COMMENTS ON DOD RANGE RULE

[Lenny Siegel <lsiegel@igc.org>]

DEFENSE DEPARTMENT RANGE RULE
[This is a long file.]

 I have just reviewed the internal, "strawman" draft of the 
Department of Defense (DOD) proposed rule on "Closed, Transferred, 
and Transferring Ranges Containing Military Munitions." A version 
of this will appear in the Federal Register this spring. Following a 60-
day public comment period, DOD will promulgate a final rule by 
November 1, 1996, the same day that EPA's rule on when munitions 
becomes a hazardous waste is scheduled to be made final. For more 
information from DOD, call 800/870-6542.

 As I have said before, once one sets aside the key issue of 
who has the authority to determine range cleanup goals and remedies, 
it makes sense for the Department of Defense to develop policies on 
cleanup. Right now communities with munitions ranges have no idea 
what to expect the military's response to be when unexploded 
munitions are reported or discovered. DOD continues to minimize the 
role of regulatory agencies - making them consultative - but that issue 
will be resolved by EPA's munitions rule and perhaps the courts 
subsequent interpretation of the Federal Facilities Compliance Act. I 
don't want to be overconfident, but I can't imagine that the language 
in that law will be upheld as undermining state regulatory authority.

 While the proposed EPA rules covers numerous issues 
surrounding the treatment, storage, and disposal of waste military 
munitions, the DOD rule specifically covers only the management of 
Closed, Transferred, and Transferring Military Ranges.

 The DOD rule embodies a systematic policy approach that is a 
major step forward in its treatment of munitions ranges, but on the 
whole, the draft is disappointing. It doesn't offer much an 
improvement over the current policy of confusion and neglect. 
Perhaps I was naive to hope for such detail in a proposed rule. 

 In any case, the nation's ability to respond to the hazards of 
unexploded munitions is a function of the resources that the military is 
willing or able to throw into the effort. Since reliable, cost-effective 
technologies for wide area detection and remediation do not yet exist, 
the greatest need is for research and development on such 
technologies. Despite the continuing conflict over regulatory power, 
the military institutions responsible for ranges, regulators, and public 
stakeholders can still work together to expand and improve such R & 
D.

 In its proposal, for the first time DOD proposed to "undertake 
a coordinated effort to identify all land and water areas" with Closed, 
Transferred, and Transferring Military Ranges. It will create a 
centralized tracking system, accessible to the public and other 
government agencies. The tracking system will include, at an 
minimum:

* A unique identifier for each range.
* The common name for the range.
* The status of the range (i.e. closed, transferring, transferred)
* The military point of contact, with contact information
* The states, counties, and municipalities in which the range lies
* A full description of the range's location
* The general types of munitions known to have been used on 
the range
* A list of parties with ownership of administrative control of the 
land or its resources

This tracking system should not only prove valuable in addressing 
individual ranges. It should heighten political awareness, across the 
country, of the magnitude the risk that old ranges represent. No matter 
what happens with the rest of the DOD rule, this systematic 
identification process should be encouraged and applauded.

 Also for the first time (to my knowledge), DOD defines 
Closed Ranges, which are located on active military or National Guard 
installations. "Closed ranges are ranges taken out of service by the 
military and put to new uses that are incompatible with ranges 
activities." In the past, the failure to distinguish such ranges from 
Inactive ranges that could be re-activated has made it difficult for 
military installations to carry out restoration activity on such parcels. 
Furthermore, in the draft proposed rule DOD promises to define, in a 
forthcoming policy, "safety-based management techniques" for 
Inactive and Active ranges.

 The DOD Range rule also would establish a five-step process 
with presumptive response actions. While the draft offers some 
examples, it does not define those responses in detail, and it does not 
even attempt to list specific conditions that would trigger various 
presumptive responses. Perhaps such detail is not appropriate in a 
rule, but it is the absence of such policies, not the absence of 
procedures, that frustrate communities located near munitions ranges. 
For example, without published standards for fencing and posting 
known ranges, the public has no way to evaluate the responses by 
local military commands.

 The third step in the proposed process, Range Evaluation/Site-
Specific Response, is designed to parallel the Feasibility Study carried 
out under CERCLA (the Superfund Law). Most significantly, it adds 
Explosives safety, "an overriding criterion," to the nine evaluation 
criteria used to assess remedial alternatives under the National 
Contingency Plan.

 By retaining the requirement that responses comply with 
federal and state ARARs (applicable, relevant, and appropriate 
requirements), DOD incorporates concerns over water quality, burial 
grounds, and other issues. The proposal is confused, however, by the 
fact that EPA and Congress are considering proposals to trim down 
ARARs to ARs - applicable requirements - only. More important, the 
principal authority for apply this criterion lies squarely, according to 
the proposal, in the hands of DOD.

 In the draft rule's preamble, DOD says it "recognizes there is a 
pressing need to develop a single, quantitative, risk assessment model 
for Military ranges." This model would incorporate both explosive 
risks as well as the risks posed by their hazardous constituents or 
byproducts. Like many others, I am nervous about any model that 
suggests numerical certainty in evaluating environmental risks, but it 
may be that the risk of explosion - a brief, but significant "exposure" - 
may be easier to quantify than the multiple, long-term health affects 
associated with toxic or radioactive exposure. Since at this time DOD 
only proposes to develop such a model in the future, it's impossible to 
rate, let alone critique, its effort.

 The Range rule builds on the generally positive experience the 
military has had with the creation of restoration advisory boards 
(RABs). Where they exist, "they will be utilized to involve the 
regulators and the public" in the proposed process. Where a RAB is 
not present, DOD is considering the formation of Extended Project 
Teams. While similar to RABs, these would focus on specific ranges, 
not installation-wide remedial activities.

 It appears that DOD is fully willing to allow and even 
encourage the involvement of public stakeholders in the Range 
remediation process. Since the public plays an advisory role in other 
cleanup programs, this is consistent and positive. However, putting 
federal and state regulators - or recipient federal agencies - in the same 
pigeon-hole as the public raises once again the issue of self-regulation. 

 In justifying its approach, the Defense Department argues that 
it has unique expertise in the area of military munitions. No one denies 
that. And no one wants to puts its explosives ordnance disposal 
(EOD) specialists at unnecessary risk. But DOD's current level of 
expertise is not enough. That is, relatively little is being done to 
protect the public or the environment from a sleeping giant of an 
environmental problem. At most former military ranges, the only 
answer is to keep the public out of lands that do not or should not 
belong to the military. Even that exclusion, at many locations, is done 
half-heartedly.

 If EPA drops its proposal to allow DOD to regulate itself, 
many of the procedures and presumptive remedies outlined in the 
DOD proposal are worth further development and eventual 
implementation. But neither of the rules will do much to protect the 
public or the environment unless the nation makes a political 
commitment - backed up by resources - to find reliable, cost-effective 
technologies for wide-area, deep clearance of former munitions 
ranges.

Lenny Siegel