstration under these circumstances would not further the Congress or Administration goal of expediting property transfers.

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Purpose and Responsibilities

The requirement that a federal agency demonstrate that a remedy is operating properly and successfully prior to transfer ensures that human health and the environment are protected while at the same time expediting the transfer of property to communities for reuse. Therefore, EPA should confirm that adequate information has been presented to support the finding that the remedy is operating properly and successfully. Because EPA must make a present judgment about the future performance of a response action, federal agencies are expected to present sufficient evidence supporting their contention that all remedial action necessary at the site has been taken. The evidence should address any uncertainty as to the protectiveness of the federal agency's remedial actions under consideration.

EPA's approval of a federal agency's demonstration under section 120(h)(3) is solely for the purpose of allowing property transfer to occur and does not imply that all cleanup actions are completed. The completion of a remedial action is defined by the attainment of specific cleanup levels or performance goals that are specified in a decision document, such as a Record of Decision (ROD), a Removal Action Memorandum or RCRA decision document. Regardless of the timing of EPA's approval of a federal agency's demonstration, federal agencies remain obligated to complete remedial actions pursuant to those performance requirements specified by a ROD or other decision document, and comply with the terms of any site-specific Interagency Agreement (or Federal Facility Agreement), or similar agreement under RCRA or State RCRA/CERCLA equivalent laws).

In general, EPA is concerned that the operation of the remedy ensures current and future (post-transfer) protection of human health and the environment. The following section focuses on considerations that delegated Regional decision-makers should take into account in judging the status of remedy operation.

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General Guidance

The determination that a remedy is operating properly and successfully is the second step of a two part analysis. First, construction and installation of an approved remedial design must be completed. This determination is straightforward and will not be detailed in this guidance. For 120(h)(3) purposes, the "remedy" may include corrective measures required under RCRA or State RCRA/CERCLA-like authorities. Second, the remedy must be demonstrated to be operating properly and successfully. Case-specific circumstances will determine whether approval can be given.

EPA's Regional delegated decision-maker (herein after, "Region") should consider the degree of uncertainty that exists in whether a remedial action can be depended on to provide current and future protection of human health and the environment. Both the length of time a remedial action should operate, and the amount of data that should be collected on system performance may increase with the uncertainty regarding continued protectiveness of a remedial action. Although there will undoubtedly be unique circumstances that influence the decision, factors A-D below should be considered for all remedies.

  1. Risk to Public Health and Environment - There should not be any current exposure to contamination that results in an unacceptable risk to public health or the environment. If the integrity of the remedial action depends on institutional controls (e.g., deed restrictions, well drilling prohibitions) these controls should be clearly identified and agreed upon.

    FOOTNOTE 1. The Region should evaluate whether an unforeseen technical problem (e.g., the designed extraction system is not adequate to capture the groundwater plume) could result in an unacceptable risk, and how expeditiously an approved remedy could be expanded, if necessary. If the site being evaluated would pose elevated risks if such technical problems arose, it may be necessary for the system to operate for a longer duration to gather more data and refine system operation, in order to gain sufficient confidence in the selected remedy.

  2. Enforceability - Consideration should be given to the potential for ensuring that the federal agency continues operation of the remedy, or makes changes (e.g., constructs new extraction wells) to the remedy. If there are provisions in an enforceable document which require that necessary refinements to the remedial system be made in an expeditious manner after property is transferred, the Region may not need as much assurance on remedy performance as may be necessary without such an enforcement vehicle.

  3. Technology Reliability - Consideration should be given to whether the remedial technology has been shown to successfully mitigate the contaminants of concern. If a technology without a proven track record is part of the remedial action, it may be necessary to collect more data on system performance than would be necessary for a technology that has repeatedly been shown to be effective.

  4. Site Characterization - Consideration should be given to the quality of the site characterization, particularly for complex sites. If site characterization has not been thorough, implementation of the remedy is likely to be more problematic. In such a case, it may be necessary to collect more data on system performance than would be needed for a simple, well-characterized site.

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EPA Approval Letter

It is EPA's objective to approve appropriate demonstrations by federal agencies at the earliest possible date. The Region's approval should be expressed in a letter to the facility which describes the rationale for the approval and includes the following:

The primary purpose of the letter is to document the Region's position on the adequacy of the federal agency's demonstration. However, it should be noted that the letter also may serve another purpose -- that of informing and educating the transferee and surrounding stakeholders. This dual purpose should be considered in drafting the letter. Regions may consider additional or alternative means of informing stakeholder, such as announcements at RAB meetings or notices in newspapers.

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Conclusion

Historically, at NPL sites, EPA's Regional offices have provided federal agencies with approval that all necessary remedial actions have been taken, thus allowing property transfer to proceed. There has been less experience with longer-term remedial actions, such as groundwater extraction and treatment systems, to which the CERFA "operating properly and successfully" clarification applies, and for which there may be greater subjectivity as to whether a remedial action is successful. In all cases, the Region's evaluation of a federal agency's demonstration of operating properly and successfully will include some professional judgment. The basis for that judgment may vary depending on the site characteristics and type of remedy. EPA understands the importance of rapid redevelopment of federal properties to the surrounding communities and is committed to supporting this effort while maintaining our primary goal of protecting human health and the environment.

This document provides guidance to EPA Regional Offices on the exercise of EPA's discretion under CERCLA section 120(h)(3) to determine whether a response action is operating properly and successfully. It also informs the public and the regulated community on how EPA intends to exercise its discretion in this context. The guidance is designed to implement the President's policy of promoting, encouraging, and facilitating the redevelopment and reuse of closing military bases while continuing to protect human health and the environment. The document does not, however, substitute for EPA's regulations, nor is it a regulation itself. Thus, it cannot impose legally-binding requirements on EPA, States, or the regulated community, and may not apply to a particular situation based upon the circumstances. EPA may change this guidance in the future, as appropriate.

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Appendix A: Guidance for Ground Water Remedies

Two types of criteria should be considered for groundwater remedies. Core Criteria should be considered for all remedies for contaminated groundwater. Other Criteria to be considered will depend on the type of remedy selected and site-specific conditions. Examples of the types of criteria are listed below and are not intended to be exhaustive.

A.1: Groundwater Extraction Remedies

  1. Core Criteria which should be addressed by the demonstration:
    • construction of the source control portion of the remedy is complete and in accordance with the approved design, where necessary to protect human health and the environment;

    • construction of the groundwater remedy is complete and in accordance with the approved design;

    • the system is pumping, treating and discharging groundwater in accordance with the approved design;

    • groundwater elevation data show inward gradients throughout plume for all affected aquifers;

    • appropriate institutional controls are in place, and;

    • the monitoring system has been completed in accordance with the approved design and is providing adequate data to evaluate remedy performance and determine compliance with regulatory permits.

  2. Other Criteria to be considered:
    • contaminant distribution, including changes over time;

    • hydrogeology of site, especially conditions that would tend to increase remediation time frames (e.g., complex stratigraphy, decree of heterogeneity);

    • modeling studies of remedy performance and time required to attain remedy objectives;

    • contaminant chemistry ( e.g., are denser-than-water-non aqueous- phase-liquids [DNAPLS] or less-dense-than- water-non aqueous-phase-liquids [LNAPLS] present in pure form?)

    • likelihood that cleanup objectives are not achievable and an ARAR waiver will be needed;

    • future aquifer use;

    • current and future receptors;

    • operation and maintenance plans;

    • remedy contingency plan.

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A.2: Natural Attenuation Groundwater Remedies

  1. Core Criteria which should be demonstrated:
    • construction of the source control portion of the remedy is complete (or the source has been removed) in accordance with the approved design;

    • monitoring information showing that natural attenuation is working.

      FOOTNOTE 2. Different categories of information are listed below. The amount of information required in each category is a site specific determination based on the complexity of the site and the contaminant type.

      • documentation that contaminant levels have been reduced as expected, the estimated rate of contaminant loss has been established, and the plume is stable or retreating;

      • identification of intermediate degradation produces and any associated toxicity changes;

      • geochemical factors (such as chances in pH, electron acceptors, and alkalinity) associated with contaminant degradation indicate that remediation is taking place;

      • laboratory assays of microbial parameters (e.g., microbial population, ability to degrade contaminants of concern);

      • appropriate institutional controls are in place;

      • modeling studies confirmed by field data indicate that attenuation of plume will attain cleanup objectives within the predicted time frame before contaminants reach human or environmental receptors;

      • the monitoring system has been completed in accordance with the approved design and is providing the data needed to evaluate the progress of natural attenuation

  2. Other criteria to be considered
    • all factors listed under A.2, above;

    • potential surface water impact;

    • contaminant levels.

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A.3: Hypothetical Examples

The following hypothetical examples show how these criteria may be applied by EPA decision makers.

Groundwater Extraction and Treatment #1 -- There are no potential receptors (human or environmental) that use the groundwater in the area of the plume or down gradient from the plume. However because the aquifer is a potential future source of drinking water, and cleanup could be accomplished in a short time, a pump and treat system was considered feasible and cost effective. The federal agency is party to an Interagency Agreement and has agreed to a Remedial Action Plan with enforceable milestones that call for expansion of the extraction system if specific performance requirements are not met. The federal agency has a contract with a broad scope of work which can accommodate the need to potentially expand the extraction system. In this case EPA's Regional office would look for the federal agency to have institutional controls in place prohibiting future use of the groundwater while contaminated above drinking water standards. Information on the operation of extraction and treatment system could be minimal, including a demonstration that effluent discharge standards are being met, that the extraction wells and treatment system are operating as designed and preliminary data indicate that the plume is contained, remedy performance is being measured on a regular basis, and the required remedial objectives are likely to be attained in accordance with the remedy design.

Groundwater Extraction and Treatment #2 -- Same contamination problem as #1, except that there is a municipal supply well immediately down gradient of the plume, and the federal agency has not agreed to any Interagency Agreement provisions to protect this well in the event it becomes contaminated. In this case, the Regional office would need more detailed information on system performance. It may be necessary for the federal agency to collect data for a longer time frame (than in above) to demonstrate that the plume is fully contained by the extraction system. (See A. 1 requirements.)

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Notes

  1. Such proposed deed restrictions may include, but are not limited to: providing for continued site access, and ensuring that the proposed use will not disrupt any remedial activities and that no significant disturbances to remedial systems (such as relocating wells) will occur without the consent of the federal agency and appropriate regulator. For examples of comparable language, see also the model lease provisions (section IV.E) contained in the May 18, 1996 Department of Defense guidance document, "Fast Track Cleanup at Closing Installations." Return to Document

  2. Based on the EPA’s experience, a minimum of two years of data for simple sites, or three years of data for complex sites should be collected to make this determination. Monitoring data may be pre- or post ROD. Return to Document

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Appendix B: Example EPA Approval Letter for Demonstration that Remedial Action is in Place and Operating Properly and Successfully

The EPA Region III approval letter for the groundwater extraction remedy at the Cameron Station, Alexandria, VA. site follows.

REGION III
841 Chestnut Building
Philadelphia, Pennsylvania 19107-4431

May 31, 1996

In reply refer to:
3HW50(MKS-064)

LTC Thomas A. Knapp, USA
Post Commander
Fort Lesley J. McNair
103 3rd Avenue
Washington, DC 20319-5058

RE: Federal Property Transfer: Army Demonstration that Remedial Action is in Place and "Operating Properly and Successfully" under CERCLA §120(h)(3)

Dear Lieutenant Colonel Knapp,

In your letter dated April 26, 1996, you conveyed your determination that the Cameron Station, Alexandria, VA, Operable Unit (OU) 5 groundwater contamination (pump-and-treat) remedy is in place and operating properly and successfully. Your letter also transmitted the objective data and the weight of evidence you deemed sufficient to support your determination and to demonstrate to EPA (Region III) that the OU5 pump-and-treat remedy is in place and operating properly and successfully. Region III now hereby approves of the Army demonstration that the OU5 pump-and-treat remedy is in place and operating properly and successfully. Region III approval is in accordance with §120(h)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U. S. C. §9620(h)(3), as a precondition to the deed transfer of this federally-owned property. The specific aspects of evaluating whether a remedial action is operating properly and successfully and when to approve a federal agency demonstration have been delegated to and largely left to the discretion of the Region. This approval is made without any independent Region III investigation or verification, but rather, by taking into account case-specific circumstances and evaluation criteria which the Army, Region III and State representatives assigned to Cameron Station developed for this purpose and are discussed in greater detail below. Region III expressly reserves all rights and authorities relating to information not contained in the Army documents, whether such information is known as of this date, or discovered in the future.

This evaluation by Region III applies only to the Cameron Station OU 5 pump-and-treat remedy. Region III has worked closely with both the Army and the Virginia Department of Environmental Quality to assure that appropriate response actions have been considered in all cases where the Army stored for one year or more, released or disposed of hazardous substances. Specifically, the Army previously coordinated the selection and completion of Cameron Station OU 1, 4 and 6 remedial actions with Region III and the state, and the Virginia Department of Environmental Quality letter of May 9, 1996 confirms the that OU 1, 4 and 6 remedies have been satisfactorily completed. The Army also coordinated the selection of OU 8 and 12 petroleum underground storage tank cleanup actions with the state, gaining the required state concurrence for each of these actions. The Army selected these remedies, as well as choosing no active remediation for Cameron Station OUs 2, 3, 7, 9, 10 and 11, in the Cameron Station Decision Document, signed June 1994 and amended in March 1995. Long-term monitoring was also approved for OUs 3, 5, and 8. In evaluating whether these actions are complete, the Region III concern is that the Army select, complete and gain state concurrence for remedies that ensure current and future protection of human health and the environment. The Army actions taken in their entirety address the Army responsibility for remediation at Cameron Station. While there is non-site related petroleum groundwater contamination that originates off-base that is migrating beneath Cameron Station from up-gradient source(s), the state has determined that contamination is the responsibility of the up gradient parties and not the responsibility of the Army. This non-site-related groundwater contamination does not pose a threat to human health and the environment. Furthermore, since it is petroleum-related and not considered under §120(h)(3), the Army may proceed with the planned real estate transfers. The Army, however, plans to continue to monitor the situation closely for any indication that non-site related groundwater contamination could someday migrate into the OU 5 pump-and-treat system.

Region III approval of the Army demonstration under §l20(h)(3) is solely for the purpose of allowing property transfer to be demonstrated to imply that all cleanup actions are completed. The Army is still obligated to complete remedial actions as specified in the decision document.

When entering into a deed for transfer under §120(h)(3) of CERCLA, the Army is required to include in such deed a covenant warranting that all remedial action necessary to protect human health and the environment with respect to any hazardous substance remaining on the property has been taken before the date of transfer, and that any additional remedial action found to be necessary after the date of transfer shall be conducted by the United States. In the case of a contaminated groundwater plume such as OU5, the statute provides that the covenant can be given if the construction and installation of an approved remedial design has been completed, and the remedy has been demonstrated to the EPA Administrator to be operating properly and successfully. The ongoing requirement for pumping and treating, monitoring, or other operation and maintenance, after the remedy has been demonstrated to be operating properly and successfully does not preclude the transfer of the property.

You based your determination on having fully constructed and accepted an approved remedial design, and having collected and thoroughly reviewed performance data, concluding that the data and information do show, despite the short evaluation period, that the remedy is performing as expected in comparison with design criteria, permit limits and the known characteristics of the affected groundwater. Furthermore, you have certified the accuracy of the data and the accompanying information. Your letter and this approval letter will also become a permanent part of the administrative record for this site and any Finding of Suitability derived for the purpose of transferring property to third parties. This will assure that those third parties, as well as the community and future users have access to the information used in this process.

In evaluating the Army demonstration, the Region III concern is that the remedies ensure current and future protection of human health and the environment. Region III has worked closely with the Army since 1993 to resolve or provide input to the Army and state in resolving issues related to this remedy. Region III conducted a site tour on February 20, 1996 and found the pump-and-treat system to be nearly constructed and undergoing shakedown operation. Region III also finds that:

A number of Army cleanup-related reports serve to document the basis of the Region III evaluation. These reports did not undergo any independent EPA investigation or verification of the information they contain. The Preliminary Assessment (PA, September 1984), Enhanced Preliminary Assessment (EPA, October 1989); Remedial Investigation and Feasibility Study (RI/FS, 1993), Environmental Baseline Survey (EBS, April 1994), Proposed Plan (March 1995), Decision Document (signed June 1995), design (February 1994), and monitoring plan (January 1996), as well as the comment record for each, and the Virginia Department of Environmental Quality letter, March 22, 1995, regarding off-site petroleum contamination, discuss in detail what the Army has learned about contaminants; chemistry; site geology; site characterization; and absence of known human receptors using the groundwater in the area of the plume or down gradient from the plume, as well as the unknowns of future aquifer use.

After one year, the Army will compile four quarterly monitoring reports into an annual monitoring summary. At that time, Region III will re-evaluate the data and determine whether it is necessary for the Army to execute a scope of work that will expand or otherwise modify the current monitoring well system. Although there is no indication that performance requirements cannot be met as planned, Region III expects, should the remedial system require refinement, that the Army decision document, deed restrictions and easements, and corresponding notice and covenants to the prospective landowners, shall provide for timely installation or relocation of additional extraction or monitoring wells or other additional response actions, if required. Region III also expects to be consulted should such modifications be required or considered.

Region III regards this project as an excellent example of how fast-track cleanup efforts can benefit all parties involved. Most importantly, cleanup efforts that meet environmental objectives have been accelerated in a manner which also saves time and money. While continued treatment and monitoring remain to be done at the former Cameron Station site, the community can proceed with its plans to revitalize this closed military facility.

Sincerely,

[ signed, Abraham Ferdes for ]

THOMAS C. VOLTAGGIO
Director
Hazardous Waste Management Division

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