MY COMMENTS ON MUNITIONS RULE

[Lenny Siegel <lsiegel@igc.org>]

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."