MEMO TO DCPNI

TO: SHARITA SLAYTON, DCPNI

FROM: DC APPLESEED CENTER FOR LAW AND JUSTICE
DATE: 5/12/12
SUBJECT: STATUS OF THE KENILWORTH-PARKSIDE RECREATION CENTER
____________________________________________________________________

Issue

The DC Promise Neighborhood Initiative asked DC Appleseed to research and report on

the current status of the Kenilworth-Parkside Recreation Center and to provide information on
the plans for reconstruction.

Brief Answer

Federal officials stopped the reconstruction of the Kenilworth-Parkside Recreation Center

because it sits on former landfill and is under federal investigation as a hazardous waste site.
Construction of a new recreation center on the former site will likely be delayed until the NPS
transfers administrative jurisdiction of the recreation center site to the District of Columbia (DC,
or District), and the District has prepared an environmental impact statement in accordance with
the DC Environmental Policy Act. Based on the timelines of other hazardous waste cleanups
covered by the same federal regulations and procedures, the political and practical complexities
associated with transferring administrative jurisdiction to DC, and the timeframe for preparing an
environmental impact statement, it will likely be at least five more years, and quite possibly
longer, before construction on a new recreation center can be begin.

Introduction

The DC Appleseed Center for Law and Justice (DCAC), a non-profit public policy
research and advocacy organization, served as the meeting facilitator for the DC Promise
Neighborhood Initiative (DCPNI) Students are Healthy Results-Driven Working Group

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(RDWG), as well as a resource on policy issues related to DCPNI’s work. As such, we were
tasked with helping DCPNI develop strategies to improve the health of children in the
Kenilworth-Parkside neighborhood, with a special focus on increasing access to healthy food and
opportunities for exercise, and researching issues that might prevent DCPNI from reaching its
goals. At working group meetings, community dinners, and Resident Retreats held during the
past year and half, residents repeatedly discussed how demolition of the Kenilworth-Parkside
Recreation Center (KPRC) has had a negative effect on residents. Residents also expressed
anger at the lack of information, conflicting reports and lack of action by District agencies and
officials.

The purpose of this memo is to provide an overview of the recent events leading to the
demolition of the KPRC and to describe barriers that are preventing its prompt reconstruction.
Part I will give a brief history of the KPRC and the land it sits on, as well as an explanation of
the federal laws surrounding hazardous waste cleanup and where the KPRC site is in that
process. Part II will explain what needs to transpire before construction on a new recreation
center can begin. Finally, Part III will explain the next steps that can be pursued in getting the
KPRC rebuilt or relocated.

I. Overview and Brief History of KPRC

A. Overview

The KPRC sits atop the old Kenilworth Park Landfill, which is under federal
investigation as a hazardous waste site under the federal Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). 1 CERCLA is a federal law that was set
up to make sure that land polluted with hazardous waste is cleaned up, even if the “person” (the
land owner, business, or government agency, etc.) that is directly responsible for the pollution is
no longer involved as owner or polluter. Because CERCLA calls for “joint, several and
retroactive liability” – which means that anyone who has ever had any role or responsibility for

1 42 U.S.C. §9601 (1980). CERCLA sometimes gets referred to as “Superfund.”

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the property can be required to help pay for the cleanup – the process involves many procedural
steps over an extended period of time, typically over the course of many years.

The National Park Service (NPS), an agency within the US Department of the Interior, is
the technical owner of the property and the District was the landfill operator. Because of this,
both the District and NPS/federal government are likely to have to pay for the environmental
cleanup. This also means that both have a stake in how the process unfolds – what the
investigation shows, what the plans are to clean up (or “remediate”) the contamination, who
oversees the clean-up, etc. Our best estimate at this time, based on how the CERCLA process
has unfolded elsewhere, is that it will be at least seven to ten years before the environmental
clean-up of the land will be complete. However, it is important to note that the environmental
cleanup does not necessarily need to be complete before construction of the recreation center can
begin. Even so, we believe that it will be at least five years before such construction can take
place. Because of the significant delay involved, the community may want to consider whether
building a permanent recreation center at an alternative location that is not a CERCLA site
would be a good option (assuming, of course, that an acceptable site can be found).

It appears that there has been a lack of effective communication between District
agencies and NPS for several years. NPS, as title holder to the land, should have been involved
in all decisions regarding KPRC. It is possible, however, that the title ownership was
misunderstood because the law that transferred the title to the District in 2004 was never
properly implemented. Whatever the misunderstanding, when the DC Department of Parks and
Recreation (DPR) made its plans to demolish KPRC, it appears that NPS was not aware of it.
When they became aware, they stopped demolition mid-way through and issued a special permit
requiring DPR to follow specific rules in completing the demolition so as not to further disrupt
the contaminated soil. Going forward, it is essential that clear communication occur between all
federal and local stakeholders to prevent a repeat of past failures.

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 B. Kenilworth Park Landfill and Its History

The Kenilworth Park Landfill spans over 130 acres of space in Northeast DC. It is
divided into Kenilworth Park North (KPN) and Kenilworth Park South (KPS). The entire site is
under federal ownership through the NPS. The landfill operated over a span of 30 years starting
in 1942, first with open-burning (which ended after winds shifted and burned a young child to
death) and then as a landfill in 1968. Nearly all of DC’s trash was sent to this northeast region of
the city. After it closed in 1970, the land was capped with a layer of clay and other fill material
and resurfaced.

Currently, the site serves a recreational purpose and no business or residential uses are
allowed. There have been attempts to transfer the land from federal to DC jurisdiction, most
recently in 2004.2 The legislation, which included a large area of the landfill as well as the
KPRC building itself, was approved but that provision was never “fulfilled” (which means the
transfer didn’t actually take place, and jurisdiction remained with NPS). Though not entirely
clear, it appears the District may have failed to complete the transaction and take control of the
land.

KPRC sits on the southeast corner of KPN. It was built in 1973 and although the land is
owned by the federal government, ownership and operation of the building was maintained by
DC. In 2006, construction around the KPRC revealed munitions shells under the surface (one
shell was documented by DC and Department of Defense (DoD) authorities, although news
reports also refer to the presence of three shells). No formal investigation of the site by the DoD
was conducted because it was determined that the site was not a Formerly Used Defense Site
(FUDS), and therefore was unlikely to contain additional munitions.

KPRC was set for renovations. A remodeled facility would have allowed for the
necessary repairs (i.e., old walls, asbestos removal) but would not have disturbed any of the soil.
Enough members of the community, however, wanted an entirely new facility and were able to
gain agreement from the District. The plans were drafted, money was set aside to plan and build

2 P.L. 108-335 Section 344 (the District of Columbia Appropriations Act, 2005).

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a new center, and in 2010, DPR demolished the old KPRC building. NPS, however, as owners
of the land, and with knowledge of the CERCLA investigation and the potential harm that
excavation would pose to the community, stopped the demolition.

NPS subsequently issued a special permit that allowed DPR to finish demolishing the
building, but did not allow them to rebuild the KPRC until the environmental concerns were
resolved. At this stage, the land was already under CERCLA investigation and testing.
Preliminary testing indicates that the surfaced areas, such as the track and basketball courts,
remain safe to use by residents. However, federal officials prohibited the District from disturbing
the soil.

C. Funding

The funding for rebuilding has gone through some ups and downs. Sen. Mary L.
Landrieu (D-La.), a member of the Senate Appropriations Committee's DC. Subcommittee,
wanted to use the land near KPRC to build a federally funded, 20-field soccer complex. Parts of
the community disapproved (they wanted a new multi-use facility). A compromise was reached
and a $5 million federal grant was approved by Congress. Jurisdiction over ten acres of land
nearest the recreation center was to be transferred to the District to build recreational facilities.
When completed the KPRC was to have a six-lane track, a football/soccer field with lights and
bleachers, basketball courts, parking lot, a concession stand complete with bathrooms and a
storage shed, and a new baseball field primarily to be used by the Spingarn and H.D. Woodson
high school teams.

As recently as 2010, the Washington Business Journal reported that DC wanted to

reprogram the $5 million of KPRC money toward the $5.8 million necessary to complete the Hill
East deal between the District and the feds.3 Several members of the DC Council opposed the
reprogramming, including Ward 7 DC Councilmember Yvette Alexander. They reached a
compromise which included replacing the reprogrammed Kenilworth money with Department of
Transportation PILOT funds.

3 A method of shifting revenue from one fund to another.

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 According to the Executive Office of the Mayor, as of October 2011, capital budget in
the amount of $12,255,000 is currently reserved for Kenilworth Parkside Recreation Center.4
This money is not designated specifically, i.e., is not visible, in the current Capital Budget.
According to DPR staff, it is being tracked within other budget line items in the DPR capital
budget.5

D. Details of the CERCLA Process and Where the Landfill Is in the Process

Better known as “Superfund,” the CERCLA process can be divided into roughly seven
phases. The Kenilworth Parkside landfill site is expected to complete the second phase within
the next two months.

The CERCLA process begins with a Preliminary Assessment and Site Inspection, which
was conducted at the landfill in 2000. In this stage, environmental and waste samples are
collected to determine what hazardous substances are present at a site and, if present, whether
those substances pose a danger to human health and the environment. Relatedly, the Agency for
Toxic Substances and Disease Registry (ATSDR) published a Health Consultation in 2006,
which examined whether KPS was safe for certain recreational activities and concluded that it
was.

Next, Remedial Investigations (RIs) were performed separately for both KPN and KPS,
which were completed in November 2007 and June 2008 respectively. An RI determines the
nature and extent of contamination “by character[izing] the site conditions, determin[ing] the
nature of the waste, assess[ing] the risk to human health and the environment, and conduct[ing]
treatability testing to evaluate the potential performance and cost of the treatment technologies
that are being considered.”6

4 Email exchange between Judy Berman, DC Appleseed and John McGaw, EOM, Capital
Improvements Program, October 25, 2011.
5 Information shared in a meeting at DPR Headquarters between DPR Director Jesus Aguirre,

Chief of Staff John Stokes, and DC Appleseed, December 21, 2011.

6 From http://www.epa.gov/superfund/cleanup/rifs.htm.

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 The next phase of the CERCLA process involves the production of a Feasibility Study
(FS), which identifies an array of potential remedies that can be used in cleaning up the site,
along with a description of the costs and benefits of employing each potential remedy. NPS is
currently in the process of finalizing the FS. We understand from NPS that the FS should be
completed within the next two months. Although KPN and KPS received separate RIs, they will
receive one joint FS.

NPS will then, after considering the results of the RIs and the FS and consulting with the
DC government, select a proposed remedy for cleaning up the landfill. The selected proposed
remedy will be issued to the public in a document known as a Proposed Plan. The Proposed Plan
will allow a 30 day public comment period during which interested parties can provide
comments on the remedy selected by NPS.

The next phase of the CERCLA process will occur when NPS issues a Record of
Decision (ROD). The ROD is the official document by which NPS will select the remedy that
will be used to clean up the landfill. In the ROD, the NPS must explain the basis for selecting
the chosen remedy, including responding to all public comments. The ROD was originally
projected to be issued in late 2012, but given that the FS is still potentially two months from
completion, it does not appear that this timeframe remains accurate. Any estimated completion
date for the ROD is highly speculative at this point, but it would appear unlikely that the
document would be issued until well into 2013, at the earliest.

The ROD will be followed by the sixth phase of the CERCLA process, a “Remedial
Design/Remedial Action” which includes coming up with the technical specifications for the
chosen remedies and implementing them. The last phase is Construction Completion, which
includes requirements for demonstrating that the work has been successfully completed. In
general, CERCLA cleanups take an average of between seven and ten years to reach
Construction Completion.

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 II. Construction of the Recreation Center

NPS officials have made clear that, in their opinion, the CERCLA remediation does not
need to be complete in order for construction to begin on the new KPRC. Rather, if the proper
precautions are taken to address the risks to construction workers, community residents, and the
environment, it would be possible to begin construction during the remediation process.
However, both DC and NPS representatives acknowledged that there are significant practical and
political hurdles that could prevent a timely commencement of construction. First, the
precautions necessary to construct the new KPRC on land that is being actively remediated under
CERCLA could result in substantial additional costs to the construction process. Second, and
perhaps more significantly, the DC government is highly unlikely to invest in the land without
having administrative jurisdiction over the land transferred from NPS to DC. However, DC will
not likely accept transfer of administrative jurisdiction until financial liability for the CERCLA
cleanup has been established. The process of determining liability for the cleanup is not likely to
occur until after the ROD has been issued. Any delay in reaching agreement for how the cost of
the cleanup will be allocated will likely result in a delay in beginning construction of the new
KPRC.

Once the allocation of CERCLA liability has been established, DC officials have
indicated that DC may then be willing to accept transfer of administrative jurisdiction of the
KPRC land. Administrative jurisdiction means that the land will still be owned by NPS but will
be controlled and used by DC. Once the transfer of administrative jurisdiction is completed,
DC's Environmental Policy Act will require that an environmental impact study be performed
prior to construction. This process takes an average of 18-24 months (not including the RFP
process) at a cost that could reach $200,000. Only after the DC Environmental Policy Act
process is completed could construction resume at the site. Given our understanding of this
process, and despite the clear desire on the part of NPS and DC government representatives to
see this process move as quickly as possible, we do not believe that construction of a new
recreation center could begin on the former site for at least five years, and quite possibly much
longer.

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 III. What To Do Now

The site is, of course, a valuable neighborhood resource and community members will
want to stay on top of what occurs, including who controls the land, how the land is zoned, and
how the planned remediation affects the health of the nearby river. But we have concluded that
its value as a potential site for the Recreation Center, at least in the near term, is severely limited.

It is our understanding that DPR may be interested in exploring permanent alternative

sites for the KPRC at the same time as the CERCLA process moves forward, but is nevertheless
inclined to prefer rebuilding on the original site. CERCLA experts that we consulted suggested
that, if the community wants a recreation center in the near term, (i.e. within the next few years)
they are more likely to get one if they choose to build on an alternative site. Such an outcome is,
of course, dependent on several things: (1) the willingness of the community to accept an
alternative location for the KPRC; (2) the willingness of the District to seriously explore
alternatives; (3) the availability of property that meets District specifications and the
community’s needs for a recreation center; (4) the agreement of the community on which
available property to use (assuming there is more than one); (5) the ongoing availability of the
funding currently designated for rebuilding the recreation center; and (6) the sufficiency of that
funding to address the planning and building of a new facility on the selected site.

We suggest, as a next step, that DCPNI and area residents persuade DPR to identify the
alternative site options available to the community and work toward developing a process to
evaluate the available options. This does not preclude the possibility of building on the former
site if no viable alternative sites can be identified and/or acquired, but it does create new
potential opportunities. Other options include (1) waiting for the transfer of administrative
jurisdiction and completion of the DC Environmental Policy Act process and resuming
construction on the existing site, or (2) developing temporary recreational facilities until
construction can resume at the existing site. It is our belief, however, that these will result in a
longer wait for the full-service recreation center that residents of the neighborhood have already
been long waiting for.