|From:||Lenny Siegel <email@example.com>|
|Date:||Fri, 22 Dec 1995 22:00:35 -0800 (PST)|
|Subject:||MY COMMENTS ON MUNITIONS RULE|
NOTE! THIS IS A LONG FILE! TO ALL COMMUNITY ACTIVISTS: BELOW ARE MY DRAFT COMMENTS ON EPA'S PROPOSED MUNITIONS RULE. I WOULD APPRECIATE ANY FEEDBACK IN ADVANCE OF THE SUBMISSION DATE: JANUARY 8, 1996. MORE IMPORTANT, IF THE RULE IS LIKELY TO AFFECT THE AREA IN WHICH YOU LIVE, I SUGGEST THAT YOU SEND IN YOUR OWN COMMENTS. WRITTEN COMMENTS (ONE ORIGINAL AND TWO COPIES) SHOULD BE ADDRESSED TO EPA RCRA DOCKET #F-95- MMP-FFFFF, MAIL CODE 5305W, 401 M STREET, SW, WASHINGTON, DC 20460. ASCII FILES MAY BE SUBMITTED THROUGH TO INTERNET TO RCRA- Docket@epamail.epa.gov. LENNY SIEGEL COMMENTS ON EPA'S PROPOSED MUNITIONS RULE Lenny Siegel December, 1995 Draft EPA's November 8, 1995 Proposed Rule is a disappointment. While earlier drafts had room for improvement, the last minute changes seriously controvert the intent of Congress. Reportedly, those changes were made in closed door, unannounced meetings between Defense Department and EPA officials. As such, they undermined the dialogue that had characterized much of the rulemaking process, in which not only the States - by statute a participant - but representatives of affected communities took part. Parity More generally, the Proposed Rule, if promulgated in its present form, would undermine the spirit of partnership that now characterizes efforts to protect and restore the environment at present and former Department of Defense properties. Over the past few years I have risked my reputation by encouraging impacted communities to overcome their history of adversarial relations with the military - to cooperate. In most cases, both the military and the communities are pleased, and that spirit has promoted more formal cooperation between the armed services and regulatory agencies. As I have counseled community members and officials across the country, cooperation works when there is legal parity between the military and its regulators. If one party "holds all the cards," then the other just digs in its heels. That is the history of Federal cleanup programs in general. Only with the passage of the Federal Facilities Compliance Act and the implementation of the Keystone Center-facilitated Interim Report of the Federal Facilities Environmental Restoration Dialogue Committee, have the programs begun to move forward. The Proposed Rule challenges the concept of parity every time it suggests that the Defense Department be allowed to write its own rule - as in the case of closing ranges - or defers authority to the military. Coupled with the notion that states not be allowed to enforce more rigorous requirements than those established nationally, the management of impact ranges as well as the treatment, storage, disposal, and transportation of munitions wastes and waste munitions could become a political free-for-all. Concerns of the Fighting Military It is clear that the opposition to external regulation comes not from the Pentagon's environmental bureaucracy, which has learned to work with regulators and the public, but from the fighting commands. While I am sure that some of the difficulty lies with "old soldiers" whose arrogance is largely responsible for the enormous hazardous mess that the military has spread over the American landscape, the warriors have three valid concerns. I believe that a strong but thoughtful rule can accommodate those concerns. First, most students of munitions recognize that their normal use - which is training and testing, not actual warfare - creates essentially the same type of environmental, health, and safety hazards as waste management. The military is concerned that its critics - such as people who oppose training range expansion - will use hazardous waste laws and rule to interfere with the military's principal mission. On the surface, that concern is well placed. Communities worried about aircraft noise or the loss of access to public lands may also oppose the release of toxic contaminants in the local or regional environment. Sound enforcement policies need not prevent the military from carrying out its mission, but they could lead to restrictions on when, where, and how certain of those activities take place. I am familiar with cases, such as the use of the Endangered Species Act to restrict infantry activities at Fort Bragg, North Carolina, where environmental laws have actually interfered with military training. However, those restrictions could have been avoided if the military had communicated and cooperated with external parties before the fact. That is, the lack of external oversight led to a situation where severe restrictions became the only option. On the other hand, where the military works with the public, it may be forced to compromise on its use of public lands, but it will be able to continue its principal mission. Second, the military wants to protect the safety of its Emergency Ordnance Disposal specialists. In fact, even the Pentagon's severest critics respect the skill and bravery of these men and women. We don't want to put them at unnecessary risk, either. I have no reason to expect that regulators or the public intend to place any more demands upon these people than they receive from the chain of command. It is not regulation, but a change in the physical requirements of EOD, that is driving the new approach to munitions demilitarization, and this is true of battlefield mine-clearance as well as the remediation of domestic impact ranges. Historically, EOD teams have focused on breaching minefields or providing temporary access to a range, as well as disarming terrorist weapons in civilian areas. Today, around the globe, there is a massive need for technologies and personnel to effect long-term, wide-area clearance. A strong rule will provide the military with an incentive to expand its existing technology development and training efforts in this area. Those efforts, in turn, should enhance the safety of EOD personnel. Third, the military is concerned about the enormous cost of cleanup and environmentally sound demilitarization and disposal. Indeed, maximum requirements with today's technologies would bust the budget. But hazardous waste laws do not impose specific remedies. They merely establish a process through which the parties develop remedies. Communities are willing to accept interim remedies or even institutional controls if they know that the military won't simply walk away from a site. Again, a strong rule would foster the development of new technologies, technologies which would not only be valuable at domestic military bases, but which could be exported for humanitarian use in mine-clearance around the world. In summary, I believe that the military will find that the public is reasonable. If we can be assured that the Defense Department is committed to solving the problems posed by munitions waste, then more often than not we will propose cleanup strategies similar to those offered by the military. We recognize, for example, that current technologies rarely provide cost-effective methods for making impact ranges available for unrestricted use. We want a commitment, however, that the military will develop new technologies and return to sites once they are perfected. If however, we are convinced that once again the military is ignoring our health, safety and environmental concerns, then we will have no choice but to take a confrontational stance. New Information As someone who promotes communication on military environmental issues, I am constantly learning new information regarding military munitions wastes. Some of this information, or new approaches to known information, should influence EPA's consideration of the Final Rule. I have described several such areas below: 1. Training. In initial discussions on the rule, the military iterated its claim that its troops need to "train as they fight." Burning excess artillery propellant during troop exercises, the Army claimed, was a necessary part of training. Since then, however, it has become clear that "training" is a much larger loophole, large enough to drive an Abrams tank through. At some facilities, such as Ft. Carson, Colorado or Makua Valley, Hawaii, virtually all munitions wastes disposal is considered training. The categorical exclusion of training for regulatory oversight, embodied in the proposed rule, would apparently apply to all forms of munitions, not just propellant. Even if artillery propellant burning were considered safe - an unwarranted assumption given the warning issued in the Ozonoff study - that is no reason to exempt from regulation the training of military personnel in the burning of solid rocket fuel, torpedo propellant, napalm, white and red phosphorous, and even chemical weapons. I don't claim that all munitions waste training is "sham training." For example, I can conceive of a need to train EOD teams to destroy chemical munitions discovered on the battlefield. I cannot understand, however, why such there should be no outside oversight of an activity that could expose the public or sensitive ecosystems to irreparable harm. Remember, oversight does not mean that the military would lose its decision-making role, and thus automatically endanger its own personnel. Rather, it would share that authority with regulatory agencies that across the board have shown a great deal of flexibility toward the military's need to carry out its missions and protect its people. While oversight does not normally mean that the military cannot carry out its missions, it does mean that those entrusted to protect human health and the environment are able to regulate the time, place, and manner of waste disposal activities. For example, a regulatory agency should be able to require that a burn pit be located away from surface waters or wetlands. It should be able to limit burning to times when winds lead away from populated, culturally sensitive, or ecologically important areas. And it should be able to insist on methods that limit toxic releases. If the purpose of a training activity is general purpose disposal, as opposed to battlefield disposal, then the regulators should be able require that the military consider a variety of disposal technologies. 2. Inactive Ranges. The proposed rule distinguishes between closed ranges and inactive ranges. Even if EPA drops the proposal that DOD's range rule supersede EPA's regulation, inactive ranges would not be subject to regulation. While I understand the position that bombing and artillery practice not be subject to regulation, the exemption of inactive ranges is a potentially enormous loophole. At many locations, the military had held on to property just to avoid cleanup. For example, on the Pine Ridge Sioux Reservation, the Air Force has retained ownership of a 2,500-acre impact area since World War II. In 1975, a decontamination crew decided it was impractical to clean the site, so the Air Force considers it an inactive range. At the Waikane Valley, on Oahu, the military actually condemned ordnance-contaminated land, returning it to inactive status to avoid cleanup. Clearly, there needs to be some regulatory jurisdiction over military-owned ranges that are inactive. Regulation should be triggered by a period of inactivity - such as three years - or a request from the previous owner for a closure and transfer. Again, oversight would not mandate any particular level of cleanup, but it should require a range management plan. The military should go on record with a schedule and plan for dealing with contamination - that is, a promise to finish the job when technology becomes available. 3. Federal Transfers. The transfer of range property to other Federal agencies, notably the Department of Interior, is another massive loophole. Sometimes these transfers are negotiated administratively; sometimes they are mandated through legislation. Recently, the Army proposed to transfer to Interior about 50,000 acres at the "closed" Jefferson Proving Ground. While it is easy to understand why the Army was not prepared to spend billions of dollars on complete remediation of the land, it wasn't even willing to spare a few million dollars a year to help the Interior Department maintain access controls. This is only one of many former ranges that are being, or are likely to be, declared "wildlife refuges" with neither review of their suitability for wildlife nor plans for protecting public safety. Any such transfer should be accompanied by a public review and planning process, and the military should be financially responsible for the establishment and maintenance of protective measures. Other Federal agencies do not have the resources to manage former ranges, let alone clean them up. In this case, at least, the notion of "cleaning to reuse" is really a ploy to avoid all responsibility. 4. Native Lands. A number of the examples above involve land owned or of special significance to Native American or Native Hawaiians - Pine Ridge, Makua Valley, Waikane Valley. There are many more, throughout the U.S., and there are similar problems on Native Alaskan lands and on island territories such as Puerto Rico. EPA has recently recognized, through its Environmental Justice activities and Indian relations, that native peoples have a unique relationship to the United States government. In general, indigenous peoples also have a special relationship to their land. While "immigrant populations" - that is, those ethnic groups who have arrived since 1492 - often willingly accept relocation in response to economic hardship or environmental deterioration, indigenous people are spiritually and culturally tied to their land. The U.S. has a duty to return to them lands which have been wrested from them - particularly those taken after the U.S. recognized their legal ownership. Thus, there is a higher level of responsibility for cleanup. In consultation with native peoples, the military should, at the very least, develop a long-term plan to remediate and restore such property. 5. Institutional Controls. Since it is often impractical or too costly to thoroughly clear old munitions ranges, the obvious alternative is institutional controls, which include legal tools such as deed restrictions as well as barriers to physical access. One of the most significant values of external oversight is that it can ensure that adequate institutional controls remain in place over the life of the hazard. At any facility that is not actively being patrolled by the armed services, regulators must be in a position to insist upon adequate physical controls. When a military base is active, in the full sense of the word, its perimeters are fenced, posted, and guarded. When such an installation is closed, those forms of protection disappear quickly. At Pine Ridge, there are reports that unknown parties have taken down and sold protective fences. Even at Fort Ord, which closed recently, there is easy public access to impact areas littered with unexploded munitions. At the Jefferson Proving Ground, the Army removed diverters in the streams that flow through the impact areas. Without such diverters, debris is expected soon to tear out fences. 6. Range Fires. From Makua to Maryland, wild range fires appear to be a normal part of range management. Sometimes set, sometimes accidental, these fires remove brush and other vegetation, making clearance and other activities easier. At times range fires may be justified. At other times they may be unavoidable. But without regulation, they are an unpermitted means of disposing of explosive wastes. They release hazardous byproducts into the soil, the air, and both surface and groundwater. Both the setting of such fires and the emergency response to accidental fires should be regulated. 7. Many Types of Munitions. The munitions rule must be broad enough to protect the public from all type of munitions, not merely conventional explosives and chemical weapons. These include solid rocket fuel, "Otto" torpedo fuel, lead-based propellants, napalm, "depleted" uranium shells, phosphorous, etc. These materials, in their waste form - and particularly after combustion - pose a wide range of potential health threats. No single set of studies can prove their waste-products safe, even at low exposures. The rule, therefore, must allow regulatory agencies to evaluate specific waste streams proposed for disposal or storage at each facility. 8. Audit Trail. One of the shortcomings of the options for determining when munitions become a hazardous waste for the purpose of storage is that no matter what, the military itself makes the determination. Using "the removal a munition from storage for the purpose of disposal" is probably the best measure, but there still needs to be a mechanism to prevent manipulation. That is, the military could merely say that certain munitions are being removed for other purposes - for study, for example - and change its mind once those munitions arrive at the point of disposal. To minimize such manipulation, there should be a clear audit trail. Whenever munitions are removed from storage, the military should categorize them in writing - for disposal, study, storage elsewhere, etc. If a facility ends up burning or treating large quantities of munitions which were not originally in the disposal category, that signifies a potential violation of the law. 9. Funding Limitations. The military's attempt to redefine "ordnance and explosive wastes" - it now just says "ordnance and explosives" - could have a significant impact beyond the implementation of hazardous waste laws. At a growing number of active bases, such as the Aberdeen Proving Ground, the military says it cannot use cleanup money - the Defense Environmental Restoration Account - for range clearance because that is not the cleanup of hazardous wastes. While it makes sense that clearance that is integrated into normal range use should come from operational funds, the management of inactive ranges, even at active bases, should be eligible for DERA or similar funding. Clarifying that such wastes are legally "wastes" would help free such money. How Unique Is the Military? Underlying the military's multi-year campaign to escape hazardous waste regulation is its assertion that its munitions activities are unique, unlike any other industry. That's true. But the same can be said by the semiconductor industry, the mushroom industry, and the violin-making industry. Still, all must be regulated to protect public safety, public health, and the environment. The military also contends that its personnel are uniquely trained to deal with munitions and munitions wastes, and thus external regulation is unnecessary. There is no question that the military has enormous expertise on munitions. That's its job. But it often contracts with private companies, some of which are not necessarily subject to the training requirements or discipline of the active-duty military. The munitions rule must be broad enough to apply to those activities, as well. And the military's expertise in dealing with the explosive threat of munitions wastes is not matched by an understanding of the toxic threat of the same wastes. In enacting the Federal Facilities Compliance Act, Congress found that the environment had suffered from the effective exemption of national security activities - at the nuclear weapons complex as well as the Department of Defense - from hazardous waste law enforcement. The Defense Department sought to exempt munitions from the act, and then for Congress to designate the Defense Secretary to write munitions regulations, but Congress, in Conference, explicitly rejected those proposals. In reviewing the various legal arguments about "products" and "discarded material," as well as other legal technicalities, EPA should always keep in mind the principal concern of Congress, as expressed in the Federal Facilities Compliance Act: "Any such regulations shall assure protection of human health and the environment."
Prev by Date: BRAC 95 $$ IN JEOPARDY|
Next by Date: mcClelland info
Prev by Thread: BRAC 95 $$ IN JEOPARDY|
Next by Thread: mcClelland info