UPDATE ON MUNITIONS RULE

[Lenny Siegel <lsiegel@igc.org>]

UPDATE ON THE MUNITIONS RULE

Since my last posting on the proposed munitions rule, both the 
Environmental Protection Agency (EPA) and the Department of 
Defense (DOD) have been active on the issue. Since the rule is still 
scheduled for publication in the Federal Register by the end of 
October, I would be interested in hearing from community 
organizations and Indian tribes whose communities are likely to be 
impacted by the rule. What are the real world problem that an 
improved rule should help resolve? - Lenny Siegel

EPA

1. In the July 27, 1995 version of the rule submitted to the Office of 
Management and the Budget for review prior to publication, EPA 
made one significant departure from the May 24, 1995 version. It has 
decided that DOD munitions wastes, other than non-stockpile items, 
should be exempt from RCRA (Resource Conservation and Recovery 
Act) transportation manifest requirements because it concluded, "DOD 
transportation and inventory controls are at least equivalent to the 
RCRA manifest controls, and on the safe transportation record of 
DOD." Non-stockpile munitions include excavated wastes and 
munitions cleared from ranges.

At this point, I have no reason to disagree with this position. The 
military has every reason to tightly control the shipment of munitions. 
Thus far, I don't know of any cases where community organizations 
have raised transportation problems.

2. I have also informally learned why EPA is unwilling to recommend 
that environmental agencies not regulate the open burning of artillery 
propellant during training exercises. It found the Ozonoff study of 
Otis Air Force Base/Camp Edwards, Massachusetts, to be 
unconvincing. Admittedly, the study was based on a small sample, 
but when it was released activists sought wider studies. I believe that 
the study provided an indication that propellant burning may increase 
the risk of cancer. Before exempting any form of open burning from 
regulation, more studies should be done. Otherwise, the neighbors of 
training areas will continue to be used as guinea pigs.

DOD

In an apparent misunderstanding of an EPA request for a much 
smaller written submission, the Defense Department has ghost-written 
an alternative version of the munitions rule. Even if EPA had 
requested such a document, it should be rejected outright. When 
Congress passed the Federal Facilities Compliance Act in 1992, it 
clearly rejected the Defense Department's suggestion that it develop 
the language. By law, its role is clearly consultative.

The DOD version, dated August 18, 1995, is extremely confusing, 
because it is written as if it were an EPA proposal, referring to DOD's 
position as a distinct set of views.

The DOD rule incorporates the department's previous critiques of EPA 
drafts. For example, it reads "As such, for purposes of CERCLA [the 
Comprehensive Environmental Response, Compensation, and 
Liability Act], EPA [read: DOD pretending to be EPA] interprets a 
military range and impact area to be a facility and, thus, believe its 
CERCLA authority extends only to releases of hazardous substances 
from a military range or impact area (i.e., facility), not to expended 
military munitions of unexploded ordnance on such range or impact 
area." EPA and state regulators have thus far rejected DOD's 
contention that unexploded munitions are not hazardous.

DOD defends its position by asserting, "from an environmental 
perspective, it makes no difference whether ordnance explodes on 
impact or is subsequently detonated by an EOD specialist." DOD is 
right in most cases, but it fails to acknowledge the consequences.

The American public might be willing to accept environmentally risky 
activity if, as a genuine training or testing exercise, it is essential to 
national security, but not if the risk can be avoided without interfering 
with DOD's primary mission.

I think munitions are both toxic and explosive hazards, and if DOD 
insists on treating all munitions alike, I think the solution might be to 
regulate DOD's bombing and firing to protect the environment. We 
regulate environmental hazards caused by other essential activities, 
such as hospitals. Why can't those responsible for protecting public 
health and the environment place reasonable limits on the timing, 
location, and even the magnitude of military firing exercises - where it 
can be shown they pose significant risks.

Finally, the magnitude of DOD's counteroffensive on the Munitions 
Rule emphasizes a historically disheartening fact: It can easily outgun 
EPA - throwing significantly more resources at the issue whenever it 
wants. As someone who has advocated adequate funding for 
environmental security at the Department of Defense, I am 
disappointed that a good chunk of that money is being used to argue 
for the continuing, unfettered right to create unregulated risks.