dedicated to the sustainability of the florida keys

It's the coverup that gets them

Sat, 16 Apr 2011 06:15:37 -0400

The Navy fraudulently claims they performed an Environmental Assessment to evaluate the impacts of introducing the F/A-18E/F Super Hornet to NAS Key West and they have compounded the fraud by withholding a critical “smoking gun” document. Despite exceptionally clear facts, none of the government agencies charged with oversight of these matters has found any wrongdoing, and the facts are very clear.

Readers should know that this commentator is a retired Naval Aviator who believes in and supports the mission of the U.S. Navy, having served over 25 years in defense of our nation as an enlisted machinist, aircraft-carrier based pilot and Aeronautical Engineering Duty Officer. The Navy has a vitally important mission, and an increasingly challenging training environment in which to prepare for it. They have the right and duty to accomplish that mission, but they do not have the right to break our nation’s laws to do so.

Below is the story with hyperlinks to corroborating documents, including the failure of numerous oversight organizations to take action in the face of blatant malfeasance, crowned by the Navy Inspector General’s liberally redacted March 23, 2011 self-exoneration.

The complete list of allegations has grown since the original complaint.

1. The Navy fraudulently claims that the "2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West" satisfies their obligations under the National Environmental Policy Act to "…assess environmental consequences of proposed actions that could affect the quality of the human environment…" for the introduction of the F/A-18E/F Super Hornet to NAS Key West.

1. The Navy fraudulently claimed that the April, 14, 2003 "Finding of No Significant Impact" fulfilled their NEPA requirements regarding the Super Hornet.

1. The Navy’s legal obligation to assess the subject environmental impacts remains unfulfilled.

1. In failing to deliver the “Pre-Release Environmental Assessment” asked for in FOIA File Number DON 200800645-F, the Navy has withheld the “smoking gun” document that proves the 2003 EA was not intended to study the Super Hornet.

1. Assistant Navy Secretary B.J. Penn has misrepresented the facts in his letter of December 12, 2007, making false and deceptive assertions.

1. The Department of Defense Office of Inspector General failed - twice - to find any wrongdoing.

1. The Navy Office of Inspector General found no wrongdoing.

1. The FBI failed to find any wrongdoing.

1. Senator Bill Nelson found no wrongdoing.

1. The General Accountability Office abdicated responsibility to the DODIG and then failed to review the matter despite clear evidence of fraud.

1. The Council of the Inspectors General for Integrity and Efficiency failed - twice - to find any wrongdoing.

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Background: U.S. Federal law (32 CFR 775.3 and 775.4) states,

"The Department of the Navy shall assess environmental
consequences of proposed actions that could affect the quality
of the human environment in the United States, its territories,
and possessions in accordance with DOD and CEQ
regulations."

At Naval Air Station Key West, the F-14 Tomcat was replaced by the F/A-18E/F Super Hornet, as it was at other Naval Air Stations. Department of the Navy documents indicate that the Super Hornet generates substantially greater noise than the Tomcat. In the “Approach “ pattern when an aircraft is preparing to land, the Super Hornet is as much as 27 decibels louder than the Tomcat. That’s more than four times as loud. The Navy projected that there would be 25% more operations of Super Hornets than those flown by F-14s at NAS Key West. Clearly, a much louder airplane flying more operations could “…affect the quality of the human environment.” However, Navy officials as high as the Honorable B.J. Penn, Assistant Secretary of the Navy for Installations and Environment assert that the Navy is in compliance with the requirements of the National Environmental Policy Act (NEPA), that a proper Environmental Assessment was accomplished and that the introduction of the Super Hornet to NAS Key West would have no significant impact. The facts clearly contradict their assertion of NEPA compliance.

In a December, 2007 letter on this subject, Secretary Penn stated,

“In 2003, the Navy complied with NEPA for transient aircraft operations
at NAS Key West by completing the Environmental Assessment (EA)
for Fleet Support and Infrastructure Improvements.
That EA, and it incorporated references, analyzed impacts to the human environment, including noise and flight paths resulting from all
transient aircraft operations, including the F/A-18E/F.
As a result of that analysis, the Navy reached a
Finding of No Significant Impact which addressed
off-base noise exposure from aircraft
operating at NAS Key West.”

To comply with NEPA, Navy regulations1 require a “brief letter” be sent to the Chief of Naval Operations (N45) announcing that they “propose an action,” and that they intend to initiate NEPA documentation. The “brief letter” that precipitated the 2003 Environmental Assessment referred to in Secretary Penn’s letter was sent by Captain L.S. Cotton, Commanding Officer, NAS Key West on October 2, 2002.

There is no mention of the F/A-18E/F Super Hornet in the “brief letter.”

On October 4, 2002, Darrell Molzan, Environmental Planning Division Director of the Naval Facilities Engineering Command notified the Florida State Clearinghouse and the Florida Department of Community Affairs (DCA) that the Proposed Action “…is a group of projects to provide improved or additional capability essential to support services for transient units at NAF Key West.”

There is no mention of the F/A-18E/F Super Hornet in the Florida Clearinghouse notice to Florida Department of Community Affairs.

In early 2003, the Navy distributed a “Pre-Release Environmental Assessment (EA)” to at least eleven reporting agencies for their comments on the “proposed action.” These agencies’ job was to evaluate the “action” for potential impacts and submit comments for inclusion in the Environmental Assessment document. The agencies that received the “Pre-Release” document include U.S. Department of Interior, Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, Florida Department of Transportation, South Florida Water Management District, Florida Department of Environmental Protection, Florida Keys National Marine Sanctuary, United States Department of Commerce, and the National Oceanic and Atmospheric Administration.

The 2003 Environmental Assessment includes letters from those eleven agencies and there is no mention of the F/A-18E/F Super Hornet in any of their comments.

On February 26, 2008 a Freedom of Information Act request to NAS Key West was made by this commentator for a copy of the “Pre-Release EA.” Captain J.R. Brown, Commanding Officer of NAS Key West replied, “Our search for records included files maintained by the Naval Air Station (NAS) Key West Business Office and the NAS Key West Environmental Department. However, despite this diligent search, we were unable to locate responsive documents.” The FOIA request was appealed to the Judge Advocate General of the Navy (Code 34) on April 2, 2008. A Final Administrative Adjudication of that appeal was sent on November 7, 2008 letter from The Department of the Navy Office of General Counsel. In that letter, Deputy General Counsel Anne M. Brennan stated,

“…the Assistant to the General Counsel (FOIA) contacted the IDA [Initial Denying Agency - NAS Key West] regarding the search procedures undertaken to locate responsive documents and confirmed the adequacy of that department’s search procedures. My office also contacted the Assistant General Counsel (Installations and Environmental) who, in turn, contacted the Chief of Naval Operations Environmental Readiness Division (N45). Neither of these offices was able to locate a copy of the pre-release draft [EA].”

Subsequent to the Navy’s declaration that they could not find a copy of that document, this commentator found the document and photocopied relevant pages. These facts were also made known to the DOD Office of Inspector General in an updated complaint, adding the question “Did the Navy destroy all of their copies of the document that could prove that the 2003 Environmental Assessment was never intended to evaluate the environmental impacts of the Super Hornet at NAS Key West?”

If the Navy intended for the 2003 Environmental Assessment to address the potential impacts of the F/A-18E/F Super Hornet, there would be discussion in the “Pre Release” EA. This is the smoking gun, and the Navy could not find it.

There is no mention of the F/A-18E/F Super Hornet in the Pre-Release EA.

The final EA was published in April, 2003. The purpose of the endeavor—its Proposed Action—is “…to modernize ship and aircraft support functions and facilities at the Naval Air Station (NAS) Key West including Boca Chica and Truman Harbor.” The document details the potential environmental impacts of dredging and providing support facilities in the Key West area.

There is no mention of the Super Hornet in the Table of Contents, nor in the Description of the Proposed Action, nor in the Alternatives. However, at the end of Chapter 4, there are three pages in which the Super Hornet is mentioned. That isolated, three-page section at the end of Chapter 4—Section 4.10—is curiously unrelated and unconnected to the remaining 229 pages of the EA.

Among all of the 400+ pages of NEPA documents generated over six months in preparing and publishing the 2003 EA and the subsequent Finding of No Significant Impact, one orphaned three-page section is the only place where the F/A-18E/F Super Hornet is mentioned.

Following an Environmental Assessment, NEPA regulations require the agency that has proposed the “action” to either fully evaluate the environmental impacts, by producing an “Environmental Impact Statement,” or - if they have determined that there will be no significant environmental impacts - to publish a “Finding of No Significant Impact” statement.

On April 14, 2003, T.R. Crabtree, Director, Shore Activities Readiness, U.S. Atlantic Fleet signed a “Finding of No Significant Impact” statement, or FONSI, stating that “Based on the information gathered during the preparation of the EA, the Navy finds that fleet support and infrastructure improvements as Naval Air Station (NAS), Key West, will not significantly impact the human environment.” This is the final step in the Navy’s claimed NEPA process.

There is no mention of the F/A-18E/F Super Hornet in the FONSI.

Over 99% of the Navy’s claimed NEPA documentation has nothing to do with the Super Hornet
zero
nada
zip

The glaring incongruity of the Navy claiming that they analyzed the impacts of the Super Hornet, when more than 99% of the claimed documentation makes no mention of the airplane caused this writer to contact the Government Accountability Office (GAO).

The original complaint was lodged with the GAO on November 7, 2007. The GAO assigned Control Number 51428 and referred the matter to the Department of Defense, Office of Inspector General (DODIG), where Case Number 105900 was initiated.

As referred to earlier, Assistant Secretary of the Navy (Installations and Environmental) B.J. Penn was asked to explain the facts and the Navy’s claim of satisfying their NEPA requirements in a 2007 letter from Richard Grosso, General Counsel of the Everglades Law Center. Secretary Penn’s response deceptively stated that the Environmental Assessment “…and its references” satisfied the NEPA requirements.

Secretary Penn’s “references” should be singular, not plural.

There is only one reference among ten pages of references that is related to the Super Hornet—the Wyle Laboratories “Draft Aircraft Noise Study” (see image from EA above). In response to a FOIA request to Lt. Adrienne Gagliardo, NAS Key West FOIA Officer and to NAS Key West Public Affairs Officer James Brooks, the Draft Aircraft Noise Study was delivered to this commentator by the Navy on a CD. The reference document was created on April 24, 2003, by “jrachami” - presumably Jawad Rachami, of the Wyle Acoustic Group - ten days AFTER the Finding of No Significant Impact was signed!

At the very least, this means that neither the public nor the reporting agencies were aware of the study and thus were unable to comment on it for inclusion in the Environmental Assessment. As stated earlier, there are no Super Hornet comments from either the public or reporting agencies in the EA.

In the worst case, this reference was planted in the Environmental Assessment after the EA and the FONSI were originally published.

Below is a screenshot showing the April 24, 2003 creation date of the Wyle Laboratories “Draft Aircraft Noise Study for Forecast CY07 Conditions at NAS Key West.”

The only Super Hornet “reference” in the EA was created after the Finding of No Significant Impact was signed!

In July, 2003, the Navy published the “Final Environmental Impact Statement for the Introduction of the F/A-18E/F (Super Hornet) Aircraft to the East Coast of the United States,” to address the environmental impacts of replacing the F-14 with the F/A-18E/F.

The FEIS Abstract reads, “This Final Environmental Impact Statement (FEIS) evaluates the potential environmental consequences of the Department of the Navy’s (the Navy’s) proposed action to provide facilities and functions to support the homebasing and operation of the new F/A-18E/F (Super Hornet) aircraft. These aircraft are planned for assignment to the Atlantic Fleet to replace the F-14 (Tomcat) and earlier model F/A-18C/D (Hornet) aircraft…”

That FEIS did not include the environmental impacts on NAS Key West even though NAS Key West is one of the most important East Coast airfields and the Navy planned more Super Hornet operations at NAS Key West than some of the airfields that were included in the FEIS.

In January, 2008, Senator Bill Nelson held a “Town Hall” meeting in Key West, where he was shown this linked PowerPoint presentation. He found no wrongdoing.

In August, 2009, DODIG released their final report for Case 105900, finding no wrongdoing.

Later that month, a letter was written to GAO, explaining that the original issues had not been addressed, and that there were even more serious issues resulting from the Navy’s stonewalling.

In September, 2009, a letter was written to the FBI explaining the fraud. No response was received from the FBI.

The Council of the Inspectors General for Integrity and Efficiency (CIGIE) is supposed to oversee all of the Inspectors General. A letter outlining the serious issues that were dismissed by DODIG was sent to Mr. Mark Jones, Acting Executive Director of CIGIE on September 29, 2009.

Mr. Kevin L. Perkins, Chair of the Integrity Committee (IC) of CIGIE stated in a letter dated October 28, 2009, “The IC concluded that the actions by the OIG (Department of Defense Office of Inspector General) properly fell within the discretion of an IG and consequently did not meet the threshold standard for further consideration of the complaint. Accordingly, the IC will take no further action and directed that this complaint be closed.” Thus, Mr. Perkins referred the matter back to the accused IG office, despite the fact that the purpose of his committee is “…to review allegations of wrongdoing received against an IG…”.

Since the matter was referred back to the DOD Inspector General, a letter was written to Mr. Gordon Heddell, DOD Inspector General, in hopes that the original transgressions as well as the new, subsequent malfeasance would be investigated. He created a new Case number - 113851. To be certain that Mr. Heddell was aware of the growing number of lies associated with this issue, a letter was sent to him on January 21, 2010 updating the expanding list.

Not surprisingly, the DODIG again found no wrongdoing in the report dated October 29, 2010.

Another letter was sent to Mr. Mark Jones, Executive Director, CIGIE on November 13, 2010 arguing that it was folly for him to ask DODIG to investigate themselves. In his reply, Mr. Jones stated that “…based on available information the DOD IG was not precluded from conducting a further objective review of the matters you allege.”

The final report from the Navy Inspector General is dated March 23, 2011, in which Mark A. O’Brien, Assistant Counsel found no malfeasance, but did provide some comic relief with the extensive redacting.

Unanswered Questions

How can it be said that the legal obligations to evaluate the impact of the F/A-18E/F Super Hornet were fulfilled, when neither the public nor the agencies responsible for commenting on any potential impacts were aware that the Environmental Assessment was to involve the aircraft?

How is it possible for the Navy - in three pages out of more than 400 - to have satisfied their NEPA obligations to assess potential environmental impacts?

How is it possible that a new airplane that is at least four times louder, flying 25% more operations, would have “no significant impact?”

How is it possible that the proposed action of replacing the F-14 Tomcat with the Super Hornet at NAS Key West would cause no significant impact, when the same proposed action elsewhere induced a 1,087-page FEIS?

Why wasn’t Naval Air Station Key West included in the FEIS, particularly when Key West is one of the most important Navy airfields on the East Coast and when they projected more Super Hornet operations at NAS Key West than they did for the airfields that they DID include in the study?

How is it possible that the Navy couldn’t find a copy of the damning and widely distributed Pre-Release Environmental Assessment, but the author of this commentary could?

If the 2003 EA fulfills the NEPA requirements to state a proposed “action” and then assess environmental impacts of that action, why is there no reference to the F/A-18E/F Super Hornet in the EA “Table of Contents?”
or the “Description of the Proposed Action?”
or the “Alternatives?”

Who was responsible for placing that unrelated and orphaned three-page section in Chapter 4 of the 2003 EA?

When was that three-page Section 4.10 inserted into the EA?

Why is there no Section 4.10 in the “Pre-Release” EA?

When was the “Draft Wyle Lab” citation inserted in the EA list of references?

When was the public first made aware that the 2003 Environmental Assessment purported to fulfill NEPA documentation for the introduction of the F/A-18E/F Super Hornet to NAS Key West?

How is it possible that the Environmental Assessment has a reference to a document that was created after the FONSI was signed?

Is Assistant Secretary Penn’s use of the term “transient aircraft” meant to exonerate the Super Hornet by implying that aircraft flying at NAS Key West somehow make less noise if their permanent parking place is somewhere else?

How does the Navy explain the claim that the FONSI acquits the Super Hornet when it does not mention the airplane?

How is it possible that none of these “watchdog” agencies found anything wrong? Did they simply believe statements from the Assistant Secretary of the Navy without questioning?

The Government Accountability Office
The Department of Defense Office of Inspector General
The Navy Inspector General
The FBI
The Office of Senator Bill Nelson
The Council of the Inspectors General for Integrity and Efficiency

1In 2003, OPNAVINST 5090.1b was in effect.

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JH

Inspector General re-opens F/A-18E/F case

Mon, 25 Jan 2010 20:15:26 -0500

Below is the text of a letter written to the Department of Defense Inspector General following their announcement that they have
re-opened the case.

January 21, 2010

Mr. Gordon Heddell, Inspector General
Department of Defense
400 Army Navy Drive
Arlington, VA 22202-4704

Subject: DOD IG Case #113851

Dear Mr. Heddell,

Below is an updated version of a previously submitted document. Thank you for reconsidering the matter. This issue is not simply historical, since the residents surrounding NAS Key West continue to live without benefit of the protection promised by the National Environmental Policy Act. Those most adversely and unfairly affected are the citizens who purchased homes outside of the published noise zones, but now find themselves effectively within the noise zones by virtue of the much-louder airplanes.

For the sake of credibility, I’m a retired Navy Commander, Naval Aviator, Aeronautical Engineering Duty Officer, former Engineering Test Pilot and retired international airline Captain. I believe strongly the Navy has fraudulently claimed they’ve fulfilled their National Environmental Policy Act (NEPA) obligations regarding the potential impacts of the F/A-18E/F Super Hornet at Naval Air Station Key West. The fraud may be part of a conspiracy that may go as high as the Assistant Secretary of the Navy (Installations and Environment). While there may be other less incendiary explanations, the evidence I’ve uncovered since my original complaint is increasingly compelling. As you know, DOD IG’s failure to find fault with the Navy’s claim of NEPA compliance in the face of unequivocal evidence was the reason for my submission to the Integrity Committee, which referred the matter back to you.

The subject is the action of introducing the F/A-18E/F Super Hornet aircraft to NAS Key West, and the responsibility of the U.S. Navy to "…assess environmental consequences of proposed actions that could affect the quality of the human environment…" as required by NEPA. At NAS Key West, the “mix” of aircraft changed substantially when the F-14 Tomcats that flew there were replaced by F/A-18E/F aircraft. According to Navy documents (an environmental study done for another location), in the same configuration and flight pattern the Super Hornet is up to four times as loud as the Tomcat. According to the Environmental Assessment that is the subject of this complaint, the Super Hornets were expected to fly up to 25% more operations at that location compared to the Tomcats. Clearly a much-louder airplane flying more operations could have environmental impacts that would “affect the human environment,” and a “Finding of No Significant Impact” would seem unlikely, but that is exactly what the Navy claims.

The original complaint was filed with the Government Accountability Office, which assigned Control number 51428. Apparently GAO jurisdictional limitations required them to transfer the complaint to DOD Inspector General, which assigned Case #105900. In April 2009, the DOD Inspector General closed the case, finding no fault. The matter was then brought before the Integrity Committee of the Council of the Inspectors General for Integrity and Efficiency, which found that “…actions by the OIG properly fell within the discretion of an IG…” which caused me to appeal the matter back to the DOD IG, which has assigned the new Case number 113851.

In the twenty-six months since my original complaint in November 2007, more facts have been uncovered that reinforce the fundamental assertion that the U.S. Navy (sadly, for this retired Naval Aviator) has fraudulently used the unrelated "2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West" to claim they have satisfied their NEPA legal obligations. As a result of my assertion, I also believe that the requirement to assess the impacts of the airplane remains unfulfilled.

The original inquiry questioned whether the Environmental Assessment might have been altered to give the appearance that the Navy had fulfilled their NEPA obligations. While it may be true that the document was not physically altered, there is stronger evidence of the fundamental complaint - that the Navy continues to fraudulently claim that the 2003 EA satisfies their NEPA obligations.

There are four main documents that the Navy claims validates their claim of Super-Hornet NEPA compliance, and it is only the third of the four (the EA itself) that briefly mentions the Super Hornet. The other three documents do not. Of the more than 400 pages in the chain of documents, only 3 pages mention the Super Hornet. How can the Navy claim, with a straight face, that these isolated and unconnected three pages satisfy their NEPA obligations, and how can the DOD IG concur? The Department of Defense Office of Inspector General focused narrowly on whether the EA document itself had been altered, concluded that it had not, and closed the case. That finding obscures the more important and basic assertion that the Navy fraudulently used the 2003 EA to claim fulfillment of their legal obligations.

The four Navy documents I’m referring to are 1) the “Brief Letter”, 2) the Draft Environmental Assessment, 3) the EA itself and 4) the Finding of No Significant Impact:

1. October 2, 2002 – Announcement of intent to assess the potential environmental impacts of an “action.” As required by Navy regulations, NAS Key West Commanding Officer, Captain L.S. Cotton wrote a “brief letter” to advise his superiors of his intent to produce an “Environmental Assessment for Training Facility Improvements and Increased Activities at NAS Key West, FL.” This is the first reference to the Environmental Assessment and the Super Hornet is not mentioned. As of October 2, 2002, the Navy has not declared their intent to study the impact of the Super Hornet at NAS Key West.

2. January, 2003 - A "Draft" Environmental Assessment is distributed to the public and at least eleven agencies for their comments. Again there is no mention of the Super Hornet. This is the smoking gun. The NEPA process requires that affected agencies and the public be given the opportunity to comment on the “proposed action,” and as of January 2003, none are aware that the Navy intends to study the impact of the Super Hornet at NAS Key West. This fact alone is damning and invalidates the Navy’s assertion of NEPA compliance, because neither the public nor any of the eleven reporting agencies were made aware of the Navy’s intent to introduce the Super Hornet to NAS Key West and thus none have evaluated its potential impacts.

3. April 2003 - The Environmental Assessment document itself. Among the 232 pages of the EA, whose proposed action is to “…modernize ship and aircraft support functions and facilities…” there are three pages (pages 115, 116 & 117) that mention the Super Hornet but no mention of the environmental impacts of the aircraft. This is first and only time the F/A-18E/F Super Hornet is mentioned in any NEPA document. Not surprisingly, none of the public comments in the Appendix of the EA mentions the Super Hornet, because the reporting agencies were not apprised of the need to do so in the Draft EA!

4. April 14, 2003 – FONSI. The outcome of an Environmental Assessment is supposed to be either an Environmental Impact Statement (if it is determined that potential impacts exist), or the issuance of a “Finding of No Significant Impact (FONSI).” The Navy issued a “FONSI” letter on April 14, 2003, but stunningly, that document does not mention the airplane that the Navy claims it exonerates!

Incongruously, when the Navy studied the potential impacts of the Super Hornet for potential home bases on the East Coast, they found that the impacts were significant and in July 2003 published the 1,078-page “Final Environmental Impact Statement for the Introduction of the F/A-18E/F Super Hornet aircraft to the East Coast of the United States.” The Navy did not include NAS Key West in that study, even though the Navy projected more Super Hornet flights at NAS Key West than several of the fields they did study.

During my inquiries, I submitted a Freedom of Information Act request to the Navy for a copy of the Draft EA. The Navy was unable to find the document. An appeal to the Navy’s General Counsel was also unsuccessful. Nevertheless, subsequent to the Navy’s inability to find a copy, I located, viewed and copied portions of the Draft EA.

As a result of the additional facts uncovered since my November 2007 Government Accountability Office contact, the list of concerns has grown, as listed below:

A. I believe the Navy has fraudulently claimed that the "2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West" satisfied their obligations under the National Environmental Policy Act to "…assess environmental consequences of proposed actions that could affect the quality of the human environment…" for the introduction of the F/A-18E/F Super Hornet to NAS Key West. The most easily documented confirmation of this belief is that none of the reporting agencies were made aware that the Super Hornet was to be evaluated. They could not have known, since there is no mention of the aircraft in any document prior to the April 2003 publication of the EA itself.

B. I believe the Navy fraudulently claimed that the April, 14, 2003 "Finding of No Significant Impact" fulfilled their NEPA requirements regarding the Super Hornet, since that document did not mention the airplane.

C. I believe the Navy’s legal obligation to assess the subject environmental impacts remains unfulfilled.

D. I believe the Navy failed to fulfill their obligations under the Freedom of Information Act regarding FOIA File Number DON 200800645-F, a request for a copy of the Draft EA. As stated above, this document is the "smoking gun" that proves the Navy had no intention of evaluating the F/A-18E/F Super Hornet's environmental impact at NAS Key West with the 2003 EA and the Navy claims it could not find the document. How is it possible that a FOIA request and an appeal would both fail to reveal a document that was distributed widely within the Navy system and to at least eleven other agencies and yet this writer was able to find a copy after the Navy failed? It is deeply troubling to consider that this might constitute an attempt to conceal the most damning document.

E. Questions were asked of the Assistant Secretary of the Navy (Installations and Environment) Assistant Navy Secretary B.J. Penn, who replied with three deceptive sentences that have reappeared verbatim in several documents:

“In 2003, the Navy complied with NEPA for transient aircraft operations at NAS Key West by completing an Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements. That EA, and its incorporated references, analyzed impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A-18E/F. As a result, of that analysis, the Navy reached a Finding of No Significant Impact, which addressed off-base noise exposure from aircraft operating at NAS Key West.”

As has been shown, the Navy has not complied with NEPA if for no other reasons than none of the agencies that should have commented on the impacts were made aware that the Super Hornet was to be evaluated, and the FONSI does not mention the aircraft. The term “transient aircraft” is curious because it seems to imply that because the majority of the airplanes that fly at NAS Key West are not based there, they somehow make less noise when flying there. As stated earlier, the Environmental Assessment itself states that the Navy expected the Super Hornet to fly up to 25% more operations than the Tomcats at NAS Key West and the location of an airplane’s home parking spot is irrelevant. The statement “…and its incorporated references” is wrong if for no other reason than “references” should be singular rather than plural. There is one lonely reference in the Appendix of the EA that addresses Super Hornet, a Wyle Laboratories study that was published in April 2003—the same publication date as the Environmental Assessment itself!

Since publication of this reference was coincident with the EA, it could not have been scrutinized by agencies prior to the publication of the EA itself.

At the very least, the Navy has failed to properly evaluate the potential impacts of the Super Hornet at NAS Key West. At the worst, there is a widespread conspiracy.

I will gladly provide documentation of these claims, and am grateful for your review of the facts.

Sincerely,

John G. Hammerstrom
Commander, U.S. Navy Retired

JH

Questions of fraud - BOCC

Thu, 19 Mar 2009 10:21:52 -0400

It bears repeating that the Navy has a vitally important mission, and an increasingly challenging training environment in which to prepare for it. They have the right and duty to accomplish that mission, but they do not have the right to break our nation’s laws to do so.

On March 18, 2009, the Monroe County Board of County Commissioners (BOCC), which have responsibility for the health and safety of the County’s citizens, passed unanimously a resolution which directs “…the Command of Naval Air Station Key West at Boca Chica to Cease and Desist the flying of FA-18 Generation Aircraft,” citing Naval Audit Service reports of hazardous aircraft noise mentioned below. Local interest in the matter was renewed when the Navy resumed flying on runway 07 after months of work on that facility. The use of runway 07 causes the greatest community objection, and I was asked if the inability to use that runway “…could severely degrade the mission capability of this air station.”

Aside from the issue of noise (which reads like . . . other than that, Mrs. Lincoln, how was the play?), the longer runway is safer and provides greater operational capability particularly after its recent refurbishment, but the Navy has to fully exploit all of their options in order to resolve this. Would using a shorter runway "severely degrade the mission capability?" Probably, though it’s a matter of degrees. If runway 07 were closed permanently, would they find a way to operate? Yes, but their capabilities and safety would be relatively degraded under the current runway conditions. Nevertheless, their only option may be to spend money to shift capabilities away from runway 07, particularly if it is ultimately declared that the noise is as hazardous as anecdotal evidence strongly suggests. That raises the obvious question, why did the Navy spend money on runway 07, the use of which by the Super Hornets and Growlers most jeopardizes their long-term welcome? If the Navy had acknowledged the noise problem with the F/A-18E/F/G aircraft, they could have dedicated the money recently spent on runway 07 to make runways 03 and 31 more capable and shift emphasis to those runways, albeit with a greater likelihood of less-desirable crosswind conditions. Now they seem to have jeopardized both their long-term welcome and the money spent on runway 07.

I was very surprised and further saddened to learn the magnitude of the Super Hornet noise problem from the October 31, 2008 Naval Audit Service Interim Audit Report entitled "Consideration of Hazardous Noise in the Acquisition of the F/A-18E/F Super Hornet and EA-18 G Growler Strike Fighter Variants," and it "flies" in the face of the 2003 Environmental Assessment (EA) claim of "No Significant Impact" caused by introducing the airplane to NAS Key West. The Navy now has to deal with backlash from years of stonewalling and the outrage that will surely follow, which means they will get less cooperation from the community than they would have if they'd been forthright from the beginning. If the Navy chose to hide the noise issue as a "business" decision, thinking that they would get years of operation before the "jig" is up, that business decision may prove to be in the league of AIG's decisions if the community expels the Navy. The health and safety of citizens around the Naval Air Station seem clearly to be in jeopardy, and aside from the Naval Audit report - which does not address airborne noise but rather focuses on the flight deck (aircraft carrier) and flight line (Naval Air Station) noise environment - there has been no affirmation from any agency of the Navy that the community has a valid complaint, and more importantly there has been no offer to even measure the problem.

If the decision regarding the Navy's continued presence in the Keys were strictly economic, along with the value of the Navy to the Keys, one must also consider the irreplaceable value of the Boca Chica facility to the Navy and the nation. In light of the very serious health and safety issues and the gravity of the stakes for both the Navy and the community, it is incumbent on the Navy to take the first step by measuring the impacts on the community of the Super Hornet and the Growler and to make a sincere and wholehearted effort to minimize and then mitigate those. Those who purchased homes outside of the Navy's declared noise zones and whose family's health and well-being are now jeopardized because they are effectively inside the noise contours can be expected to be steadfast, if not increasingly strident.

The Department of Defense Inspector General has still not released their report on Case 105900. They won't discuss their process, nor their timetable other than to say the investigation is complete and the matter is "in review." My hunch is after each wave of revelations about the issue have been delivered to them, they need to go back and research that aspect, which delays the final report. The two most recent are 1) the question about the Freedom of Information Act (FOIA), and 2) the Naval Audit Service report discussed above.

The FOIA issue started with a request that the Navy provide a copy of the "Draft" that preceded the 2003 EA and the resulting "Finding of No Significant Impact." This is the document that was provided to no less than eleven agencies for their comments, all of which are in the final EA. The Navy was unable to find the document, notified this writer of that fact, and it was appealed to the General Counsel of the Navy. The General Counsel was still unable to find a copy of the Draft EA. Subsequent to their failure to find a copy, this correspondent was able to find one. This document may prove to be the smoking gun to prove the assertion that the Navy never intended to evaluate the potential impacts of the airplane in their 2003 EA, because there is absolutely no mention of the airplane in Draft EA. Put another way, how could the eleven agencies comment on the potential impacts of the airplane if they were not advised that it was to be part of the final report?

I don't know which possible outcome of the investigation scares me more:

The possibility that the Navy conspired at the highest levels to conceal the environmental impact of the airplane for a decade,

or

A finding from the Inspector General that claims of malfeasance are baseless.

JH

Questions of fraud - update

Thu, 5 Feb 2009 07:58:12 -0500

Readers should know that this commentator is a retired Naval Aviator who believes in the mission of the U.S. Navy, having served over 25 years in defense of our nation as an enlisted machinist, aircraft-carrier based pilot and Aeronautical Engineering Duty Officer. The Navy has a vitally important mission, and an increasingly challenging training environment in which to prepare for it. They have the right and duty to accomplish that mission, but they do not have the right to break our nation’s laws to do so.

Federal law (32 CFR 775.3 and 775.4) states that:

"The Department of the Navy shall assess environmental
consequences of proposed actions that could affect the quality
of the human environment in the United States, its territories,
and possessions in accordance with DOD and CEQ
regulations."

At Naval Air Station Key West, the F-14 Tomcat was replaced by the F/A-18E/F Super Hornet. Department of the Navy documents indicate that the Super Hornet generates substantially greater noise than the Tomcat. In the “Approach “ pattern when an aircraft is preparing to land, the Super Hornet is as much as 27 decibels louder than the Tomcat. That’s more than four times as loud. At NAS Key West, the Navy projected that there would be 25% more operations of Super Hornets than those flown by F-14s. Clearly, a louder airplane flying more operations could “…affect the quality of the human environment.” However, Navy officials as high as the Honorable B.J. Penn, Assistant Secretary of the Navy for Installations and Environment assert that the introduction of the Super Hornet to NAS Key West would have no significant impact. In a December, 2007 letter on this subject, Secretary Penn stated,

“In 2003, the Navy complied with NEPA for transient aircraft operations
at NAS Key West by completing the Environmental Assessment (EA)
for Fleet Support and Infrastructure Improvements.
That EA, and it incorporated references, analyzed impacts to the human environment, including noise and flight paths resulting from
all transient aircraft operations, including the F/A-18E/F.
As a result of that analysis, the Navy reached a
Finding of No Significant Impact
which addressed off-base noise exposure
from aircraft operating at NAS Key West.”

[NEPA is the National Environmental Policy Act, which governs such matters.]

In complying with NEPA, the Navy is required to first send a “brief letter” to the Chief of Naval Operations (N45) announcing that they “propose an action,” and that they intend to initiate NEPA documentation. The “brief letter” that precipitated the 2003 Environmental Assessment referred to in Secretary Penn’s letter was sent by the Commanding Officer of NAS Key West, Captain L.S. Cotton and dated October 2, 2002.

There is no mention of the F/A-18E/F Super Hornet in the “brief letter.”

In early 2003, the Navy distributed a “Pre-Release Environmental Assessment” to at least eleven reporting agencies for their comments on the “proposed action.” Their job was to evaluate the “action” for potential impacts and submit comments for inclusion in the Environmental Assessment document. The agencies that received the “Pre-Release” document include U.S. Department of Interior, Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, Florida Department of Transportation, South Florida Water Management District, Florida Department of Environmental Protection, Florida Keys National Marine Sanctuary, United States Department of Commerce, and the National Oceanic and Atmospheric Administration.

[Side note: On February 26, 2008 a Freedom of Information Act request to NAS Key West was made by this commentator for a copy of the “Pre-Release EA.” Their response was “Our search for records included files maintained by the Naval Air Station (NAS) Key West Business Office and the NAS Key West Environmental Department. However, despite this diligent search, we were unable to locate responsive documents.” The FOIA request was appealed to the Judge Advocate General of the Navy (Code 34) on April 2, 2008. A Final Administrative Adjudication of that appeal was sent on November 7, 2008 letter from The Department of the Navy Office of General Counsel. In that letter, Deputy General Counsel Anne M. Brennan stated,

“…the Assistant to the General Counsel (FOIA) contacted the IDA [Initial Denying Agency - NAS Key West] regarding the search procedures undertaken to locate responsive documents and confirmed the adequacy of that department’s search procedures. My office also contacted the Assistant General Counsel (Installations and Environmental) who, in turn, contacted the Chief of Naval Operations Environmental Readiness Division (N45). Neither of these offices was able to locate a copy of the pre-release draft [EA].”

Subsequent to the Navy’s declaration that they could not find a copy of that document, this commentator obtained and photocopied the document through another source. These facts were also made known to the DOD Office of Inspector General in an updated complaint, adding the question “Did the Navy destroyed all of their copies of the document that could prove that (contrary to the Navy’s claim) the 2003 Environmental Assessment was never intended to assess the environmental impacts of the Super Hornet at NAS Key West?”]

There is no mention of the F/A-18E/F Super Hornet in the Pre-Release EA.

In April, 2003, after completing their “Assessment” of the potential environmental impacts, and gathering the comments from the eleven agencies listed above, the Navy published the “Environmental Assessment for Support and Infrastructure Improvements - Naval Air Station Key West,” as identified in Secretary Penn’s letter. That document details the potential environmental impacts of dredging and support facilities in the Key West area, but there is no mention of the Super Hornet in the Table of Contents, nor in the “Description of the Proposed Action,” nor in the “Alternatives.” However, at the end of Chapter 4, there are thee pages (sections 4.10.1, 4.10.2 and 4.10.3) in which the Super Hornet is mentioned and there is a general discussion of aviation activities, but no discussion of the potential impacts of the Super Hornet. That isolated, three-page section at the end of Chapter 4 is curiously unrelated and unconnected to the remaining 229 pages of the EA. Among all of the NEPA documents generated over six months in preparing this EA and the subsequent Finding of No Significant Impact [discussed below], this orphaned three-page section is the only place where the F/A-18E/F Super Hornet is mentioned.

Following an Environmental Assessment, NEPA regulations require the agency that has proposed the “action” to either fully evaluate the environmental impacts, by producing an “Environmental Impact Statement,” or - if they have determined that there will be no significant environmental impacts - to publish a “Finding of No Significant Impact” statement.

On April 14, 2003, T.R. Crabtree, Director, Shore Activities Readiness, U.S. Atlantic Fleet signed a “Finding of No Significant Impact” or FONSI, stating that “Based on the information gathered during the preparation of the EA, the Navy finds that fleet support and infrastructure improvements as Naval Air Station (NAS), Key West, will not significantly impact the human environment.”

however

There is no mention of the F/A-18E/F Super Hornet in the FONSI.

Questions

Why isn’t the F/A-18E/F Super Hornet mentioned in the “brief letter” that announced the subject of the Environmental Assessment?

There is no mention of the Super Hornet in the Pre-Release EA, so none of the reporting agencies could possibly have been aware that the aircraft was supposed to be part of the Environmental Assessment. How can it be said that the legal obligations of NEPA were fulfilled, when the agencies responsible for determining if there would be any impacts were not aware that the Environmental Assessment was to involve the F/A-18E/F Super Hornet?

How is it possible that the Navy couldn’t find a copy of the Pre-Release Environmental Assessment, but the author of this commentary could?

Why is there no reference to the F/A-18E/F in the EA Table of Contents?

Why is there no reference to the F/A-18E/F in the EA “Description of the Proposed Action?”

Why is there no reference to the F/A-18E/F in the EA discussion of “Alternatives?”

Who was responsible for placing that three page section in Chapter 4 of the 2003 EA?

Was there an early version of the 2003 Environmental Assessment that did not include the orphaned three-page discussion of the F/A-18E/F Super Hornet. (as claimed by some observers)?

Was the three-page section that mentions the F/A-18E/F (4.10.1, 4.10.2 and 4.10.3) fraudulently inserted in the April, 2003 “Environmental Assessment for Support and Infrastructure Improvements - Naval Air Station Key West” - in the middle of the six-month NEPA documentation series - to give the appearance of having complied with the National Environmental Policy Act?

How is it possible that a much louder airplane, flying more operations, would have “no significant impact?”

The Finding of No Significant Impact letter does not mention the Super Hornet and it is nonsensical to cite a document that does not mention the supposed subject of that document to prove anything about that subject. What is the explanation for the Navy’s claim that the FONSI exonerates the Super Hornet?

&&&&&&&&&&&

These matters have been referred to the Governmental Accountability Office, which has assigned Control number 51428 and to the Department of Defense, Office of Inspector General who have assigned the matter Case number 105900.

Interested parties can contact the GAO (referring to the GAO Control number 51428 in all correspondence) anonymously at
fraudnet@gao.gov

phone number
800 424-5454

or fax number:
202.512.3086

or U.S. Mail:
FraudNET
Government Accountability Office
441 G Street, N.W. mail stop 4T21
Washington, DC 20548

Contact the Department of Defense on this matter (referring to the DOD OIG Case number 105900 in all correspondence) via email
hotline@dodig.mil

or by phone,
800 424-9098

JH

Joint Land Use & the Inspector General

Tue, 3 Feb 2009 15:07:52 -0500

To Whom it May Concern,

An investigation that may clarify the impacts of much-louder airplanes flying at NAS Key West is underway. Until the results of that investigation are known, discussions of land-use are premature and ill-advised.

As a Retired Naval Aviator, I understand and fully support the Navy's need and obligation to restrict development surrounding Naval Air Stations. I've witnessed encroachment problems develop at several facilities, and the consequences of failure to constrain encroachment mean escalating conflicts between the military and civilian communities. It's a continuing source of frustration to aviators when folks knowingly move next to an airport and then complain about the noise. The Air Installation Compatible Use Zones (AICUZ) system is intended to define areas surrounding an air station in which development should be constrained to protect the health, safety and well being of residents, the value of property surrounding the facility and the Navy's operational capability. The current and proposed zone demarkations surrounding NAS Key West were provided by the Navy and are included in the codified 1977 AICUZ, the proposed 2004 AICUZ and the most recently proposed 2007 AICUZ. In a perfect world, the zones would be defined, agreed upon and codified prior to civilian property purchases, future property purchases and development would not encroach on the Navy's operations, and those who purchased property outside of those zones would not be subject to encroachment from the Navy.

The land use issues surrounding NAS Key West are a very untidy mess, because some property-owners’ rights predate the Navy's, development has been proposed within established zones, and inappropriate taller and more intense development has been promoted. In addition, assertions have been made that by introducing the F/A-18E/F Super Hornet to NAS Key West - a much louder airplane than its predecessor the F-14 Tomcat, the Navy's impacts have "overflowed" their self-defined zones. In certain configurations and patterns, Navy data shows the Super Hornet to be more than four times as loud as the Tomcat. While there are valid Navy concerns regarding development near the Naval Air Station, the folks most personally, adversely and unfairly affected are those who, in good faith, purchased homes beyond the published zones and now find themselves effectively within the noise zones because of the much-louder airplanes.

The Navy maintains that their 2003 "Environmental Assessment for Fleet Support and Infrastructure Improvements," and the subsequent release of the April, 2003 "Finding of No Significant Impact," properly evaluated the effects of the louder airplane and found those effects to be minimal. Because of insufficiencies in that report, including the glaring fact that the Navy's "Finding of No Significant Impact" letter does not mention the airplane that they claim is exonerated by that document, the Government Accountability Office (GAO) was asked to investigate. The GAO found sufficient evidence confirming the complaint, assigned it Control Number 51428 and referred the matter to the Department of Defense Office of Inspector General (OIG), who initiated Case number 105900 in November, 2007. OIG, in turn, requested information from the Navy, and during the past year the Navy reported back to the OIG.

On December 1, 2008, the DOD OIG referred the matter back to the Navy requesting more information and asking them to report back within 60 days. After receipt of that additional information (which is now overdue), the DOD OIG will complete their investigation and issue a report, which will then undergo a three-part internal review. The results of their investigation and the report will be made public when all of that is complete. The Department of Defense will then report to the Government Accountability Office.

One possible outcome could be that the Navy is fully exonerated and that no further studies of the impacts of the Super Hornet will be required. However, if OIG or GAO find that the Navy must perform another Environmental Assessment, there are two possible subsequent outcomes. A new Environmental Assessment could result in another "Finding of No Significant Impact." However, if there are significant impacts, the Navy would be required to perform an Environmental Impact Statement. The 2003 Environmental Assessment process took over six months. Environmental Impact Statements often take at least a year, and sometimes much more. If an Environmental Impact Statement is required, the impacts of the Super Hornet on the community surrounding NAS Key West will not be known until at least 18 months from today and land-use decisions without those results would be imprudent.

On Monday, February 2, 2009, I spoke with Mr. Leonard Trahan, the Director of the Defense Hotline - the Department of Defense Office of the Inspector General. While my goal was to obtain a written statement confirming their investigation, he told me that specifically because of the investigation, he was unable to provide such a statement. Nevertheless, he said, "Since the Navy is very aware of the investigation, they should be able to provide confirmation." Why would the Navy embark on a Joint Land Use Study now, when they know that information central to any land use discussions is in question?

While a Joint Land Use Study may ultimately be the best means to unscramble the mess and I support the concept in principle, embarking on such a study is premature until the results of DOD Office of Inspector General Case number 105900 and Government Accountability Office Control number 51428 are made public.

JH