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Text Box: The Department of Justice (DOJ) responded to a request by the Department of Defense (DoD) Counsel to resolve a dispute between the U.S. Environmental Protection Agency (EPA) “concerning four ‘imminent and substantial endangerment’ orders issued by EPA under the Resource Conservation and Recovery Act (‘RCRA’) and the Safe Drinking Water Act (‘SWDA’) at DoD facilities listed on the National Priorities List (‘NPL’) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (‘CERCLA’).” The DOJ reduced the request to four legal questions.  However, other pending litigation was a cause for the DOJ to provide its response in summary form as a legal advisory which provides legal guidance rather than a formal legal decision regarding any particular site that is the subject of litigation.  Therefore, DOJ has provided its “views” on each of the four questions.

  Department of justice responds to DoD

The DOJ’s advisory response is provided in its entirety on the PAERAB’s own website as a PDF file. Salient parts of this legal guidance are provided below.


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It appears that the dispute between the USEPA and the Army regarding the Mid-Valley Groundwater Feasibility Study (FS) has been resolved.  As of the December 4, 2008 technical meeting attended by representatives of  Picatinny Arsenal, Arcadis, USEPA, and the NJDEP; Picatinny Arsenal had intended to submit a revised FS that would incorporate  changes in accordance with the dispute resolution.  However, now the NJDEP will be unable to approve the FS because the document does not include the NJDEP interim guidance number for RDX.  At the meeting Arcadis agreed


to consider marking the RDX cleanup standard of 2 parts per billion (utilized in the present FS) with an asterisk and, according to minutes of the meeting, “documenting in a footnote that NJDEP has an interim standard of 0.3 ppb for RDX and providing, for informational purposes only, the additional time required to meet this interim standard.”  It is somewhat unclear exactly how that provides resolution to the situation. The NJDEP further asked that if monitored natural attenuation (MNA) is the selected remedy for RDX that


a contingent remedy be included if MNA does not proceed as expected by Arcadis / Army modeling. Arcadis stated that their current preference is to avoid contingent remedies. NJDEP indicated that they may include a preference for a contingent remedy in comments on the FS. Michael Glaab, the RAB’s Community Co-chair offers the following comment: “... identifying and including at least one likely contingency response to be implemented if the selected remedy fails seems prudent - especially since the efficacy of that contingency response may be impacted by future activities at the arsenal such as new facility construction or materials storage ”. 


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substantial endangerment order under RCRA or the SDWA provided that they have established the legal basis.

2. The DOJ believes that EPA may issue an order under RCRA (section 7003) that is not limited to measures to abate a specific threat but instead seeks the implementation of a facility-wide cleanup process.

3. The DOJ believes that EPA may demand the inclusion in an interagency agreement of additional terms not listed in CERCLA section 120(e)(4) but because such an agreement denotes a “consensual undertaking” that DoD is not automatically required to agree to all the extra-statutory terms demanded by EPA.

4. The DOJ stated that “EPA may require DoD to address in an interagency agreement all property contaminated by a release listed on the NPL as long as the property is ‘within the broad compass of the notice provided by the initial NPL listing.’”  The DOJ could not answer some related aspects of the question.  The DoD would still be obligated for cleanup on parcels that had passed to other federal agencies.

 It would appear that view 1 is directly relevant to Picatinny Arsenal.  The remaining views may have bearing on other sites such as litigation by the State of Maryland regarding Fort Meade.  Nevertheless, the EPA has reiterated to Picatinny Arsenal the need to achieve SDWA compliance for the groundwater at the base which constitutes a sole source aquifer beneath a sizeable portion of Morris County.  As of yet no orders appear to have been issued by the USEPA to the Arsenal in regard to the SDWA, however, some admonishments have been pointed ( see page 8). 





Basically on each of the four specific questions, the DOJ sided with the USEPA and it asserted the authority of the USEPA to issue orders to protect the public  health and the environment if actions of the DoD may constitute substantial and imminent endangerment to the public health and to the environment: 

1. The DOJ believes that EPA may issue an imminent and